Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12726/87

by AUTRONIC AG

against Switzerland

The European Commission of Human Rights sitting in private

on 13 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, 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 9 January 1987

by AUTRONIC AG against Switzerland and registered on 17 February 1987

under file No. 12726/87;

Having regard to:

- the observations submitted by the respondent Government on

7 April 1988, the reply thereto submitted by the applicant company

on 30 June 1988 and the Government's further submissions of

17 August 1988;

- the submissions of the parties at the hearing on

13 December 1988;

Having deliberated,

Decides as follows:

.PA:12726/87

THE FACTS

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

summarised as follows:

The applicant company, a stock corporation (Aktiengesell-

schaft) registered under Swiss law, has its seat at Dübendorf in

Switzerland. It has specialised in the field of home electronics,

inter alia in dish antennae (Parabolspiegel) of 90cm diameter for home

use. Before the Commission the applicant company is represented by

Mr R. Gullotti, a lawyer practising in Berne.

&-Particular circumstances of the case&S

I.

The application concerns the reception by the applicant

company in Switzerland of uncoded Soviet television programmes. These

programmes are prepared and broadcast (emitted) in the Soviet Union.

They are beamed into space to the Soviet satellite G-Horizont from

where they are transmitted to users on the ground. The satellite in

question is a telecommunications satellite rather than a broadcasting

satellite. It constitutes a fixed, i.e. point-to-point, radio-

communications service according to Article 1 para. 22 of the

International Radio Regulations, and it employs frequencies which have

been allotted to the radiocommunications service (Funkdienst) via

telecommunications satellite service. Telecommunications satellites

transmit, apart from radio and television programmes, also telephone

conversations, telex messages and other data.

While today a number of satellites exist retransmitting

television broadcasts which could be received by means of dish

antennae, in 1982, at the time when the present application

originated, such broadcasts could only be received from the Soviet

satellite G-Horizont.

II.

In spring 1982 the applicant company filed a request with the

Radio and Television Department of the Board of Directors (General-

direktion) of the Swiss Post, Telegraph and Telephone Services (PTT).

Therein, it applied for permission to show at the Basle trade fair

(Mustermesse) in 1982 the public Soviet television programme which it

received by means of a private dish antenna directly from the Soviet

satellite G-Horizont.

The Radio and Television Department of the Board of the PTT

then wrote to the Soviet Embassy in Berne and inquired about a

permission to do so. This was granted by the Soviet authorities on

21 August 1982 for the Basle trade fair.

On 7 July 1982 the applicant company again applied for such

a permission for the 1982 FERA exhibition in Zurich lasting from

30 August until 6 September 1982. This exhibition concerns new

developments in radio, television and electronics equipment.

The Radio and Television Department of the Board of the PTT

then again asked the Soviet authorities for permission, though a reply

was never received.

On 14 and 26 July and 6 August 1982 the Radio and Television

Department of the Board of the PTT replied that it could not permit

the reception of transmissions from the Soviet satellite without the

express approval of the Soviet authorities. As long as this approval

had not been granted, the PTT was bound by the Radio Regulations to

prevent any such reception.

III.

The applicant company was planning to conduct further such

demonstrations. It therefore applied on 1 November 1982 to the Radio

and Television Department of the Board of the PTT for the issue of

a declaratory order (Erlass einer Feststellungsverfügung). The

applicant company requested in particular a statement according to

which the reception for private use of uncoded transmissions from

telecommunications satellites, such as G-Horizont, should not be made

dependent on the approval by the authorities of the broadcasting

State. The applicant company submitted that the use of particular

frequencies did not determine whether or not a programme was to be

kept confidential, and Article 23 of the Radio Regulations (see

Relevant international law, below) did not indicate which programmes

were confidential.

According to the applicant company, only a licence

(Konzession) under Swiss law should be required for the reception of

television and radio broadcasts. Such a licence could be granted to

everybody as long as the programmes were generally accessible and

public and not confidential. There was also no interference with

Swiss copyright law since the condition for such protection was the

quality of a "work" (Werk). While individual programmes constituted

such a work, an entire broadcasting programme did not.

On 13 January 1983 the Radio and Television Department of the

Board of PTT dismissed the applicant company's request for a

declaratory order. It issued an order that the reception at issue

could not be permitted without the approval of the broadcasting State.

The order informed the applicant company of the possibility of an

appeal.

As to the reasons for its order, the Radio and Television

Department found that signals from telecommunications satellites could

only be received by specially approved ground stations. According

to Article 9 para. 960 of the Radio Regulations (see Relevant

international law, below) each State administration could determine

for a point-to-point radiocommunication certain frequencies, provided

that these emissions were not intended for direct reception by the

general public.

The order of 13 January 1983 found, on the one hand, that the

broadcasting satellites transmitted radio and television programmes to

an undefined number of receiving stations in a defined area. They

transmitted on frequencies which were expressly reserved for direct

reception. On the other hand, in respect of telecommunications

satellites Article 22 of the International Telecommunication

Convention obliged all members States to secure the confidentiality of

the transmissions. Article 23 of the Radio Regulations rendered this

provision more precise. The decision of the Radio and Television

Department continues:

"Somit ist für die Frage, ob eine Sendung für den

unmittelbaren Empfang durch die Allgemeinheit bestimmt ist,

nicht der Inhalt der übertragenen Funksendung (z.B. ein

Fernsehprogramm) massgebend, sondern die Art und Weise der

Uebertragung, nämlich ihre Qualifizierung als Fernmelde-

verbindung. Daraus folgt, dass mittels Fernmeldesatelliten

übertragene Rundfunkprogramme in einem Land nur empfangen

werden dürfen, wenn die Fernmeldeverwaltung des Sendelandes

... die Fernmeldeverwaltung des Empfangslandes dazu

ermächtigt. Damit wird auch den Bestimmungen betreffend das

Fernmeldegeheimnis Rechnung getragen. Es ist nicht

einzusehen, weshalb Fernmeldeverwaltungen bestimmte

Funksendungen nicht sollten geheimhalten können, da sie doch

zur Durchsetzung der Vorschriften von Fernmeldevertrag und

Radioreglement verplichtet sind."

"For the question, therefore, whether or not a broadcast

destined for the direct reception by the general public, the

content of the transmitted radiocommunication (e.g. a television

programme) is not relevant. Rather, the means of transmitting

is important, in particular its qualification as a

telecommunication. It results therefrom that radio and

television programmes which have been transmitted over a

telecommunications satellite can only be received in a country

if the telecommunications administration of the transmitting

State ... has given its approval to the telecommunications

administration of the receiving State. Thus, due

consideration is taken of telecommunications confidentiality.

There are no reasons why telecommunications administrations

should not keep certain radiocommunications confidential since

they are bound to ensure compliance with the provisions of the

International Telecommunications Convention and the Radio

Regulations."

IV.

The applicant company thereupon filed an appeal (Beschwerde)

which was dismissed, on 20 July 1983, by the Board of Directors of the

PTT. After reiterating the decision previously given by its Radio and

Television Department to the applicant company, the Board first stated

that it was competent to examine the appeal. It continued that

the applicant company had an interest worthy of protection in having

the contested order quashed within the meaning of Article 48 of the

Swiss Administrative Procedure Act.

In the grounds for its decision the Board found that the

protection of the information at issue could not depend, as the

applicant company had suggested, on whether the transmissions were

intended for the use by the general public since in the case of

telecommunications satellites at the moment of transmitting it was not

clear or generally known which transmissions were intended for the use

of the general public. The Board also considered that Article 10 of

the Convention only granted the right to receive information from

generally accessible sources which the telecommunications satellite

did not constitute. Moreover, it was here irrelevant that the

transmissions were later intended for general use since at the time

of transmission there was a duty to keep the transmitted data

confidential.

V.

Against this decision the applicant filed, on 13 September

1983, an administrative law appeal (Verwaltungsgerichtsbeschwerde)

to the Federal Court (Bundesgericht) in which it requested the Court

to issue a declaratory order to clarify the legal situation for the

future. In particular, the Court was requested to declare that the

reception for private use of uncoded transmissions of telecommuni-

cations satellites intended for the general public should not depend

on the approval of the emitting State.

On 7 February 1984, upon request of the Swiss PTT

authorities, a member of the direction of the Soviet Gostelradio

informed the Swiss PTT by telex that the broadcasts transmitted by the

satellite in question were intended for Soviet television viewers and

not for other countries. According to the telex, any international

use of such signals would have to be resolved on an international

level.

On 6 July 1984 the applicant company informed the Federal

Court that it had found in a periodical, No. 48 of IRT (Information,

Radio and Television), a news item according to which the Soviet

telecommunications administration had declined to approve the reception

of its programmes in other countries since its broadcasts were intended

solely for Soviet television viewers.

During the ensuing proceedings the Federal Court decided on

9 July 1984 to ask the Board of the PTT a number of questions on the

factual and legal situation of the case. The reply thereto, counting

22 pages, was submitted by the PTT General Direction on 22 August

1984. On 31 August 1984 the applicant company submitted its own

statements to the questions. On 10 June 1985 the Federal Court

Rapporteur informed the applicant company that its administrative

court appeal had, for different reasons (umständehalber), so far not

been treated and that the applicant company could submit further

statements in reply until 16 August 1985.

Meanwhile, on 26 June 1985, the Radio and Television

Department of the Board of Directors of the PTT transmitted by telex

the following enquiry to the Dutch Telecommunications authorities:

"... In connection with the determination of a request, we would

like to know on which conditions reception of TV programmes

via telecommunications satellites is permitted in the

Netherlands. Please let us also know if the Soviet

communications satellite G-Horizont stationar is received

in your country (by cable operators)..."

On 1 July 1975 the Dutch authorities replied by telex:

"... The conditions for reception of TV programmes by cable

operators in the Netherlands seem to be quite similar to those

in your country. The Netherlands PTT issues licences to cable

operators, separate for each particular TV programme. With

such a licence the operator can install his own TVRO antenna,

although it is advisable for him to consult with PTT for

frequency coordination purposes in order to avoid interference

from terrestrial microwaves. ... A few years ago some reception

of the Ghorisont satellite did indeed take place. This was

considered illegal because of the absence of agreements with

the USSR program provider and satellite operator, and the

cable operators were so informed. ..."

The Swiss Radio and Television Department also asked the

Finnish Telecomunications authorities about reception of television

programmes from satellites. On 8 July 1985 the latter replied by

telex:

"... We have permission from the Telecommunications Ministry

of USSR to receive as an experiment the Ghorisont signal

up to 31.12.1985. Authorisation for distribution has been

given in 7 cases so far."

VI.

On 10 July 1986 the Federal Court rejected the applicant

company's administrative court appeal. The decision was served on

11 November 1986.

The Federal Court stated in its decision that, while the

applicant company had envisaged an abstract determination of the legal

situation, it could in fact only complain that it had been unable to

receive the transmissions in question at FERA since only such a

reception was relevant for the applicant company (kam für sie konkret

in Betracht). The Court nevertheless found it unnecessary to resolve

whether for this reason the applicant company's request for a

declaratory order was inadmissible since it had in any event also

failed to demonstrate an interest worthy of protection (schutzwürdiges

Interesse).

The Federal Court observed that at that moment there was over

Europe, with the exception of the Soviet G-Horizont satellite, no

other satellite the emissions of which could be received by a home

dish antenna. In fact, the applicant company had received signals of

the Soviet satellite since it had no possibility to receive other

programmes. As long as this was the case, the Court found that there

was hardly a market for such antennae, and only "strange persons"

(Sonderlinge) would be inclined to buy such an antenna. While a

German and a French satellite would eventually commence operation it

was unclear how these means of transmission should be used, and it

could not be estimated how big the interest would be in a direct

reception of their programmes, and how many dish antennae would be put

into use. Thus, since the applicant company had not demonstrated a

direct economic interest, it had no interest worthy of protection in

the issue of a declaratory order and the Federal Court therefore

refused to enter into the complaint.

&-Relevant international law&S

In the domestic proceedings in which the applicant company was

involved, the Swiss authorities referred to various provisions under

international law, which may be summarised as follows:

Article 22 of the International Telecommunications Convention

states in the version in force at the time:

"Secrecy of Telecommunications.

1. Members agree to take all possible measures,

compatible with the system of telecommunication used, with

a view to ensuring the secrecy of international correspondence.

2. Nevertheless, they reserve the right to communicate

such correspondence to the competent authorities in order to

ensure the application of their internal laws or the execution

of international conventions to which they are parties."

Article 1 para. 37 of the Radio Regulations, adopted in the

framework of the International Telecommunications Union (ITU), states

in the version applicable at the time, that signals transmitted via

broadcasting satellite in outer space may be directly received by the

general public, either individually or collectively, in the case of

broadcasting satellites.

Article 9 para. 960 of the Radio Regulations states:

"Any administration may assign a frequency in a band

allocated to the fixed service or allocated to the

fixed-satellite service to a station authorized to transmit,

unilaterally, from one specified fixed point to one or more

specified fixed points provided that such transmissions are

not intended to be received directly by the general public."

According to Article 23 of the Radio Regulations, States

members of the ITU are bound to prevent reception by the general

public of certain emissions:

"In the application of the appropriate provisions of the

Convention, administrations bind themselves to take the

necessary measures to prohibit and prevent:

(a) the unauthorised interception of radiocommunications

not intended for the general use of the public;

(b) the divulgence of the contents, simple disclosure of

the existence, publication or any use whatever, without

authorisation, of information of any nature whatever

obtained by the interception of the radiocommunications

mentioned in (lit. a above)."

COMPLAINTS

The applicant company complains that the free reception for

private use of satellite transmissions which were not codified and

were intended for the general public was made subject to the approval

of the emitting State. It alleges a violation of its right under

Article 10 of the Convention to freedom of information. It submits

that there was no legal basis either under Swiss or international law

for the requirement of an approval, and that such a requirement was

also disproportionate and unjustified. The interference could not be

justified on the ground that the programmes were being transmitted via

a telecommunications satellite. Furthermore, the private reception of

such transmissions by home antennae did not cause any disturbances.

.PA:12726/87

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 January 1987 and

registered on 17 February 1987.

On 15 October 1987 the Commission decided to bring the

application to the notice of the respondent Government and invite them

pursuant to Rule 42 para. 2 (b) of the Rules of Procedure to submit

observations on the admissibility and merits of the application.

The respondent Government's observations were submitted

on 7 April 1988, the reply thereto by the applicant company on

30 June 1988, and the Government's further observations on

17 August 1988.

On 11 October 1988 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

At the hearing which was held on 13 December 1988, the parties

were represented as follows:

The respondent Government:

Mr. O. JACOT-GUILLARMOD,

Head of the Service of International Affairs

of the Federal Office of Justice, Agent

Mr. B. MÜNGER,

Service of International Affairs of

the Federal Office of Justice,

Mr. A. SCHMID,

Head of the General Law Department

of the PTT Board of Directors,

Mr. H. KIEFFER,

Head of Section, Administration of frequencies

and transmission monopoly (Senderegal) of the Radio

and Television Department of the PTT Board of Directors,

as advisers.

The applicant company:

Mr. R. GULLOTTI,

Fürsprecher, counsel

Mr. Walter STREIT,

assistant counsel.

Mr. Peter KRAUSE, President of the Board of Directors

and proprietor of AUTRONIC AG, was also present.

SUBMISSIONS OF THE PARTIES

A. The respondent Government&S

I. As to the admissibility of the application

1. In respect of the question whether the applicant company can

be considered to be a victim, the Swiss Government recall that, in

its judgment of 10 July 1986, the Federal Court did not examine the

substance of the public law appeal of the applicant company as it

found that the latter no longer had a legal interest in the matter.

The Federal Court found, in particular, that the telecommunications

satellite in question was broadcasting its television programme in

Russian, and that there could hardly be said to be an audience in

Switzerland capable of following such programmes. For this reason,

the Government consider that the applicant company cannot be regarded

as a victim within the meaning of Article 25 of the Convention.

2. As regards the question of the exhaustion of domestic

remedies, the Government recall that the applicant company's request

of 1 November 1982 was clearly of a general and abstract nature. The

Government therefore consider that this request does not constitute a

valid substitute for an appeal against the refusal of the earlier

request of the applicant company of 7 July 1982.

The Government next explain the specific problems concerning

the declaratory order which the applicant company requested before the

Federal Court.

The competent authority is empowered to make such a

declaration, of its own volition or on request, if, in the application

for such declaration, the person concerned proves that he has

interests worthy of protection (see Section 25 paras. 1 and 2 of the

Act on Administrative Procedure). In the present case the Federal

Court seriously doubted this. In particular, the act challenged must

be of an individual and specific, rather than of a general and

abstract nature, for in the latter case the Federal Court would in

fact be controlling rules in the abstract which it is not empowered to

do in such circumstances.

In this connection the Swiss Government consider that the

applicant company could in fact have challenged individual and

specific measures directed against it. On 7 July 1982 it had applied

to the Swiss PTT authorities for authorisation to receive broadcasts

from the Soviet telecommunications satellite at the Zurich exhibition

in 1982. The PTT declined by letters of 26 July and 6 August 1982.

The Government emphasise that the applicant company failed to appeal

against these negative decisions. It is true that the applicant

company later explained, in its application of 1 November 1982 for a

declaratory order, the reasons why it failed to appeal against the

previous decision. In particular, the applicant company claimed to

have been under time pressure.

The Government conclude that States are free to define the

procedural conditions inter alia for introducing an application for a

declaratory order. Since the applicant company did not comply with

these conditions, in the Government's view it has not complied with

the requirements of the exhaustion of domestic remedies within the

meaning of Article 26 of the Convention, and the application should

therefore be declared inadmissible.

3. The Government next examine the complaints of the applicant

company. The latter wished to carry out a technical demonstration at

an exhibition, in particular by demonstrating equipment capable of

receiving broadcasts from the Soviet telecommunications satellite.

In the Government's opinion, it is not possible to rely upon

Article 10 of the Convention in a purely technical manner without any

reference to the substance of the freedom of expression. Undoubtedly

Article 10 must be held to guarantee the right to use the most recent

technical apparatus in order to take full advantage of the right

guaranteed by that provision. It is not, however, possible to rely on

this provision for purely technical purposes, totally disregarding the

substance of the "expression" or "information" in question, which are

a decisive element in the fundamental rights enshrined in Article 10

of the Convention.

Article 10 of the Convention does not cover the mere technical

demonstration, during a specialised exhibition, of equipment permitting

the reception of broadcasts from a telecommunications satellite. Such

a technical demonstration is more fully protected by the freedom of

economic activity which, while not enshrined in the Convention, is

guaranteed by the freedom of commerce according to Article 31 of the

Swiss Constitution.

As a result, the Government submit that in this respect the

application is incompatible ratione materiae with the provisions of

the Convention.

The Government conclude that the prohibition in question did

not constitute an interference by the Swiss authorities with the

rights of the applicant company under Article 10 para. 1 of the

Convention, and the Commission is invited to declare this part of the

application inadmissible ratione materiae.

II. As to the well-foundedness of the application

In view of the above, the Government submit that it is in

principle superfluous to examine further whether there has been an

interference with the rights in Article 10 para. 1 of the Convention

and whether the grounds of justification mentioned in Article 10

para. 2 of the Convention have been met.

1. The Government recall the nature of the satellite in question

by referring to its Message of 20 December 1985 to the Swiss

Parliament concerning the Federal Decree on Satellite broadcasting

(FF [Feuille fédérale] 1986 I p. 421 et seq.). There, telecommuni-

cations satellites were contrasted with direct radio or television

broadcasting satellites intended for direct reception by the public

(ibid. p. 426). The Message continues:

"Telecommunications satellites have been in use since the

beginning of the 1960s. They are used principally for

transmitting telephone conversations, data, etc., but are

also used for radio and television programmes between certain

authorised land stations (point to point links), on the

frequencies reserved for that purpose. In accordance with the

International Radio Regulations, signals duly protected by

secrecy are not intended for the public. (...).

For some years now, telecommunications satellites have also

been used to transmit television programmes from a

transmitting station to several receiving installations.

Under the International Radio Regulations, this kind of

relaying from one point to several others forms an integral

part of the fixed satellite transmission service and is not

part of satellite broadcasting in the strict sense. The

receiving of signals is therefore permitted only with the

express approval of the telecommunications authorities".

In this light, the Government submit that there are inherent

limitations in the possibilities of transmitting the information.

These limitations which other States must respect imply that there is

no interference with the applicant company's rights under Article 10

para. 1.

2. Moreover, the above explanations demonstrate that this highly

sophisticated kind of telecommunications justifies national

authorities introducing a particularly strict licensing system. In

fact, since such programmes are transmitted by a satellite from one

precise point to another precise point, they are subject to two State

licensing systems: they have to be authorised both by the State of the

place of transmission and by the State in which the receiving station

is situated.

As a result, the right of the national authorities to license

television broadcasts should be extended to include this requirement

of a licence on the international level, in particular the consent

from the broadcasting State. In the Government's opinion, such a

licensing system is also covered by the third sentence of Article 10

para. 1 of the Convention.

3. As regards the question whether the interference with the

applicant company's rights would have been "prescribed by law" within

the meaning of Article 10 para. 2 of the Convention, the Government

refer to a whole chain of legal provisions providing a legal basis for

the measure undertaken by the Swiss authorities, in particular for

requiring a licence from the applicant company.

The Government refer first to Article 36 of the Swiss

Constitution which provides, inter alia, for the secrecy of letters

and telegrams. The 1922 Federal Act on telephone and telegraph

correspondence provides in Article 1 a State monopoly for establishing

and exploiting all installations serving the electrical or radio-

electrical transmissions.

The Government refer next to the Federal Council's Order No 1

on the Telegraph and Telephone Communications Act of 17 August 1983

inter alia to its Articles 50 and 66. Under Article 78 para. 1 (f) a

licence is required for a joint antenna enabling the owner to

broadcast programmes and provide individual radio broadcasting

services received from telecommunications satellites with the

authorisation of the PTT which itself requires permission from the

Department of Transport, Telecommunications and Energy. Reference is

also made to Article 79 para 2 of this Order No 1 which states:

"The authorisation envisaged in Article 78 para. 1 (f) shall

be granted if the competent telecommunications authorities

have given their agreement and if none of the reasons for

refusal laid down in Article 19 are present."

Article 19 states that a licence may be refused if there are

serious reasons for supposing that the telecommunications equipment

will be used for purposes which are illegal, immoral or contrary to

public policy, or are harmful to the overriding interests of the

country, of the PTT or of radio broadcasting.

Mention is also made of the Article 28 of Federal Decree on

satellite broadcasting of 18 December 1987 under which permission from

the relevant Federal Department is required for the retransmission of

foreign programmes broadcast by satellite under a foreign licence.

Such permission is granted only if the PTT is satisfied that the

requirements of Swiss and international telecommunications law are

met.

As regards other existing or planned Swiss legislation, by

Message of 28 September 1987, the Federal Council brought before the

Swiss Parliament a Federal Radio and Television Bill. Section 39 of

this Bill prescribes that a licence for the transmission of programmes

from telecommunications satellites may be granted only upon prior

authorisation from the PTT. Such a licence will in principle be

granted only if the State in which the transmitter is situated has

given the authorisation required under the International Radio

Regulations.

On the international level, the Government point out that

international treaties form part of the Swiss legal order after they

have entered into force for Switzerland and thus are directly

applicable to both the authorities and individuals. The Government

refer here to the fact that the applicant company itself relied before

the domestic authorities on the international provisions concerned.

The Government further submit that Article 22 of the ITU

Convention is sufficiently precise in that it refers to the protection

of the secrecy of telecommunications. In the present case, the

broadcasts were confidential insofar as they were transmitted over a

telecommunications satellite.

4. The applicant company also claimed during these proceedings

that private companies in the same situation in the Netherlands and

Finland had obtained the necessary authorisations without difficulty.

The Government point out that the Swiss PTT sent telexes to the

relevant national authorities. The replies obtained show clearly that

these countries also work on the assumption that licences to receive

such transmissions may be granted to private companies on their

territory only with the prior authorisation of the Soviet authorities,

on whose territory the transmitters are situated. The Swiss

Government refer in particular to the contents of the Dutch and

Finnish replies.

5. The Government consider that the system of rules applying in

Switzerland as well as the procedure followed in the case in question

are compatible with Article 10 of the Convention. While the situation

may change in the future, at present the applicant company would

receive the same reply from the Swiss authorities.

In view of the technical specifications of the equipment in

question, the existing interferences, both in Switzerland and in the

State of transmission, namely the USSR, are not only laid down by

national and international law, but are also justified as constituting

measures necessary for the protection of the international telecommu-

nications system. This last concept, though it does not appear in so

many words among the exceptions listed in Article 10 para. 2, is

nevertheless implicit in the notion of "prevention of disorder".

Unlimited flow of information on the international level would produce

anarchy, and a minimum of order is required precisely to ensure the

cultural and political pluralism lying at the heart of Article 10 of

the Convention.

6. The Government have accepted that if the applicant company

uses its dish antennae this does not imply a risk of interference with

other frequencies, though they have indicated that by their nature

dish antennae can potentially cause an interference in certain

circumstances. There is also no risk of access to other confidential

information on the same satellite particularly since such information

could be coded. There is furthermore no risk that the reception of

such broadcasts will interfere with the reception by other antennae.

On the other hand, there is always the possibility that the content of

the frequency concerned - e.g. a television broadcast - may change.

III. Conclusions

On the basis thereof the Government invite the Commission to

declare the application inadmissible under Articles 26 and 27 of

the Convention.

B. The applicant company&S

I. As to the admissibility of the application

1. In respect of the issue of its being a victim, and in

particular the decision of the Federal Court of 10 July 1986, the

applicant company observes that the Federal Court thereby took the

view that in an application for a declaratory order the public rights

and obligations involved must be defined with sufficient clarity. In

the opinion of the applicant company, the issue was entirely clear,

namely whether or not the reception for private use of uncoded

transmissions from a telecommunications satellite could be made

dependent on the transmitting State's consent. The issue here was

a practical and specific one.

The underlying question, however, is not merely that of

reception from the G-Horizont satellite, but that of reception from

all satellites which, while using telecommunications frequencies,

broadcast to the public at large. In its Message on the Federal

Decree on satellite broadcasting of 20 December 1985, the Federal

Council also refers to this broader question and confirms that in fact

most radio broadcasts are also transmitted on telecommunications

frequencies. The Government themselves, by referring to the replies

of the Dutch and Finnish authorities, demonstrate that these questions

have also been a source of controversy in other countries.

It cannot therefore be claimed that the applicant company is

addressing a remote and irrelevant problem.

2. As regards the reasons of the applicant company for not

pursuing the proceedings brought on 7 July 1982 concerning the Zurich

exhibition, the applicant company explain that this exhibition is held

annually at the end of August. If the applicant company had followed

up all the legal remedies available, it would have had no hope of

concluding the proceedings in time. It was not pressure of time which

prevented it from proceeding further, but the fact that the

proceedings themselves would have become purposeless while they were

still pending at the appeal stage.

It was precisely this circumstance which led the applicant

company to bring the present proceedings, which are entirely distinct

from those relating to the 1982 Zurich exhibition. For the same

reason, the applicant company's request for the issue of a declaratory

order of 1 November 1982 cannot be regarded as an appeal against, or

the attempt to re-open, the proceedings of 1982, but as a separate and

independent application in new proceedings.

Undeniably the applicant company has exhausted domestic

remedies within the meaning of Article 26 of the Convention by taking

these proceedings all the way to the Federal Court. If the time is

borne in mind which has passed since 1 November 1982, when the request

was filed, it is hard to understand the attitude of the Government.

3. If the Government observe that the questions arising in this

case are of interest to other firms as well, the applicant company

reply that certain court judgments are indeed decisions of principle

and thus of interest also to persons not specifically involved in

those proceedings.

In conclusion, the Federal Court was mistaken in failing to

examine the administrative court appeal of the applicant company. Nor

are there grounds for failing to enter into an examination of the

present application.

4. In respect of the Government's submissions that the applicant

company cannot rely on the freedom of information as its only concern

was a technical one, the latter submits that under the Convention

corporations may be considered victims within the meaning of

Article 25 of the Convention, and under Swiss law they can rely in

particular on the freedom of expression, which includes freedom of the

press. In modern society, the possession of information is of

considerable importance for individuals as well as for corporations.

In the applicant company's view, the specific reasons which

lead a person or corporation to exercise rights to which he or it is

entitled are immaterial. These rights exist in an absolute sense, and

can be restricted only on the conditions laid down in Article 10 of

the Convention.

The applicant company's reasons for introducing an

application before the Commission are not merely technical or

economic. Its concern is also with its basic right to obtain

information from accessible sources. It wishes to be allowed to

receive from the public media the information which those media

purvey. The fact that it sought permission to stage a demonstration

at the 1982 Zurich exhibition cannot be taken as proof that its

concerns in the present proceedings go no further than that. Autronic

AG is also active, for instance, in the media field where it supplies

data in the videotext sector. It is thus obliged to keep a close

watch on the entire media sector and must be able, as an aspect of

freedom of information, to receive information from accessible

sources.

Furthermore, the proceedings before the Swiss authorities

concerned reception, not merely from the G-Horizont satellite,

but from all telecommunications satellites broadcasting uncoded

programmes intended for the public. In any case, the existence of

economic interests cannot be employed to argue that Article 10 of the

Convention has not been violated, since several areas of basic law are

applicable in most cases. In fact, under Swiss law the basic rights

to freedom of information and freedom of commerce are of equal

importance and do not exclude one another.

II. As to the well-foundedness of the application

1. In respect of the Government's submissions under the third

sentence of Article 10 para. 1 of the Convention the applicant company

again refers to its application of 1 November 1982 for a declaratory

order. Thereby, the applicant company sought a ruling that the

reception for private purposes of uncoded satellite broadcasts, such

as those from G-Horizont, did not require the consent either of the

transmitting State, or of the relevant authorities or institutions in

the transmitting State, but merely a radio or television receiver's

licence, issued in accordance with the relevant provisions of the

Broadcasting Act and the accompanying regulations.

The passage quoted by the Government from the Federal

Council's Message of 20 December 1985 on the Federal Decree on

satellite broadcasting merely reiterates the well-known views of

the authorities. It was, however, precisely as a result of this

Message that the related problems concerning freedom of information

were recognised and brought into the discussion.

Nevertheless, the applicant company submit that it is not the

frequency employed, but the content of broadcasts, which determines

whether those broadcasts are intended for the general public.

Contrary to what the Government say, international telecommunications

law does not permit any other conclusion.

2. The main concern of the International Telecommunications

Convention is to regulate frequencies to ensure interference-free

reception. This view is supported by the international expert opinions

submitted by the applicant company. It is also clear that violation

of telecommunications secrecy is not at issue in the present case.

In short, there is nothing in the international regulations to

indicate that the formal criterion of allocation of frequencies should

determine whether or not a broadcast is intended for the public.

The provisions cited by the Government from the Federal

Council's Order No 1 on the Telegraph and Telephone Communications Act

of 1983 do not apply to the present case which is concerned, not with

dissemination via a collective or community antenna, but merely with

the reception for private purposes of uncoded broadcasts. There is

also no reference in these provisions to the relevant international

legal provisions.

The scope of the Federal Decree on satellite broadcasting,

which has also been cited by the Government, is made clear from its

Article 1 which refers to:

"a. The transmission of radio and television programmes,

and similar types of broadcast, via satellite;

b. The reception of radio and television programmes and

similar types of broadcast transmitted by satellite".

Article 2 para. (b) indicates what is meant by reception in

Article 1:

"b. Reception: The simultaneous, complete and unaltered

reception and rediffusion of programmes via community

aerials and broadcasting installations."

This shows that the Federal Decree on satellite broadcasting

is irrelevant to the present case. One reason for this is also given

in the Message itself, which explains that the intention was to avoid

unnecessarily prejudicing the Radio and Television Bill.

Article 28 of the Federal Decree on satellite broadcasting,

which is cited by the Government, merely states that compliance with

Swiss and international telecommunications law must be verified by the

Post Office authorities before a licence can be granted. It is

precisely on the scope of these rights and obligations, however, that

the opinions of the parties differ fundamentally.

It is uncontested that the Government approached the Soviet

authorities repeatedly. The applicant company also accepts that the

latter simply failed to reply, leaving both the Swiss PTT and

applicant company in a state of uncertainty. This also shows how

pointless and arbitrary the proceedings are in order to obtain

permission. Also interesting here is the telex of 22 July 1982 from

the Board of Directors of the PTT which stated that "... these signals

can be received easily throughout the area covered by this satellite.

This could create a situation comparable to that of a satellite

broadcasting service".

3. The applicant company further points out that the replies of

the Dutch and Finnish authorities are concerned with licences for

reception by means of community antennae and are thus irrelevant to

the present case. In fact, there are also European countries, for

instance France and the United Kingdom, where the regulations are

significantly more liberal. In these countries, a straightforward

licence, specifying essentially technical conditions, suffices. This

means that there is no adequate basis for restricting freedom of

information by making the reception of public broadcasts conditional

on the country's consent. The applicant firm's rights under Article 10

of the Convention have accordingly been violated.

4. The applicant company notes that in 1988 eight satellites are

serving Europe all of which employ frequencies of the fixed satellite

service. Of 48 programmes, only eight are coded. In the present case

there has been no justification within the meaning of Article 10

para. 2 by the respondent Government for the interference at issue.

In particular, there was no pressing social need to prohibit the

applicant company from receiving the broadcasts. It is on the

contrary quite essential in a democratic society to permit the private

reception of the contested broadcasts.

III. Conclusion

The applicant company concludes that the application is

well-founded.

THE LAW

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

the Convention that the free reception for private use of broadcasts,

which were transmitted over a satellite qualified as a telecommu-

nications satellite and which were actually intended for the general

public, were made subject to a permission by the Swiss authorities

which would only be given after the authorities of the transmitting

State had consented thereto.

The applicant company claims to be a victim of this

interference under Article 25 (Art. 25) of the Convention in that its

concern is not merely a technical one. Rather, it intends to obtain

information from accessible sources. The applicant company further

considers that Article 10 (Art. 10) of the Convention includes such a

guarantee, and that, by applying for a declaratory order to the

competent Swiss authorities, the applicant company has complied with

the requirements under Article 26 (Art. 26) of the Convention as to

the exhaustion of domestic remedies. The applicant company complains

that there was no legal basis for the requirement of such consent, and

that the implementation of such a requirement was disproportionate and

unjustified, in particular since the broadcasts at issue were not

confidential.

Article 10 (Art. 10) of the Convention provides:

"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 responsibiities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

The Government submit that the applicant company cannot claim

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

Convention in that the company only has a theoretical interest not

worthy of protection under the Convention in pursuing its application.

The Government refer here to the decision of the Swiss Federal Court

of 10 July 1986 according to which it could hardly be said that there

was an audience in Switzerland capable of following such broadcasts.

Under Article 25 para. 1 (Art. 25-1) of the Convention, the

Commission "may receive petitions ... from any person ... claiming to

be a victim of the rights set forth in (the) Convention".

The Commission notes that the applicant company brought an

application for a declaratory order which the Radio and Television

Department of the Board of Directors of the PTT dismissed on

13 January 1983. In particular, the Department issued an order that

the reception of the broadcasts at issue could not be permitted

without the approval of the broadcasting State. The applicant

company's appeal was dismissed by the Board of Directors of the PTT

and its administrative court appeal by the Federal Court.

The Commission further notes that the Federal Court discussed

whether the applicant company's administrative law appeal could be

rejected in view of the fact that it envisaged an abstract

determination of a legal situation, but the Court did not decide on

this basis. Rather, it found that the applicant company had no legal

interest in view of the fact that only broadcasts transmitted over a

Soviet satellite could at that time be received.

As the Government have confirmed, the decisions of the

competent authorities have established that there is no possibility

for a private user to obtain consent to receive the broadcasts from

the telecommunications satellite. This decision was and is still

valid for the applicant.

The Commission does not consider relevant the number of

broadcasts that could have been received when the applicant applied

for the permission. It notes that, according to both parties'

submissions, it is technically possible at present to receive several

satellite broadcasts.

Therefore, as the applicant company has been prohibited from

receiving the broadcasts at issue, the Commission finds that it can

reasonably claim to be a victim within the meaning of Article 25

(Art. 25) of the Convention.

2. The Government submit further that Article 10 (Art. 10) of the

Convention does not cover or protect the mere technical demonstration

during specialised exhibitions of equipment permitting the reception

of broadcasts from a telecommunications satellite. In the

Government's opinion, such a technical demonstration would rather be

protected by the freedom of commerce which is not part of the

Convention rights, but is enshrined in the Swiss Constitution.

The Commission recalls that under Article 25 para. 1 (Art.

25-1) of the Convention it is only the alleged violation of the rights

and freedoms set out in the Convention that can be the subject of an

application presented by a person, non-governmental organisation or

group of individuals.

In the present case the issue arises whether the right claimed

by the applicant company of receiving broadcasts, transmitted over a

telecommunications satellite, by means of a dish antenna concerns the

"freedom to receive and impart information and ideas without

interference by public authority" and "regardless of frontiers" within

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

The Commission considers that the freedom of imparting and

receiving information may, especially where technical means are at

issue, consist of a series of acts which as a whole will constitute

the process of communication. By demonstrating the reception from a

satellite as well as by the mere reception the applicant company would

be part of such a process.

In the Commission's opinion, there can be no doubt that the

production and broadcasting of television programmes, on the one hand,

and their reception, on the other, concern the rights enshrined in

Article 10 para. 1 (Art. 10-1) of the Convention.

It is true that in the present case the applicant company

neither produces or broadcasts such programmes, nor has claimed to

be part of the general public interested in receiving such programmes.

The fact, however, that the applicant company wanted to receive the

programmes for commercial purposes, i.e. to sell the equipment, does

not alter its position in the communication process at that specific

stage. Rather, the technical equipment provided by the applicant

company plays an essential role in ensuring that the broadcasts at

issue can be received. Without such equipment, right under Article 10

(Art. 10) of the Convention to receive such programmes could not

effectively be enjoyed.

Therefore, the Commission cannot reject the application as

being incompatible with the provisions of the Convention within the

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

The further question whether the applicant company can claim a

right to receive broadcasts from a telecommunications satellite, as

distinguished from a direct broadcasting satellite, cannot be decided

at the admissibility stage.

3. The Government also submit that the applicant company has not

complied with the condition as to the exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention. In the

Government's view the applicant company failed to raise a complaint

immediately after the Swiss authorities refused it permission to

receive the broadcasts concerned at the Zurich trade fair. Moreover,

the Government contend that the application for a declaratory order

did not comply with the requirements under Article 26 (Art. 26) of the

Convention in that the applicant company was in fact requesting the

abstract determination of a legal situation.

The Commission considers that a complaint by the applicant

company against the Swiss authorities' refusal to permit reception of

the broadcasts at the Zurich trade exhibition would have served no

useful purpose as any reply to this complaint would have been issued

long after the exhibition had been closed.

Rather, the remedy employed by the applicant company, namely

the application for a declaratory order must, in the Commission's

view, be regarded as being an effective remedy within the meaning of

Article 26 (Art. 26) as, had the applicant company's application been

successful, a declaratory order would have been issued which would

have clarified that the applicant company had the right at issue.

The Commission sees a confirmation for this conclusion in the

fact that the PTT authorities themselves in fact discussed and

eventually dismissed the applicant company's application for a

declaratory order on its merits, rather than rejecting it as being

inadmissible, for instance, in that it was requesting the abstract

determination of a legal situation.

The fact that the Federal Court did not enter into the merits

for other reasons of procedural law does not mean that the applicant

company can be held not to have exhausted domestic remedies, since no

other remedy was available to determine whether or not the right

claimed existed.

The Commission is therefore satisfied that the applicant

company has exhausted domestic remedies within the meaning of

Article 26 (Art. 26) of the Convention.

4. The Government further submit that the right guaranteed in

Article 10 (Art. 10) of the Convention only concerns information

directed at the general public and not information which has been

qualified as restricted because it is transmitted over a

telecommunications satellite. The third sentence in Article 10 para.

1 (Art. 10-1) justifies that signals transmitted via

telecommunications satellites cannot be received by individuals. A

possible interference with the rights under Article 10 para. 1 (Art.

10-1) of the Convention would moreover have been "prescribed by law"

and "necessary in a democratic society ... for the prevention of

disorder" within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention.

The Commission considers that the applicant company's

complaint concerning the Swiss authorities' refusal to grant a

permission to receive the broadcasts concerned raises questions of

fact and law which are of such complexity that its determination

should depend on an examination of the merits. The application is

therefore not manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention, and no other grounds for

declaring it inadmissible have been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

Menu

AUTRONIC AG v. SWITZERLAND

AUTRONIC AG v. SWITZERLAND

LEXI