Communicated on 5 November 2015

FIRST SECTION

Application no. 33104/15 AGONSET SH.P.K. against Albania lodged on 27 June 2015

STATEMENT OF FACTS

The applicant, Agonset sh.p.k . (“ the applicant company”), is a limited liability company incorporated under the Albanian law. It operates in the television-broadcasting sector and is the owner of a television station named “ Agon Channel TV”. Its registered office is located in Tirana. The applicant company is represented before the Court by Mr A. Saccucci , a lawyer practising in Rome.

A. The circumstances of the case

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

On 4 March 2013 the Audio-visual Media Act (“AVMA”) was enacted. The AVMA established the Audio-visual Media Authority (“AMA”) as the national regulatory and licensing body. It fixed 17 June 2015 as the deadline for the switchover from analogue to digital television broadcasting.

On 2 July 2013 the AMA, pursuant to section 139 of the AVMA, adopted a regulation on the licencing of national digital networks and programs through a “beauty-contest procedure”. Under a “beauty contest”, applications are assessed by comparing the performance in the respective area. A copy of the regulation in English was submitted to the Registry. According to section 4, only privately-owned operators, which had been granted licences for a nationwide coverage of territory (“national broadcasters”), were invited to participate in the beauty-contest procedure. Section 16 laid down the financial requirement for the participation of the national broadcaster.

On 31 July 2013 the Tirana District Court, following an action by three national broadcasters, ordered the AMA to stay the procedure for the allocation of national digital licences until the examination of their civil action concerning the annulment of section 16 of the regulation.

On 8 October 2014 the Tirana Administrative Court of Appeal, hearing the case as a first-instance court pursuant to section 10 § 2 (b) of the Administrative Courts Act, decided to annul section 16 of the regulation insofar as the financial requirement to participate in the beauty-contest procedure was concerned. It ordered the AMA adopt a new regulation.

On 30 October 2014 the applicant company complained to the AMA on three grounds about the beauty-contest procedure launched on 2 July 2013. Firstly, it stated that the ban on broadcasters having the technical capacities to provide for national coverage to participate in the beauty-contest procedure was arbitrary and unfair. Secondly, since the national broadcasters did not cover the major part of the national territory, the applicant company alleged that the AMA, through its actions, allowed them to take advantage of their unlawfully retained position. The applicant company submitted documents according to which two national broadcasters covered between 36.5 per cent, at worst, and 53.9 per cent, at best, of the territory. Thirdly, the stay of the beauty-contest procedure and the prolonged inactivity of the AMA prevented the regulator from allocating a digital licence to Agonset to broadcast its digital programs.

On 16 April 2015 the AMA adopted a new regulation on the licencing of national digital networks and programs through a beauty-contest procedure, no copy of which was submitted to the Court. The applicant company submitted that five national digital licences would be granted. Accordingly, the AMA had invited the five national broadcasters, namely TV Klan, Top Channel, Digitalb , Tring TV and Supersport (which is entirely owned by Digitalb ) to participate in the beauty-contest procedure. No invitation had been extended to the applicant company.

On 19 May 2015 the applicant company re-sent its letter of 30 October 2014 to the AMA, because it had gone missing.

B. Relevant domestic law

1. Right of individual petition to the Constitutional Court

According to Article 131 (f) of the Constitution, the Constitutional Court examines final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.

Under Article 145 § 2 of the Constitution, judges should not apply a law which they consider to be unconstitutional. In such a case, they must stay the proceedings and refer the case to the Constitutional Court. Decisions of the Constitutional Court are binding.

2. Freedom of expression

Article 22 of the Constitution guarantees the freedom of expression as well as the freedom of the press, radio and television. Prior censorship of the media is prohibited, but the law may require the granting of authorisation for operating a radio and television station.

3. Digital broadcasting

(a) The Digital Broadcasting Act 2007 (law no. 9742 of 28 May 2007)

The Digital Broadcasting Act 2007 attempted to regulate for the first time the broadcasting of digital programs and the establishment of digital networks, even though digital broadcasting had already preceded and become a reality in Albania in the absence of a regulatory framework. The National Council of Radio and Television (“NCRT”), which had been established by virtue of a separate act, was entrusted with granting digital licenses. Under section 4, it was open to any operator to apply for a digital licence in accordance with the by-laws to be adopted by the NCRT. Section 15 fixed 31 December 2012 as the deadline for switching off the analogue television broadcasting system.

(b) The Digital Switchover Strategy (Council of Ministers ’ decision no. 292 of 2 May 2012

The Digital Switchover Strategy fixed 17 June 2015 as the deadline for the switchover from analogue to digital broadcasting. The Digital Switchover Strategy stated that the implementation of section 4 of the Digital Broadcasting Act 2007 carried with it the risk that digital licenses might be granted to an operator other than the existing ones, which had already made heavy investment in infrastructure, services and programs. It proposed that the most suitable solution would be the licensing of existing operators by determining long-standing national operators ( operatorë historikë kombëtarë ) as well as operators which possess experience in digital broadcasting. Amongst the criteria for defining long-standing national operators would be the duration of the program, the territorial coverage throughout the years, the quality of broadcast programs, viewership and the application of new technologies. The licensing of long-standing national operators would take place through the beauty-contest procedure.

(c) The Audio-visual Media Act (“AVMA” – law no. 97/ 2013)

On 4 March 2013 the Audio-visual Media Act (“AVMA”) was enacted with a view to implementing the Digital Switchover Strategy. The AVMA established the Audio-visual Media Authority (“AMA”), which succeeded the NCRT. The main tasks of the AMA may be grouped as the authorisation and licensing of operators and their supervision as well as the monitoring and reporting on audio-visual media content. Broadcast licences may be grouped as national when they cover at least 80 per cent of the territory, regional when they cover four geographically-connected regions ( qarqe ) and local when they cover a single region. The AVMA fixed 17 June 2015 as the deadline for the switchover from analogue to digital broadcasting.

Section 70 § 1 states that joint companies, which possess a local, regional or national licence for audio and audio-visual programme services, have the right to apply for a local, regional and national digital network licence . Under section 70 § 2 a licence for digital network is granted by open competition ensuring equal, objective and non-discriminatory treatment. The AMA, on its own initiative or at the request of interested entities, launches a call for applications ( çel garën ) by taking into account the frequency usage plan as well as the existence of free frequencies for digital broadcasting. Section 71 provides that the AMA, on the basis of the call for applications, examines every application for a digital licence network according to the criteria laid down therein. In the meantime, regardless of the provisions laid down in sections 70 and 71, in accordance with the Digital Switchover Strategy, under section 139 the AMA would identify the long-standing privately-owned national operators ( operatorë privatë historikë kombëtarë ) as well as operators having experience in digital broadcasting, and invite them to apply, through the “beauty-contest procedure”, for a national digital licence .

( i ) The former regulation governing “the beauty-contest procedure”

The former regulation on the licencing of national digital networks and programs through a “beauty-contest procedure”, which was submitted by the applicant company in English, was addressed to the long-standing national privately-owned operators as well as existing operators which had experience in the area of digital broadcasting (section 4). The AMA would determine the entities that would participate in “the beauty-contest procedure” (section 9). The former regulation limited the number of national private digital broadcasting licences to three (section 5). It laid down the characteristics of national digital private networks as well as the structure of program services (section 6). Section 16, which was annulled by the national courts as described above, laid down the financial requirement to participate in the “beauty contest”.

(ii) The current regulation governing “the beauty-contest procedure [1] ”

Subsequent to the annulment of section 16, a new regulation was adopted by the AMA. It is addressed to the long-standing privately-owned national operators as well as to existing operators which are experienced in the area of digital broadcasting (section 4). The AMA determines the entities that will participate in “the beauty-contest procedure” (section 8). The regulation limits the number of national private digital broadcasting licences to five (section 7). The validity of a national digital licence is fifteen years (section 24). The regulation lays down general, financial, program and technical requirements (sections 15-18). An applicant company must complete an application form attached to the regulation and attach supporting documents required by section 19. The examination of applications is carried out by the Beauty-Contest Commission (section 20). A decision refusing an application for a national digital licence must be reasoned (section 21).

4. Administrative courts

Section 10 § 2 (b) of the Administrative Courts ’ Act (law no. 49 of 3 May 2012) states that the Administrative Court of Appeal examines, as a first-instance court, claims challenging normative implementing by-laws.

COMPLAINTS

The applicant company complains that the statutory bar from participating in the beauty-contest and from applying for a digital broadcasting licence , as imposed by section 139 of the AMVA and the beauty-contest regulation, breached its right under Article 10 of the Convention. Under Article 14 of the Convention as well as under Article 1 of Protocol no. 12 the applicant company complains that the beauty-contest regulation discriminates against new operators, which have not been recognised as national broadcasters even though they possess the technical capabilities and the economic resources for entering the digital broadcasting market.

QUESTIONS TO THE PARTIES

1. Has the applicant company exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? If not, what effective remedy was available to it? The Government are requested to provide copies of domestic decisions in support of their argument.

2. Does Article 10 of the Convention apply in the instant case? In particular, does Article 10 guarantee the right to participate in a procedure for the allocation of a national digital broadcasting licence ?

3. If so, has there been an interference with the applicant company ’ s freedom of expression within the meaning of Article 10 of the Convention on account of the statutory bar imposed by section 139 of the AMVA and the beauty-contest regulation?

4. If so, did the interference pursue a legitimate aim and was it “necessary in a democratic society” within the meaning of the second sentence of Article 10 § 1 and in terms of Article 10 § 2? In particular, was there a pressing social need to exclude the applicant company from applying for a national digital licence ?

5. Has the applicant company suffered discrimination in the enjoyment of its Convention rights on any grounds, contrary to Article 14 of the Convention read in conjunction with Article 10?

6. Has there been a breach of Article 1 of Protocol No. 12 to the Convention?

7. The Government are invited to submit a detailed overview about the progress of the digital switchover as provided for in the Audio-visual Media Act 2013.

[1] . The Regulation was accessed at the AMA’s website found at http://ama.gov.al/preview/wp-content/uploads/2015/03/Rregullore_BC.pdf .