DISSENTING OPINION OF JUDGE GAUKUR JÖRUNDSSON

To my regret, I cannot share the Court's conclusion that there has not been a violation of Article 10 of the Convention.

I agree with the judgment as to the interference with the applicant's rights under Article 10 § 1 of the Convention and as to the relevance of the third sentence of Article 10 § 1. I also agree that the interference was “prescribed by law” and had a legitimate aim as required by Article 10 § 2 of the Convention.

I disagree, however, with the assessment as to whether the interference was “necessary in a democratic society” within the meaning of this provision.

The adjective “necessary” within the meaning of Article 10 § 2 of the Convention implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing the need for an interference, although that margin goes hand in hand with European supervision, whose extent will vary according to the circumstances. In cases such as the present one, where there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict because of the importance – frequently stressed by the Court – of the rights in question. The necessity for any interference must be convincingly established (see among other authorities, Tele 1 Privatfernsehgesellschaft mbH v. Austria , no. 32240/96, § 34, 21 September 2000, and Radio ABC v. Austria , judgment of 20 October 1997, Reports of Judgments and Decisions 1997 ‑ VI, p. 2198, § 30).

Such a margin of appreciation is particularly important in commercial matters (see markt intern Verlag GmbH and Klaus Beermann v. Germany , judgment of 20 November 1989, Series A no. 165, pp. 19-20, § 33, and Jacubowski v. Germany , judgment of 23 June 1994, Series A no. 291-A, p. 14, § 26).

In order to assess the extent of the margin of appreciation afforded to the domestic authorities in the present case, the objectives of Car TV AG must be examined. In my view, a private broadcasting enterprise which aimed at promoting cars was a commercial venture. Nevertheless, the planned television programme went well beyond the commercial framework, being extended to such subjects as traffic policies, road safety and environmental issues. These matters were indubitably of general and public interest and would have contributed to the ongoing, general debate on the various aspects of a motorised society.

It is therefore necessary to reduce the extent of the margin of appreciation pertaining to the authorities, since what was at stake was not merely a given individual's purely “commercial” interests, but his

participation in an ongoing debate affecting the general interest (see, mutatis mutandis , Hertel v. Switzerland , judgment of 25 August 1998 , Reports 1998-VI, p. 2330, § 47).

From this perspective, it is necessary to examine carefully whether the measure at issue was proportionate to the aim pursued. In particular, the various reasons adduced for refusing to grant the broadcasting licence should be considered. In that connection the legitimate need for the quality and balance of programmes, on the one hand, should be set against the applicant's freedom of expression, namely his right to impart information and ideas, on the other.

To begin with, I would note that the Federal Council in its decision of 16 June 1996 concluded that it would refuse a television broadcasting licence for Car TV AG on the ground that “the programme [focused] mainly on entertainment or on reports about the automobile”. In my view, however, it has not been made sufficiently clear in what respect entertainment in itself calls in question, or indeed falls to be distinguished from, freedom of information. In any event, topics such as news on energy policies, the relations between railways and road traffic, or environmental issues, all of which Car TV AG intended to broadcast, may well be considered as going beyond mere entertainment, being also of an educational nature.

In my opinion, moreover, it has not been sufficiently demonstrated to what extent, in a highly motorised society such as Switzerland, the television broadcasts of Car TV AG “would lead to a society increasingly shaped by segmentation and atomisation”, as the Federal Council stated in its decision of 16 June 1996.

The Government have furthermore referred to the political and cultural structure of Switzerland , a federal State. Attention was drawn to the Commission's decision in Verein Alternatives Lokalradio Bern and Verein Radio Dreyeckland Basel v. Switzerland , according to which “the particular political circumstances in Switzerland ... necessitate the application of sensitive political criteria such as cultural and linguistic pluralism, balance between lowland and mountain regions and a balanced federal policy” (no. 10746/84, Commission decision of 16 October 1986, Decisions and Reports 49, p. 140). In my opinion, such considerations are of considerable relevance to a federal State. Nevertheless, in the present case it has not been sufficiently shown in what respect a television programme on automobiles constituted a politically or culturally divisive factor, particularly as the applicant's programme was to be broadcast in the two main Swiss languages: German and French.

In addition, the Government also referred before the Court to the limited number of frequencies as a reason for refusing the licence. However, the applicant claimed that he had the assurance of the largest Swiss cable company that it would transmit Car TV AG ' s programme. Here, it may be noted that the decision of the Federal Council of 16 June 1996 did not itself refer to any limitation of frequencies as a ground for refusing the licence and, indeed, the Government have not provided further details of this ground of justification. In my opinion, it suffices to note that the Car TV AG programme was to be transmitted via cable companies and that, under section 43(1) of the RTA, the latter in principle, have a free choice in the matter (see paragraph 19 above).

Finally, it is true that the decision of the Federal Council of 16 June 1996 did not exclude granting a licence if the programme was “compensated by valuable contents”, in particular “with programmes in the areas of culture ... or of the formation of political opinions ...”. In my opinion, however, this could not amount to a valid alternative for the applicant since the purpose of his programme, as the name Car TV AG suggested, was to deal exclusively with matters pertaining to automobiles.

In the circumstances of the case, I conclude that the impugned measure could not be considered as “necessary in a democratic society”, in that the interests adduced by the Government did not outweigh the interest of the applicant in imparting information under Article 10 of the Convention. The interference with the applicant's freedom of expression was not therefore justified.

Consequently, there has in my opinion been a violation of Article 10 of the Convention.