AS TO THE ADMISSIBILITY

Application No. 13914/88

by INFORMATIONSVEREIN LENTIA

Application No. 15041/89

by Jörg HAIDER

Application No. 15717/89

by Arbeitsgemeinschaft Offenes

Radio (AGORA)

Application No. 15779/89

by Wilhelm WEBER

Application No. 17207/90

by RADIO MELODY Ges.m.b.H.

against Austria

The European Commission of Human Rights sitting in private on

15 January 1992, the following members being present:

             MM.  C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  J. C. SOYER

                  H. DANELIUS

             Mrs. G. H. THUNE

             Sir  Basil HALL

             Mr.  C. L. ROZAKIS

             Mrs. J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  M. P. PELLONPÄÄ

             Mr. H.-C. KRÜGER, 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 16 April 1987 by

Informationsverein Lentia against Austria and registered on 3 June 1988

under file No. 13914/88;

Having regard to the application introduced on 15 May 1989 by

Jörg Haider against Austria and registered on 23 May 1989 under file

No. 15041/89;

Having regard to the application introduced on 27 September 1989

by Arbeitsgemeinschaft Offenes Radio (AGORA) against Austria and

registered on 30 October 1989 under file No. 15717/89;

Having regard to the application introduced on 18 September 1989

by Wilhelm Weber against Austria and registered on 20 November 1989

under file No. 15779/89;

Having regard to the application introduced on 20 August 1990 by

Radio Melody Ges.m.b.H. against Austria and registered on 26 September

1990 under file No. 17207/90;

Having regard to:

-the Commission's decision of 13 July 1990 to join Applications

Nos. 15041/89, 15717/89 and 15779/89 and to give notice of these

applications and of Application No. 13914/88 to the respondent

Government inviting them to submit observations in writing on their

admissibility and merits;

-the Government's observations of 14 November 1990 on Application

No. 13914/88 and of 15 November 1990 on Applications Nos. 15041/89,

15717/89 and 15779/89;

-the applicants' observations in reply of 29 January 1991

(Application No. 15717/89), 27 February 1991 (Applications

Nos. 15041/89 and 15779/89) and 15 May 1991 (Application No. 13914/88);

-the Commission's decision of 12 July 1991 to give notice of

Application No. 17207/90 to the respondent Government and to invite

them to submit observations in writing on the admissibility and merits

of this application;

-the Commission's decision of 3 September 1991 to invite the

parties in Applications Nos. 13914/88, 15041/89, 15717/89 and 15779/89

to an oral hearing on the admissibility and merits;

-the Governments's observations on Application No. 17207/90 of

2 October 1991 and the applicant's observations in reply of

8 November 1991;

-the Commission's decision of 6 December 1991 to include

Application No. 17207/90 in the hearing already decided in the other

cases;

-the Commission's decision of 14 January 1992 to join all five

cases;

-the parties' submissions at the oral hearing on 15 January 1992;

Having deliberated;

Decides as follows:

THE FACTS

The facts agreed between the parties may be summarised as

follows:

The first applicant, Informationsverein Lentia, is a private

association established in Linz, Upper Austria.  It is represented by

Mr. Bruno Binder, a lawyer practising in Linz who has been instructed

by the association's president, Mr. Alois Höfler.

The second applicant, Mr. Jörg Haider, is an Austrian citizen

residing in Klagenfurt, Carinthia.  He is the Chairman of the Austrian

Liberal Party (FPÖ) and Deputy Governor (Landeshauptmann-

Stellvertreter) of the province of Carinthia.  He is represented by

Messrs. Dieter Böhmdorfer and Wolfram Themmer, lawyers practising in

Vienna.

The third applicant, Arbeitsgemeinschaft Offenes Radio (AGORA),

is a private association established at Eisenkappel, Carinthia.  It is

represented by Mr. Thomas Höhne, a lawyer practising in Vienna who has

been instructed by the association's president, Mrs. Brigitte Busch.

The fourth applicant, Mr. Wilhelm Weber, is an Austrian citizen

born in 1941 who resides at St. Andrä in Lavanttal, Carinthia.  He is

represented by Messrs. Dieter Böhmdorfer and Wolfram Themmer, lawyers

practising in Vienna.

The fifth applicant, Radio Melody Ges.m.b.H., is a limited

liability company established and registered in Salzburg.  It is

represented by Mr. Wilfried Haslauer, a lawyer practising in Salzburg.

A.THE PARTICULAR CIRCUMSTANCES OF THE CASES

a)Application No. 13914/88 (Informationsverein Lentia)

The association was founded by the joint owners and inhabitants

of a residential development (Wohnhausanlage) in Linz comprising some

450 apartments and 30 shops.  The aim of the association was to improve

communication between the members by establishing an internal cable

television system, the programme of which was to be limited to

questions of common concern relating to their property rights.

On 9 June 1978 the association applied to the Linz Regional

Directorate of Post and Telecommunications (Post- und Telegraphen-

direktion) for a licence under the Telecommunications Act (Fernmelde-

gesetz, Fed. Law Gazette No. 170/1949).  As no decision was handed down

within the statutory time-limit of six months as stipulated in

Section 73 of the Code of General Administrative Procedure (Allgemeines

Verwaltungsverfahrensgesetz), the association asked for a transfer of

jurisdiction (Devolution) to the Federal Ministry of Transport -

Directorate General of Post and Telecommunications (Bundesministerium

für Verkehr - Generaldirektion für die Post- und Telegraphen-

verwaltung).

On 23 November 1979 the Ministry rejected the application

essentially on the ground that in substance the association intended

to establish a private radio station for which there was no legal basis

under Austrian law.

The Ministry observed that the Federal Constitutional Law for

Securing the Independence of Broadcasting (Bundesverfassungsgesetz über

die Sicherung der Unabhängigkeit des Rundfunks, Fed. Law Gazette

No. 396/1974, hereafter referred to as Constitutional Law on

Broadcasting) had reserved to the federal legislation the regulation

of broadcasting and its organisation.  Any broadcasting therefore could

take place only on the basis of a special federal law.  Such a federal

law only existed for the public "Austrian Broadcasting Corporation"

(Österreichischer Rundfunk - ORF; cf. Bundesgesetz über die Aufgaben

und die Einrichtung des Österreichischen Rundfunks, Federal Law on the

Functions and the Organisation of the Austrian Broadcasting

Corporation, Fed. Law Gazette No. 397/1974), and therefore no one else

was entitled to operate a radio station, including "active cable

television".  There was accordingly no legal basis for granting the

licence requested by the applicant association.  In so far as the

association had invoked Article 10 of the Convention, the Ministry

referred to the last sentence of paragraph 1 of this provision.  In the

Ministry's opinion the Austrian constitutional legislature had made use

of the authorisation to require the licensing of broadcasting

enterprises by reserving special legislation for the operation of any

radio station ("Von dem ... Genehmigungsvorbehalt hat der

österreichische Verfassungsgesetzgeber Gebrauch gemacht, indem er

beschlossen hat, dass Rundfunk jeweils nur nach Erlassung eines eigenen

Bundesgesetzes betrieben werden darf").

The applicant association's constitutional complaint against this

decision was rejected by the Constitutional Court (Verfassungs-

gerichtshof) on 16 December 1983 (Collection of Constitutional Court

decisions No. 9909/83).  The Constitutional Court observed that

Article 10 of the Convention included the right to impart information

and ideas inter alia through broadcasting.  However, this right was

subject to the  restrictions stipulated in the last sentence of

paragraph 1 (authorisation of the State to introduce a licensing

requirement) and in paragraph 2 (authorisation of the State to subject

the exercise of broadcasting freedom to certain legal restrictions).

Having regard to the admissibility of such legal restrictions, an

administrative decision could violate the right to operate a radio or

television station only if it was taken without a legal basis, if the

law applied was unconstitutional, or if it was applied in an arbitrary

manner (denkunmögliche Gesetzesanwendung).  However, the decision

complained of had not interpreted the Constitutional Law on

Broadcasting in an arbitrary manner.  The wording of this

Constitutional Law suggested that its aim was to introduce a licensing

requirement and that the special legislation referred to therein was

not intended to prescribe the limitations, but the conditions for any

broadcasting which thereby was required to comply with the principles

of objectivity and pluralism.  This constitutional aim could not be

achieved if, in the absence of legislation, anybody would be entitled

to broadcast free from any restrictions.  As a law had so far only been

enacted for the Austrian Broadcasting Corporation, without providing

for licences to other broadcasting enterprises, only the Corporation

was legally entitled to broadcast.  This was also the predominant view

of legal writers and the Austrian Supreme Court (Oberster Gerichtshof).

Article 10 of the Convention authorised a licensing requirement as

stipulated in the Constitutional Law on Broadcasting, and therefore was

not violated.

The Constitutional Court then examined what activities were to

be regarded as broadcasting within the meaning of the above

Constitutional Law.  It found that, according to legal doctrine,

broadcasting included active cable broadcasting (active cable

television) which therefore fell within the scope of the Constitutional

Law and its implementing legislation.  The applicant association's view

that its cable television system was not to be qualified as

broadcasting because it was addressed to a limited audience, was

misconceived.  The persons who could receive the programme were not

predetermined and individualised, they were potentially all people

present in several hundred apartments and shops and therefore

constituted a general public.

Finally, it was to be determined whether the telecommunication

authorities had been competent to refuse an authorisation exclusively

on the basis of the broadcasting legislation.  The court found that

these authorities were competent for the granting of licences under the

Telecommunications Act and the Ordinance on Private Telecommunication

Installations (Privatfernmeldeanlagenverordnung, Fed. Law Gazette

No. 239/1961).  It noted that they had not raised any objections

against the installation planned by the applicant association from a

technical point of view, and that the Constitutional Law on

Broadcasting did not contain express provisions on the application of

the broadcasting legislation by those authorities.  However, the court

considered that this Constitutional Law was to be applied by all

authorities which could influence the operation of broadcasts and that

the Telecommunications Act and the Ordinance on Private

Telecommunication Installations were accordingly to be read subject to

the proviso that "an authorisation for the setting-up and operation of

telecommunication installations intended to engage in broadcasting in

the meaning of Article I paragraph 1 of the Constitutional Law on

Broadcasting may not be granted by the telecommunication authorities

before a federal law on the subject has been enacted in accordance with

Article I para. 2 of this Constitutional Law".

The Constitutional Court concluded that there had been no

violation of Article 10 of the Convention nor of any other

constitutional provision.  It referred the case to the Administrative

Court (Verwaltungsgerichtshof) as requested by the applicant

association.

The Administrative Court rejected the association's complaint by

a decision of 10 September 1986 which was served on the association on

17 October 1986.  It essentially confirmed the views expressed by the

Constitutional Court which had been criticised by the applicant

association.  In particular, it rejected the argument that the

Telecommunications Act could be seen as a special law referred to by

the Constitutional Law on Broadcasting and that the latter

Constitutional Law could not be applied by the telecommunication

authorities.  Even though the Telecommunications Act did not prohibit

broadcasting, the telecommunication authorities were required to comply

with the constitutional principle laid down in Article 18 para. 1 of

the Federal Constitution (Bundes-Verfassungsgesetz) according to which

all administrative acts could be taken only on the basis of the law,

and to examine in this context whether the provisions of the

Constitutional Law on Broadcasting created an obstacle for granting the

authorisation requested.  Neither the Telecommunications Act nor any

other legal provision gave the applicant association a right to be

granted this authorisation, and therefore its refusal had not been

unlawful.  Nor did the Administrative Court find the reasons of the

refusal self-contradictory or insufficient as alleged by the applicant

association.

b)Application No. 15041/89 (Mr. Jörg Haider)

This applicant states that in the years 1987-1989 he had plans

to establish jointly with others a private radio station in Carinthia.

However, those plans had to be abandoned because an examination of the

legal situation in Austria revealed that there was no legal possibility

of obtaining a licence.  In support of this submission the applicant

has submitted a letter dated 14 January 1992 from a financial

consultant in Klagenfurt who had assisted him in the matter.  The

Government do not contest that the applicant actually pursued plans to

set up a private radio station.

The applicant has not taken any domestic proceedings.  He states

that it would not have been reasonable for him to apply for a radio

licence the grant of which was excluded by the Austrian legislation as

interpreted by the Constitutional Court, in particular in its above

judgment concerning the case of Informationsverein Lentia.  He

furthermore states that he could not reasonably be expected to provoke

an administrative decision by operating a radio station illegally.

He finally refers to a referendum requested by the Liberal Party

of which he is the Chairman and which aimed at the abolition of the

public broadcasting monopoly in Austria.

c)Application No. 15717/89, Arbeitsgemeinschaft Offenes Radio

(AGORA)

This applicant association is a member of the Fédération

européenne des radios libres (FERL) and subscribes to the principles

of the draft European Charter of Free Radios elaborated by this

organisation.  Its aim is to promote pluralism of the media and

liberalisation of broadcasting in the whole Austrian territory as well

as to establish a multicultural radio station in Carinthia.  This

station would transmit a bilingual or multilingual non-commercial

programme financed by contributions of the listeners and provide an

open forum for groups of persons who otherwise lack access to

audiovisual media.  A particular target group would be the population

of the bilingual area of Southern Carinthia, and for this purpose the

programmes would be moderated in both the German and Slovene languages.

Particular efforts would be made for the promotion of the Slovene

language and culture and the interests of the Slovene linguistic

minority in general.  There would also be co-operation with other local

radio stations in Yugoslavia and Italy to reflect the multilinguistic

identity of the region (Alpen-Adria-Raum).  The proponents of this

radio station already operate a mobile station on Italian territory on

the basis of an Italian radio licence.  The installations could be

transferred to Austria at any time.

In 1988 the association took proceedings to obtain a licence for

a private radio station.  The application was rejected by the

Klagenfurt Regional Directorate of Post and Telecommunications on

19 December 1989.  This decision was confirmed by the Federal Ministry

for Public Economy and Transport - Directorate General of Post and

Telecommunications (Bundesministerium für öffentliche Wirtschaft und

Verkehr - Generaldirektion für die Post- und Telegraphenverwaltung)

on 9 August 1990, and by the Constitutional Court on 30 September 1991.

The decisions rely on the Constitutional Court's earlier case-law, in

particular in the case of Informationsverein Lentia.

d)Application No. 15779/89 (Mr. Wilhelm Weber)

This applicant is the shareholder of an Italian company which

operates a private radio station transmitting broadcasts to Austria on

a commercial basis.  He is interested in operating such a radio station

himself on Austrian territory.

He did not take any proceedings for obtaining a radio licence in

Austria, since in his view an application for such a licence would not

have had any prospects to succeed, having regard to the state of the

legislation and its interpretation by the Constitutional Court.

e)Application No. 17207/90 (Radio Melody Ges.m.b.H.)

One of the aims of the applicant company is to set up and operate

a private local radio station in Salzburg.  To this end it applied on

8 November 1988 to the Linz Regional Directorate of Post and

Telecommunications to be granted a licence and to be attributed a

frequency band.

The Regional Directorate rejected the application on

28 April 1989.  Its decision was confirmed by the Federal Ministry for

Public Economy and Transport - Directorate General of Post and

Telecommunications on 12 July 1989 and by the Constitutional Court on

18 June 1990.  The decisions rely on the Constitutional Court's earlier

case-law, in particular in the case of Informationsverein Lentia.

The applicant company refrained from complaining to the

Administrative Court since that Court is not competent to review

legislation as to its conformity with the constitutional law or the

Convention.

B.RELEVANT LEGISLATION

The Constitutional Law on Broadcasting (Bundesverfassungsgesetz

über die Sicherung der Unabhängigkeit des Rundfunks, Fed. Law Gazette

No. 396/1974) describes broadcasting (Article I para. 1) as a public

task (Article I para. 3) and reserves its regulation to the federal

legislation which is required to observe certain principles including

objectivity and impartiality of information, pluralism of opinions,

well-balanced programmes, and independence of the persons and bodies

entrusted with functions of broadcasting (Article I para. 2).

This Constitutional Law has been implemented by the Federal Law

on the Functions and the Organisation of the Austrian Broadcasting

Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des

Österreichischen Rundfunks, Fed. Law Gazette No. 397/1974, hereafter

referred to as the Broadcasting Act) which set up the Austrian

Broadcasting Corporation as an economic unit with legal personality

entrusted with the function of supplying the public with broadcasts

according to certain criteria.  Apart from those mentioned in the above

Constitutional Law (repeated in Section 2 para. 2 of the Act) they

include:

a) As regards the number of programmes

- even and steady supply to the whole population in Austria,

according to current technical standards of reception in so far as

economically feasible, with at least two television and three radio

programmes (Section 3 para. 1), one of the latter being a regional

programme which takes into consideration the particular interests of

the Provinces (Section 3 para. 2);

- operation of a Government-sponsored short-wave radio programme

for listeners abroad (Section 4);

b) As regards the content of the programmes

- the comprehensive information of the public of all important

political, economic, cultural and sports events by objective selection

and dissemination of news and reports; transmission and conveyance of

comments, opinions and critical statements of importance for the public

having due regard to the plurality of views represented in public

discussions; own comments and analysis based on the principle of

objectivity (Section 2 para. 1, sub-para. 1);

- dissemination and promotion of education, art, science and

sport, as well as entertainment (Section 2 para. 1, sub-paras. 2-5);

- planning of the programme as a whole having due regard to the

importance of legally recognised churches and religious communities

(Section 2 para. 3);

- providing broadcasting-time to political parties represented

in Parliament and to interest groups, to a degree which does not exceed

1% per programme, the broadcasting-time being distributed between the

various groups according to their importance in public life

(Belangsendungen, Section 5 para. 1);

- providing broadcasting-time on radio and television for paid

commercials (Section 5 para. 3).

The Broadcasting Act furthermore contains detailed provisions on

the organisation of the Austrian Broadcasting Corporation.  Apart from

the Director General (Generalintendant) its organs are collegiate

bodies including the Governing Board (Kuratorium), the Board of

Listeners and Spectators (Hörer- und Sehervertretung), and the Board

of Audit (Prüfungskommission).  In addition, a "Commission for

Safeguarding Observance of the Broadcasting Act" ("Kommission zur

Wahrung des Rundfunkgesetzes") was set up outside the organisational

framework of the Corporation.

According to the Act these bodies and their members are

independent and free from instructions.

The Director General (Sections 9 and 10) is equally independent

and free from instructions (Section 6 para. 2), but his appointment can

be terminated at any moment by a decision taken with a two-thirds

majority by the Governing Board.  In particular he is competent for

laying down general programme guidelines, elaboration of the long-term

programme, staff plans, etc., and he may also delegate certain tasks

to other Directors (Direktoren, Programmintendanten, Landesintendanten)

whom he has to control and co-ordinate.

The Governing Board (Sections 7 and 8) takes all decisions of

importance, including the appointment and dismissal of the Director

General and other Directors, adoption of long-term plans on programme

techniques and finance, fixing of broadcasting contributions and other

fees, approval of collective agreements, settling fundamental problems

of broadcasting and programmes, and attribution of transmission-time

to interest groups.  It is composed of 30 members, including:

- six members appointed by the Government on the basis

  of proposals by the political parties according to their

  representation in Parliament;

- nine members appointed by the Provinces;

- four members appointed by the Federal Government;

- six members appointed by the Board of Listeners and

  Spectators;

- five members appointed by the Central Works Council

  (Zentralbetriebsrat) of the Austrian Broadcasting

  Corporation.

The decisions are taken by simple majority and there is no

provision on minority rights or on the articulation of opinions other

than that of the majority.

The Board of Listeners and Spectators (Sections 15 and 16) has

the following tasks: appointment of six members of the Governing Board

by a two-thirds majority, proposals for the nomination of four members

of the "Commission for Safeguarding Observance of the Broadcasting

Act", applications to the latter Commission, and making proposals for

the programmes, technical improvements, etc.  But for the

above-mentioned exception it takes its decisions by simple majority.

The Board is composed of 35 members, including:

- 15 members appointed by professional organisations and interest

groups, i.e. the Chamber of Commerce (Bundeskammer der

gewerblichen Wirtschaft), the Conference of the Presidents of the

Chambers of Agriculture (Präsidentenkonferenz der Landwirt-

schaftskammern), the Conference of the Workmen's Chambers

(Arbeiterkammertag), the Chambers of the liberal professions, the

Austrian Trade Union Federation (Österreichischer

Gewerkschaftsbund), the Christian Churches and the Academies of

the political parties (politische Akademien);

- 20 members appointed by the Federal Chancellor to represent

various groups of society, i.e. science, education, art, sport,

youth, elderly people, parents and families, tourism, motorists

and consumers, having regard to proposals of institutions and

organisations representative of these groups.

The "Commission for Safeguarding the Observance of the

Broadcasting Act" (Sections 25-27) exercises a "subsidiary and limited

legal control" over the Austrian Broadcasting Corporation, in so far

as the matter does not come within the jurisdiction of a court of law

or of another administrative authority.  In particular, it decides on

alleged violations of the Broadcasting Act, especially alleged

violations of the principle of objectivity.

It is composed of 17 members appointed by the Federal President

upon proposals of the Federal Government for a period of four years,

including:

- nine judges proposed by the President of the Supreme Court, the

Presidents of the four Courts of Appeal, a representative

professional organisation of judges, the Conference of Austrian

Bar Councils (Rechtsanwaltskammertag), and the Chamber of

Notaries;

- four members proposed by the Central Works Council;

- four members proposed by the Board of Listeners and Spectators.

Decisions are taken by simple majority of Chambers composed of

three judges and one member from each of the other groups.  The

decisions can be challenged before the Constitutional Court, but not

before the Administrative Court.  They are of a declaratory nature and

do not entail any direct legal consequences for the employees concerned

of the Austrian Broadcasting Corporation which is obliged to comply

with those decisions.

The journalists employed by the Austrian Broadcasting Corporation

(Section 17) are independent and responsible for the programmes which

they produce.  The Corporation is required to respect their

journalistic freedom within the limits of the Broadcasting Act, in

particular it may not order them to produce and accept responsibility

for programmes which would be in conflict with that freedom.

Legitimate refusals by the journalists may not be sanctioned.  The

observance of these principles is safeguarded by the Statute of

Journalists (Redakteursstatut) concluded between the Corporation and

the elected representation of the journalists (Section 18).

This Statute provides, inter alia, that, in order to fulfil the

Corporation's programme requirements, the journalists preparing

programmes under their responsibility must also include contributions

which are in conflict with their own personal views.  Journalists

called upon to select programmes may reject or amend contributions.

In cases of "substantial" interference this requires the consent of the

journalist who has prepared the programme.  If no agreement can be

reached, the programme should, if possible, be postponed.  If this is

not possible, the journalist concerned has the right not to be named

and can refuse responsibility (Section 3 para. 2 of the Statute).

Eventually, a settlement or arbitration procedure may take place in

such cases (Section 3 paras. 3-8).

The Broadcasting Act does not prohibit other broadcasting

enterprises than the Austrian Broadcasting Corporation, but due to the

inactivity of the legislature there is no legal basis on which such

enterprises could operate.  In particular the Telecommunications Act

(Fernmeldegesetz, 1949) and the Ordinance on Private Telecommunications

Installations (Privatfernmeldeanlagenverordnung, 1961) issued under it

do not provide such a basis although they contain provisions on radio

licences.  This view has been confirmed by the Austrian Constitutional

Court (Verfassungsgerichtshof) in a decision of 16 December 1983

(Collection of Constitutional Court decisions  No. 9909/83 -

Informationsverein Lentia, see above).

On the other hand the Constitutional Court has held that, under

Article 10 of the Convention, the broadcasting monopoly must be

exercised in compliance with the principles of objectivity and

pluralism, by well-balanced programmes offered by the public

Broadcasting Corporation (decision of 27 June 1986, Collection of

Constitutional Court decisions No. 10948/85 - Impala / Die ganze

Woche).

This may imply restrictions on journalistic freedom. The

"Commission for Safeguarding Observance of the Broadcasting Act" found

a violation of the principle of objectivity in critical and provocative

questions as well as in the expression of their own views by

journalists who had interviewed the Federal President Dr. Waldheim

(decision No. 438/5 - RFK 88 of 3 May 1988).  This decision was quashed

by the Constitutional Court, but the latter stated that the principle

of objectivity as laid down in the Constitutional Law on Broadcasting

and in the Broadcasting Act limited the freedom of expression of

journalists employed by the Austrian Broadcasting Corporation (decision

No. 12086/89 of 21 June 1989).

The Constitutional Court cannot examine the compatibility of the

Constitutional Law on Broadcasting as such with Article 10 of the

Convention.  In a Constitutional Court decision of 14 October 1987

(decision No. 11500/87 - Miltner) it was stated that a conflict between

the Convention and other provisions of Austrian constitutional law

could not be resolved by finding an unconstitutionality of these

provisions. If in such a case there was a breach by Austria of her

international obligations under the Convention, this could only be

taken up before the Convention organs in Strasbourg.

The inactivity of the legislature, i.e. its failure to enact

legislation as a basis for broadcasting by others than the Austrian

Broadcasting Corporation cannot be challenged either before the

Constitutional Court.

There is no legislation dealing specifically with the reception

and retransmission of foreign broadcasts in Austria.  A number of

private radio stations exist abroad near the Austrian border which

transmit programmes specially directed at an Austrian audience, and

there appears to be no interference by the Austrian authorities with

the reception of these programmes.  This also applies to the programmes

which the third and fourth applicants at present transmit from Italy.

It further appears that in many local cable networks foreign television

programmes can be received in Austria.

As from 1 July 1987 Austria was allocated by the International

Telecommunications Union (I.T.U.) a number of additional frequencies

for broadcasting purposes.  There are now five FM frequencies which can

be used throughout the country, of which two can be regionalised, and

a number of new local frequencies.  This is more than can actually be

used by the public Broadcasting Corporation.

The continued justification of the Austrian broadcasting monopoly

is being questioned by legal writers and media specialists and also by

politicians of the big political parties, in particular the Liberal

Party which has organised a referendum (Volksbegehren) for the

abolition of the public broadcasting monopoly, but also the

Conservative People's Party and members of the Socialist Party.

Various proposals have recently been made for liberalising the

monopolistic structure of broadcasting in Austria.  They include plans

for enabling others than the Austrian Broadcasting Corporation to

prepare programmes which would still be transmitted by the services of

the Corporation.  An agreement to this effect was concluded in 1987 by

the Austrian Broadcasting Corporation with the League of Austrian

Newspaper Editors (Verband Österreischischer Zeitungsherausgeber) for

the establishment of a so-called "Print-Radio".  It was followed by the

elaboration of a draft bill for an "Experimental Broadcasting Act"

(Hörfunkversuchsgesetz) by the Broadcasting Corporation together with

the Newspaper Editors.  This project, however, met with criticism

because it limited access to broadcasting to owners of the media.  The

Government themselves are now pursuing plans to enact legislation which

would allow the establishment of local private radio stations outside

the framework of the Austrian Broadcasting Corporation.

COMPLAINTS

All applicants complain that the broadcasting system which exists

at present in Austria is not in line with the requirements of

Article 10 of the Convention, in particular because it does not provide

for any licensing procedure for private stations.  The applicants

submit that in any event it is no longer justified to uphold a public

broadcasting monopoly, or that at least the manner in which this

monopoly is exercised in Austria is too restrictive to allow a really

free flow of information and opinions.  It does not ensure that the

freedom of expression, in particular that of minority groups, can be

exercised to the degree now technically possible and required in a

modern democracy.

In this context, in particular the second applicant submits that

within the monopoly the required standard of objectivity and pluralism

of opinions is not effectively ensured, political minorities thus being

deprived of sufficient access to the audiovisual media.

The third applicant observes that the Broadcasting Act does not

provide for the representation of ethnic minorities in the various

organs of the Austrian Broadcasting Corporation and that the programmes

intended for these minorities are insufficient.  The programme for the

Slovene minority in Carinthia is limited to 50 minutes per day and

allegedly does not sufficiently reflect the views and needs of the

minority population itself.  This applicant therefore also complains

of a violation of Article 14 of the Convention by an alleged

discrimination of this minority as regards its right of access to

broadcasting.

The first applicant, too, complains of discrimination contrary

to Article 14 of the Convention in that it is being treated differently

from hotels, hospitals or institutions for elderly people whose

internal cable television systems are not regarded as constituting

broadcasting.

Finally, the fifth applicant complains of a violation of

Article 6 of the Convention, more precisely of the right to legal

protection by the courts.  In this respect it invokes the Klass case

(No. 5029/79, Comm. Report 9.3.77, para. 59) where it was stated that

different considerations from those applying to secret surveillance

measures, to which Article 6 was found to be inapplicable, might arise

"if interferences with the use of postal and telecommunications

services would be directed against private activities involving the

exercise of 'civil rights'.  That would be the case if ... the State

could arbitrarily exclude people from the use of those services thereby

destroying their private business".  The applicant company considers

that this must also apply, mutatis mutandis, to the use of

telecommunications services in the area of broadcasting.

PROCEEDINGS BEFORE THE COMMISSION

Application No. 13914/88 was introduced on 16 April 1987 and

registered on 3 June 1988.

Application No. 15041/89 was introduced on 15 May 1989 and

registered on 23 May 1989.

Application No. 15717/89 was introduced on 27 September 1989 and

registered on 30 October 1989.

Application No. 15779/89 was introduced on 18 September 1989 and

registered on 20 November 1989.

On 13 July 1990 the Commission examined the above four

applications.  It decided to join the proceedings in Applications

Nos. 15041/89, 15717/89 and 15779/89 and to give notice of all four

applications to the respondent Government who were invited to submit

observations in writing on their admissibility and merits before

31 October 1990.  This time-limit was subsequently extended, at the

Government's request, until 14 November 1990.

The Government's observations on Application No. 13914/88 were

submitted on 14 November, those on the other three applications on

15 November 1990.

The applicants were invited to submit observations in reply

before 31 January 1991.  Only the third applicant submitted

observations within this time-limit, on 29 January 1991.  The second

and fourth applicants submitted their observations, after having been

granted an extension of the time-limit, on 27 February 1991.  The first

applicant, after having been reminded by the Commission's Secretariat

that no observations had been received within the time-limit, stated

that it had not considered further observations necessary.  It

nevertheless submitted some observations on 15 May 1991.

In the meantime Application No. 17207/90 had been introduced on

20 August 1990 and registered on 26 September 1990.

On 12 July 1991 the Commission decided to give notice also of

this application to the respondent Government and invite them to submit

observations in writing on its admissibility and merits before

1 October 1991.

The Government submitted their observations on this application

on 2 October 1991 and the applicant replied on 8 November 1991.

In the meantime, the Commission had decided on 3 September 1991

to invite the parties in Applications Nos. 13914/88, 15041/89, 15717/89

and 15779/89 to an oral hearing on the admissibility and merits.  On

6 December 1991 the Commission decided to include also Application

No. 17207/90 in the hearing.

On 14 January 1992 the Commission decided to join all five cases.

The hearing took place on 15 January 1992.  At the hearing, the

Government were represented by their Agent, Mr. Helmut Türk, who was

assisted by Mrs. Sabine Bernegger, of the Federal Chancellery, and

Mr. Rainer Fischer-See, of the Austrian Broadcasting Corporation,

Advisers.  The applicants were represented as follows: the first

applicant by Mr. Georg Lehner, a lawyer practising in Linz; the second

applicant, who was present himself, by Mr. Dieter Böhmdorfer, assisted

by Mrs. Susanne Riess, Mr. Walter Meischberger and Mr. Peter

Westenthaler, Advisers; the third applicant, whose President,

Mrs. Brigitte Busch, and a further member of the Governing Board,

Mr. Vladimir Wakounig, were present, by Mr. Thomas Höhne; the fourth

applicant by Mr. Dieter Böhmdorfer assisted by Mr. Walter Dillenz,

Adviser; the fifth applicant by Mr. Wilfried Haslauer.  Furthermore,

Mr. Hannes Tretter of the University of Vienna acted as Adviser for the

second, third, fourth and fifth applicants.

THE LAW

1.All applicants complain of a violation of Article 10 (Art. 10)

of the Convention which 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 applicants complain first of all that under the Austrian

legislation, as interpreted by the Constitutional Court, they are

unable to obtain licences for private radio stations or, in the case

of the first applicant, for a private cable television system.

They observe that under Austrian constitutional law the operation

of private radio stations or cable television systems is not as such

inadmissible, but since implementing legislation has been enacted only

in respect of the Austrian Broadcasting Corporation there exists a de

facto monopoly of this Corporation.  In the applicant's view the

legislature's failure to enact provisions which would allow others than

the Austrian Broadcasting Corporation access to the audiovisual media

is incompatible with Article 10 (Art. 10) which guarantees freedom of

expression, including freedom to broadcast, to "everyone".  While it

is true that the last sentence of Article 10 para. 1 (Art. 10-1) allows

States to subject broadcasting and television enterprises to a

licensing requirement, the applicants consider that this provision

presupposes the existence of a licensing procedure which, however, is

lacking in Austria.

Even if at the time of drafting the Convention broadcasting

monopolies were regarded as being compatible with Article 10 (Art. 10),

the Convention must, according to the applicants, be given a dynamic

interpretation taking into account technical developments and changes

in prevailing views.  Due to the technical progress in the area of

radio and television the reasons which may earlier have justified

broadcasting monopolies, in particular the constraints caused by the

scarcity of available frequencies, have disappeared.  Simultaneously,

the prevailing attitudes concerning the audiovisual media have

undergone fundamental changes with the result that public broadcasting

monopolies have been abolished in almost all European States.

In support of their view that broadcasting monopolies must now

be seen as being incompatible with Article 10 (Art. 10), the applicants

also rely on the fact that several Contracting States have entered

specific reservations concerning such monopolies when they acceded to

the Convention.

The applicants further invoke the case-law of the Convention

organs.  They consider that at least since the Telebiella case

(No. 6452/74, Sacchi v. Italy, Dec. 12.3.76, D.R. 5 p. 43) the

Commission has abandoned its earlier view that a broadcasting monopoly

could be justified under the last sentence of Article 10 para. 1

(Art. 10-1).  It follows from the judgments of the European Court of

Human Rights in the cases of Groppera (28 March 1990, Series A no. 173)

and Autronic (22 May 1990, Series A no. 178) that notwithstanding this

provision restrictions in this area must also be justified under

Article 10 para. 2 (Art. 10-2) of the Convention.  In the applicants'

view this does not leave the last sentence of Article 10 para. 1

(Art. 10-1) without object because it allows the application of a

licensing requirement even if this requirement could not be justified

under Article 10 para. 2 (Art. 10-2).

The applicants contest the justification of the Austrian

broadcasting monopoly under the latter provision.  They claim that

there exists no urgent social need to maintain this monopoly which

cannot therefore be regarded as being necessary in a democratic

society.  In their view restrictions of access to the audiovisual media

should in principle be limited to a regulation of the technical

aspects.  It is not permitted to impose restrictions relating to the

contents of the programmes which in substance amount to prior

censorship.  In this context they oppose the argument that it is

necessary to maintain the monopoly for the purpose of ensuring balanced

programmes and plurality of opinions which in their view is not

achieved having regard to the organisational structure of the Austrian

Broadcasting Corporation.  In their view the necessary pluralism can

also be ensured by competition between several broadcasting enterprises

which need not necessarily by subjected to the same criteria concerning

the preparation of their programmes as the existing monopolistic

broadcasting enterprise.

The applicants observe that even in Austria itself the

monopolistic structure of the audiovisual media has been undermined to

a certain degree in that in wide areas programmes can be received from

private radio stations transmitting from foreign soil.  These

programmes are often directed especially at an Austrian audience.  In

addition, foreign television programmes, including programmes of

private stations, are also accessible to Austrians in many cable

networks.  The Austrian authorities do not interfere with and even

actively contribute to this situation, and therefore it is in the

applicants' view particularly unreasonable if they do not allow the

establishment of private stations in Austria where they could be better

controlled.

The Government contest the applicants' arguments.  They claim

that the first applicant has filed its application out of time because

it should have submitted the case to the Commission within six months

from the Constitutional Court's decision of 16 December 1983.  In the

Government's view this was the final domestic decision within the

meaning of Article 26 (Art. 26) of the Convention.  The applicant's

further complaint to the Administrative Court did not in the

Government's opinion constitute an effective remedy to be taken into

account for the purposes of Article 26 (Art. 26).  While the

Administrative Court was not formally bound by the Constitutional

Court's earlier decision, it could not review the question of the

constitutionality of the legislation underlying the administrative

decision which the applicant sought to challenge, and this question was

the heart of the matter.  Having regard to the express findings of the

Constitutional Court according to which the activity intended by the

applicant was to be qualified as broadcasting in the sense of the

Austrian radio legislation, it was also unrealistic to assume that the

Administrative Court would qualify this activity differently.  The

Government therefore request that Application No. 13914/88 should be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

The Government accept that the other four applicants must be

regarded as having complied with the requirements of Article 26

(Art. 26).  In the case of the second and fourth applicants who did not

take any domestic remedies, they recognise that in view of the

Constitutional Court's decision in the case of the first applicant such

remedies would not have had any prospects of succeeding.

The Government also accept that these four applicants can claim

to be victims within the meaning of Article 25 (Art. 25) of the

Convention.  They were directly affected by the Austrian broadcasting

legislation because they were in fact prevented from establishing

private radio stations in Austria.  In this context the Government

admit that also the second applicant, although he did not actually

engage in broadcasting as did the third and fourth applicants, actually

pursued plans to set up a private radio station.

The Government further accept that there has been an interference

with the applicants' right to freedom of expression.  They contend,

however, that this interference was justified under the last sentence

of Article 10 para. 1 (Art. 10-1) or, in the alternative, under Article

10 para. 2 (Art. 10-2) of the Convention.

In the Government's view the last sentence of Article 10 para. 1

(Art. 10-1) of the Convention would be deprived of any meaning if

Article 10 para. 2 (Art. 10-2) were also to be applied to the licensing

of broadcasting and television enterprises.  The inclusion of this

provision in the Convention shows that broadcasting and television are

of special political importance in a democratic society and that they

may be treated differently from the print media to which other criteria

apply.  While freedom of expression is guaranteed as an individual

right also when exercised through broadcasting and television, these

media serve the community as a whole and therefore require to be

regulated by the State in a manner which ensures that the public is

being informed objectively and impartially through balanced programmes.

State legislation enjoys a wide margin of appreciation in this respect,

provided that the system chosen remains within the bounds of the

Convention.  The establishment of a broadcasting monopoly is not in the

Government's opinion as such incompatible with Article 10 (Art. 10).

Its conformity with this provision depends on the manner in which it

is organised.

The Government submit that at the time when the Convention was

drafted broadcasting monopolies existed in the large majority of the

Contracting States and were regarded as being compatible with

Article 10 (Art. 10).  Nothing can be gained from the argument that

several States subsequently entered reservations when acceding to the

Convention.  In fact only Portugal made a formal reservation, France

and Spain only made interpretative declarations.  In the Government's

view it is decisive that the original Contracting States which had

broadcasting monopolies did not consider it necessary to make any

reservations in this respect.

The Government do not overlook that since then there have been

considerable technological developments and changes of views concerning

the audiovisual media which led to the abolition or liberalisation of

broadcasting monopolies in many States.  Also in Austria plans are

being considered for a liberalisation of the monopolistic structure of

broadcasting.  However, in the Government's view these developments

have not led to a consolidated European standard.  In a number of

Council of Europe member States the organisation of private broadcasts

has not been put on a stable and universally acceptable basis.  A

cautious approach is therefore required when relying on these

developments for purposes of interpretation of Article 10 (Art. 10).

In any event the Government consider that in this context it is also

necessary to take into account the specific conditions existing in each

country.

The Austrian broadcasting legislation providing for the monopoly

of the Austrian Broadcasting Corporation is, in the Government's

opinion, in line with the requirements of Article 10 (Art. 10).  The

legislation is based on the principles of balanced programmes,

objective reporting, plurality of opinions, and independence of

journalists.  The organisation of the broadcasting monopoly thus

corresponds to the concept of broadcasting as laid down in the last

sentence of Article 10 para. 1 (Art. 10-1).  The licensing requirement

in this provision can also be fulfilled by legislation, and since the

system adopted by the Austrian legislation corresponds to the

Convention concept there is no need to justify it under Article 10

para. 2 (Art. 10-2).  Only restrictions going beyond this basic concept

would have to be justified under this provision.

But even if the monopoly as such had to be justified under

Article 10 para. 2 (Art. 10-2), it would according to the Government

have to be regarded as being necessary in a democratic society.  It

pursues the purpose of preventing disorder and protecting the rights

of others.  The Government refer to the relatively small Austrian

market in which it would not be possible to operate many radio stations

on a viable economic basis.  The funds available for commercials would

have to be divided up between the public Broadcasting Corporation, the

print media and any new radio stations.  Since there would only be a

limited number of such stations, it would appear unavoidable to subject

them to regulations ensuring their independence and objectivity.

Otherwise there would be a danger of one-sided programmes, undesirable

concentration and abuse of media power.  In this situation it was

justified to maintain the public broadcasting monopoly which by its

organisation guaranteed well-balanced, objective and pluralistic

programmes.

The Commission must first consider the Government's objections

concerning the admissibility of Application No. 13914/88.  It notes

that the association which brought this application has exhausted all

remedies which were available to it in the Austrian legal system.  The

only question is whether it has also fulfilled the requirement in

Article 26 (Art. 26) of the Convention according to which an

application must be introduced within six months after the final

domestic decision.

The Government claim that the final decision in this case was the

Constitutional Court's judgment of 16 December 1983, the further

complaint to the Administrative Court not constituting an effective

remedy. In the Government's submission after the Constitutional Court's

decision nothing was left for the Administrative Court to decide.

However, the Commission notes that the Constitutional Court's

function was limited to a review of the constitutionality of the

impugned measure.  It further observes that the Administrative Court

discussed at length and in detail the interpretation of the relevant

legislation. This shows that in the circumstances it was not wholly

unreasonable for the applicant association to pursue the case before

the Administrative Court.  Since the association filed the application

within six months of the Administrative Court's decision, the

conditions of Article 26 (Art. 26) have been met.

As regards the other four applicants, the Commission notes that

the Government do not question their compliance with the requirements

of Article 26 (Art. 26).  The Commission also agrees with the

Government that all applicants, including the second applicant, can

claim to be victims of a violation of their rights under Article 10

(Art. 10) of the Convention since they had sufficiently concrete plans

to set up private radio stations and were prevented from doing so by

the state of the Austrian legislation.  There has thus been an

interference with their right to freedom of expression as guaranteed

by Article 10 (Art. 10) of the Convention.

As to the justification of this interference, the Commission

notes that it is in dispute between the parties whether only the last

sentence of Article 10 para. 1 (Art. 10-1) or also Article 10 para. 2

(Art. 10-2) is applicable and whether these provisions allow a

monopolistic system of broadcasting which excludes any possibility to

obtain licences for private radio stations.  In the light of the

parties' submissions, the Commission considers that the applicants'

complaints in this respect raise complex and difficult questions of law

and fact which cannot be resolved at this stage.  The applicants'

complaints therefore cannot be rejected as being manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention

but require an examination as to the merits.

2.The first and third applicants also invoke Article 14

(Art. 14) of the Convention which reads 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."

a)The first applicant claims that it has been discriminated against

in that its intended activities were qualified as broadcasting for

which a licence could not be granted under the Telecommunications Act

whereas cable television systems of hotels, hospitals and institutions

for elderly people are not regarded as broadcasts and can therefore be

licensed under the Telecommunications Act.

The Government consider this complaint to be manifestly ill-

founded.  They submit that the distinction made is based on objective

and reasonable criteria because the audience in the residential

development concerned was not limited to a closed circle of people as

in the case of the other institutions referred to.

The Commission considers that the first applicant's complaint in

this respect cannot be rejected as being manifestly ill-founded and it

accordingly reserves also this aspect of the case for an examination

as to the merits.

b)As regards the third applicant, its complaint of discrimination

is based on the argument that the interests of linguistic minorities

are not sufficiently taken into account in the context of the public

broadcasting monopoly, and that for this reason it is unjustified to

refuse a radio licence to an applicant who intends to transmit specific

programmes for such a minority.

The Government contest this complaint on the ground that the

applicant association has not exhausted the domestic remedies because

it failed to challenge particular programmes of the Austrian

Broadcasting Corporation before the Commission for Safeguarding

Observance of the Broadcasting Act. The third applicant further cannot,

in the Government's view, claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention because its only concern is to

set up a private radio station of its own.

The Commission considers that the procedure referred to by the

Government was not open to the third applicant in relation to its

particular complaint. It must therefore be regarded as having exhausted

the domestic remedies. The Commission furthermore considers that the

third applicant's complaint is so closely related to its principal

complaint under Article 10 (Art. 10) that it cannot be separated from

it.  This part of the application must therefore also be reserved for

an examination as to the merits.

3.The fifth applicant finally complains of a violation of Article 6

para. 1 (Art. 6-1) of the Convention in that no judicial procedure is

available to it for obtaining a radio licence.  The first sentence of

this provision reads as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The applicant claims that the decision to grant a radio licence

is a determination of "civil rights" within the meaning of Article 6

para. 1 (Art. 6-1).  It submits that the possibility of obtaining a

radio licence is excluded by the Austrian legislation as interpreted

by the Constitutional Court, and that for this reason no judicial

procedure is available in connection with a licensing procedure.

The Government consider that the fifth applicant has failed to

exhaust the domestic remedies in this respect because it did not invoke

Article 6 (Art. 6) and did not even in substance raise this complaint

in its constitutional complaint.  The applicant admits that it did not

invoke Article 6 (Art. 6), but claims that it referred to the absence

of a judicial procedure and thereby submitted the substance of this

complaint to the Constitutional Court.

The Government further submit that in any event the applicant did

apply for a licence under the Telecommunications Act.  The Government

contest that a civil right was involved in this procedure, but even if

the applicant's claim concerned a civil right the relevant decisions

were subject to review by the Constitutional Court and the

Administrative Court which in the Government's view fulfilled the

requirements of Article 6 (Art. 6).

The Commission may leave open the question whether or not the

fifth applicant has exhausted the domestic remedies regarding its

complaint under Article 6 (Art. 6) as this complaint must in any event

be rejected for the following reasons:

The applicant itself admits that there was no right under

Austrian law to obtain a radio licence.  This view has been clearly

confirmed by the Constitutional Court and the Administrative Court in

the case of the first applicant.  The absence of a "right" therefore

results directly from the state of the Austrian legislation.  As no

individual "right" exists in Austria to obtain a radio licence, the

question whether such a right would be "civil" in nature does not

arise.  In the absence of any right provided for in the domestic legal

system, the Convention does not require the establishment of a judicial

procedure for the determination of such a right (cf. No. 10475/83,

Dyer v. the United Kingdom, Dec. 9.10.84, D.R. 39 p. 246).

The fifth applicant's above complaint must accordingly be

rejected as being incompatible, ratione materiae, with the provisions

of the Convention in accordance with Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

1.Unanimously declares INADMISSIBLE the fifth applicant's complaint

under Article 6 para. 1 of the Convention.

2.Unanimously declares ADMISSIBLE the remainder of Application

No. 17207/90 as well as Applications Nos. 13914/88, 15717/89 and

15779/89.

3.By a majority, declares ADMISSIBLE Application No. 15041/89.

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                            (C.A. NØRGAARD)