AS TO THE ADMISSIBILITY OF
Application No. 12726/87
by AUTRONIC AG
against Switzerland
The European Commission of Human Rights sitting in private
on 13 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 January 1987
by AUTRONIC AG against Switzerland and registered on 17 February 1987
under file No. 12726/87;
Having regard to:
- the observations submitted by the respondent Government on
7 April 1988, the reply thereto submitted by the applicant company
on 30 June 1988 and the Government's further submissions of
17 August 1988;
- the submissions of the parties at the hearing on
13 December 1988;
Having deliberated,
Decides as follows:
.PA:12726/87
THE FACTS
The facts of the case, as submitted by the parties may be
summarised as follows:
The applicant company, a stock corporation (Aktiengesell-
schaft) registered under Swiss law, has its seat at Dübendorf in
Switzerland. It has specialised in the field of home electronics,
inter alia in dish antennae (Parabolspiegel) of 90cm diameter for home
use. Before the Commission the applicant company is represented by
Mr R. Gullotti, a lawyer practising in Berne.
&-Particular circumstances of the case&S
I.
The application concerns the reception by the applicant
company in Switzerland of uncoded Soviet television programmes. These
programmes are prepared and broadcast (emitted) in the Soviet Union.
They are beamed into space to the Soviet satellite G-Horizont from
where they are transmitted to users on the ground. The satellite in
question is a telecommunications satellite rather than a broadcasting
satellite. It constitutes a fixed, i.e. point-to-point, radio-
communications service according to Article 1 para. 22 of the
International Radio Regulations, and it employs frequencies which have
been allotted to the radiocommunications service (Funkdienst) via
telecommunications satellite service. Telecommunications satellites
transmit, apart from radio and television programmes, also telephone
conversations, telex messages and other data.
While today a number of satellites exist retransmitting
television broadcasts which could be received by means of dish
antennae, in 1982, at the time when the present application
originated, such broadcasts could only be received from the Soviet
satellite G-Horizont.
II.
In spring 1982 the applicant company filed a request with the
Radio and Television Department of the Board of Directors (General-
direktion) of the Swiss Post, Telegraph and Telephone Services (PTT).
Therein, it applied for permission to show at the Basle trade fair
(Mustermesse) in 1982 the public Soviet television programme which it
received by means of a private dish antenna directly from the Soviet
satellite G-Horizont.
The Radio and Television Department of the Board of the PTT
then wrote to the Soviet Embassy in Berne and inquired about a
permission to do so. This was granted by the Soviet authorities on
21 August 1982 for the Basle trade fair.
On 7 July 1982 the applicant company again applied for such
a permission for the 1982 FERA exhibition in Zurich lasting from
30 August until 6 September 1982. This exhibition concerns new
developments in radio, television and electronics equipment.
The Radio and Television Department of the Board of the PTT
then again asked the Soviet authorities for permission, though a reply
was never received.
On 14 and 26 July and 6 August 1982 the Radio and Television
Department of the Board of the PTT replied that it could not permit
the reception of transmissions from the Soviet satellite without the
express approval of the Soviet authorities. As long as this approval
had not been granted, the PTT was bound by the Radio Regulations to
prevent any such reception.
III.
The applicant company was planning to conduct further such
demonstrations. It therefore applied on 1 November 1982 to the Radio
and Television Department of the Board of the PTT for the issue of
a declaratory order (Erlass einer Feststellungsverfügung). The
applicant company requested in particular a statement according to
which the reception for private use of uncoded transmissions from
telecommunications satellites, such as G-Horizont, should not be made
dependent on the approval by the authorities of the broadcasting
State. The applicant company submitted that the use of particular
frequencies did not determine whether or not a programme was to be
kept confidential, and Article 23 of the Radio Regulations (see
Relevant international law, below) did not indicate which programmes
were confidential.
According to the applicant company, only a licence
(Konzession) under Swiss law should be required for the reception of
television and radio broadcasts. Such a licence could be granted to
everybody as long as the programmes were generally accessible and
public and not confidential. There was also no interference with
Swiss copyright law since the condition for such protection was the
quality of a "work" (Werk). While individual programmes constituted
such a work, an entire broadcasting programme did not.
On 13 January 1983 the Radio and Television Department of the
Board of PTT dismissed the applicant company's request for a
declaratory order. It issued an order that the reception at issue
could not be permitted without the approval of the broadcasting State.
The order informed the applicant company of the possibility of an
appeal.
As to the reasons for its order, the Radio and Television
Department found that signals from telecommunications satellites could
only be received by specially approved ground stations. According
to Article 9 para. 960 of the Radio Regulations (see Relevant
international law, below) each State administration could determine
for a point-to-point radiocommunication certain frequencies, provided
that these emissions were not intended for direct reception by the
general public.
The order of 13 January 1983 found, on the one hand, that the
broadcasting satellites transmitted radio and television programmes to
an undefined number of receiving stations in a defined area. They
transmitted on frequencies which were expressly reserved for direct
reception. On the other hand, in respect of telecommunications
satellites Article 22 of the International Telecommunication
Convention obliged all members States to secure the confidentiality of
the transmissions. Article 23 of the Radio Regulations rendered this
provision more precise. The decision of the Radio and Television
Department continues:
"Somit ist für die Frage, ob eine Sendung für den
unmittelbaren Empfang durch die Allgemeinheit bestimmt ist,
nicht der Inhalt der übertragenen Funksendung (z.B. ein
Fernsehprogramm) massgebend, sondern die Art und Weise der
Uebertragung, nämlich ihre Qualifizierung als Fernmelde-
verbindung. Daraus folgt, dass mittels Fernmeldesatelliten
übertragene Rundfunkprogramme in einem Land nur empfangen
werden dürfen, wenn die Fernmeldeverwaltung des Sendelandes
... die Fernmeldeverwaltung des Empfangslandes dazu
ermächtigt. Damit wird auch den Bestimmungen betreffend das
Fernmeldegeheimnis Rechnung getragen. Es ist nicht
einzusehen, weshalb Fernmeldeverwaltungen bestimmte
Funksendungen nicht sollten geheimhalten können, da sie doch
zur Durchsetzung der Vorschriften von Fernmeldevertrag und
Radioreglement verplichtet sind."
"For the question, therefore, whether or not a broadcast
destined for the direct reception by the general public, the
content of the transmitted radiocommunication (e.g. a television
programme) is not relevant. Rather, the means of transmitting
is important, in particular its qualification as a
telecommunication. It results therefrom that radio and
television programmes which have been transmitted over a
telecommunications satellite can only be received in a country
if the telecommunications administration of the transmitting
State ... has given its approval to the telecommunications
administration of the receiving State. Thus, due
consideration is taken of telecommunications confidentiality.
There are no reasons why telecommunications administrations
should not keep certain radiocommunications confidential since
they are bound to ensure compliance with the provisions of the
International Telecommunications Convention and the Radio
Regulations."
IV.
The applicant company thereupon filed an appeal (Beschwerde)
which was dismissed, on 20 July 1983, by the Board of Directors of the
PTT. After reiterating the decision previously given by its Radio and
Television Department to the applicant company, the Board first stated
that it was competent to examine the appeal. It continued that
the applicant company had an interest worthy of protection in having
the contested order quashed within the meaning of Article 48 of the
Swiss Administrative Procedure Act.
In the grounds for its decision the Board found that the
protection of the information at issue could not depend, as the
applicant company had suggested, on whether the transmissions were
intended for the use by the general public since in the case of
telecommunications satellites at the moment of transmitting it was not
clear or generally known which transmissions were intended for the use
of the general public. The Board also considered that Article 10 of
the Convention only granted the right to receive information from
generally accessible sources which the telecommunications satellite
did not constitute. Moreover, it was here irrelevant that the
transmissions were later intended for general use since at the time
of transmission there was a duty to keep the transmitted data
confidential.
V.
Against this decision the applicant filed, on 13 September
1983, an administrative law appeal (Verwaltungsgerichtsbeschwerde)
to the Federal Court (Bundesgericht) in which it requested the Court
to issue a declaratory order to clarify the legal situation for the
future. In particular, the Court was requested to declare that the
reception for private use of uncoded transmissions of telecommuni-
cations satellites intended for the general public should not depend
on the approval of the emitting State.
On 7 February 1984, upon request of the Swiss PTT
authorities, a member of the direction of the Soviet Gostelradio
informed the Swiss PTT by telex that the broadcasts transmitted by the
satellite in question were intended for Soviet television viewers and
not for other countries. According to the telex, any international
use of such signals would have to be resolved on an international
level.
On 6 July 1984 the applicant company informed the Federal
Court that it had found in a periodical, No. 48 of IRT (Information,
Radio and Television), a news item according to which the Soviet
telecommunications administration had declined to approve the reception
of its programmes in other countries since its broadcasts were intended
solely for Soviet television viewers.
During the ensuing proceedings the Federal Court decided on
9 July 1984 to ask the Board of the PTT a number of questions on the
factual and legal situation of the case. The reply thereto, counting
22 pages, was submitted by the PTT General Direction on 22 August
1984. On 31 August 1984 the applicant company submitted its own
statements to the questions. On 10 June 1985 the Federal Court
Rapporteur informed the applicant company that its administrative
court appeal had, for different reasons (umständehalber), so far not
been treated and that the applicant company could submit further
statements in reply until 16 August 1985.
Meanwhile, on 26 June 1985, the Radio and Television
Department of the Board of Directors of the PTT transmitted by telex
the following enquiry to the Dutch Telecommunications authorities:
"... In connection with the determination of a request, we would
like to know on which conditions reception of TV programmes
via telecommunications satellites is permitted in the
Netherlands. Please let us also know if the Soviet
communications satellite G-Horizont stationar is received
in your country (by cable operators)..."
On 1 July 1975 the Dutch authorities replied by telex:
"... The conditions for reception of TV programmes by cable
operators in the Netherlands seem to be quite similar to those
in your country. The Netherlands PTT issues licences to cable
operators, separate for each particular TV programme. With
such a licence the operator can install his own TVRO antenna,
although it is advisable for him to consult with PTT for
frequency coordination purposes in order to avoid interference
from terrestrial microwaves. ... A few years ago some reception
of the Ghorisont satellite did indeed take place. This was
considered illegal because of the absence of agreements with
the USSR program provider and satellite operator, and the
cable operators were so informed. ..."
The Swiss Radio and Television Department also asked the
Finnish Telecomunications authorities about reception of television
programmes from satellites. On 8 July 1985 the latter replied by
telex:
"... We have permission from the Telecommunications Ministry
of USSR to receive as an experiment the Ghorisont signal
up to 31.12.1985. Authorisation for distribution has been
given in 7 cases so far."
VI.
On 10 July 1986 the Federal Court rejected the applicant
company's administrative court appeal. The decision was served on
11 November 1986.
The Federal Court stated in its decision that, while the
applicant company had envisaged an abstract determination of the legal
situation, it could in fact only complain that it had been unable to
receive the transmissions in question at FERA since only such a
reception was relevant for the applicant company (kam für sie konkret
in Betracht). The Court nevertheless found it unnecessary to resolve
whether for this reason the applicant company's request for a
declaratory order was inadmissible since it had in any event also
failed to demonstrate an interest worthy of protection (schutzwürdiges
Interesse).
The Federal Court observed that at that moment there was over
Europe, with the exception of the Soviet G-Horizont satellite, no
other satellite the emissions of which could be received by a home
dish antenna. In fact, the applicant company had received signals of
the Soviet satellite since it had no possibility to receive other
programmes. As long as this was the case, the Court found that there
was hardly a market for such antennae, and only "strange persons"
(Sonderlinge) would be inclined to buy such an antenna. While a
German and a French satellite would eventually commence operation it
was unclear how these means of transmission should be used, and it
could not be estimated how big the interest would be in a direct
reception of their programmes, and how many dish antennae would be put
into use. Thus, since the applicant company had not demonstrated a
direct economic interest, it had no interest worthy of protection in
the issue of a declaratory order and the Federal Court therefore
refused to enter into the complaint.
&-Relevant international law&S
In the domestic proceedings in which the applicant company was
involved, the Swiss authorities referred to various provisions under
international law, which may be summarised as follows:
Article 22 of the International Telecommunications Convention
states in the version in force at the time:
"Secrecy of Telecommunications.
1. Members agree to take all possible measures,
compatible with the system of telecommunication used, with
a view to ensuring the secrecy of international correspondence.
2. Nevertheless, they reserve the right to communicate
such correspondence to the competent authorities in order to
ensure the application of their internal laws or the execution
of international conventions to which they are parties."
Article 1 para. 37 of the Radio Regulations, adopted in the
framework of the International Telecommunications Union (ITU), states
in the version applicable at the time, that signals transmitted via
broadcasting satellite in outer space may be directly received by the
general public, either individually or collectively, in the case of
broadcasting satellites.
Article 9 para. 960 of the Radio Regulations states:
"Any administration may assign a frequency in a band
allocated to the fixed service or allocated to the
fixed-satellite service to a station authorized to transmit,
unilaterally, from one specified fixed point to one or more
specified fixed points provided that such transmissions are
not intended to be received directly by the general public."
According to Article 23 of the Radio Regulations, States
members of the ITU are bound to prevent reception by the general
public of certain emissions:
"In the application of the appropriate provisions of the
Convention, administrations bind themselves to take the
necessary measures to prohibit and prevent:
(a) the unauthorised interception of radiocommunications
not intended for the general use of the public;
(b) the divulgence of the contents, simple disclosure of
the existence, publication or any use whatever, without
authorisation, of information of any nature whatever
obtained by the interception of the radiocommunications
mentioned in (lit. a above)."
COMPLAINTS
The applicant company complains that the free reception for
private use of satellite transmissions which were not codified and
were intended for the general public was made subject to the approval
of the emitting State. It alleges a violation of its right under
Article 10 of the Convention to freedom of information. It submits
that there was no legal basis either under Swiss or international law
for the requirement of an approval, and that such a requirement was
also disproportionate and unjustified. The interference could not be
justified on the ground that the programmes were being transmitted via
a telecommunications satellite. Furthermore, the private reception of
such transmissions by home antennae did not cause any disturbances.
.PA:12726/87
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 January 1987 and
registered on 17 February 1987.
On 15 October 1987 the Commission decided to bring the
application to the notice of the respondent Government and invite them
pursuant to Rule 42 para. 2 (b) of the Rules of Procedure to submit
observations on the admissibility and merits of the application.
The respondent Government's observations were submitted
on 7 April 1988, the reply thereto by the applicant company on
30 June 1988, and the Government's further observations on
17 August 1988.
On 11 October 1988 the Commission decided to invite the
parties to a hearing on the admissibility and merits of the
application.
At the hearing which was held on 13 December 1988, the parties
were represented as follows:
The respondent Government:
Mr. O. JACOT-GUILLARMOD,
Head of the Service of International Affairs
of the Federal Office of Justice, Agent
Mr. B. MÜNGER,
Service of International Affairs of
the Federal Office of Justice,
Mr. A. SCHMID,
Head of the General Law Department
of the PTT Board of Directors,
Mr. H. KIEFFER,
Head of Section, Administration of frequencies
and transmission monopoly (Senderegal) of the Radio
and Television Department of the PTT Board of Directors,
as advisers.
The applicant company:
Mr. R. GULLOTTI,
Fürsprecher, counsel
Mr. Walter STREIT,
assistant counsel.
Mr. Peter KRAUSE, President of the Board of Directors
and proprietor of AUTRONIC AG, was also present.
SUBMISSIONS OF THE PARTIES
A. The respondent Government&S
I. As to the admissibility of the application
1. In respect of the question whether the applicant company can
be considered to be a victim, the Swiss Government recall that, in
its judgment of 10 July 1986, the Federal Court did not examine the
substance of the public law appeal of the applicant company as it
found that the latter no longer had a legal interest in the matter.
The Federal Court found, in particular, that the telecommunications
satellite in question was broadcasting its television programme in
Russian, and that there could hardly be said to be an audience in
Switzerland capable of following such programmes. For this reason,
the Government consider that the applicant company cannot be regarded
as a victim within the meaning of Article 25 of the Convention.
2. As regards the question of the exhaustion of domestic
remedies, the Government recall that the applicant company's request
of 1 November 1982 was clearly of a general and abstract nature. The
Government therefore consider that this request does not constitute a
valid substitute for an appeal against the refusal of the earlier
request of the applicant company of 7 July 1982.
The Government next explain the specific problems concerning
the declaratory order which the applicant company requested before the
Federal Court.
The competent authority is empowered to make such a
declaration, of its own volition or on request, if, in the application
for such declaration, the person concerned proves that he has
interests worthy of protection (see Section 25 paras. 1 and 2 of the
Act on Administrative Procedure). In the present case the Federal
Court seriously doubted this. In particular, the act challenged must
be of an individual and specific, rather than of a general and
abstract nature, for in the latter case the Federal Court would in
fact be controlling rules in the abstract which it is not empowered to
do in such circumstances.
In this connection the Swiss Government consider that the
applicant company could in fact have challenged individual and
specific measures directed against it. On 7 July 1982 it had applied
to the Swiss PTT authorities for authorisation to receive broadcasts
from the Soviet telecommunications satellite at the Zurich exhibition
in 1982. The PTT declined by letters of 26 July and 6 August 1982.
The Government emphasise that the applicant company failed to appeal
against these negative decisions. It is true that the applicant
company later explained, in its application of 1 November 1982 for a
declaratory order, the reasons why it failed to appeal against the
previous decision. In particular, the applicant company claimed to
have been under time pressure.
The Government conclude that States are free to define the
procedural conditions inter alia for introducing an application for a
declaratory order. Since the applicant company did not comply with
these conditions, in the Government's view it has not complied with
the requirements of the exhaustion of domestic remedies within the
meaning of Article 26 of the Convention, and the application should
therefore be declared inadmissible.
3. The Government next examine the complaints of the applicant
company. The latter wished to carry out a technical demonstration at
an exhibition, in particular by demonstrating equipment capable of
receiving broadcasts from the Soviet telecommunications satellite.
In the Government's opinion, it is not possible to rely upon
Article 10 of the Convention in a purely technical manner without any
reference to the substance of the freedom of expression. Undoubtedly
Article 10 must be held to guarantee the right to use the most recent
technical apparatus in order to take full advantage of the right
guaranteed by that provision. It is not, however, possible to rely on
this provision for purely technical purposes, totally disregarding the
substance of the "expression" or "information" in question, which are
a decisive element in the fundamental rights enshrined in Article 10
of the Convention.
Article 10 of the Convention does not cover the mere technical
demonstration, during a specialised exhibition, of equipment permitting
the reception of broadcasts from a telecommunications satellite. Such
a technical demonstration is more fully protected by the freedom of
economic activity which, while not enshrined in the Convention, is
guaranteed by the freedom of commerce according to Article 31 of the
Swiss Constitution.
As a result, the Government submit that in this respect the
application is incompatible ratione materiae with the provisions of
the Convention.
The Government conclude that the prohibition in question did
not constitute an interference by the Swiss authorities with the
rights of the applicant company under Article 10 para. 1 of the
Convention, and the Commission is invited to declare this part of the
application inadmissible ratione materiae.
II. As to the well-foundedness of the application
In view of the above, the Government submit that it is in
principle superfluous to examine further whether there has been an
interference with the rights in Article 10 para. 1 of the Convention
and whether the grounds of justification mentioned in Article 10
para. 2 of the Convention have been met.
1. The Government recall the nature of the satellite in question
by referring to its Message of 20 December 1985 to the Swiss
Parliament concerning the Federal Decree on Satellite broadcasting
(FF [Feuille fédérale] 1986 I p. 421 et seq.). There, telecommuni-
cations satellites were contrasted with direct radio or television
broadcasting satellites intended for direct reception by the public
(ibid. p. 426). The Message continues:
"Telecommunications satellites have been in use since the
beginning of the 1960s. They are used principally for
transmitting telephone conversations, data, etc., but are
also used for radio and television programmes between certain
authorised land stations (point to point links), on the
frequencies reserved for that purpose. In accordance with the
International Radio Regulations, signals duly protected by
secrecy are not intended for the public. (...).
For some years now, telecommunications satellites have also
been used to transmit television programmes from a
transmitting station to several receiving installations.
Under the International Radio Regulations, this kind of
relaying from one point to several others forms an integral
part of the fixed satellite transmission service and is not
part of satellite broadcasting in the strict sense. The
receiving of signals is therefore permitted only with the
express approval of the telecommunications authorities".
In this light, the Government submit that there are inherent
limitations in the possibilities of transmitting the information.
These limitations which other States must respect imply that there is
no interference with the applicant company's rights under Article 10
para. 1.
2. Moreover, the above explanations demonstrate that this highly
sophisticated kind of telecommunications justifies national
authorities introducing a particularly strict licensing system. In
fact, since such programmes are transmitted by a satellite from one
precise point to another precise point, they are subject to two State
licensing systems: they have to be authorised both by the State of the
place of transmission and by the State in which the receiving station
is situated.
As a result, the right of the national authorities to license
television broadcasts should be extended to include this requirement
of a licence on the international level, in particular the consent
from the broadcasting State. In the Government's opinion, such a
licensing system is also covered by the third sentence of Article 10
para. 1 of the Convention.
3. As regards the question whether the interference with the
applicant company's rights would have been "prescribed by law" within
the meaning of Article 10 para. 2 of the Convention, the Government
refer to a whole chain of legal provisions providing a legal basis for
the measure undertaken by the Swiss authorities, in particular for
requiring a licence from the applicant company.
The Government refer first to Article 36 of the Swiss
Constitution which provides, inter alia, for the secrecy of letters
and telegrams. The 1922 Federal Act on telephone and telegraph
correspondence provides in Article 1 a State monopoly for establishing
and exploiting all installations serving the electrical or radio-
electrical transmissions.
The Government refer next to the Federal Council's Order No 1
on the Telegraph and Telephone Communications Act of 17 August 1983
inter alia to its Articles 50 and 66. Under Article 78 para. 1 (f) a
licence is required for a joint antenna enabling the owner to
broadcast programmes and provide individual radio broadcasting
services received from telecommunications satellites with the
authorisation of the PTT which itself requires permission from the
Department of Transport, Telecommunications and Energy. Reference is
also made to Article 79 para 2 of this Order No 1 which states:
"The authorisation envisaged in Article 78 para. 1 (f) shall
be granted if the competent telecommunications authorities
have given their agreement and if none of the reasons for
refusal laid down in Article 19 are present."
Article 19 states that a licence may be refused if there are
serious reasons for supposing that the telecommunications equipment
will be used for purposes which are illegal, immoral or contrary to
public policy, or are harmful to the overriding interests of the
country, of the PTT or of radio broadcasting.
Mention is also made of the Article 28 of Federal Decree on
satellite broadcasting of 18 December 1987 under which permission from
the relevant Federal Department is required for the retransmission of
foreign programmes broadcast by satellite under a foreign licence.
Such permission is granted only if the PTT is satisfied that the
requirements of Swiss and international telecommunications law are
met.
As regards other existing or planned Swiss legislation, by
Message of 28 September 1987, the Federal Council brought before the
Swiss Parliament a Federal Radio and Television Bill. Section 39 of
this Bill prescribes that a licence for the transmission of programmes
from telecommunications satellites may be granted only upon prior
authorisation from the PTT. Such a licence will in principle be
granted only if the State in which the transmitter is situated has
given the authorisation required under the International Radio
Regulations.
On the international level, the Government point out that
international treaties form part of the Swiss legal order after they
have entered into force for Switzerland and thus are directly
applicable to both the authorities and individuals. The Government
refer here to the fact that the applicant company itself relied before
the domestic authorities on the international provisions concerned.
The Government further submit that Article 22 of the ITU
Convention is sufficiently precise in that it refers to the protection
of the secrecy of telecommunications. In the present case, the
broadcasts were confidential insofar as they were transmitted over a
telecommunications satellite.
4. The applicant company also claimed during these proceedings
that private companies in the same situation in the Netherlands and
Finland had obtained the necessary authorisations without difficulty.
The Government point out that the Swiss PTT sent telexes to the
relevant national authorities. The replies obtained show clearly that
these countries also work on the assumption that licences to receive
such transmissions may be granted to private companies on their
territory only with the prior authorisation of the Soviet authorities,
on whose territory the transmitters are situated. The Swiss
Government refer in particular to the contents of the Dutch and
Finnish replies.
5. The Government consider that the system of rules applying in
Switzerland as well as the procedure followed in the case in question
are compatible with Article 10 of the Convention. While the situation
may change in the future, at present the applicant company would
receive the same reply from the Swiss authorities.
In view of the technical specifications of the equipment in
question, the existing interferences, both in Switzerland and in the
State of transmission, namely the USSR, are not only laid down by
national and international law, but are also justified as constituting
measures necessary for the protection of the international telecommu-
nications system. This last concept, though it does not appear in so
many words among the exceptions listed in Article 10 para. 2, is
nevertheless implicit in the notion of "prevention of disorder".
Unlimited flow of information on the international level would produce
anarchy, and a minimum of order is required precisely to ensure the
cultural and political pluralism lying at the heart of Article 10 of
the Convention.
6. The Government have accepted that if the applicant company
uses its dish antennae this does not imply a risk of interference with
other frequencies, though they have indicated that by their nature
dish antennae can potentially cause an interference in certain
circumstances. There is also no risk of access to other confidential
information on the same satellite particularly since such information
could be coded. There is furthermore no risk that the reception of
such broadcasts will interfere with the reception by other antennae.
On the other hand, there is always the possibility that the content of
the frequency concerned - e.g. a television broadcast - may change.
III. Conclusions
On the basis thereof the Government invite the Commission to
declare the application inadmissible under Articles 26 and 27 of
the Convention.
B. The applicant company&S
I. As to the admissibility of the application
1. In respect of the issue of its being a victim, and in
particular the decision of the Federal Court of 10 July 1986, the
applicant company observes that the Federal Court thereby took the
view that in an application for a declaratory order the public rights
and obligations involved must be defined with sufficient clarity. In
the opinion of the applicant company, the issue was entirely clear,
namely whether or not the reception for private use of uncoded
transmissions from a telecommunications satellite could be made
dependent on the transmitting State's consent. The issue here was
a practical and specific one.
The underlying question, however, is not merely that of
reception from the G-Horizont satellite, but that of reception from
all satellites which, while using telecommunications frequencies,
broadcast to the public at large. In its Message on the Federal
Decree on satellite broadcasting of 20 December 1985, the Federal
Council also refers to this broader question and confirms that in fact
most radio broadcasts are also transmitted on telecommunications
frequencies. The Government themselves, by referring to the replies
of the Dutch and Finnish authorities, demonstrate that these questions
have also been a source of controversy in other countries.
It cannot therefore be claimed that the applicant company is
addressing a remote and irrelevant problem.
2. As regards the reasons of the applicant company for not
pursuing the proceedings brought on 7 July 1982 concerning the Zurich
exhibition, the applicant company explain that this exhibition is held
annually at the end of August. If the applicant company had followed
up all the legal remedies available, it would have had no hope of
concluding the proceedings in time. It was not pressure of time which
prevented it from proceeding further, but the fact that the
proceedings themselves would have become purposeless while they were
still pending at the appeal stage.
It was precisely this circumstance which led the applicant
company to bring the present proceedings, which are entirely distinct
from those relating to the 1982 Zurich exhibition. For the same
reason, the applicant company's request for the issue of a declaratory
order of 1 November 1982 cannot be regarded as an appeal against, or
the attempt to re-open, the proceedings of 1982, but as a separate and
independent application in new proceedings.
Undeniably the applicant company has exhausted domestic
remedies within the meaning of Article 26 of the Convention by taking
these proceedings all the way to the Federal Court. If the time is
borne in mind which has passed since 1 November 1982, when the request
was filed, it is hard to understand the attitude of the Government.
3. If the Government observe that the questions arising in this
case are of interest to other firms as well, the applicant company
reply that certain court judgments are indeed decisions of principle
and thus of interest also to persons not specifically involved in
those proceedings.
In conclusion, the Federal Court was mistaken in failing to
examine the administrative court appeal of the applicant company. Nor
are there grounds for failing to enter into an examination of the
present application.
4. In respect of the Government's submissions that the applicant
company cannot rely on the freedom of information as its only concern
was a technical one, the latter submits that under the Convention
corporations may be considered victims within the meaning of
Article 25 of the Convention, and under Swiss law they can rely in
particular on the freedom of expression, which includes freedom of the
press. In modern society, the possession of information is of
considerable importance for individuals as well as for corporations.
In the applicant company's view, the specific reasons which
lead a person or corporation to exercise rights to which he or it is
entitled are immaterial. These rights exist in an absolute sense, and
can be restricted only on the conditions laid down in Article 10 of
the Convention.
The applicant company's reasons for introducing an
application before the Commission are not merely technical or
economic. Its concern is also with its basic right to obtain
information from accessible sources. It wishes to be allowed to
receive from the public media the information which those media
purvey. The fact that it sought permission to stage a demonstration
at the 1982 Zurich exhibition cannot be taken as proof that its
concerns in the present proceedings go no further than that. Autronic
AG is also active, for instance, in the media field where it supplies
data in the videotext sector. It is thus obliged to keep a close
watch on the entire media sector and must be able, as an aspect of
freedom of information, to receive information from accessible
sources.
Furthermore, the proceedings before the Swiss authorities
concerned reception, not merely from the G-Horizont satellite,
but from all telecommunications satellites broadcasting uncoded
programmes intended for the public. In any case, the existence of
economic interests cannot be employed to argue that Article 10 of the
Convention has not been violated, since several areas of basic law are
applicable in most cases. In fact, under Swiss law the basic rights
to freedom of information and freedom of commerce are of equal
importance and do not exclude one another.
II. As to the well-foundedness of the application
1. In respect of the Government's submissions under the third
sentence of Article 10 para. 1 of the Convention the applicant company
again refers to its application of 1 November 1982 for a declaratory
order. Thereby, the applicant company sought a ruling that the
reception for private purposes of uncoded satellite broadcasts, such
as those from G-Horizont, did not require the consent either of the
transmitting State, or of the relevant authorities or institutions in
the transmitting State, but merely a radio or television receiver's
licence, issued in accordance with the relevant provisions of the
Broadcasting Act and the accompanying regulations.
The passage quoted by the Government from the Federal
Council's Message of 20 December 1985 on the Federal Decree on
satellite broadcasting merely reiterates the well-known views of
the authorities. It was, however, precisely as a result of this
Message that the related problems concerning freedom of information
were recognised and brought into the discussion.
Nevertheless, the applicant company submit that it is not the
frequency employed, but the content of broadcasts, which determines
whether those broadcasts are intended for the general public.
Contrary to what the Government say, international telecommunications
law does not permit any other conclusion.
2. The main concern of the International Telecommunications
Convention is to regulate frequencies to ensure interference-free
reception. This view is supported by the international expert opinions
submitted by the applicant company. It is also clear that violation
of telecommunications secrecy is not at issue in the present case.
In short, there is nothing in the international regulations to
indicate that the formal criterion of allocation of frequencies should
determine whether or not a broadcast is intended for the public.
The provisions cited by the Government from the Federal
Council's Order No 1 on the Telegraph and Telephone Communications Act
of 1983 do not apply to the present case which is concerned, not with
dissemination via a collective or community antenna, but merely with
the reception for private purposes of uncoded broadcasts. There is
also no reference in these provisions to the relevant international
legal provisions.
The scope of the Federal Decree on satellite broadcasting,
which has also been cited by the Government, is made clear from its
Article 1 which refers to:
"a. The transmission of radio and television programmes,
and similar types of broadcast, via satellite;
b. The reception of radio and television programmes and
similar types of broadcast transmitted by satellite".
Article 2 para. (b) indicates what is meant by reception in
Article 1:
"b. Reception: The simultaneous, complete and unaltered
reception and rediffusion of programmes via community
aerials and broadcasting installations."
This shows that the Federal Decree on satellite broadcasting
is irrelevant to the present case. One reason for this is also given
in the Message itself, which explains that the intention was to avoid
unnecessarily prejudicing the Radio and Television Bill.
Article 28 of the Federal Decree on satellite broadcasting,
which is cited by the Government, merely states that compliance with
Swiss and international telecommunications law must be verified by the
Post Office authorities before a licence can be granted. It is
precisely on the scope of these rights and obligations, however, that
the opinions of the parties differ fundamentally.
It is uncontested that the Government approached the Soviet
authorities repeatedly. The applicant company also accepts that the
latter simply failed to reply, leaving both the Swiss PTT and
applicant company in a state of uncertainty. This also shows how
pointless and arbitrary the proceedings are in order to obtain
permission. Also interesting here is the telex of 22 July 1982 from
the Board of Directors of the PTT which stated that "... these signals
can be received easily throughout the area covered by this satellite.
This could create a situation comparable to that of a satellite
broadcasting service".
3. The applicant company further points out that the replies of
the Dutch and Finnish authorities are concerned with licences for
reception by means of community antennae and are thus irrelevant to
the present case. In fact, there are also European countries, for
instance France and the United Kingdom, where the regulations are
significantly more liberal. In these countries, a straightforward
licence, specifying essentially technical conditions, suffices. This
means that there is no adequate basis for restricting freedom of
information by making the reception of public broadcasts conditional
on the country's consent. The applicant firm's rights under Article 10
of the Convention have accordingly been violated.
4. The applicant company notes that in 1988 eight satellites are
serving Europe all of which employ frequencies of the fixed satellite
service. Of 48 programmes, only eight are coded. In the present case
there has been no justification within the meaning of Article 10
para. 2 by the respondent Government for the interference at issue.
In particular, there was no pressing social need to prohibit the
applicant company from receiving the broadcasts. It is on the
contrary quite essential in a democratic society to permit the private
reception of the contested broadcasts.
III. Conclusion
The applicant company concludes that the application is
well-founded.
THE LAW
1. The applicant company complains under Article 10 (Art. 10) of
the Convention that the free reception for private use of broadcasts,
which were transmitted over a satellite qualified as a telecommu-
nications satellite and which were actually intended for the general
public, were made subject to a permission by the Swiss authorities
which would only be given after the authorities of the transmitting
State had consented thereto.
The applicant company claims to be a victim of this
interference under Article 25 (Art. 25) of the Convention in that its
concern is not merely a technical one. Rather, it intends to obtain
information from accessible sources. The applicant company further
considers that Article 10 (Art. 10) of the Convention includes such a
guarantee, and that, by applying for a declaratory order to the
competent Swiss authorities, the applicant company has complied with
the requirements under Article 26 (Art. 26) of the Convention as to
the exhaustion of domestic remedies. The applicant company complains
that there was no legal basis for the requirement of such consent, and
that the implementation of such a requirement was disproportionate and
unjustified, in particular since the broadcasts at issue were not
confidential.
Article 10 (Art. 10) of the Convention provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibiities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
The Government submit that the applicant company cannot claim
to be a victim within the meaning of Article 25 (Art. 25) of the
Convention in that the company only has a theoretical interest not
worthy of protection under the Convention in pursuing its application.
The Government refer here to the decision of the Swiss Federal Court
of 10 July 1986 according to which it could hardly be said that there
was an audience in Switzerland capable of following such broadcasts.
Under Article 25 para. 1 (Art. 25-1) of the Convention, the
Commission "may receive petitions ... from any person ... claiming to
be a victim of the rights set forth in (the) Convention".
The Commission notes that the applicant company brought an
application for a declaratory order which the Radio and Television
Department of the Board of Directors of the PTT dismissed on
13 January 1983. In particular, the Department issued an order that
the reception of the broadcasts at issue could not be permitted
without the approval of the broadcasting State. The applicant
company's appeal was dismissed by the Board of Directors of the PTT
and its administrative court appeal by the Federal Court.
The Commission further notes that the Federal Court discussed
whether the applicant company's administrative law appeal could be
rejected in view of the fact that it envisaged an abstract
determination of a legal situation, but the Court did not decide on
this basis. Rather, it found that the applicant company had no legal
interest in view of the fact that only broadcasts transmitted over a
Soviet satellite could at that time be received.
As the Government have confirmed, the decisions of the
competent authorities have established that there is no possibility
for a private user to obtain consent to receive the broadcasts from
the telecommunications satellite. This decision was and is still
valid for the applicant.
The Commission does not consider relevant the number of
broadcasts that could have been received when the applicant applied
for the permission. It notes that, according to both parties'
submissions, it is technically possible at present to receive several
satellite broadcasts.
Therefore, as the applicant company has been prohibited from
receiving the broadcasts at issue, the Commission finds that it can
reasonably claim to be a victim within the meaning of Article 25
(Art. 25) of the Convention.
2. The Government submit further that Article 10 (Art. 10) of the
Convention does not cover or protect the mere technical demonstration
during specialised exhibitions of equipment permitting the reception
of broadcasts from a telecommunications satellite. In the
Government's opinion, such a technical demonstration would rather be
protected by the freedom of commerce which is not part of the
Convention rights, but is enshrined in the Swiss Constitution.
The Commission recalls that under Article 25 para. 1 (Art.
25-1) of the Convention it is only the alleged violation of the rights
and freedoms set out in the Convention that can be the subject of an
application presented by a person, non-governmental organisation or
group of individuals.
In the present case the issue arises whether the right claimed
by the applicant company of receiving broadcasts, transmitted over a
telecommunications satellite, by means of a dish antenna concerns the
"freedom to receive and impart information and ideas without
interference by public authority" and "regardless of frontiers" within
the meaning of Article 10 (Art. 10) of the Convention.
The Commission considers that the freedom of imparting and
receiving information may, especially where technical means are at
issue, consist of a series of acts which as a whole will constitute
the process of communication. By demonstrating the reception from a
satellite as well as by the mere reception the applicant company would
be part of such a process.
In the Commission's opinion, there can be no doubt that the
production and broadcasting of television programmes, on the one hand,
and their reception, on the other, concern the rights enshrined in
Article 10 para. 1 (Art. 10-1) of the Convention.
It is true that in the present case the applicant company
neither produces or broadcasts such programmes, nor has claimed to
be part of the general public interested in receiving such programmes.
The fact, however, that the applicant company wanted to receive the
programmes for commercial purposes, i.e. to sell the equipment, does
not alter its position in the communication process at that specific
stage. Rather, the technical equipment provided by the applicant
company plays an essential role in ensuring that the broadcasts at
issue can be received. Without such equipment, right under Article 10
(Art. 10) of the Convention to receive such programmes could not
effectively be enjoyed.
Therefore, the Commission cannot reject the application as
being incompatible with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
The further question whether the applicant company can claim a
right to receive broadcasts from a telecommunications satellite, as
distinguished from a direct broadcasting satellite, cannot be decided
at the admissibility stage.
3. The Government also submit that the applicant company has not
complied with the condition as to the exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention. In the
Government's view the applicant company failed to raise a complaint
immediately after the Swiss authorities refused it permission to
receive the broadcasts concerned at the Zurich trade fair. Moreover,
the Government contend that the application for a declaratory order
did not comply with the requirements under Article 26 (Art. 26) of the
Convention in that the applicant company was in fact requesting the
abstract determination of a legal situation.
The Commission considers that a complaint by the applicant
company against the Swiss authorities' refusal to permit reception of
the broadcasts at the Zurich trade exhibition would have served no
useful purpose as any reply to this complaint would have been issued
long after the exhibition had been closed.
Rather, the remedy employed by the applicant company, namely
the application for a declaratory order must, in the Commission's
view, be regarded as being an effective remedy within the meaning of
Article 26 (Art. 26) as, had the applicant company's application been
successful, a declaratory order would have been issued which would
have clarified that the applicant company had the right at issue.
The Commission sees a confirmation for this conclusion in the
fact that the PTT authorities themselves in fact discussed and
eventually dismissed the applicant company's application for a
declaratory order on its merits, rather than rejecting it as being
inadmissible, for instance, in that it was requesting the abstract
determination of a legal situation.
The fact that the Federal Court did not enter into the merits
for other reasons of procedural law does not mean that the applicant
company can be held not to have exhausted domestic remedies, since no
other remedy was available to determine whether or not the right
claimed existed.
The Commission is therefore satisfied that the applicant
company has exhausted domestic remedies within the meaning of
Article 26 (Art. 26) of the Convention.
4. The Government further submit that the right guaranteed in
Article 10 (Art. 10) of the Convention only concerns information
directed at the general public and not information which has been
qualified as restricted because it is transmitted over a
telecommunications satellite. The third sentence in Article 10 para.
1 (Art. 10-1) justifies that signals transmitted via
telecommunications satellites cannot be received by individuals. A
possible interference with the rights under Article 10 para. 1 (Art.
10-1) of the Convention would moreover have been "prescribed by law"
and "necessary in a democratic society ... for the prevention of
disorder" within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention.
The Commission considers that the applicant company's
complaint concerning the Swiss authorities' refusal to grant a
permission to receive the broadcasts concerned raises questions of
fact and law which are of such complexity that its determination
should depend on an examination of the merits. The application is
therefore not manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention, and no other grounds for
declaring it inadmissible have been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)