Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19182/91

by Telesystem Tirol Kabeltelevision

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 November 1991

by Telesystem Tirol Kabeltelevision against Austria and registered on

10 December 1991 under file No. 19182/91;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

14 July 1994 and the observations in reply submitted by the

applicant on 10 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant company, a television company with limited

liability, has its seat at Wörgl in Austria. Before the Commission it

is represented by Ms E. Berchtold-Ostermann, a lawyer practising in

Vienna.

A. Particular circumstances of the case

The applicant company was issued an authorization to establish

a community antenna (Gemeinschaftsantennenanlage) in the area of Wörgl.

As such, the applicant company picked up television programmes which

it transmitted to recipients by means of cable TV.

On 11 January 1989 the applicant company transmitted to its

clients via cable TV information concerning inter alia the confessional

hours of the Wörgl parish; new year's wishes of a Wörgl business

association; the schedule of a ski jumping competition; the schedule

of the play "If I were you, doctor" ("wenn ich Sie wäre, Herr Doktor")

of the local drama group; and the closure of a local skilift on account

of repairs.

On the same day the Tirol and Vorarlberg Regional Postal

Administration (Post- und Telegraphen Direktion für Tirol und

Vorarlberg) informed the applicant company that the broadcasting of

this kind of information was irregular.

On 12 January 1989 the applicant company filed a request to

introduce (einspielen) its own programmes into its cable TV. This

request was dismissed on 16 January 1989 by the Regional Postal

Administration on the ground that Section 20 para. 1 of the Radio

Broadcasting Ordinance (Rundfunkverordnung, see below Relevant domestic

law and practice) permitted community antennae only to pick up

programmes and transmit them to clients, not to introduce their own

programmes into the cable network.

The applicant company filed an appeal against this decision which

was dismissed on 17 February 1989 by the General Direction of Post and

Telecommunications (Generaldirektion für die Post- und Telegraphenver-

waltung). In its decision the General Direction referred in particular

to the decision of the Constitutional Court of 16 December 1983 (see

below, Relevant domestic law and practice).

The applicant company filed a further appeal which was dismissed

by the Constitutional Court (Verfassungsgerichtshof) on

26 November 1990. The Court considered that in the light of its own

decision of 16 December 1983 the appeal offered no prospects of success

and referred the case for decision to the Administrative Court

(Verwaltungsgerichtshof).

On 18 September 1991 the Administrative Court dismissed the

appeal. The Court considered that the applicant company, rather than

receiving and transmitting information, creatively prepared programmes

destined for the general public. In the light of the Constitutional

Court's decision of 16 December 1983 the authorization to broadcast

could not therefore be granted.

B. Relevant domestic law and practice

1. Telecommunications Act of 13 July 1949 ("Fernmeldegesetz")

According to Section 2 para. 1 of the Telecommunications Act,

"the right to set up and operate telecommunication installations is

vested exclusively in the federal authorities" ("Das Recht,

Fernmeldeanlagen zu errichten und zu betreiben steht ausschliesslich

dem Bunde zu"). Section 3 envisages the authorization for private

persons or institutions to operate broadcasting installations. Section

5 lists instances where broadcasting installations may be set up

without authorization, e.g. within the boundaries of a private

property.

2. Private Telecommunication Installations Ordinance (1961)

("Verordnung des Bundesministeriums für Verkehr und Elektrizitäts-

wirtschaft über Privatfernmeldeanlagen")

The Ordinance on Private Telecommunication Installations of 1961

concerns all broadcasting installations which, on the basis of the

Telecommunications Act, are subject to Federal supervision (Section 1).

The Ordinance states inter alia the conditions for the setting up and

operation of private broadcasting installations. However, according

to the decisions of the Austrian courts and administrative authorities,

these provisions cannot constitute the basis for granting licences to

private applicants.

3. Constitutional Broadcasting Act of 10 July 1974 ("Bundesverfas-

sungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks")

Section 1 of the Constitutional Law of 10 July 1974 states:

"(2) Broadcasting shall be governed by more detailed rules to be

set out in a federal law. Such a law must inter alia contain

provisions guaranteeing the objectivity and impartiality of

reporting, the diversity of opinions, balanced programming and

the independence of persons and bodies responsible for carrying

out the duties defined in paragraph 1.

(3) Broadcasting within the meaning of paragraph 1 shall be a

public service."

"(2) Die näheren Bestimmungen für den Rundfunk und seine

Organisation sind bundesgesetzlich festzulegen. Ein solches

Bundesgesetz hat insbesondere Bestimmungen zu enthalten, die die

Objektivität und Unparteilichkeit der Berichterstattung, die

Berücksichtigung der Meinungsvielfalt, die Ausgewogenheit der

Programme sowie die Unabhängigkeit der Personen und Organe, die

mit der Besorgung der im Abs. 1 genannten Aufgaben betraut sind,

gewährleisten.

(3) Rundfunk gemäss Abs. 1 ist eine öffentliche Aufgabe."

4. Radio Broadcasting Ordinance of 1965 ("Rundfunkverordnung")

Section 20 para. 1 of the Radio Broadcasting Ordinance provides

that the radio signals received must be transmitted immediately,

completely and unaltered to the recipients.

According to S. 24 a of the Radio Broadcasting Ordinance, in the

version of the amendment which entered into force on 31 July 1993,

Federal Law Gazette (Bundesgesetzblatt) No. 507/1993, holders of an

authorization to operate a community antenna may, without any special

permit, disseminate cable text, using their own installations

(paragraph 1). Cable text includes services designed to impart

information to the inhabitants of a community or region by means of

written or graphical signs and symbols as well as by text screens

provided as an additional service to subscribers (via a separate

channel an using the vertical interval of the TV signal) (paragraph 2).

5. Broadcasting Corporation Act of 1974 ("Bundesgesetz über die

Aufgaben und die Einrichtung des Österreichischen Rundfunks")

The Broadcasting Corporation Act sets up the Austrian

Broadcasting Corporation as an economic unit with legal personality

entrusted with the function of supplying the public with broadcasts.

These broadcasts must comply with certain criteria, for instance with

regard to the number and quality of programmes. The programmes must

inform the public comprehensively of all important political, economic,

cultural and sports events by objective selection and dissemination of

news and reports.

6. Constitutional Court's decision of 16 December 1983

(No. 9909/1983)

The Constitutional Court's decision of 16 December 1983 concerned

programmes introduced into an internal cable television system. The

Court found inter alia that the aim of the Austrian Constitutional

Broadcasting Act was to introduce a licensing requirement within the

meaning of Article 10, para. 1, last sentence. This aim could not be

achieved if, in the absence of legislation, everybody was entitled

freely to broadcast. So far, a law had only been enacted for the

Austrian Broadcasting Corporation. It followed that only the latter

could operate broadcasting.

According to the Constitutional Court's decision, broadcasting

included active cable broadcasting which therefore fell within the

scope of the Constitutional Broadcasting Act and its implementing

legislation. Under the Telecommunications Act and the Ordinance on

Private Telecommunication Installations the telecommunications

authorities were competent to grant broadcasting licences. An

authorization for the setting up and operation of broadcasting

installations could not be granted by the authorities before a federal

law on the subject had been enacted.

COMPLAINTS

The applicant company complains under Article 10 of the

Convention that under Austrian law they are not permitted to broadcast

programmes. Rather, in Austria broadcasting is exclusively limited to

the Austrian Radio Broadcasting Corporation.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 November 1991 and registered

on 10 December 1991.

On 7 April 1994 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 14 July 1994, after an extension of the time limit, the

Government submitted their observations. The observations in reply by

the applicant were submitted on 21 April 1994;

THE LAW

The applicant company complains under Article 10 (Art. 10) of the

Convention that it was not permitted under Austrian law to broadcast

its own programmes, with a view to the general broadcasting monopoly

of the Austrian Broadcasting Corporation.

Article 10 (Art. 10), so far as relevant, reads as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Government submit that the applicant company can no longer

claim to be a victim of a violation of its Convention rights within the

meaning of Article 25 (Art. 25) of the Convention. The Government

point out that an amendment to the Radio Broadcasting Ordinance

(Federal Law Gazette No 707/1993) entered into force on 31 July 1993.

A new S. 24 a of this Ordinance allows the operators of community

antennae to broadcast cable text with their facilities without prior

permission. According to S. 24 a para. 2 the term cable text means

"services designed to impart information to the inhabitants of a

community or a region by means of written or graphical signs or symbols

as well as by text screens provided as an additional service to

subscribers (via a separate channel ...)". According to the Government

the programme, which the applicant company was prohibited from

broadcasting, would fall within the scope of the new law.

The applicant company contests the Government's view. It submits

in particular that the programme at issue also contained advertising

for a number of events, whereas the above mentioned S. 24 a para. 2 of

the Radio Broadcasting Ordinance does not allow commercial advertising

via cable text. Further, S. 24 a para. 2 does not allow to send films.

The applicant company still considers itself to be a victim of a

violation of its right to freedom of expression as regards these

restrictions. Moreover, it submits that the prohibition from

broadcasting the information at issue lasted until the amendment of the

Radio Broadcasting Ordinance entered into force.

The Commission recalls that someone, who has obtained adequate

redress for an alleged violation of the Convention can no longer claim

to be a victim (No. 10668/83, Dec. 13.5.1987, D.R. 52 p. 177; No.

12719/87, Dec. 3.5.1988, D.R. 56 p. 237).

In the present case the applicant company was prohibited from

broadcasting programmes, which mainly contained information on local

events, in January 1989 in accordance with S. 20 para. 1 of the

Austrian Radio Broadcasting Ordinance, while the amendment to the said

Ordinance only entered into force on 31 July 1993. As regards this

period, the contested prohibition was in accordance with Austrian law

and the applicant company did not receive any redress or compensation

for the alleged interference with its right to freedom of expression.

Moreover, it cannot be said that the entry into force of the amendment

of the Radio Broadcasting Ordinance resolved the applicant company's

case, as it appears from the applicant company's submission that the

broadcasting of some parts of the programmes at issue, e.g.

advertisements, might again be prohibited.

In these circumstances, the Commission finds that the applicant

company can still claim to be a victim of a violation of its Convention

rights within the meaning of Article 25 (Art. 25) of the Convention.

As regards the compliance with Article 10 (Art. 10), the parties

have not made specific submissions. However, the Commission considers

that this issue raises questions of fact and law which can only be

determined by an examination of the merits. It follows that the

complaint cannot, therefore, be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA

TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA

LEXI