Information Note on the Court’s case-law 22

September 2000

Tele 1 Privatfernsehgesellschaft mbH v. Austria - 32240/96

Judgment 21.9.2000 [Section II]

Article 10

Article 10-1

Licensing of broadcasting enterprises

Monopoly of Austrian Broadcasting Corporation on terrestrial television: violation, no violation

Facts : In 1993 the applicant company’s application for a licence to set up and operate a television transmi tter in the Vienna area was refused because under the Constitutional Law of 10 July 1974 broadcasting had to be authorised by legislation. Such legislation had been enacted only in respect of the Austrian Broadcasting Corporation and regional radio broadca sting but not in respect of regional television. The applicant’s appeal was dismissed by the relevant Ministry and its subsequent constitutional complaint was dismissed by the Constitutional Court. Following another judgment of the Constitutional Court, ho wever, the transmission via cable of original programmes – active cable broadcasting – has been legal since 1 August 1996,  just as passive cable broadcasting already was. The Cable and Satellite Broadcasting Act 1997 requires notification of cable broadca sting and subjects it to certain conditions and requires a licence for satellite broadcasting.

Law : Article 10 – The refusal of a licence constituted an interference with the applicant’s freedom to impart information and ideas. The refusal had a basis in domestic law, namely the Constitutional Law and the case-law of the Constitutional Court. Furthermore, it pursued legitimate aims, bearing in mind that under the third sentence of paragraph 1 of Article 10 interferences may have aims which are legitimate e ven though they do not correspond to any of those set out in paragraph 2. As to the necessity of the interference, three periods have to be examined:

(i) from the time of the application for a licence and 1 August 1995 there was no legal basis for granting a licence to anyone other than the Austrian Broadcasting Corporation and in that respect the situation was no different from that in the Informationsverein Lentia and others v. Austria judgment (Series A no. 276), in which the Court found a violation of A rticle 10.

Conclusion : violation (unanimously).

(ii) after 1 August 1995 private broadcasters were able to transmit via cable without any conditions, while terrestrial broadcasting was still reserved for the Austrian Broadcasting Corporation, and since alm ost all households in Vienna receiving television have the possibility to connect to the cable network, this offers a viable alternative to private broadcasters;  consequently, the interference resulting from the refusal of a licence for terrestrial broadc asting can no longer be regarded as disproportionate to the aims.

Conclusion : no violation (unanimously).

(iii) since the entry into force of the 1997 Act, cable broadcasting has to be notified and is subject to conditions, while satellite broadcasting requires a licence;  however, the applicant has not notified any cable broadcasting or applied for a licence for satellite transmission and it is therefore not necessary for the Court to examine this period.

Article 41 – The claim for pecuniary damage is based on the assumption that a licence would have been granted and since this is speculative no compensation i s payable under this head. The Court awarded the applicant 200,000 schillings (ATS) in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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