DISSENTING OPINION OF JUDGES BINDSCHEDLER-ROBERT AND MATSCHER

(Translation)

We regret that we cannot share the majority ’ s opinion as to the applicability of Article 10 (art. 10) or as to the breach if Article 10 (art. 10) is held to be applicable.

1.   We do not dispute that a commercial company can in principle rely on Article 10 (art. 10), even in connection with its commercial activities. But we note that in the instances mentioned in the judgment (The Sunday Times, Series A no. 30; Markt Intern Verlag GmbH and Klaus Beermann , Series A no. 165, and Groppera Radio AG and Others, Series A no. 173) the content of the information which the company wished to disseminate was of some significance to it or to the intended recipients. In our opinion, Article 10 (art. 10) presupposes a minimum of identification between the person claiming to rely on the right protected by that Article (art. 10) and the "information" transmitted or received. In the instant case, however, the content of the information - by pure chance Soviet programmes in Russian - was a matter of complete indifference to the company and to the visitors to the trade fair who were likely to see the programmes; the sole purpose was to give a demonstration of the technical characteristics of the dish aerial in order to promote sales of it. That being so, we consider it unreasonable on the part of the company to invoke freedom of information, and Article 10 (art. 10) is accordingly not, in our opinion, applicable in the instant case.

2.   Even supposing that Article 10 (art. 10) was applicable, we cannot see that there has been any breach of that provision in the restriction of freedom of reception imposed on the applicant company.

We would point out at the outset that the sale of dish aerials was not itself made subject to any restriction. It is therefore not possible in the instant case to derive a restriction of freedom of information from an alleged restriction of trade in technical equipment for radiocommunication.

As the majority accepted, the restriction that was imposed was in pursuit of a legitimate aim: order in international telecommunications. The majority leave a lingering doubt, however, as to the "law" status of the statutory provisions on which the interference was based. In our opinion, both the International Telecommunication Convention and the international Radio Regulations had, as was recognised in the Groppera Radio AG and Others case (judgment of 28 March 1990, § 68), the necessary clarity and precision in respect of the vital points: the fundamental distinction between direct-broadcasting satellites, whose broadcasts are intended for direct reception by the general public; and telecommunications satellites (broadcasting from point to point), whose broadcasts are not directly intended for the general use of the public, and the obligation to take the necessary measures to prohibit and prevent the unauthorised interception of radiocommunications not intended for the general use of the public, that is to say broadcasts from telecommunications satellites (RR nos. 22, 37, 1992-1994). It should be remembered that the G-Horizont satellite was precisely a satellite of this latter type.

As the ITU pointed out in its reply of 2 November 1989, it follows from these provisions that the interception of the broadcasts via telecommunications satellite was subject to authorisation by the Swiss PTT, which was empowered to lay down the terms and conditions of such authorisation and which, in so doing, had to have regard to the undertaking it had entered into under the Radio Regulations. The disputed interference - the Swiss authorities ’ refusal of permission - therefore had a sufficient legal basis.

3.   Switzerland ’ s opinion that this undertaking obliged it to make permission for reception subject to the consent of the broadcasting State - in this instance the Soviet Union - was in keeping with the interpretation generally accepted at the time (and even until quite recently), as appears from the replies of the foreign authorities from which Switzerland requested information (the USSR, 7 February 1984; the Netherlands, 1 July 1985; Finland, 8 July 1985; and the Federal Republic of Germany, 29 August 1989); it was also in keeping with the recommendation adopted in 1982 by the European Conference of Postal and Telecommunications Administrations (see the judgment, § 38).

It was therefore legitimate for Switzerland to believe itself to be not only entitled but obliged to make the permission sought by Autronic AG subject to the consent of the appropriate Soviet authorities, in order to discharge the international obligations it had undertaken, by complying with them as they were understood by the relevant international bodies and by the other States, in particular by the State concerned in this instance, the Soviet Union. In other words, since the Soviet authorities ’ consent had not been secured, the refusal of permission complained of by Autronic AG could be regarded at the time as a measure necessary for ensuring order in international telecommunications.

Even if, in recent years, some national authorities seem to have dispensed with the condition of first securing the consent of the broadcasting State, it nonetheless emerges from the replies received as late as 1989 that this approach is not yet a general one. The inter-State agreements concluded in order to set up Eutelsat and Intelsat, which allow only specially authorised earth stations to pick up broadcasts from satellites, prove this. But even if that were not the case and if views have changed, this cannot be taken as a basis for determining the issue of whether or not there has been a violation of the Convention in this case and therefore of the State ’ s responsibility, which is an issue that has to be assessed in the light of the legal rules in force (and as understood) at the material time.

The fact that the ITU considers that it is for the authorities of each member of the Union themselves to take the "necessary measures to prohibit and prevent the unauthorised interception of radiocommunications not intended for the general use of the public" and that any national administration is empowered to "lay down the terms and conditions on which it grants such authorisation" means only that, under the International Telecommunication Convention and the Radio Regulations, the States enjoy some discretion in deciding on suitable measures for the purposes laid down in the aforesaid international rules; it cannot be argued from this discretion that a measure taken in this context which appears perfectly suitable and proportionate to the legitimate aim pursued, that is to say in the instant case to the prevention of international disorder in telecommunications, is unnecessary. Moreover, the measure complained of was not an absolute, indiscriminate prohibition but a reasonable response to the international undertakings entered into by the State in question, a response which had regard to the legal interests of the broadcasting State.

That being so, we consider that there has been no breach of Article 10 (art. 10).