DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I do not agree with the majority of the Court as to the interpretation of paragraph 1 (art. 10-1) or paragraph 2 of Article 10 (art. 10-2), or as to the result, and I voted in support of the view that there had been a breach.

To my mind, the error which led the majority to its decision was to have confused to some extent the technical and legal aspects of the issues relating to broadcasting, reception, transfrontier and national frequencies, the international VHF system and the rules governing cable networks.

This distinction, however, was an essential one for assessing the parties' relations and the application of Article 10 (art. 10) to the instant case.  Belton s.r.l., which was in charge of the Pizzo Groppera station and in which the rights of management were vested for a given period, was an Italian company with its headquarters at Como ( Italy ).

Distinguishing between broadcasting and reception is a vital principle in the telecommunications field.  The guiding principles may be summed up as follows:

(1)  Broadcasting and reception are two separate things, except where the equipment, the place of broadcasting and the area of reception are indivisible.

(2)  The distinction must be applied in respect both of jurisdiction where damage is alleged and of the application of national and international rules.

The central question was: in what way was the Maur co-operative's transmission by cable of programmes from the Pizzo Groppera transmitter unlawful or contrary to Swiss public order?

How could the Maur co-operative comply with the authorities' order to it?

The answers to these questions would no doubt establish that what was in issue was the content of the broadcasts.

But even in that case, how could the content have been altered to make it acceptable: by means of a quota of local news, cantonal music or advertising?

It is clear that such an order cannot fairly be made unless the recipient can comply with the legislation and regulations.

In recent European cases dealing with jurisdiction, copyright and tortious damage the applicable rules and systems have been looked at and analysed and the distinctions to be made according to various eventualities have been highlighted:

(a)  the broadcasting itself is contrary to national law, or else reception is;

(b)  the transmission across a frontier of a broadcast that is unlawful at national level or lawful and causing damage (cf. SNEP c. CLT judgment of the Paris Court of Appeal referring to the Mines de Potasse judgment of the Court of Justice of the European Communities);

(c)  the transmission across a frontier of a lawful broadcast whose reception is unlawful under the local law of the place of destination;

(d)  the same situation, but with reception being lawful.

In the case of Groppera Radio AG the whole broadcast was made and recorded in Italy .  The Swiss Government did not rely on the concept of damage in order to claim justification for their interference with the broadcasting.  We come back to the question: how should the Groppera broadcasts have been made up in order to escape the Swiss ban?

Because of incomplete and uncertain data available to the Commission, the majority of the Court has wrongly taken the view that Belton s.r.l. was a Swiss company; but Belton is definitely a company incorporated under Italian law, in accordance with domestic law and with private international law.  It follows that the broadcasts for which the Belton company was responsible during its period of management were a matter for Italian law and that it was from that legal angle that the issues of international telecommunications law had to be considered.

The proceedings which were brought in Italy by Belton s.r.l. to challenge the order of 3 October 1980 and were directed in particular against the Constitutional Court's decision of 28 July 1976 (no. 202) concerning Article 195 of the presidential decree of 29 May 1973 led to the decisions of 4 December 1981 by the Lombardy Administrative Court and of 4 May 1982 by the Consiglio di Stato, which referred the case to the Constitutional Court.  In its decision of 6 May 1987 (no. 153) the Constitutional Court held that section 2 of the Law of 14 April 1979 on the broadcasting of programmes abroad was unconstitutional in that the Law made no provision for the possibility of such programmes being broadcast under a licensing system such as the one in Article 1 of the presidential decree of 29 March 1973.

Thus, as matters stood, there had been no final Italian decisions to the effect that the broadcasts from the Pizzo Groppera were unlawful when the Swiss authorities made their order concerning reception and broadcasting by cable.

In its decision of 4 May 1982 the Consiglio di Stato noted in one of its reasons that the measures challenged in the proceedings could not be interpreted as a general ban on broadcasts abroad where these were not pirate broadcasts (document Cour (89) 244-II, pp. 237-238).

It was pointed out in the Italian proceedings that the Pizzo Groppera station had adopted the frequencies 104 and 107.3 instead of the earlier one 456.825 in order to avoid objectionable interference.

The whole thrust of the Swiss Government's argument was that the ban was lawful because the broadcasting was unlawful under the rules of the International Telecommunication Union.  They therefore based their stance on the international rules and not on interference justified on grounds of morality or public interest.

Groppera Radio AG's broadcasts, however, had not been held to be contrary to those rules.  The Swiss Government never initiated proceedings with the International Union or lodged a complaint against the Italian Government.  On the contrary, they awaited the decision of the Italian Constitutional Court and took no action in the wake of it.

The Federal Court itself, in its decision of 14 June 1985, pointed to this failure: "hitherto none of the means of settling disputes provided for in Article 50 of the International Telecommunication Convention ... has been used."  This was, moreover, consistent with the fact that the first notification to the Maur co-operative contained no reference to the international rules and that the second notification referred to irrelevant enactments and eventualities: jamming, piracy.

No final decision had been taken against the Maur co-operative, since it had appealed, together with Groppera Radio AG, to the Federal Court and the latter had not considered the merits of the case, holding that, owing to the accident that had damaged the Pizzo Groppera transmitter, the broadcasts had then ceased.

In Swiss law, therefore, there was no judgment on the merits against either the Maur co-operative or Groppera Radio AG.

Under international telecommunications law and the International Telecommunication Convention the use of the frequency spectrum is laid down in Articles 33 and 35 of the International Telecommunication Convention.  The Radio Regulations refer to this in numbers 584, 2020 and 2666.

None of these provisions could be relied on, as the broadcasts came under Italian law and the Italian system and were a matter solely for the Belton company during its period of management; there was no effect which prevented the national service from being provided within Switzerland 's frontiers.  The lack of any special agreement between Switzerland and Italy did not alter the situation, as the approaches made by the Swiss authorities from 1979 onwards did not result in any joint findings that there had been any transfrontier or national infringements, pending the decision of the Constitutional Court .

The International Frequency Registration Board referred to the case of Italian stations causing harmful and persistent interference, but in the instant case the Swiss Government did not complain of harmful interference by Groppera Radio AG on Radio 24's former frequency under the name of Sound Radio.  The Maur co-operative had been awarded a cable-network licence without any difficulty, as there was no shortage of such networks.

The applicants were therefore fully entitled to challenge before the Commission and the Court Switzerland's jurisdiction to control the cable retransmission of programmes lawfully broadcast from abroad, since the Pizzo Groppera station was in Italy and under Italian jurisdiction.

The situation was not like that of a satellite used in order to avoid conventional over-the-air broadcasting, with reception being by cable or individual aerial (as in the case of the TDF1 - Chaîne Sept - Canal Plus dispute).  There was therefore no danger that a coded or uncoded channel might use new radio frequencies.

The third sentence of Article 10 § 1 (art. 10-1) could not therefore justify the interference complained of since the issue was not one of making Belton s.r.l. and Groppera Radio AG subject to a Swiss licensing system.

Only paragraph 2 (art. 10-2) could have been open to discussion in respect of the content of the communication transmitted by cable, but the Swiss Government themselves were unable to rely on any justification for interference with the content.

In the instant case, frequencies were neither overloaded nor saturated such as to prevent the operation of other local radio stations; nor was there any lack of cable networks.  The community-antenna licence awarded to the Maur co-operative in accordance with the 1983 Ordinance had not been withdrawn; but the order of 21 March 1984 instructing the co-operative to cease broadcasting Groppera Radio AG's programmes on its cable network on pain of a criminal penalty amounted to a ban. The Government were therefore wrong to maintain that, in the absence of any jamming, it was not possible to talk of censorship; surely to prevent a broadcast is to censor it?  In fact, the intention was to protect local radio stations whose programmes were less popular with the public.  The local authorities' policy was partly prompted by the problems of competition.

The majority of the Court refers in fine to evasion of the law; but how can the offence which such evasion would constitute be relied on when no such charge had been brought and no proceedings of this kind had been brought in either Italy or Switzerland !

Admittedly the scope of the judgment is circumscribed by the facts of the case and by the narrow grounds on which the case has been decided, but inasmuch as Article 10 (art. 10) was at the heart of a problem of retransmission across frontiers, I consider that it was necessary to state that the third sentence of paragraph 1 (art. 10-1) was not applicable and that the interference was not justified under Article 10 § 2 (art. 10-2).

Freedom of expression, which is a fundamental right including the right to receive a communication, is even more necessary in the field of telecommunications.  The countries of Eastern Europe have been encouraged on the path to democracy thanks to broadcasts across frontiers and they wish to comply with the European Convention on Transfrontier Television.  American and European case-law and legal literature on the subject agree in maintaining that this freedom extends to the sphere of telecommunications.

The European Court must uphold the protection and promotion of freedom of expression in the same spirit as the First Amendment to the Constitution of the United States and the proceedings of the United Nations (16th session).  It must keep in mind Helvetius's statement that it is useful to think and to be able to say everything and the Virginia Declaration of Rights (1776): "the freedom of the Press is one of the greatest bulwarks of liberty".

Bibliography : C. Gavalda and L. Pettiti , Liberté d'expression, Paris, Ed . Lamy Audiovisuel; J.-P. Jacqué and L. Pettiti , Liberté d'expression, Montreal , Presse Universitaire de McGill .

Case-law: SNEP c. CLT, Paris Court of Appeal (distinction); Meredith , United States (extension of the case-law on the First Amendment and the press to the audio-visual media; mutatis mutandis, Virginia State Board of Pharmacy).

Professional opinion: Colloquy on "Freedom of Information and the Audio-Visual Revolution", European University Institute, Florence , 1989.