AS TO THE ADMISSIBILITY OF

                      Application No. 12602/86

                      by Styrelsen for Jyllands-Postens Fond

                      against Denmark

        The European Commission of Human Rights sitting in private

on 9 December 1988, the following members being present:

              MM. S. TRECHSEL, Acting President

                  C. A. NØRGAARD

                  E. BUSUTTIL

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G. H. THUNE

             MM.  F. MARTINEZ

                  C. L. ROZAKIS

             Mrs.  J. LIDDY

             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 7 October 1986

by Styrelsen for Jyllands-Postens Fond against Denmark and registered

on 20 November 1986 under file No. 12602/86;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows:

        The applicant is Styrelsen for Jyllands-Postens Fond (the

Board of Trustees of the Jyllands-Posten Trust).  It is domiciled at

Viby, Denmark.  Before the Commission the applicant is represented by

the chairman of the trust, Mr.  Gunnar Henriksen.

        Jyllands-Posten, a daily newspaper, was founded in 1871 as a

privately owned firm and was later converted into a limited liability

company (Jyllands-Posten A/S).  About 1970, a group with a 50 %

shareholding went bankrupt, and at the instigation of the newspaper's

responsible editor and its managing director at that time, it was

decided to let the ownership of the newspaper pass to a trust

(Jyllands-Postens Fond).  The trust was established in 1971.  All the

shareholders then agreed to sell their shares to the trust, which thus

became the owner of the entire share capital.  Jyllands-Posten is now a

proprietary (selvejende) institution.

        In the years following the establishment of the Jyllands-

Posten Trust, its statutes were subjected to minor editorial

alterations, but its object remained the same.  This also applied to

the provision concerning the fact that the trust is subject to

co-optation (selvstyrende).  In 1984 the statutes read as follows:

        The object of the trust is to "support the publishing of

Morgenavisen Jyllands-Posten as a liberal newspaper, independent of

private, commercial, organisational and affiliated political interests

by holding shares in Jyllands-Posten A/S. This support to

Jyllands-Posten A/S shall consist in part of the trust trying to

create the best qualified board of directors for the company through

its influence on the election of members to the board of directors of

Jyllands-Posten A/S, in order to secure to the company skilled,

responsible, business-like, technical and editorial managers, who are

independent of other interests, in part of the trust, through its

shareholding and capital, exercising a stabilising influence on the

company's capital matters and financial continuity for the promotion

of a healthy and active development of the company" (Article 1 para. 1).

        In view of the commitments under paragraph 1 the object is

further to "grant support for dealing with social, cultural or other

social issues in relation to maintaining a liberal democratic society

in Denmark.  Such support from the trust shall principally be granted

in areas where the public authorities have no possibility to grant

support to the extent necessary" (Article 1 para. 2).

        Under Article 7 of the 1984 statutes, the trust is managed by

a board of trustees composed of 10 members.  One member is appointed

by Kjøbenhavns Handelsbank and Den danske Provinsbank.  This member

must be independent of Jyllands-Posten A/S and its management as well

as of the two banks.  The remaining 9 members are elected by the board

of trustees itself.  Until 1984 there was no Danish legislation dealing

specifically with trusts and in the period from 1871 to 1984 the

statutes of the trust did not violate any statutory provisions.

        While the trust did not come under special legislation upon

its establishment and for many years thereafter, the legal position was

different for Jyllands-Posten A/S. This company has constantly been

subject to the company law provisions and has complied with their

requirements regarding capital, management, annual accounts, etc.  The

composition of board and management and their duties are governed by

the provisions of the Companies Act (aktieselskabsloven).

        The relations between the trust and the company can be briefly

summarised as follows: Jyllands-Posten A/S is a business enterprise

whose objective is to publish Morgenavisen Jyllands-Posten as an

independent, liberal daily newspaper and to deal with related

activities, including printing, publishing, television and other

communications activities.  The company's share capital amounts to 17

million Danish crowns and the trust owns all shares.  The shares are

registered in the name of the trust, and they cannot be sold or in any

other way disposed of.  In the event of any increase of capital, the

trust shall subscribe for the new capital.  At the general meetings,

the members of the trust's board of trustees exercise all powers

conferred upon shareholders in a limited liability company, and they

are also subject to the same commitments as shareholders.

        The board of directors of Jyllands-Posten A/S is composed

of 9 members, 6 of whom are elected by the company from among or

outside the group of shareholders.  Three members of the board of

directors are elected by the company's employees for a term of four

years at a time, pursuant to Section 49 of the Companies Act.

        Over the years a number of major business enterprises were

converted into trusts, one of the reasons being the special taxation

rules applying to trusts.  This conversion was made either by the

business enterprise in question being transferred to a trust or -

where the business enterprise was operated in the form of a limited

liability company - by transferring a controlling shareholding to a

trust.  Prior to 1985 Danish law did not, as mentioned above, contain

general provisions concerning foundations, charitable trusts or other

proprietary institutions.  Common law was the legal basis for these

institutions.  Irrespective of size and objectives, it was possible to

freely establish trusts, and they were not required to seek approval

of their statutes by a public authority, thus subjecting them to

public supervision.

        As a result of this business trusts obtained major economic

importance and moved into business sectors where limited liability

companies previously dominated.

        This development paved the way for the opinion that business

trusts should be subject to the same provisions as limited liability

companies carrying on business, and eventually for the Act on Business

Trusts (loven om erhvervsdrivende fonde).  The Act is widely identical

to the Companies Act.  Thus, the Act regulates registration, the size

of capital, the trust management, the annual accounts and auditing as

well as the competence of the authority supervising trusts.

        The Act on Business Trusts was published in the official

Law Gazette (lovtidende) on 6 June 1984 as Act No. 286.  According to

Section 65 of the Act it entered into force on 1 January 1985.  Under

Section 1 of the Act, a trust is considered to be a business trust if

it carries on business activities by itself, or if the trust owns such

a large shareholding in a company that the trust represents the

majority of the votes in the company or otherwise has a "controlling

influence" on the company.  With respect to the management of a trust,

Section 22 of the Act specifies:

        "The provisions in the Companies Act and regulations

        introduced in pursuance thereof regarding the election of

        board members by employees shall apply, mutatis mutandis,

        to a trust carrying on business and its subsidiaries.  The

        board members elected by employees take part exclusively

        in matters which do not concern the business activities

        where the statutes or charter so determine."

        The reference to the provisions in the Companies Act on the

election of board members by employees means in brief: If the

management of a trust (the board of trustees) has so far elected 6, 8

or 10 members, employees are now entitled to elect 3, 4 or 5 members,

respectively.  These members, thus constituting half the number of

members appointed, are elected by the employees' own organisations.

Boards of trustees, which have so far had 6, 8 or 10 members pursuant

to their own statutes, will now have 9, 12 or 15 members,

respectively, following election by the employees as provided for in

the new Act.

        According to Section 1 sub-section 5 of the Act the competent

authority may decide, with the consent of the Minister of Industry,

that a trust, which in other ways than through the Act is subject to

public scrutiny and economic control, may be exempted from complying

with the provisions of the Act.

        Prior to the enactment, the applicant trust applied for

exemption from the Act or from the requirement that the trust must

comply with the provisions of the Act.  This was done in letters of 9

July 1984 to the Minister of Industry and the Minister of Justice.  The

applications were based on the following grounds: that the

Jyllands-Posten Trust was not a business trust in the ordinary sense

of the word, but rather a guarantor that the shares of Jyllands-Posten

A/S were not taken over by any third party, and that the trust

could only guarantee the independence of the daily newspaper

Jyllands-Posten from organisation interests, if the organisations were

without any influence on the election of members to the board of

trustees.  It was pointed out that the objective of the trust was not

to exercise a controlling influence on the commercial enterprise,

Jyllands-Posten A/S, and that it did not interfere with editorial

matters, either in its capacity as owner or as publisher.

        On 16 November 1984, the Minister of Justice - on behalf of

the Minister of Industry as well - refused to grant the request from

the board of trustees for full or partial exemption of the Jyllands-

Posten Trust from the Act on Business Trusts.

        The chairman of the trust and the chairman of the board of

directors of Jyllands-Posten A/S then tried to arrange negotiations

with the Prime Minister.  A meeting took place in April 1985.  The

outcome was that if Jyllands-Posten wished to proceed with the

matter - either of its own accord or together with the Danish

Newspaper Publishers' Association (Danske Dagblades Forening (DDF)) -

there was no need to submit a new application for exemption from the

Act.  Instead, it was necessary to apply for an amendment of the Act to

the effect that the provisions of the Act should not extend to

newspaper trusts, etc.

        Such an application for amendment of the Act was submitted to

the Prime Minister in a letter from the Jyllands-Posten Trust of 4

July 1985.  The trust did not receive an official reply to this letter.

On 3 December 1985 DDF also applied for such an amendment of the Act.

It was stated that a newspaper trust cannot be considered a business

entity in the ordinary sense of the word but must be the guarantor for

the financial and editorial independence of the newspaper in question,

and thereby ensure that the fundamental concept underlying the

newspaper and its editorial profile are not being threatened by

external forces.

        In May 1986, the chairman of the board of trustees received a

memorandum from the Ministry of Industry dated 3 January 1986.  The

memorandum made reference to the second part of Section 22 of the Act

which, as mentioned above, provides that employee representatives take

part only in dealing with matters which do not relate to the business

activities, provided that this is so determined in the statutes.

        By letter of 5 May 1986 to the Minister of Industry, the board

of trustees expressed its hesitations about this.  The crucial area for

the competence of newspaper trusts was the fundamental concept

underlying the newspaper and its profile.  According to the wording of

the Act and the memorandum of 3 January 1986, that area could not be

excluded from the competence of employee representatives, since the

fundamental concept underlying the newspaper did precisely and above

all relate to its business activities.  For this reason, it would be

impossible to safeguard the independence of the newspaper from

organisation interests, in particular, if newspaper trusts were to be

compared with business trusts in general.  Against this background, the

board of trustees requested new negotiations about the position of

newspaper trusts.

        On 20 June 1986, the Minister of Industry informed the trust

that he did not find any reason for renewing the discussions

concerning the position of newspaper trusts.  A further exchange of

views ensued, but on 21 July 1986 the Minister eventually declared

that he considered the case closed.  The applicant did not pursue any

other remedies in Denmark.

COMPLAINTS

        The Act on Business Trusts of 6 June 1984 entered into force

on 1 January 1985.  Prior to the date of coming into operation, the

board of trustees applied for an exemption from the provisions which

would interfere with the trust's independence, and thus its ability to

comply with the objects clause in its statutes.  After having received

a rejection of this petition on 16 November 1984, the Government - in

this case represented mainly by the Minister of Industry - were

requested to take part in negotiations with a view to including a

provision in the Act exempting newspaper trusts from the Act on

Business Trusts.  After an extensive exchange of letters, the Minister

of Industry pointed out in a letter dated 21 July 1986 that he

considered the case closed.  This must, in the applicant's view, be

considered the final decision, so that the time-limit referred to in

Article 26 of the Convention must start running from 21 July 1986.

        As the question of obtaining exemption from the Act or the

inclusion of a statutory exemption with respect to newspaper trusts

depends on administrative or political considerations, there is no

prospect of the courts making a decision based on the facts of the

case.  During a legal action, the board of trustees could claim that

the Act or elements in it violate Section 77 of the Danish

Constitution to the extent that the provisions in question are to

apply to newspaper trusts, but the Danish Supreme Court has never

before abrogated statutes as being in violation of the Danish

Constitution.  Bringing an action before a court is thus not a remedy

permitting efficient and sufficient redress of the alleged injustice.

Consequently, the condition set forth in Article 26 of the Convention

to the effect that all domestic remedies must have been exhausted

according to the generally recognised rules of international law, has

been fulfilled.

        The main objective of the Jyllands-Posten trust is "to support

the publishing of the newspaper Morgenavisen Jyllands-Posten as a

liberal newspaper, independent of private, organisation and

affiliated political interests by holding shares in Jyllands-Posten

A/S".  A number of the other provisions in the statutes serve to

safeguard the independence of the trust.  The most important of these

is to the effect that nine out of ten members of the board of trustees

are appointed by co-optation (selvsupplering), which provides

efficient guarantees against external influence.  The Act on Business

Trusts weakens this guarantee, in particular through a provision to

the effect that one third of the members of the board of trustees are

to be elected by bodies other than the board.  Pursuant to the Act,

such members are to be elected by the employees of the company

according to electoral rules, which will secure seats on the board of

trustees for the largest staff groups.  Due to the close ties of such

groups with labour market organisations, the board of trustees can no

longer comply with the objects clause to support the company in

publishing Morgenavisen Jyllands-Posten as a liberal newspaper,

independent of organisation interests, among others.

        In this connection, it should be pointed out that the board of

trustees is not a board in the sense defined in company law.  The trust

owns Jyllands-Posten A/S, and the members of the board of trustees

have a status as owners of the company.  They exercise their most

important functions at the general meeting just as shareholders do in

a limited liability company which is not owned by a trust.  Thus, the

said Act interferes with the ownership of Jyllands-Posten A/S and

restricts the competence of the current owners.

        Such interference on the part of the Government in newspaper

ownership constitutes a clear violation of Article 10 para. 1 of the

Convention.  Article 10 para. 1 of the Convention must be taken to mean

that any citizen or group of citizens can start publishing a newspaper

without having to submit to orders from the Government to the effect

that public authorities, labour market organisations or others must be

represented among the "owners" to a greater or smaller extent.  In the

present case, non-compliance with the Convention seems particularly

flagrant, because the Act interferes retroactively with existing

ownership.  The first statutes of the Jyllands-Posten Trust were signed

on 30 June 1971.  The Act on Business Trusts violates the objects

clause and the provisions on ownership of the trust and the

composition of the board of trustees by co-optation.  If it had not

been for the special consideration in the present case given to the

freedom of expression as protected under Article 10 of the Convention,

the application might have been lodged under Article 1 of Protocol

No. 1 to the Convention, under which every natural person or legal

person is entitled to the peaceful enjoyment of his possessions.

        The crucial point in this case is that the board of trustees

has been denied exemption from the Act on Business Trusts.  The Act

calls for a specific composition of the management of a trust holding

all shares or even a substantial portion of the shares in a limited

liability company, which carries on business activities.  If these

provisions are also to extend to the Jyllands-Posten Trust, this is

tantamount to the legislative power having interfered with the

ownership of the periodical press.  This constitutes a violation of the

guarantees of freedom of expression generally found in the

constitutions of democratic countries, and moreover a violation of

Article 10 para. 1 of the Convention.

        It is important that business enterprises, whose main

objective is the publishing of informative, opinion-making and

entertaining publications, are managed according to healthy financial

and business-like principles.  They hold, however, a special position

in that their main objective can only be fulfilled where there is

extensive editorial independence from private, commercial,

organisation, and public interests.  Nothing can prevent e.g. a

periodical from being published for the purpose of safeguarding the

interests of a trade union, a political party, the farming sector or

industry.  In that case as well as in others, editorial independence

will consist in guarantees for the editors' freedom of action in

keeping with previously determined, general guidelines, ensuring that

third parties cannot interfere by some sort of pressure or threats

with the competence of the editors to decide what to print and

publish.  The necessity for editorial independence in this sense has

long been recognised and accepted in the area of printed matter, be it

the publishing of non-periodical matters or the publishing of

periodicals (daily papers, magazines, etc.).

        As regards both publishing and the function of the periodical

press, editorial independence is based on the same ideals and wishes

as are the actual background to the freedom of expression laid down in

the Danish Constitution.  It follows from Section 77 of the Danish

Constitution that "everyone shall be entitled to make public his views

in print, in writing and in speech, provided that he may be held

responsible in a court of justice.  Censorship and other preventive

measures shall never again be introduced".  These words only acquire

meaning if all kinds of publishing enjoy extensive freedom in a

political, religious, organisational and economic respect.

        It is probably due to a "technical mishap" that newspaper

trusts have come under the Act on Business Trusts.  A newspaper trust

is not established with a view to obtaining a controlling influence on

a newspaper operating as a limited liability company.  Its objective is

to prevent others from gaining a controlling influence on the

publishing activities.

        When a newspaper trust becomes subject to the Act on Business

Trusts, the consequence is that in certain respects the authority

supervising trusts takes over some of the powers of the general

meeting.  It must be considered unfortunate that public authorities

have such powers in relation to newspaper trusts.  The powers are

closely tied to the overall aim of the Act, viz. to lay down

provisions for trusts which have a controlling influence on companies

carrying on business, similar to those applying to limited liability

companies.  However, a newspaper trust does not carry on business

activities by itself, and as a result of the Press Act (presseloven)

and considerations of editorial independence, it has limited

influence on the business activities.  Thus, newspaper trusts are

atypical compared with trusts otherwise covered by the Act on Business

Trusts.  They should therefore be protected against becoming dependent

on public authorities and should not become subject to provisions

obliging them to exercise stronger influence on the business

activities.

        In particular Section 22 of the Act on Business Trusts may

have regrettable consequences for a newspaper trust.  Under this

section the provisions of the Companies Act and regulations

introduced under it regarding the election of board members by

employees apply mutatis mutandis to a business trust.

        Section 22 of the Act on Business Trusts demands that one

third of the owners of a publishing enterprise are to be elected by

employees (in fact by their organisations) outside the group of

owners.  This violates both the constitutional guarantees in democratic

countries and Article 10 of the Convention.

        The board of trustees of the Jyllands-Posten Trust finds that

employees in the publishing enterprise should be represented on the

board of trustees.  However, it finds it vitally important that the

employee representatives also be elected to the board of trustees by

co-optation.  At the election, the board of trustees can fulfil the

objects clause of the trust and appoint employee representatives,

who meet the qualifying conditions set forth in the statutes.

Section 22 of the Act on Business Trusts is, however, based on the

wish that the organisation to which a majority of the employees are

attached must be represented on the board of trustees.  But if the

representatives of the employees on the board of a newspaper trust are

to be elected on the basis of organisation considerations, the board

of trustees cannot meet its commitment to guarantee the newspaper's

independence from organisation and other similar interests.

        For newspaper enterprises, which have been converted into

trusts, it is extremely important to be able to ensure stability and

continuity of development, so that the independent status of the

newspaper cannot be jeopardised by forces wishing to change the

political and editorial profile of the newspaper.  The application of

Section 22 of the Act on Business Trusts can bring the employee

representatives on the board of trustees into unpleasant conflict

situations, when there is a conflict between organisation interests

and the consideration for the newspaper's independence and profile.

        In this connection reference should be made to German

legislation, where the 1972 Act on Work Councils exempts opinion-

making enterprises, i.e. newspapers, book publishers and other similar

enterprises.  The German 1976 Act on Co-determination also exempts the

press.  There is no actual Common Market legislation in the area, but

the 5th Company Directive on Employee Representation on the Boards of

Directors etc. of Commercial and Industrial Enterprises does not

include newspaper publishing for precisely the same reasons as stated

above.

THE LAW

        The applicant trust has complained that the provisions of the

Act on Business Trusts interfere with its right to freedom of

expression as secured by 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...

2.  The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

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

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

        The Commission recalls that it is only required to decide

whether or not the facts submitted by an applicant disclose any

appearance of a violation of this provision if the requirements under

Article 26 (Art. 26) of the Convention, to exhaust domestic remedies

according to the generally recognised rules of international law and

to lodge the application with the Commission within a period of six

months from the date of the final decision, have been complied with.

        In this respect the applicant trust has submitted that the

time-limit referred to in Article 26 (Art. 26) of the Convention must

start running from 21 July 1986 when the Minister of Industry pointed

out that he considered the case closed.  Furthermore it maintains that

bringing an action before the Danish courts would not be a remedy

permitting efficient and sufficient redress of the alleged injustice.

        The Commission does not consider it necessary for the purposes

of the present case to examine whether the applicant trust's

allegations in this respect are correct and whether, therefore, it has

fulfilled the requirements set forth in Article 26 (Art. 26) of the

Convention. Even assuming that this is the case, the Commission is of

the opinion that the present application is manifestly ill-founded for

the following reasons.

        It is clear from the Commission's case-law that it is

competent to examine the compatibility of domestic legislation with

the Convention only with respect to its application in a concrete

case, while the Commission is not competent to examine in abstracto

its compatibility with the Convention (cf. for example No. 11045/84,

Dec. 8.3.85, D.R. 42 p. 247).  Accordingly the Commission will only

examine the applicant trust's complaint insofar as the legislation in

question affects the trust itself.

        In this respect the applicant trust alleges an unjustified

interference with its right to freedom of expression as secured by

Article 10 (Art. 10) of the Convention, in particular since the Act on

Business Trusts provides for employee representatives to be elected to

the board of trustees.  In such circumstances the applicant trust is

of the opinion that its independence is lost and that it can no longer

guarantee, in accordance with its statutes, the independence of the

newspaper Jyllands-Posten from outside interests.

        The Commission has first considered whether the introduction

of the Act on Business Trusts interfered with the applicant trust's

rights under Article 10 (Art. 10) of the Convention, and recalls in

this respect that the interference allegedly lies in the fact that the

new legislation provides for the election of board members by the

employees.  It does not, however, appear from the applicant trust's

submissions that the object of the trust, to "support the publishing

of Jyllands-Posten as a liberal newspaper, independent of private,

commercial, organisational and affiliated political interests by

holding shares in Jyllands-Posten A/S", has undergone any changes or

that the new members do not have to comply with the trust's statutes.

Furthermore, the Commission has not found any information which could

lead it to conclude, even prima facie, that the applicant trust has

been restricted in expressing or supporting any particular view.  In

particular the Commission has not found any evidence which could

uphold the applicant trust's allegation that "due to the clear ties of

such (staff) groups with labour market organisations, the board of

trustees can no longer comply with the objects clause to support the

company in publishing Morgenavisen Jyllands-Posten as a liberal

newspaper".

        Under Article 10 (Art. 10) of the Convention it is not the

Commission's task to consider whether or not the applicant trust is to

be considered a business trust under the relevant domestic legislation

and the Commission does not consider the composition of a trust as

such to interfere with Article 10 (Art. 10) of the Convention.  The

alleged victim remains the trust and not the individual members of the

board of trustees.  As pointed out above, however, the Commission has

not found evidence which could lead to the conclusion that the

applicant trust's rights and freedoms under Article 10 (Art. 10) of

the Convention have been interfered with.

        In such circumstances it follows that the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission           Acting President of the Commission

      (H. C. KRUGER)                             (S. TRECHSEL)