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AUTRONIC AG v. SWITZERLANDDISSENTING OPINION OF MRS. J. LIDDY

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Document date: March 8, 1989

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AUTRONIC AG v. SWITZERLANDDISSENTING OPINION OF MRS. J. LIDDY

Doc ref: • ECHR ID:

Document date: March 8, 1989

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DISSENTING OPINION OF MRS. J. LIDDY

I regret that I find myself unable to share the majority

opinion in this case.

As to Article 10 para. 1

The applicant company wished to receive whatever information

might have been contained in a broadcast which was intended for the

general public, albeit a public outside the Swiss frontiers. In the

light of the Commission's decision that the applicant company may

claim to be a victim (on which I refer to the opinion of Mr.

Schermers). I accept that its freedom to receive such information was

interfered with. Moreover the third sentence of Article 10 para. 1

does not apply to the licensing of a company which as a specialist in

the field of home electronics merely wished to demonstrate the

capacity of its equipment.

As to Article 10 para. 2

In my view the requirement to apply for a licence was

"prescribed by law" (Ordonnance No. 1 on Telegraph and Telephone

Correspondence of 10 December 1973). At domestic level there was a

dispute as to whether the legal criteria applied by the licensing

authorities and contained in the International Telecommunications

Convention (Article 22) and the International Radio Regulations

(Article 23) which form part of the Swiss legal order were correctly

interpreted and applied. The issue under the Convention is whether

the licensing requirement and criteria were formulated with sufficient

precision. The Court has stated that "whilst certainty is highly

desirable, it may bring in its train excessible rigidity and the law

must be able to keep pace with changing circumstances. Accordingly,

many laws are inevitably couched in terms which, to a greater or

lesser extent, are vague and whose interpretation and application are

questions of practice" (Eur. Court H.R., Sunday Times judgment of 26

April 1979, Series A No. 30, p. 31 para. 49).

These principles enunciated by the Court in the context of a

different legal system seem to me to be equally apt where

international law forms part of the legal order. The interpretation

of the Convention and Regulations adopted and applied by the Swiss

authorities in Spring and July 1982 was clear and it apparently

accorded with the practice of at least three other States at the

relevant time. I accept that at the relevant time the law was as

clear and accessible as was required under the Convention in the

circumstances of this case.

The restriction on the applicant's freedom of information was

designed to prevent disorder in the area of international

telecommunications.

This legitimate aim, in the view of the Swiss authorities, made it

necessary in a democratic society to require the applicant to apply

for a licence, and to refuse it in the absence of the consent of the

transmitting State. It is not without significance here that the

applicant company itself had no interest in the substance of such

information as might be received, and that it failed at domestic level

to demonstrate a direct economic interest - which would, presumably,

have reflected others' interest in the substance of the information.

The context involved the use of newly discovered means of

communication which might have had implications for inter-State

obligations under existing telecommunications and other international

agreements and for the interests of individuals in there being a certain

stability in the international legal order. Without exceeding their

margin of appreciation, the Swiss authorities were in my view entitled

to consider that the maintenance and development of international

telecommunications co-operation created, at the relevant time, a

pressing social need to restrict the applicant's freedom to receive

information insofar as it entailed use for the purpose of

demonstration only of new technology without the consent of the other

State concerned.

I express no view as to whether, in the light of development,

since 1982, such restriction could still be regarded as "necessary in

a democratic society" or as to whether the law applied would still

meet the requirements of precision and accessibility implicit in the

expression "prescribed by law".

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

------------------------------------------------------------------

9 January 1987 Introduction of the application

17 February 1987 Registration of the application

Examination of admissibility

15 October 1987 Commission's deliberations and decision to

invite the Government to submit observations

on the admissibility and merits of the

application

7 April 1988 Government's observations

30 June 1988 Applicant company's observations in reply

17 August 1988 Government's further submissions

11 October 1988 Commission's decision to invite the parties

to a hearing on the admissibility and merits

of the application.

13 December 1988 Hearing and Commission's decision on

admissibility.

Examination of the merits

8 March 1989 Commission's deliberations on the merits

and final vote and adoption of the Report

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