SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32240/96

by Tele 1 Privatfernsehgesellschaft mbH

against Austria

The European Court of Human Rights ( Second Section) sitting on 25 May 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr W. Fuhrmann ,

Mr E. Levits , Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 July 1996 by Tele 1 Privatfernsehgesellschaft mbH   against Austria and registered on 15 July 1996 under file no. 32240/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 23 June 1998 and the observations in reply submitted by the applicant on 11 September 1998 and the applicant’s further observations of 7 October 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a limited liability company with seat in Vienna.

The applicant company is represented before the Court by Mr. Thomas Höhne and Mr. Thomas In der Maur , lawyers practising in Vienna.

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

A. Particular circumstances of the case

On 30 November 1993 the applicant company applied to the Telecommunications Office ( Fernmeldebüro , ‘the Telecommunications Office’) for Vie nna, Lower Austria and Burgenland for authorisation to set up and operate a television transmitter in the Vienna area.

On 1 June 1994 the Telecommunications Office dismissed the applicant company's request. It referred to the Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting ( Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks , 'the Constitutional Broadcasting Law'), which provides that broadcasting shall be authorised by federal legislation and noted that such legislation had only been enacted in respect of the Austrian Broadcasting Corporation ( Österreichischer Rundfunk , ‘the ORF ’ ) and further within the field of regional radio broadcasting. However, no legislation had been adopted in respect of regional television. It followed that the authorisation could not be granted.

On 1 December 1994 the Federal Ministry of Public Economy and Transport ( Bundesministerium für öffentliche Wirtschaft und Verkehr ) dismissed the applicant company's appeal.

On 14 December 1994 the applicant company filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ). Referring to the judgment by the European Court of Human Rights in the case of Informationsverein Lentia and Others v. Austria, the applicant company argued that the Ministry's decision was in breach of its right to freedom of expression as guaranteed under Article 10 of the Convention. In particular, it submitted that the Constitutional Broadcasting Law, if  interpreted in a way compatible with Article 10, allowed everyone to broadcast freely unless restrictions were laid down by law. As no law regulating private television broadcasting had been enacted, the refusal of an authorisation to set up and operate a television transmitter lacked a legal basis. Alternatively, if one followed the approach of  the Constitutional Court’s judgment of 16 December 1983, namely that any broadcasting had to be explicitly authorised by federal legislation, the current legal situation was unconstitutional as the legislator had failed to enact legislation except for the ORF and private regional radio broadcasting.

On 5 March 1996 the Constitutional Court dismissed the applicant company's complaint. Confirming its decision of 16 December 1983, it repeated that, according to the Constitutional Broadcasting Law, broadcasting had to be authorised by federal legislation. So far federal legislation had been enacted for radio and television broadcasting by the ORF and for terrestrial broadcasting of regional radio programs. Further the Broadcasting Ordinance ( Rundfunkverordnung ) contained the legal basis for passive and, following the Constitutional Court's judgment of 27 September 1995, also active cable broadcasting of radio and television programs as of 1 August 1996. However, no legislation had been enacted for terrestrial broadcasting of television programs, apart from the legislation referring to the ORF . As a result of this legal situation other broadcasters than the ORF were not allowed to organise terrestrial broadcasting.

The Constitutional Court observed that, in the present case, this licensing system was directly prescribed by constitutional law and therefore not subject to review by the Constitutional Court. Moreover, the unlawfulness of terrestrial broadcasting of television programs by private broadcasters originated from the legislator's failure to enact the corresponding implementing legislation. Since this failure was comprehensive and did not only refer to specific areas or questions, the Constitutional Court had no power to review the constitutionality of the legislator's failure to enact the implementing legislation. Only the European Court of Human Rights was competent to find in a legally binding way whether or not the impossibility of terrestrial television broadcasting by stations other than the Austrian Broadcasting Corporation was in breach of the Convention.

B. Relevant domestic law and practice

The Telecommunications Law of 13 July 1949

According to the Telecommunications Law ( Fernmeldegesetz ) of 13 July 1949 the "right to set up and operate telecommunications installations ( Fernmeldeanlagen ) is vested exclusively in the federal authorities ( Bund )" (section 2 (1)).  The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations (section 3 (1)). No licence is required in certain circumstances, including the setting up of an installation within the confines of  a  private property (section 5).

The Telecommunications Law of 13 July 1949 was annulled by the 1993 Telecommunications Act (section 48 in conjunction with section 53 (1)) with effect of 1 April 1994. According to section 49 (2) of the 1993 Telecommunications Act, the 1949 Telecommunications Law continued to apply to requests for setting up and operating telecommunications installations which were made before its entry into force.

The 1965 Broadcasting Ordinance

Section 20 (1) of the 1965 Broadcasting Ordinance ( Rundfunkverordnung ) provides that radio signals must be retransmitted in full to users immediately after being picked up.

Under Article 24a of the Ordinance, in the amended version in force since 31 July 1993 (Official Gazette - Bundesgesetzblatt - no. 507/1993) the bearers of a licence to operate a shared aerial may, without having to seek further permission, send text via the cable network, using their own equipment (paragraph 1).  By means of this type of teletext it is possible, inter alia , to impart information to the members of a community or the population of a region in the form of alphanumeric symbols, other graphical signs or pages of teletext .  This is an additional service provided to subscribers (via a separate channel and the vertical interval of the television signal).

These provisions were set aside by the Constitutional Court's judgment of 27 September 1995 (see below).

The Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting

According to Article 1 of the Constitutional Law guaranteeing the independence of broadcasting ( Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks ),

"...

2.  Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.

3.  Broadcasting within the meaning of paragraph 1 shall be a public service. “

The Law of 10 July 1974 on the Austrian Broadcasting Corporation

The Law of 10 July 1997 on the Austrian Broadcasting Corporation ( Bundesgesetz über die Aufgaben und die Einrichtung des österreichischen Rundfunks ) established the Austrian Broadcasting Corporation with the status of an autonomous public-law corporation.

It is under a duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (section 2 (1) (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (section 3). Broadcasting time must be allocated to the political parties represented in the national parliament (section 5 (1)).

A supervisory board ( Kommission zur Wahrung des Rundfunkgesetzes ) rules on all disputes concerning the application of the above-mentioned law which fall outside the jurisdiction of an administrative authority or court (sections 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government.

The Constitutional Court’s judgment of  16 December 1983

In a judgment of 16 December 1983 the Constitutional Court held that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph 1 in fine and paragraph 2 of Article 10 of the Convention ( Gesetzesvorbehalt ). The Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence by the federal legislature. This system was intended to ensure objectivity and diversity of opinions ( Meinungsvielfalt ), and would be ineffective if it were possible for everybody to obtain the requisite authorisation. As matters stood, the right to broadcast was restricted to the ORF , as no implementing legislation had been enacted in addition to the law governing that organisation.

The Administrative Court’s judgment of 8 July 1992

On 8 July 1992 the Administrative Court decided that the Constitutional Broadcasting Law of 10 July 1974 did not cover “passive” broadcasting via cable, in other words the broadcasting in their entirety by cable of programmes picked up by an aerial. Consequently, the mere fact that such programmes originated from a foreign station and were directed principally or exclusively at an Austrian audience could not constitute grounds for refusing the licence necessary for this type of operation.

The Regional Broadcasting Law of  9 July 1993

The Regional Broadcasting Law of  9 July 1993 ( Regionalradiogesetz ), which came into force on 1 January 1994, governs the licensing of local and regional radio stations.

Following a judgment of the Constitutional Court which set aside a number of its provisions, an amendment replacing the annulled provisions came into force on 1 May 1997.

The Constitutional Court's judgment of 27 September 1995

In a judgment of 27 September 1995 the Constitutional Court set aside with effect from 1 August 1996, a passage in the second sentence of Article 20 para. 1 of the Broadcasting Ordinance and its Article 24a, i.e. the rules limiting cable distribution to the retransmission of programmes produced by others ("passive cable broadcasting") and the transmission of text, on the ground that it was contrary to Article 10 of the Convention. In that connection the Constitutional Court referred explicitly to the judgment given by the European Court of Human Rights on 24 November 1993 in the case of Informationsverein Lentia and Others v. Austria (loc. cit.).  Since 1 August 1996 the transmission via cable of original programmes ("active cable broadcasting") has accordingly been legal, just as passive cable broadcasting already was.

The 1997 Cable and Satellite Broadcasting Act

The 1997 Cable and Satellite Broadcasting Act ( Kabel - und Satelliten-Rundfunkgesetz ), which entered into force on 1 July 1997, provides that satellite broadcasting requires a licence by the Broadcasting Authority (section 3 (1)). Cable broadcasting has to be notified to the authority. The notification has to show that the requirements of sections 5 and 6 are complied with (section 4 (1) and (2)). Cable and satellite broadcasters have to be Austrian nationals or legal persons with seat in Austria (section 5 (1)). Certain legal persons such as public law institutions, the political parties and the ORF are excluded from cable and satellite broadcasting (section 5 (2)). The owners of domestic or foreign daily newspapers or weekly periodicals are also excluded from cable and satellite broadcasting (section 6 (1)). When filing a request for a satellite broadcasting licence, the applicant has to show that the requirements of  sections 5 and 6 are complied with (section 8 (1)). Further, except where the programme will specialise in a particular area, the applicant he has to show that it will comply with the following requirements. It has to respect the principles of  objectivity and diversity of opinions and shall reflect public, cultural and economic life of the broadcasting area in an adequate way. Further, it shall give relevant groups of society as well as relevant organisations a possibility to express their opinions (section 8 (2) and section 14).

COMPLAINT

The applicant company complains under Article 10 of the Convention about the decisions by the Austrian authorities refusing it permission to establish and operate a television transmitter in the area of Vienna. It submits in particular that the ORF , at the relevant time, had a monopoly as regards the broadcasting of television programs and, since the Constitutional Court's judgment of 27 September 1995 which, taking effect on 1 August 1996, legalised active cable broadcasting, still has such a monopoly as regards terrestrial television broadcasting.

PROCEDURE

The application was introduced on 2 July 1996 and registered on 15 July 1996.

On 16 April 1998 the European Commission of Human Rights decided to communicate the application.

The Government’s written observations were submitted on 23 June 1998. The applicant replied on 11 September 1998 and submitted further observations on 7 October 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant company complains that the refusal to grant it permission to establish and operate a television transmitter in the area of Vienna was in breach of Article 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 Government submit that insofar as the applicant company complains about the organisation of the ORF, it has failed to show that it is a victim of a violation of its Convention rights and has, moreover, not submitted the substance of the complaint to the domestic authorities.

The applicant company submits that the object of its complaint is not the organisation of the ORF and that its criticism in this context concerns the merits of the application.

The Court notes that the applicant company’s complaint relates to the refusal of an authorisation for terrestrial broadcasting. The Government have not contested that the applicant can claim to be a victim of a violation within the meaning of Article 34 of the Convention as regards this complaint. Nor has the Government submitted that the applicant company has failed to exhaust domestic remedies in this regard as required by Article 35 § 1 of the Convention.

The Government concede that the refusal of authorisation for terrestrial broadcasting constituted an interference with the applicant company’s freedom to impart information.  However, this interference was compatible with the licensing requirement of  the third sentence of Article 10 § 1, which covers the manner in which broadcasting is organised with regard to technical as well as to broadcasting policy aspects. Further, it was prescribed by law. The Government point out that, according to Article 1 (2) of the Constitutional Broadcasting Law, broadcasting has to be authorised by federal legislation. In the field of terrestrial broadcasting, such legislation has only been enacted with regard to the ORF . As to the aim pursued, the Government recall that, according to the Court’s case-law, other aims than those listed in Article 10 § 2 are legitimate where licensing of broadcasting is concerned. They further recall that the Court has accepted that the aims pursued by the Constitutional Broadcasting Law, such as guaranteeing the objectivity of reporting and diversity of opinions are legitimate aims in this context.

As to the necessity of the interference, the Government submit that the terrestrial broadcasting monopoly of the ORF is an appropriate means to achieve the above-mentioned aims, in particular as the ORF is subject to control by the Broadcasting Commission. It is also proportionate as in view of Austria’s topographic situation frequencies for terrestrial television broadcasting are very limited. Apart from the frequencies allocated to the ORF , frequencies would only be available for one more broadcaster. Making them available to a single private broadcaster would amount to creating a private monopoly of opinion. Finally, the Government point out that Austrian broadcasting law has undergone a gradual change since the Court’s Informationsverein Lentia and Others v. Austria judgment of 24 November 1993. In particular, private broadcasters have access to cable and satellite broadcasting. In terms of viewer accessibility satellite broadcasting is comparable to terrestrial transmission. In conclusion, the Government argue that the legislator’s decision to reserve the scarce frequencies for terrestrial broadcasting to the ORF while granting other broadcasters access to cable and satellite broadcasting falls within the margin of appreciation left to the Contracting State under the third sentence of Article 10 § 1 and under paragraph 2 of this Article.

The applicant company claims that a state monopoly on broadcasting is in itself incompatible with Article 10 of the Convention. Further, the applicant company submits that the interference complained of in the present case was not prescribed by law. It argues that the Constitutional Broadcasting Law interpreted in conformity with Article 10 would oblige the legislator to enact legislation relating to private terrestrial television broadcasting. At the time of he contested proceedings as well as to date, the prohibition of such broadcasting resulted and still results from the inactivity of the legislator and is, thus, only a de facto prohibition. Further, the applicant company contests the Government’s argument as regards the necessity of the interference. It submits that the third frequency available for terrestrial broadcasting could be allocated to various regional broadcasters. Moreover, referring to the Informationsverein Lentia and Others judgment it argues that there are alternatives for achieving the aims set out by the Government which would be less restrictive than the ORF monopoly for terrestrial broadcasting, such as subjecting licences for private broadcasters to specified conditions or providing for private participation in the activities of the national station. The applicant company also points out that the changes in broadcasting law on which the Government rely were not in force when the contested decisions were given. Finally, the applicant company submits that the fact that a draft law on private terrestrial television broadcasting is currently underway shows that the ORF monopoly in this field is not necessary to achieve such aims as the objectivity of reporting and diversity of opinions.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Christos Rozakis

Registrar President