RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA AND MODERATA SAMLINGSPATIET, TROSA-VAGNHÄRAD v. SWEDEN
Doc ref: 18424/91 • ECHR ID: 001-1473
Document date: January 15, 1993
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AS TO THE ADMISSIBILITY OF
Application No. 18424/91
by RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA and
MODERATA SAMLINGSPARTIET, TROSA-VAGNHÄRAD
against Sweden
The European Commission of Human Rights sitting in private on
15 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
M. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 March 1991 by
RÖDA KORSETS UNGDOMSFÖRBUND, GNESTA and MODERATA SAMLINGSPARTIET,
TROSA-VAGNHÄRAD against Sweden and registered on 27 June 1991 under
file No. 18424/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 15 April and 17 September 1992 and the observations
submitted by the applicant on 21 August 1992;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is the local youth section of a non-profit
association, and the second applicant is the local section of a
political party. Before the Commission they are represented by
Mr. Percy Bratt, a lawyer practising in Stockholm.
A. The particular facts of the case
A local radio transmitter at Vagnhärad/Nyköping is run by a non-
profit association, Ö.S. The applicants and other non-profit
associations, are members of Ö.S. and were licensed to broadcast
community radio (närradio) over the transmitter.
Through the press and by letters from Ö.S. the Community
Broadcasting Commission (närradionämnden), hereinafter the CBC, had
been informed that the applicants intended to broadcast commercials
over the transmitter at Vagnhärad/Nyköping.
On 20 and 21 June and on 1 July 1990 the CBC registered radio
programmes containing commercials broadcast over the transmitter at
Vagnhärad/Nyköping. Because of this, the applicants and other
associations licensed to broadcast community radio over that
transmitter, were invited by the CBC to submit their observations
before or at a meeting at which the question of a withdrawal of their
broadcasting licences was to be examined.
On 5 July 1990 the CBC held the meeting. The applicants and Ö.S.
argued, in essence, that the licences should not be withdrawn as the
prohibition to broadcast commercials was incompatible with the
Instrument of Government (regeringsformen) and with the European
Convention on Human Rights.
After deliberations in camera the CBC decided, on 5 July 1990,
to withdraw the applicants' broadcasting licences for one year, inter
alia for the following reasons:
(translation)
"According to Section 10 of the Community Radio Act
[närradiolagen, hereinafter the CRA,] it is prohibited to
broadcast commercial advertising on the community radio. If
this rule is infringed, the licence to broadcast community
radio may be withdrawn according to Section 13 of the same
Act.
The CBC notes that [among others, the applicants] have
broadcast commercials in their programmes. Thereby they
have violated Section 10 of the Community Radio Act and
there are reasons to withdraw their broadcasting licences.
As regards the issue of whether the prohibition to
broadcast commercials is in accordance with the provisions
of the Instrument of Government in respect of the
protection of the freedom of expression, the Supreme
Administrative Court [regeringsrätten] has, in a judgment
of 1983 (RÅ 1983 2:5), found that the rule in question is
not incompatible with the Instrument of Government on this
point, nor with Swedish law on any other ground. The CBC,
which has jurisdiction to apply the CRA, does not find that
what [the applicants] have argued on this point would lead
to a different conclusion (see also RÅ 1974 ref. 61).
The prohibition to broadcast commercials in Section 10 of
the CRA is fundamental for the activity of community radio
as its aim is to secure that the community radio is used
for the given purpose, namely to make it possible for local
non-profit organisations to broadcast, within their
districts, messages about their activities and to spread
their mission. On this ground and taking into account that
the commercials have been broadcast frequently,
deliberately and systematically, the CBC considers that
[the applicants'] broadcasting licences should be withdrawn
for one year."
The applicants appealed against the decision to the
Administrative Court of Appeal (kammarrätten) of Stockholm, requesting
that the decision of the CBC be quashed with immediate effect.
By judgment of 1 October 1990 the Administrative Court of Appeal
upheld the decision of the CBC, for the following reasons:
(translation)
"The prohibition in the CRA to broadcast commercials has
been considered [by the Supreme Administrative Court] not
to be incompatible with Chapter 2, Sections 12 and 13, of
the Instrument of Government; the prohibition has not on
any other ground been considered incompatible with Swedish
law (RÅ 1983 2:5). The European Convention on Human Rights
is not directly applicable in the Swedish legal system.
Taking this into consideration, the Administrative Court of
Appeal cannot legally set aside the prohibition on
commercial advertising.
It is not in dispute that the broadcasts at issue contained
commercial advertising.
As to the question of which measures are suitable in view
of the violations of the prohibition, the Court finds that
a withdrawal of the licences is the only available measure.
As [the applicants] infringed the prohibition on purpose,
the period for the withdrawal, as decided by the CBC,
should not be changed."
The applicants appealed against this judgment to the Supreme
Administrative Court, which, however, refused leave to appeal on
31 January 1991.
B. Relevant domestic law and practice
Constitutional legislation
Prior to 1 January 1992, i.e. during the period relevant to the
present case, freedom of expression in radio and television was
provided for primarily by the Instrument of Government and ordinary
legislation with particular regard to radio and television which
included provisions on commercial advertising.
Chapter 2, Section 2, of the Instrument of Government read at the
relevant time in its relevant parts as follows:
(translation)
"All citizens shall be guaranteed the following in their
relations with the public administration:
1. freedom of expression: the freedom to communicate
information and to express ideas, opinions and emotions,
whether orally, in writing, in pictorial representations,
or in any other way;
2. freedom of information: the freedom to obtain and
receive information and otherwise acquaint oneself with the
utterances of others;
..."
As of 1 January 1992, a new constitutional law entered into
force, the Freedom of Expression Act (yttrandefrihetsgrundlagen). An
amendment to the above Chapter 2, Section 2 of the Instrument of
Government was made at the same time in that the following was added:
(translation)
"In the case of the freedom of the press and the
corresponding freedom of expression with regard to radio,
television and certain similar transmissions, films,
videogrammes and other recordings of moving pictures and
sound recordings, the provisions of the Freedom of the
Press Act [tryckfrihetsförordningen] and the Freedom of
Expression Act shall apply."
The rights and freedoms safeguarded in the Instrument of
Government may only be restricted if certain criteria are fulfilled.
These are found in Chapter 2, Section 12, which in its relevant parts
provides:
(translation)
"The rights and freedoms referred to in Section 1,
subsection 1 - 5, in sections 6 and 8, and in section 11,
subsection 2, may be restricted by law to the extent
provided for in Sections 13 - 16. After authorization in
law, they may be restricted by statutory order in the cases
referred to in Chapter 8, Section 7, subsection 1, no. 7,
and in Chapter 8, Section 10. Freedom of assembly and the
freedom to demonstrate may similarly be restricted also in
the cases referred to in Section 14, subsection 1, second
sentence.
The restrictions referred to in the preceding paragraph may
be imposed only to achieve a purpose acceptable in a
democratic society. The restriction may never exceed what
is necessary having regard to the purpose which occasioned
it, nor may it be carried so far as to constitute a threat
to the free formation of opinion as one of the foundations
of democracy. No restriction may be imposed solely on
grounds of political, religious, cultural or other such
opinions."
As regards freedom of expression Chapter 2, Section 13, of the
Instrument of Government furthermore provides:
(translation)
"Freedom of expression and freedom of information may be
restricted having regard to the security of the Realm, the
national supply, public safety and order, the integrity of
the individual, the sanctity of private life, or the
prevention and prosecution of crime. Freedom of expression
may also be restricted in economic activities. Freedom of
expression and freedom of information may otherwise be
restricted only where particularly important reasons so
warrant.
In judging what restrictions may be made by virtue of the
preceding paragraph particular regard shall be paid to the
importance of the widest possible freedom of expression and
freedom of information in political, religious,
professional, scientific and cultural matters.
The issuing of rules and regulations which govern in detail
a particular manner of disseminating or receiving
information without regard to its content shall not be
deemed to restrict freedom of expression or freedom of
information."
The question of the constitutionality of a ban on commercial
advertising in community radio has been considered by the courts and
by Parliament on several occasions. In 1983 the Supreme Administrative
Court found that such a ban was not in breach of the Instrument of
Government or otherwise incompatible with Swedish law (judgment of
10 February 1983 published in the law reports, RÃ… 1983 2:5). The same
question arose during the Parliament's discussion leading to the entry
into force, on 1 January 1992, of the above-mentioned Freedom of
Expression Act.
According to Chapter 1, Section 1, of this Act, all citizens are
guaranteed the freedom to publicly express ideas, opinions and emotions
and to otherwise impart information, on any subject, in radio,
television and certain similar transmissions, films, videogrammes and
other recordings of moving pictures and sound recordings. The purpose
of freedom of expression according to the Act is to secure a free
exchange of opinions, free and pluralistic information and free
artistic creation. No other restriction on these freedoms may be made
than those the Act allows for.
As regards commercial advertising Chapter 1, Section 23,
subsection 2, of the Freedom of Expression Act reads as follows:
(translation)
"The provisions of this constitutional Act does not prevent
provisions, by means of law, on the prohibition of
commercial advertising in radio programmes or on conditions
for such advertising."
The outcome of the discussion was accordingly that it was the
opinion of the Swedish Parliament that legislation by means of ordinary
law on the prohibition of commercial advertising in radio programmes
would not be in conflict with constitutional law.
The Community Radio Act
The Community Radio Act of 10 June 1982 reads as follows:
(translation)
"Section 1. This Act contains provisions concerning the
right of certain associations to transmit community radio.
By community radio is meant limited-range broadcast
transmissions of sound radio programmes.
In this Act, the terms broadcasting, radio transmitters and
radio programmes shall be understood in the same way as in
the Radio Act (1966:755).
Section 2. A Community Broadcasting Commission shall be
appointed to review issues relating to community radio, and
to exercise supervision over community radio activities.
The Chairman and Vice Chairman of the Commission shall be
learned in law and experienced in judgment.
More detailed provisions concerning the Commission are to
be published by the Government.
Section 3. Community radio may not be transmitted without
the permission of the Community Broadcasting Commission.
Section 4. Permission to transmit community radio can be
extended to associations that are legal persons, although
not to other such persons than:
1. Local voluntary associations that conduct activities
within the transmission area. Unless particular reasons
suggest otherwise, permission may be extended only on
condition that the activities in question have been
conducted for at least one year prior to the date of
application,
2. Local voluntary associations that have been formed in
order to transmit programmes on community radio, that
constitute part of an activity conducted within the
transmission area by a national organisation. Permission
may be granted on condition that the national organisation
has conducted activities within the transmission area for
at least one year prior to the date of application. If
special grounds exist, permission may be granted also if
the activity in question has not been conducted for at
least one year,
3. Congregations within the Swedish (Lutheran) Church,
4. Compulsory associations of students at universities and
colleges of higher education,
5. Associations of several licence-holders for joint
purposes relating to community radio (community radio
associations).
Section 5. Permission to transmit community radio is
granted only after the association in question has stated
who has been appointed programme supervisor in accordance
with the Act (1982:460) concerning Liability for Community
Radio.
Section 6. Community radio may only be transmitted via
such radio transmitters as the Swedish Telecommunications
Administration makes available.
Section 7. For each transmitter, the Community Broad-
casting Commission shall decide what associations shall be
permitted to transmit, and during which times transmissions
may take place.
Section 8. Transmission time shall be distributed as far
as possible in accordance with the wishes of the
associations. If their wishes are incompatible, priority
shall be given to the association judged to have the
greatest interest in being permitted to transmit at a
certain time.
Any decision on broadcasting time shall be valid until
further notice, up to a maximum of one year.
Section 9. Sections 6 and 7 of the Radio Act(1966:755) do
not apply to community radio.
Section 10. Commercial advertising shall not be
transmitted by community radio.
A programme or item of a programme transmitted by community
radio shall not be paid for by money or goods made
available to the association on condition that the
programme or element of that programme is transmitted.
Section 11. The association's programme supply may not
contain material that has not been produced entirely for
its own activities, other than to a limited extent.
The programme supply of a community radio association may
only contain:
1. information on programmes and transmission times, and
other information relating to community radio activities in
the area,
2. transmissions from events of common interest to licence-
holders in the area,
3. information, to a limited extent, on local municipal
activities, and
4. experimental transmissions of programmes produced by
associations without a licence to transmit, for a maximum
of three months in each case.
Section 12. The Government, or such authority as the
Government may nominate, shall publish regulations
concerning charges in matters affecting community radio.
Section 13. Permission to transmit community radio may be
revoked if the association
1. no longer fulfils the requirements laid down in
Section 4,
2. is in breach of a decision concerning transmission
times, and allows another party to use transmission time
that has been assigned to the association in its place,
3. transmits a programme despite the fact that there exists
neither a duly appointed programme supervisor, nor a
substitute for a programme supervisor, in accordance with
the Act (1982:460) concerning Liability for Community
Radio, or despite the fact that no notice has been given of
who has been appointed programme supervisor,
4. has transmitted a programme that has been found, in a
judgment that has acquired legal force, to be in breach of
the rules regarding freedom of speech, and which
constitutes a serious abuse of the freedom of speech in
community radio,
5. is in breach of the provisions laid down in Section 10
or 11,
6. fails to utilise its right to transmit for three
consecutive months, or
7. fails to pay a charge relating to community radio within
the prescribed time, if the association had been ordered to
pay such charge on pain of loss of licence.
Before a judgment as referred to in subsection 1 no. 4 has
acquired legal force, the Community Broadcasting Commission
may temporarily rescind permission to transmit.
When a licence is revoked, the Commission may determine a
period of at least one year within which the association
cannot be granted a new licence.
Section 14. At the request of the community broadcasting
authority, an association shall make available to it a
recording as referred to in Section 8 of the Act (1982:460)
concerning Liability for Community Radio.
If the association fails to comply with such a request, the
authority may impose a fine.
Section 15. The decisions of the Community Broadcasting
Commission regarding permission under Sections 4 and 13, or
the distribution of transmission time under Sections 7
and 8, may be appealed against to the Administrative Court
of Appeal; the said appeal to be lodged in the form of a
grievance. Other decisions made under this Act are not
subject to appeal.
Unless otherwise provided, decisions made in accordance
with this Act shall enter into force immediately."
It follows from the Act that commercials as well as sponsoring
are prohibited, cf. Section 10. The Community Broadcasting Commission
may revoke a permit to broadcast community radio if the association
does not abide by the prohibition on commercial advertising
(Section 13, subsection 1, no. 5). In doing so, the CBC may decide that
the association cannot be granted a new licence for a maximum period
of one year. Appeals against a decision of the CBC to withdraw a permit
may be lodged with the Administrative Court of Appeal (cf. Section 15).
Other legislation
A Bill regarding the establishment of a system of so-called
private local radio (privat lokalradio), which may be commercially
financed, has been submitted to Parliament. The new legislation will,
if adopted by Parliament, enter into force in 1993. Under the new
system, the community radio could also be commercially financed.
COMPLAINTS
The applicants allege that the prohibition to broadcast
commercials on community radio and the withdrawal of their broadcasting
licences constitute violations of their right to freedom of expression
guaranteed by Article 10 of the Convention.
They also complain, under Articles 1 and 13 of the Convention,
of the fact that the Swedish courts did not examine their complaints
under Article 10 of the Convention but only relied on domestic law.
Finally, in their observations of 21 August 1992, the applicant
complained of a violation of Article 14 read in conjunction with
Article 10 of the Convention, referring to the principles of equality.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 March 1991 and registered on
27 June 1991.
On 10 February 1992 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application.
The Government submitted their observations on admissibility and
merits on 15 April 1992, and the applicants' observations in reply were
submitted on 21 August 1992. Further observations were submitted by the
Government on 17 September 1992.
THE LAW
1. The applicants complain of a violation of Article 10 (Art. 10)
of the Convention which reads:
"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 first question the Commission must examine is whether there
has been an interference with the applicants' rights under Article 10
para. 1 (Art. 10-1) of the Convention.
The present case concerns the withdrawal by the Swedish
authorities of the applicants' licences to broadcast community radio.
It relates principally to the freedom enshrined in Article 10 para. 1
(Art. 10-1) "to ... impart information and ideas without interference
by public authority".
However, according to the third sentence of Article 10 para. 1
(Art. 10-1) of the Convention, Article 10 does "not prevent States from
requiring the licensing of broadcasting ... enterprises". The third
sentence refers to "broadcasting" rather than the reception of
broadcasts. By envisaging a licensing system, the third sentence
appears to limit the protection afforded by the rights in the first and
second sentences of Article 10 para. 1 (Art. 10-1).
In its earlier case-law on Article 10 para. 1 (Art. 10-1), third
sentence, the Commission found that there existed in many Convention
States a system of monopoly enterprises for radio and television, and
that Article 10 para. 1 (Art. 10-1), third sentence, could not be
understood as excluding a broadcasting monopoly as such (see
No. 3071/67, Dec. 7.2.68, Collection 26 p. 71; No. 6452/74, Dec.
12.3.76, D.R. 5 p. 43). Subsequently, the Commission found that if
Article 10 para. 1 (Art. 10-1), third sentence, permitted a State to
enact legislation requiring the licensing of broadcasting enterprises,
the State could also enact legislation ensuring compliance with the
licence in question (see No. 10799/84, Dec. 17.5.84, D.R. 37 p. 236).
On the other hand, the Commission found that, while broadcasting
enterprises have no guarantee of any right to a licence under the
Convention, the rejection by a State of a licence application must not
be manifestly arbitrary or discriminatory (see No. 10746/84, Dec.
16.10.86, D.R. 49 p. 126).
The European Court of Human Rights was confronted with the
interpretation of Article 10 para. 1 (Art. 10-1), third sentence, in
the Groppera case, where it held:
"... the third sentence of Article 10 para. 1
(Art. 10-1), insofar as it amounts to an exception to the
principle set forth in the first and second sentences, is
of limited scope ... (T)he 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. It does not, however, provide that licensing
measures shall not otherwise be subject to the requirements
of paragraph 2, for that would lead to a result contrary to
the object and purpose of Article 10 (Art. 10) taken as a
whole" (see Eur. Court H.R., Groppera Radio AG and Others
judgment of 28 March 1990, Series A no. 173, p. 24,
para. 61; see also Autronic AG judgment of 22 May 1990,
Series A no. 178, p. 24, para. 52).
Thus, the third sentence of Article 10 para. 1 (Art. 10-1) is
made subject to the requirements under Article 10 para. 2 (Art. 10-2)
for the justification of any interference with the right to freedom of
expression. Therefore, the Commission does not consider that the
licensing requirement limits in principle the rights guaranteed by the
first and second sentences of Article 10 para. 1 (Art. 10-1). The
freedom to impart information also through duly licensed broadcasting
is, for these reasons, in principle guaranteed by Article 10 (Art. 10)
of the Convention.
In the present case the applicants' licences to broadcast
community radio were withdrawn as they did not comply with the
conditions set out in the Community Radio Act. It follows that there
has been an interference with the applicants' rights under Article 10
para. 1 (Art. 10-1) of the Convention. Nevertheless Article 10, para.
1 (Art. 10-1), third sentence, remains relevant in 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, for instance in the determination and allocation of
frequencies, without interfering with the rights under Article 10
para. 1 (Art. 10-1) of the Convention (see the Groppera judgment, loc.
cit., p. 24, para. 61).
In the present case, it was not on technical grounds that the
applicants' broadcasting licences were withdrawn. It follows that the
third sentence of Article 10 para. 1 (Art. 10-1), in the interpretation
given to it by the European Court of Human Rights, does not cover the
interference with the applicants' rights under Article 10 para. 1
(Art. 10-1) to freedom of expression, in particular the freedom to
impart information. The Commission must therefore examine whether the
interference satisfied the conditions of Article 10 para. 2 (Art. 10-2)
of the Convention.
It is not in dispute between the parties that the interference
was prescribed by law. It follows from the Community Radio Act that the
applicants' licences may be withdrawn if they do not comply with the
conditions set for broadcasting under the Act. The Commission is
furthermore satisfied that this legislation is sufficiently clear and
precise to consider the interference to be "prescribed by law" within
the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
The next question to be examined under Article 10 para. 2
(Art. 10-2) of the Convention is whether the interference had an aim
which is legitimate.
In the Government's submissions, which the applicants contest,
the legislation concerned aims at preserving the purpose of community
radio, i.e. to enable local associations to broadcast, within their
communities, messages concerning their activities. Furthermore, the
Government refer to the problems arising if licence holders do not
abide by the prohibition on commercial advertising and thereby infringe
the rights of other associations. Accordingly, the Government rely on
the prevention of disorder and the protection of the rights of others
as legitimate aims.
The Commission finds that generally speaking broadcasting must
be organised in such a manner as to prevent disorder. This is confirmed
by the reference to licensing in the third sentence of Article 10,
para. 1 (Art. 10-1) of the Convention which concerns the technical
aspects of broadcasting. This regulation must be understood as leaving
the Contracting States with a possibility of creating a structure which
would secure an orderly functioning of broadcasting in areas where it
would be technically impossible to allow an unlimited access to the
available radio frequencies. Furthermore, the Commission accepts that
the legislation aimed at securing community radio broadcasting on terms
equal to all interested parties. Having regard to this, the Commission
is satisfied that the community radio system as adopted by Sweden
served the purpose of preventing disorder and protecting the rights of
others which are both legitimate aims envisaged by Article 10 para. 2
(Art. 10-2) of the Convention.
The Government submit in summary that, when examining the
necessity test, the level of protection of "commercial speech" must be
less than that accorded to the expression of "political" ideas with
which the concept of freedom of expression is mainly concerned.
Furthermore, they submit that the applicants could resort to other
means if they wanted to impart information through commercial media.
The Government also stress the importance of there being some "non-
commercial space" in media for the promotion of pluralism in the
formation and dissemination of ideas and opinions and, having regard
to the fact that there was no form of censorship directed against the
content or tendencies of the programmes concerned, the Government
submit that the withdrawal of the permits were proportionate to the
aims pursued. Therefore, they conclude, referring also to the States'
margin of appreciation, that the interference was "necessary" within
the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
The applicants submit in summary that the interference in
question amounted to an absolute prohibition of all commercial
advertising on community radio, something which they consider to be
disproportionate to any legitimate aim pursued. Furthermore, they
submit that, having regard to the state of technology today, there is
no compelling reason for treating electronic media in substance
differently from printed media. With reference to the European
Convention on Transfrontier Television, which emphasises the principles
of the free flow of information and ideas, the applicants also consider
that the Community Radio Act does not impose restrictions upon
commercial advertising which are reasonable. Finally, the applicants
refer to the lack of proportionality maintaining that the Government
have failed to put forward any cogent or compelling reason why the aims
pursued by the Government could not be pursued by permitting
advertising subject to reasonable restrictions. Thus the applicants
consider that a necessity for the interference has not been
convincingly established.
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 (see Eur.
Court H.R., Autronic AG judgment, ibid., p. 26, et seq., para. 61).
In the Commission's opinion, this margin of appreciation is essential
in commercial matters and, in particular, in an area as complex and
fluctuating as that of radio or television broadcasting. Article 10
(Art. 10) of the Convention itself confirms the need for a broad margin
of appreciation in that it envisages in the third sentence of para. 1
a licensing system for broadcasting enterprises.
The Commission is aware of the different solutions adopted in the
member States of the Council of Europe with regard to broadcasting in
general. The present case concerns a system of private broadcasting at
a local level and it is thus clear that the system adopted by Sweden
in general makes allowance for private initiative which would enable
private licence holders to enjoy their freedom to impart information
within the meaning of Article 10 (Art. 10) of the Convention.
The Commission recalls that the Swedish system of community radio
broadcasting was created with a view to providing local associations
with practical means of enjoying freedom of expression according to
special rules in order to broadcast, within their districts, messages
about their activities and to spread their opinions. The Swedish
legislator and subsequently the courts found that, in order to secure
that community radio would be used for this purpose, it would be
necessary to prohibit commercial advertising. The Commission finds that
it must confine its review of this appreciation to the question whether
the measures taken on the national level were justifiable and
proportionate (see Eur. Court H.R., Markt Intern Verlag GmbH and Klaus
Beermann judgment of 20 November 1989, Series A no. 165, p. 19 seq.,
para. 33).
The Commission has not been informed of the actual content of the
applicants' broadcasts which led to the withdrawal of their licences
but notes that they contained commercials promoting the sale of goods
and services supplied by others than the applicants themselves. In the
ever increasing commercialisation of broadcasting, however, it will not
exclude, as a matter of principle, the necessity of certain
restrictions on licensed broadcasting in order to secure the legitimate
intentions constituting the basis for its creation. In the present case
the Commission furthermore recalls that the applicants obtained
licences allowing them to take full advantage of the possibilities,
within the system of community broadcasting, of expressing their views
and ideas. Their licences were withdrawn only due to the fact that
they did not comply with the prohibition on commercial advertising
contained in the Community Radio Act, a prohibition of which they were
aware when the broadcasting licences were obtained. The restrictions
on broadcasting thus related solely to commercial advertising which in
the present case had no other purpose than providing financial support
for the applicants. In these circumstances the Commission does not find
that the Swedish Community Radio Act placed an excessive burden on the
applicants to the extend that they wanted to impart information through
this medium. Therefore, having regard to the Contracting States margin
of appreciation, the Commission finds that the withdrawal of the
applicants' broadcasting licences for a period of one year could be
regarded as "necessary" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention.
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. Under Articles 1 and 13 (Art. 1, 13) of the Convention the
applicants complain of the fact that the Swedish courts did not examine
their complaints under Article 10 (Art. 10) of the Convention but only
relied on domestic law.
However, the Commission recalls that neither Article 13 (Art. 13)
nor the Convention in general prescribes any particular manner in which
the Contracting States should ensure within their internal law the
effective implementation of the provisions of the Convention (cf. Eur.
Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976,
Series A no. 20, p. 18, para. 50). Furthermore the Court has stated the
following:
"By substituting the words `shall secure' for the words
`undertake to secure' in the text of Article 1 (Art. 1),
the drafters of the Convention also intended to make it
clear that the rights and freedoms set out in Section I
would be directly secured to anyone within the jurisdiction
of the Contracting States. That intention finds a
particularly faithful reflection in those instances where
the Convention has been incorporated into domestic law"
(Eur. Court. H.R., Ireland v. the United Kingdom judgment
of 18 January 1978, Series A no. 25, p. 91, para. 239).
It follows that Sweden is not obliged to transform the text of
the Convention into Swedish law.
Furthermore, there is no indication which would allow the
Commission to conclude that the national courts did not consider the
applicants' case from the point of view of freedom of expression. In
these circumstances the Commission finds no appearance of a violation
of Article 1 or 13 (Art. 1, 13) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. In their observations of 21 August 1992 the applicants complain
of a violation of Article 14 read in conjunction with Article 10
(Art. 14+10) of the Convention.
The Commission considers that this complaint of discrimination
under Article 14 (Art. 14) of the Convention can be distinguished from
the complaint under Article 10 (Art. 10) dealt with above. However,
leaving aside the question whether the applicants raised this
complaint, either in form or in substance, in the domestic proceedings,
the Commission is not required to decide whether or not the facts
alleged by them disclose any appearance of a violation of this
provision, as Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with the matter ... within a period of six
months from the date on which the final decision was taken".
In the present case the decision of the Supreme Administrative
Court, which was the final decision regarding the subject of this
particular complaint, was given on 31 January 1991, whereas the
complaint was submitted to the Commission on 21 August 1992, that is,
more than six months after the date of this decision. Furthermore, an
examination of the case does not disclose the existence of any special
circumstances which might have interrupted or suspended the running of
that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)