PARTLY DISSENTING OPINION OF Sir Basil HALL

      I agree that there has been a violation of Article 10 in the case

of INFORMATIONSVEREIN LENTIA; but not quite for the reason given by the

majority of the Commission.  My understanding is that the proposal of

the applicant association was that information of concern to residents

and shopkeepers in a residential development in Linz should be recorded

on video cassettes and transmitted to them through an internal cable

system.  No use of air waves was to be involved.  To my mind neither

the association nor its proposed activity can be regarded as a

"broadcasting enterprise" for the purposes of Article 10, and I cannot

see that the refusal of the Austrian authorities to allow the

establishment of the proposed system was necessary in a democratic

society, for any of the purposes stated in Article 10.

      Having reached the conclusion that there has been a violation of

Article 10 in this particular case I do not need to examine whether

there is in addition a violation of Article 14 in conjunction with

Article 10.

      With regret - and indeed with reluctance - I find myself unable

to agree with the majority of the Commission that there has been a

violation of the rights of the remaining applicants under Article 10

to freedom of expression.

      Though considerable technical advances have been made the

question remains that the number of frequencies available for use for

the broadcasting which the applicants were contemplating remains

limited.  Any licensing system which is set up has to provide for

competitive applications for licences from broadcasting enterprises.

Conditions will be prescribed to determine who is eligible for a

licence.

      The applicants' complaints under Article 10 are not that they do

not have a right to broadcast, but that the system in force in Austria

is not in line with the requirements of that provision, in particular

because it does not provide for any licensing procedure for private

stations.

      It is a matter of speculation whether the applicants would be

eligible to be considered for a licence in any licensing system that

might be introduced, and whether, if eligible, they would successfully

compete for licences.  It is questionable therefore whether the effect

on them of the absence of a licensing system is sufficiently direct for

that absence to constitute a violation of their rights to freedom of

expression.

      The majority of the Commission have concluded that there is now

an obligation on member States to set up licensing systems or the

equivalent, and that the Commission's earlier view, that Article 10

para. 1 third sentence could not be understood as excluding a system

of monopoly enterprises for radio and television, no longer has

validity.

      That view was based in part on the fact that systems of

monopolies then existed in most member States.  It is true that there

has since then been a great increase in the access of individuals and

organisation, in particular of commercial enterprises, to broadcasting

facilities.  This has been achieved in various ways.  A licensing of

private broadcasters is one.  Another is the making of contractual

arrangements for the sake of air time to programme makers, who recoup

the cost by in turn selling space to advertisers.  Yet another is by

conferring a right of reply.  Though this is so, the situation remains

that in some states and in some regions, monopolies still exist.

      The Convention must be applied against the background of existing

conditions, but it does not seem to me that the time has yet arrived

when it can be held that the right to freedom of expression given by

Article 10 requires member States to provide a system under which

individuals and organisations can apply for permission to establish

broadcasting stations, or that an individual or body can claim that

there has been a violation of Article 10 because such a system has not

been introduced.

      The third applicant, AGORA, also complains of discrimination

against the Slovenian minority in Carinthia.  Provision is however made

in programmes for that minority, and even if it were to be accepted

that the third applicant has the status to make this complaint, I do

not consider that the time allotted to the Slovenian minority is so

short as to amount to discriminatory treatment.