RESOLUTION DH (98) 142

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 24 NOVEMBER 1993 IN THE CASE OF INFORMATIONSVEREIN LENTIA AND OTHERS AGAINST AUSTRIA (Adopted by the Committee of Ministers on 11 June 1998 at the 633rd meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human Rights in the Informationsverein Lentia and others case delivered on 24 November 1993 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in five applications (Nos. 13914/88, 15041/89, 15717/89, 15779/89 and 17207/90) against Austria, lodged with the European Commission of Human Rights between 16 April 1987 and 20 August 1990 under Article 25 of the Convention by "Informationsverein Lentia", a private association constituted under Austrian law, Mr Jörg Haider, an Austrian citizen, "Arbeitsgemeinschaft Offenes Radio" ("AGORA"), a private association constituted under Austrian law, Mr Wilhelm Weber, an Austrian citizen and "Radio Melody GmBH", a limited-liability company constituted under Austrian law, and that the Commission declared admissible their complaint that under the existing legislation it was impossible for them to obtain broadcasting licenses;

Recalling that the case was brought before the Court by the Commission on 26 October 1992;

Whereas in its judgment of 24 November 1993 the Court, unanimously,:

_ held that there had been a violation of Article 10 of the Convention;

_ held that it was not necessary to examine the case also under Article 14 taken together with Article 10 of the Convention;

_ held that the respondent State should pay, within three months, 165 000 Austrian schillings for costs and expenses to each of the applicants "Informationsverein Lentia", "AGORA" and "Radio Melody" and 100 000 Austrian schillings to each of the applicants Haider and Weber;

_ dismissed the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the Government of Austria to inform it of the measures which had been taken in consequence of the judgment of 24 November 1993, having regard to Austria's obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria notably provided the Committee of Ministers with information about the measures taken to prevent new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that, within the time-limit set, the Government of Austria paid the applicants the sums provided for in the judgment of 24 November 1993,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 142

Information provided by the Government of Austria

during the examination of the case of Informationsverein Lentia and others

by the Committee of Ministers

Following the judgment of the European Court of Human Rights in the present case a number of legislative and other measures have been adopted in Austria.

The Government of Austria considers that the liberalisation, described below, of regional and local radio broadcasting and of cable and satellite broadcasting satisfies the requirements of Article 53 of the Convention in that it prevents new foreseeable violations of Article 10 of the Convention.

The Government points out that national terrestrial television and radio remain monopolies entrusted to the Austrian Broadcasting Company ( Österreichischer Rundfunk , the ÖRF ). It considers, however, that the above-mentioned liberalisation, and in particular that concerning cable and satellite broadcasting which may result in nation-wide coverage, limits in important ways the consequences, as far as freedom of expression is concerned, of the maintenance of the ÖRF 's terrestrial monopoly on the national level.

The Government considers that the Court's judgment does not contain any elements to indicate that the maintenance of the ÖRF 's limited monopoly would be in violation of the Convention. Nevertheless, the Austrian authorities are currently studying the possibility of further liberalisation measures in order to ensure even greater freedom of expression.

Regional and local radio

On 1 January 1994, shortly after the Court´s judgment of 24 November 1993, new legislation liberalising local and regional sound radio, the Regional Broadcasting Law ( Regionalradiogesetz , BGBl 506/1993) entered into force.

Under Article 2, paragraph 1, of the new law, the Federal Minister for Economic Affairs and Transport should, in agreement with the General Purposes Committee of the National Assembly ( Hauptausschuss des Nationalrates ), allocate terrestrial sound radio broadcasting capacities to the ÖRF and to other radio stations. In making the above allocation, the Minister should, by virtue of paragraph 2, ensure that there is no impediment to the ÖRF 's performance of its statutory tasks in the field of sound radio broadcasts, that radio stations are able to reach the widest possible audience within any one Land ; and that attention is paid to the needs of local sound radio. The frequencies and broadcasting facilities available should, under paragraph 3, thereafter be assigned by the Minister for use by radio stations under individual licences. In urgent cases, the telecommunications authorities ( Fernmeldebehörde ) could, under paragraph 5, make temporary exceptions from the frequency allocation plan.

However, on 27 September 1995, the above paragraphs of Article 2 were annulled with immediate effect by the Austrian Constitutional Court as the conditions for their application were not indicated with sufficient precision to satisfy the requirements of the principle of legality. The Constitutional Court stated that it followed that the frequency allocation plan based on these provisions was also void and that there was no longer any legal basis on which operating licences could be granted to radio stations, so that a situation incompatible with the Convention had been brought into being.

An amendment to the Regional Broadcasting Law (BGB I Nr 41/1997) was issued on 24 April 1997 and entered into force on 1 May 1997. A new frequency allocation plan was appended.

Under the new Act, the right of the ÖRF to broadcast nation-wide has been limited to a maximum of 4 programmes, one of which shall nevertheless continue to have a regional character and be produced in the Länderstudios .

The issue of licences for private broadcasting is entrusted to a new authority within the Federal Chancellery ( Bundeskanzleramt ), the Regional Radio and Cable Authority ( Regionalradio - und Kabelrundfunkbehörde ), composed of twelve members, one judge and eleven nominated notably by the major political parties (six), the Landeshauptmännerkonferenz (three) and the associations of cities (one) and municipalities (one). In performing their duties the members may not receive any orders or instructions.

The Regional Radio and Cable Authority may issue one regional broadcasting licence for each Land to private broadcasters. For the Vienna region, two such regional licences are allowed. In this context it shall ensure that the regional programmes cover at least 70% of the population in a Land.

In addition, the Regional Radio and Cable Authority is empowered to issue licences for private broadcasting at the local level in accordance with the demand. In deciding whether or not to issue a licence, the Authority shall avoid the duplication of services provided. Local radios should not cover areas of more than 150 000 inhabitants.

Licences are issued after consultations with the Government of the Land or Länder concerned. They are valid for a period of 7 years and may only be granted to Austrian physical or legal persons domiciled in the country. In the case of legal persons, foreigners are allowed to hold shares to a maximum of 25 percent. Nationals of the member States of the European Economic Area agreement enjoy the same rights as Austrian nationals. The first set of licences should be issued within four months after the entry into force of the new law.

As under the 1993 Act, private broadcasters may either set up their own transmitters or, upon payment of a proportionate fee, avail themselves of the facilities of the ÖRF .

The contents of regional and local radioprogrammes must respect the principles of objectivity and diversity of opinion. They must also respect the dignity and fundamental rights of others: in particular they may not incite to hatred on the basis of race, religion, ethnic origin or nationality. Advertising and sponsoring are authorised within certain limits.

Cable transmission

The Broadcasting regulations ( Rundfunkverordnung , "RVO" below) have also been liberalised in several steps.

Before 1993, private cable operators only had the right to the passive retransmission of programmes, i.e. only a right to immediately retransmit programmes captured, without any changes or amendments whatsoever. A further right to transmit cable text was introduced through the RVO-Novelle BGBl 507/1993 (introducing a new Abschnitt VI a to the RVO ).

A judgment of the Austrian Constitutional Court of 27 September 1995 declared the cable regulations contained in the RVO (Articles 20, paragraph 1, 24a and 24b, paragraph 2) unconstitutional to the extent that they only gave private cable operators the right to transmit cable text and to passively retransmit programmes. The Constitutional Court stated, however, that the unconstitutionality of the provisions concerned would only take effect as from 31 July 1996. It indicated that this time-limit was shorter than usual as the impugned situation was also in violation of the Convention and had been known to the legislature since the European Court's judgment in the Informationsverein Lentia and others case.

The nine applicants in the constitutional proceedings were granted the right to active retransmission as from 27 September 1995.

Cable and satellite broadcasting

Following the Constitutional Court's last-mentioned judgment, the Cable and Satellite Broadcasting Act ( Kabel - und Satelliten - Rundfunkgesetz , BGB I Nr. 42/1997) was enacted on 24 April 1997 and entered into force on 1 July 1997.

Satellite broadcasting, including the retransmission of cable programmes over satellite, may, under the new Act, take place with the authorisation of the competent Regional Radio and Cable Broadcasting Authority ( Regionalradio - und Kabelrundfunkbehörde ).

Cable broadcasting may take place if notice of the activity is given to the competent regional broadcasting authority and to the Länder and regions ( Gemeinde ) concerned, one week before it begins.

Licences may only be granted to private Austrian physical or legal persons domiciled in the country (for example public bodies, with the exception of churches and religious communities, political parties, the ÖRF and foreigners are excluded). In the case of legal persons, foreigners are allowed to hold shares of a maximum of 49 percent. Nationals of the member States of the European Economic Area agreement enjoy, however, the same rights as Austrian nationals. The possibilities of persons engaged in the media (e.g. a newspaper) to obtain licences are subject to special regulations.

Licences are granted to all applicants who meet the formal requirements above-mentioned and who can give reasonable assurances that they will meet the quality requirements listed in the next paragraph. Licences are valid for a period of 7 years.

The programmes broadcasted must respect principles of objectivity and diversity of opinion and should adequately represent the public, cultural and economic life in the area covered and allow important groups and organisations the possibility of presenting their positions. They must also respect the dignity and fundamental rights of others, in particular they may not incite to hatred on the basis of race, religion, ethnic origin or nationality. Special protection should also be accorded to young persons. Advertising, sponsorship and teleshopping are authorised within certain limits.

Judicial control

Judicial control of decisions taken under the Regional Radio Broadcasting Act and the Cable and Satellite Broadcasting Act is exercised by a Commission of seventeen members, nine of whom should be judges. The procedure follows that laid down in the Administrative Procedure Act ( Verwaltungsverfahrensgesetz ) 1991 and, in case of administrative sanctions, that laid down in the Administrative Sanctions Act ( Verwaltungsstrafgesetz ).