X. S.A. v. THE NETHERLANDS
Doc ref: 21472/93 • ECHR ID: 001-2594
Document date: January 11, 1994
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AS TO THE ADMISSIBILITY OF
Application No. 21472/93
by X. S.A.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 January 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 16 November 1992
by X. S.A. against the Netherlands and registered on 5 March 1993 under
file No. 21472/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, X. S.A., a limited company incorporated under the
laws of Luxembourg, has its registered office in Luxembourg. Before
the Commission the applicant company is represented by MM. A.J.H.W.M.
Versteeg and M. van Empel, who are lawyers, practising in Amsterdam.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
The applicant company was founded by Dutch legal persons as a
limited company under the laws of Luxembourg under the name F. S.A. and
funded by Dutch investors. The applicant company changed its name on
1 September 1989 to X. S.A.
It holds an authorisation, granted by the Luxembourg authorities,
to transmit its television programmes via the Luxembourg cable
networks, and to this end the applicant company concluded contracts
with Luxembourg cable network operators. These broadcasts were
scheduled to start on 28 October 1989. Once transmitted in Luxembourg,
the programmes were to be broadcast to the general public via the Astra
satellite, which is operated by the Société Européenne de Satellite,
and with which corporation the applicant company had concluded an
agreement for the transmission of its programmes.
On 28 September 1989 the Commissariat for the Media
(Commissariaat voor de Media), referring to the criteria formulated by
the Judicial Division of the Council of State (Afdeling Rechtspraak van
de Raad van State) in the latter's decision of 30 August 1989
concerning the broadcasting corporation "Cable One" and after noting
that the applicant company's executive management is mainly in the
hands of two Dutch nationals, that the programmes at issue will mainly
be transmitted to cable networks in Luxembourg and the Netherlands,
that the applicant company had only concluded agreements with cable
network operators in Luxembourg and the Netherlands and not in Flanders
or any other places in Europe, that the programmes are mainly aimed at
a Dutch audience, that the major part of the employees of the applicant
company come from the Netherlands, that the canvassing for commercials
will take place in the Netherlands and that in August 1989 the
applicant company, declaring that it wished to avoid possible problems,
had moved its activities from the Netherlands and Italy to Luxembourg,
decided that the applicant company could not be regarded as a foreign
broadcasting corporation within the meaning of Section 66 para. 1 of
the Media Act (Mediawet). This decision implied that Dutch cable
networks were not permitted to transmit the applicant company's
programmes.
By letter of 9 October 1989 the applicant company filed an appeal
under the Administrative Decisions Appeals Act (Administratieve
Rechtspraak Overheidsbeschikkingen) against this decision with the
Judicial Division of the Council of State.
Having considered the parties' oral and written submissions, the
Judicial Division, in an interim decision of 11 May 1992, decided to
stay the examination of the applicant's appeal. In this interim
decision the Judicial Division rejected the applicant company's
complaint that the Commissariat for the Media's decision of
28 September 1989 was contrary to Article 10 and Article 14 of the
Convention and, insofar as the applicant company complained that the
decision was contrary to EC regulations, decided to request a
preliminary ruling by the Court of Justice of the European Communities
in Luxembourg. These proceedings are currently pending.
The Judicial Division noted that the applicant company, which is
no broadcasting institution within the meaning of the Media Act,
presented itself as a new national broadcasting corporation,
established at Aalsmeer, the Netherlands, with the explicit intention
to be an innovation in the Dutch national television system and that
it had immediately stopped its planned broadcasts after the decision
of 28 September 1989 of the Commissariat for the Media. Having regard
to these elements, the parties' submissions to the Judicial Division
and its considerations in its decision of 30 August 1989 in a similar
case (RO1.89.1485/Sp 90), the Judicial Division upheld the finding of
the Commissariat for the Media, that the applicant company had
established itself abroad with the apparent intention to circumvent the
Dutch rules for domestic broadcasting institutions and that, therefore,
the applicant company's programmes could not be regarded as programmes
of a foreign broadcasting corporation within the meaning of Section 66
para. 1(a) of the Media Act.
The Judicial Division distinguished the applicant company's case
from that of RTL-Véronique, observing that the responsible broadcasting
corporation for that programme is the Compagnie Luxembourgeoise de
Télédiffusion S.A., a company which is registered in Luxembourg and was
already in 1931 established under the laws of that country.
Under Article 10 of the Convention, considered separately or in
conjunction with Article 14 of the Convention, the Judicial Division,
referring to its reasoning in its decision of 5 September 1990
(RO1.89.5554/Sp 295), held that the interference with the applicant
company's rights under Article 10 para. 1 was justified under para. 2
of this article as being necessary for the prevention of disorder and
for the protection of the rights of others. In respect of Article 14
of the Convention, the Judicial Division held that the difference made
between Dutch and foreign broadcasting institutions has an objective
and reasonable justification, namely the fact that certain
restrictions, contained in the rules of the Dutch broadcasting system,
for Dutch broadcasting institutions cannot be imposed on foreign
broadcasting corporations as a result of EC rules. The Judicial
Division added that the applicant company, as a non-foreign
broadcasting corporation, was subject to the same rules as domestic
broadcasting institutions, and that, therefore, there was no difference
in treatment between the applicant company and domestic broadcasting
institutions.
RELEVANT DOMESTIC LAW
Public broadcasting in the Netherlands is governed by the Media
Act, which aims at a national public broadcasting system based on
openness, diversity, non-commerciality and co-operation in order to
guarantee full expression of the various shades of political, social
and religious or philosophical opinions in the Netherlands. It lays
down the requirements which have to be met by broadcasting institutions
who wish to gain access to the Dutch public broadcasting system. If a
broadcasting institution meets the requirements of the Media Act,
broadcasting time and certain funds to finance broadcasting activities
are allocated by the Commissariat for the Media.
Under the Media Act broadcasting institutions are under the
obligation to provide a full programme and to eschew advertising. Only
the Television and Radio Advertising Association (Stichting
Etherreclame "STER") is allowed to broadcast commercials. The proceeds
of these commercials is one of the sources for the funds the
Commissariat for the Media allocates to broadcasting institutions.
Section 134 para. 1 of the Media Act entrusts the supervision of
the observance of the Media Act to the Commissariat for the Media,
which organ can impose a fine where it considers that the Media Act has
been violated.
Section 65 of the Media Act, insofar as relevant, reads:
"1. The operator of a cable network transmits
simultaneously and in full length to all connected to the
cable network:
a. the programmes of institutions which have obtained
broadcasting time for national broadcasts;
b. the programmes of institutions which have obtained
broadcasting time for local and regional broadcasts (...);
(...)
d. the television programmes of the Dutch language section
of the Belgian public broadcasting service, insofar as
these can be received directly most of the time with a
reasonable quality at the place where the cable network is
located by the use of an antenna which can be considered as
regular having regard to the capacity of the cable network
(...).
(...)
3. The operator of a cable network shall not transmit the
European programme (within the meaning of Section 16 para.
2 (e)), when this programme does not comply with the
requirements of Section 66 para. 1 (b) (...)."
Section 66 of the Media Act, insofar as relevant, provides:
"1. The operator of a cable network can:
a. transmit programmes which have been broadcast by a
foreign broadcasting institution by way of a broadcasting
station which can be received directly most of the time
with reasonable quality at the place where the cable
network is located by a regular individual antenna situated
at that place;
b. transmit other programmes than those referred to under
a. which have been broadcast, in accordance with the
legislation there in force, by a foreign broadcasting
institution or a composition of such institutions. Insofar
as these programmes contain commercials, the transmission
thereof is only allowed when the commercials are dealt with
by a separate legal entity, when the commercials are
clearly identifiable as such and can be clearly
distinguished from other programme parts and are not
broadcast on Sundays, when the allocated broadcasting time
for commercials is at most five percent of the total
broadcasting time (...) and the proceeds thereof are fully
used for the production of the programme.
If however the above requirements are not met the
transmission of such a programme is also allowed when the
commercials it contains are not specifically aimed at a
Dutch audience.
2. For the application of what is contained in para. 1 (b)
a commercial will in any event be considered as
specifically aimed at a Dutch audience when the commercial
is broadcast during or following a programme part or a
connected whole of programme parts in which Dutch subtitles
or an item in the Dutch language occur.
3. Our Minister can grant an exemption from the prohibition
as contained in para. 1 (b) in respect of broadcasting
programmes which are broadcast in Belgium and aim at the
Dutch speaking audience in Belgium."
Section 70 para. 1 of the Media Act reads:
"With the exception of the programmes referred to in this
Chapter (Sections 65 up to and including 75), the operator
of a cable network shall not simultaneously broadcast other
programmes to more than one connected receiver."
In its decision of 30 August 1989 (RO1.89.1485/Sp 90) the
Judicial Division established the following criteria to be met by
broadcasting institutions if they are to be regarded as possessing
foreign status:
- the institution must be established under foreign law;
- the institution must be established abroad;
- the institution must keep its accounts abroad and be liable to local
taxes;
- there must be no indication that the institution has been established
abroad with the evident intention of evading the statutory
regulations applicable in the Netherlands to national broadcasting
institutions;
- the institution's programme schedule must first be broadcast abroad
and then transmitted from there to Dutch cable networks.
The wording of Section 66 para. 1(b) of the Media Act has
recently been altered in that the rules in respect of commercials
appearing in broadcasts of foreign broadcasting institutions are no
longer included in the text of this provision. At present, in order to
be eligible for transmission on Dutch cable networks, Dutch national
broadcasting institutions must comply with the requirements under Dutch
law and foreign broadcasting institutions must comply with the
legislation of their own country.
The recent changes in the Media Act have not altered the position
adopted by the Dutch authorities in respect of broadcasting companies,
which are considered as being in fact Dutch broadcasting companies
having established themselves abroad with the intention of evading the
rules for domestic broadcasting institutions. Such companies are not
regarded as foreign broadcasting institutions, but as national
broadcasting institutions subject to the Dutch rules on broadcasting.
COMPLAINTS
1. The applicant company complains that its rights under Article 10
of the Convention are unjustly interfered with, since, in view of the
Judicial Division's decision of 11 May 1992, cable networks in the
Netherlands cannot transmit the applicant company's programmes without
exposing themselves to the risk of a fine being imposed on them by the
Commissariat for the Media for failure to respect the Media Act.
2.2. The applicant company complains under Article 14 in conjunction
with Article 10 of the Convention that the Netherlands authorities'
decision not to consider it as a foreign broadcasting company was
discriminatory as two other broadcasting companies in a similar
position, RTL-Véronique and Radio 10, were allowed on Dutch cable
networks as foreign broadcasting companies.
THE LAW
1. The applicant company complains that the Netherlands authorities'
decision not to consider it as a foreign broadcasting company and
thereby preventing their programmes from being transmitted by Dutch
cable networks constitutes an unjust interference with its rights under
Article 10 (Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention provides 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 Commission notes that a preliminary ruling has been requested
from the Court of Justice of the European Communities as to whether the
refusal to accept the applicant company as a foreign broadcasting
company is in conformity with EC rules and that the applicant's case
before the Judicial Division of the Council of State has therefore not
yet been finally decided. In these circumstances, the question could
arise as to whether the applicant company has exhausted the domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention.
However, the Commission does not find it necessary to answer this
question, since the application is in any event inadmissible for the
following reasons.
The Commission recalls that both broadcasting programmes over the
air and cable retransmissions of such programmes are covered by the
right enshrined in the first two sentences of Article 10 para. 1
(Art. 10-1) of the Convention (Eur. Court H.R., Groppera Radio AG and
Others judgment of 28 March 1990, Series A no. 173, p. 22, para. 55).
It finds that there has been an interference with the applicant
company's rights under these two sentences.
The Commission further recalls that the purpose of the third
sentence of Article 10 para. 1 (Art. 10-1) of the Convention is to make
it clear that States are permitted to control by a licensing system the
way in which broadcasting is organised in their territories,
particularly in its technical aspects (ibid. p. 24, para. 61), and that
since a State may enact legislation requiring the licensing of
broadcasting enterprises, it must also be legitimate for that State to
enact legislation which ensures compliance with the licence in
question, in particular by preventing means of circumventing the
conditions stated in the licence (cf. No. 10799/84, Dec. 17.5.84, D.R.
37 p. 236).
The Commission notes that, although the applicant company is
incorporated under the laws of Luxembourg, the broadcasting of its
programme via Dutch cable networks came under Dutch jurisdiction. The
implicit prohibition to diffuse its programmes via Dutch cable networks
was fully consistent with the rules of the Dutch Media Act, given that
the applicant company, on the basis of its particular features, was not
considered by the Judicial Division to be a foreign broadcasting
company within the meaning of the Media Act and was therefore subject
to the broadcasting rules of the Netherlands. However, the Judicial
Division's decision was not based on technical considerations and the
third sentence of Article 10 para. 1 (Art. 10-1) of the Convention, in
the interpretation given to it by the Court, cannot be regarded as a
sufficient justification of the implicit prohibition (Eur Court. H.R.,
Informationsverein Lentia and Others v. Austria, judgment of 24
November 1993, to be published in Series A no. 276, para. 32).
The question therefore arises whether the interference complained
of was justified under para. 2 of Article 10 (Art. 10-2) of the
Convention, namely whether it was "prescribed by law" and necessary in
a democratic society for one or more of the legitimate aims specified
in this provision.
The Commission notes that the decision of the Judicial Division
of 11 May 1992, in which it found that the applicant company could not
be considered as a foreign broadcasting company, was based on the Media
Act. It is true that the Media Act does not contain a definition of a
"foreign broadcasting company", but the mere fact that a legislative
provision may give rise to problems of interpretation does not mean
that it is so vague and imprecise as to lack the quality of "law" in
this connection (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51 p.
136 with further references). The Commission finds that, in the present
case, there was a sufficient legal basis and that the interference at
issue was therefore "prescribed by law" within the meaning of Article
10 para. 2 (Art. 10-2) of the Convention.
The Commission notes that the interference complained of was
based on the Media Act which is aimed at maintaining a pluralistic and
non-commercial broadcasting system and at protecting the diversity of
expression of opinion in the Dutch broadcasting system. It therefore
finds that the legitimate aim pursued was the protection of the rights
of others within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention.
As to the question whether the interference complained of was
"necessary", the Commission recalls that the term "necessary in a
democratic society" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention implies that the interference must
correspond to a "pressing social need" and be proportionate to the
legitimate aim pursued. In determining whether an interference is
"necessary" in a democratic society the Convention organs must also
take into account that a margin of appreciation is left to the
Contracting States. This margin of appreciation is of particular
relevance in an area as complex and fluctuating as that of radio and
television broadcasting, which is confirmed by Article 10 (Art. 10) of
the Convention itself, in that it envisages in the third sentence of
paragraph 1 (Art. 10-1-3) a licensing system for broadcasting
enterprises.
In the present case the applicant company complains of not being
considered as a foreign broadcasting company and, consequently, not
being allowed to broadcast its programmes via the Dutch cable network
as a foreign broadcasting company. The Commission notes that the recent
changes in the Media Act have not affected the position of broadcasting
institutions established abroad with the evident intention of evading
the Dutch statutory regulations for national broadcasting institutions.
They are not regarded as foreign broadcasting institutions, but as
national broadcasting institutions subject to the rules on broadcasting
applicable to such institutions.
The Commission further notes that, while the applicant company
is incorporated under the laws of Luxembourg where it is also
officially registered, the envisaged programmes at issue were primarily
aimed at a Dutch audience. In these circumstances and having regard
to the fact that both the applicant company and its programmes have
other strong links with the Netherlands, the Dutch authorities could
reasonably consider that these broadcasts should be subject to those
rules which normally apply to Dutch broadcasting institutions. There
is no indication that these rules, insofar as they are relevant to the
present case, involve restrictions which would be in violation of
Article 10 (Art. 10).
Under these circumstances, the Commission considers that the
interference at issue may reasonably be regarded as necessary in a
democratic society for the protection of the rights of others.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2.2. The applicant company further complains under Article 14 in
conjunction with Article 10 (Art. 14+10) of the Convention that the
Netherlands authorities' decision not to consider it as a foreign
broadcasting company was discriminatory as two other broadcasting
companies in a similar position, RTL-Véronique and Radio 10, were
accepted on Dutch cable networks as foreign broadcasting companies.
Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) does not forbid
every difference in treatment in the exercise of the rights and
freedoms guaranteed by the Convention. It refers in this connection to
the case-law of the Court concerning the criteria for assessing a
difference in treatment, i.e. an objective and reasonable justification
of a measure and a reasonable relationship of proportionality between
the means employed and the aim sought to be realised (cf. Eur. Court
H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series
A no. 94, p. 35, paras. 71-72; and Fredin judgment of 18 February 1991,
Series A no. 192, p. 19, para. 60).
The Commission notes that the Judicial Division found a
significant difference between the applicant company and RTL-Véronique.
In view of this finding, the Commission is satisfied that the
distinction made between RTL-Véronique and the applicant company, in
that the former, unlike the latter, was accepted as a foreign
broadcasting company, was based on objective and reasonable grounds.
It follows that in this respect there is no appearance of
discrimination contrary to Article 14 (Art. 14) of the Convention.
Insofar as the applicant company complains that there was a
discriminatory difference in treatment between Radio 10 and itself, the
Commission notes that the applicant company has not raised this point
before the national courts and, therefore, in this respect, has failed
to exhaust domestic remedies as required by Article 26 (Art. 26) of the
Convention.
It follows that the complaint regarding discrimination is partly
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention and partly inadmissible according to
Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)