CABLE MUSIC EUROPE LTD v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 18033/91

                      by Cable Music Europe Ltd.

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

29 November 1993, the following members being present:

                 MM.  C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

           Mr.   H.C. KRÜGER, 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 15 February 1991

by Cable Music Europe Ltd. against the Netherlands and registered on

4 April 1991 under file No. 18033/91;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, Cable Music Europe Ltd, a limited company

incorporated under the laws of the United Kingdom, has its registered

office in London.  Before the Commission the applicant company is

represented by Mr. P.B. Hugenholtz and Mr. A.J.H.W.M. Versteeg, who are

lawyers, practising in Amsterdam.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     The applicant company was originally founded by two Dutch

nationals; its everyday management is in the hands of Dutch nationals

and it is funded by Dutch capital.

     In 1989, another company, Radio Broadland Holdings PLC, acquired

the majority of the applicant company's shares.

     The applicant company founded Cable Music Europe B.V., a limited

company incorporated under Dutch law, which latter company produced the

radio programme "Cable One".

     This programme, recorded in Hilversum, the Netherlands, mainly

consists of light music and is interrupted by news bulletins both in

English and Dutch and by commercials.  It is mainly presented in Dutch

by disc-jockeys from the Netherlands and most of the commercials in the

programme are in Dutch.

     Cable Music Europe B.V. rented a satellite channel from the Dutch

Post and Telecommunications authorities (P.T.T.) and transmitted its

programme via the telecommunications satellite ECS-1, from the ground

station at Nederhorst den Berg, the Netherlands, to Dutch cable

networks and individuals possessing a dish aerial.

     By summons of 8 April 1988 the Netherlands Broadcasting Programme

Foundation (Nederlandse Omroepprogramma Stichting - hereinafter

referred to as "NOS") started civil proceedings against the State of

the Netherlands and the Commissariat for the Media (Commissariaat voor

de Media) before the Regional Court (Arrondissementsrechtbank) of the

Hague.

     The NOS requested the Court to:

-    declare that the Dutch State acts unlawfully by offering

facilities for the transmission of programmes such as "Cable One", this

being contrary to the rules on the distribution of broadcasting time

under the Media Act (Mediawet) and the rules on making transmitters

available for domestic broadcasts under the Radio Broadcast Transmitter

Act 1935 (Radio Omroep Zenderwet 1935);

-    state that the Commissariat for the Media must impose sanctions

on cable network operators who transmit programmes such as "Cable One";

-    give a definition of a foreign broadcasting company within the

meaning of Section 66 para. 1 (b) of the Media Act;

-    state that Cable Music Europe B.V. is not a foreign broadcasting

company within the meaning of Section 66 para. 1 (b) of the Media

Act. By judgment of 18 January 1989 the Regional Court declared itself

incompetent to examine alleged violations of the Media Act, this task

being entrusted to the Commissariat for the Media, and considered the

Radio Broadcast Transmitter Act 1935 inapplicable to Cable Music Europe

Ltd..  The Court also declared itself incompetent to deal with the

other matters as the NOS could request the Commissariat for the Media

directly to impose a sanction, there being a possibility to challenge

the latter's decision, fictitious or otherwise, subsequently before the

administrative court. The Court observed that the Commissariat in

defining a foreign broadcasting company is bound by the judge's finding

on this point.  The Court added that if the NOS disagrees with the

Commissariat's interpretation of this term, it could challenge this

definition before the administrative court.

     By decision of 17 February 1989 the Commissariat refused to

impose a sanction on a cable network operator for having transmitted

the "Cable One" programme.

     On 17 March 1989 the NOS filed an appeal against this decision

with the Judicial Division of the Council of State (Afdeling

Rechtspraak van de Raad van State).

     By decision of 30 August 1989 the Judicial Division quashed the

contested decision of 17 February 1989.  The Judicial Division noted,

inter alia, that the most important area in which the programme is

diffused lies in the Netherlands with about 1.5 million cable

connections, whereas it is also transmitted through the British Cable

Authority to a small local network in Glasgow with about 8000

connections.

     The Judicial Division also noted that Section 66 para. 1 (b) of

the Media Act does not give a definition of a foreign broadcasting

company.  It did not consider Cable Music Europe Ltd's features, as

presented by the Commissariat, as conclusive.  Referring to the

discussion in Parliament on this provision, the Judicial Division held

it cannot have been the legislator's intention to enable cable network

operators to transmit programmes of broadcasting companies, who have

established themselves abroad with the apparent intention to evade

Dutch statutory regulations for domestic broadcasts. In this respect

the Judicial Division considered it important to examine whether

programmes of a foreign broadcasting company have originally been

broadcast abroad and subsequently transmitted from there to Dutch cable

networks.

     The Judicial Division concluded that the meaning which the

Commissariat for the Media gave to the notion of "foreign broadcasting

company" was contrary to Section 66 para. 1 (b) of the Media Act.

     By letter of 18 September 1989 the Commissariat for the Media

informed the applicant company of its decision to request operators of

cable networks in the Netherlands, via a letter addressed to the Board

of the Association of Operators and Licensees of Central Cable Networks

(Vereniging van Exploitanten en Machtigingshouders van Centrale

Antenne-inrichtingen), to end the transmission of the "Cable One"

programme at the latest on 1 October 1989.

     On 5 October 1989 the applicant company filed an appeal under the

Administrative Decisions Appeals Act (Administratieve Rechtspraak

Overheidsbeschikkingen) against this decision with the Judicial

Division of the Council of State.

     By decision of 5 September 1990 the Judicial Division declared

the applicant company's appeal inadmissible insofar as it related to

the Commissariat's letter to the Board of the Association of Operators

and Licensees of Central Cable Networks and rejected the remainder of

the appeal.

     Insofar as the applicant company alleged a violation of Article

10 of the Convention either separately or in conjunction with Article

14 of the Convention, the Judicial Division primarily noted that the

Media Act aims at maintaining a multiform and non-commercial

broadcasting system and at protecting the diversity of expression of

opinion in the broadcasting system.

     The Media Act contains a number of institutional provisions for

the realisation of the right contained in Article 10 of the Convention

without commercial influences on the broadcasted programmes.

     The Judicial Division considered that in the system of the Media

Act it is essential that the distinction between domestic and foreign

programmes be strictly maintained and that, when a broadcasting

institution has been established abroad with the apparent intention to

evade the rules which apply to the domestic broadcasting system, the

institutional framework in force in the Netherlands is undermined

("fraus legis").

     The Judicial Division, referring to the Groppera Radio A.G. and

others judgment of 28 March 1990 by the European Court of Human Rights,

held that the application of Sections 65, 66 and 70 of the Media Act

as contained in the contested decision must be considered as an

interference which is justified under Article 10 para. 2 of the

Convention for the prevention of disorder and the protection of the

rights of others.

RELEVANT DOMESTIC LAW

     Public broadcasting in the Netherlands is governed by the Media

Act, which aims at a national public broadcasting system based on

openness, diversity, non-commerciality and co-operation. It lays down

the requirements which have to be met by broadcasting institutions, who

wish to gain access to the Dutch public broadcasting system. If a

broadcasting institution meets the requirements of the Media Act,

broadcasting time and certain funds to finance broadcasting activities

are allocated by the Commissariat for the Media. Under the Media Act

broadcasting institutions are under the obligation to provide a full

programme and to eschew advertising. Only the Television and Radio

Advertising Association (Stichting Etherreclame "STER") is allowed to

broadcast commercials. The proceeds of these commercials is one of the

sources for the funds the Commissariat for the Media allocates to

broadcasting institutions.

     Section 134 para. 1 of the Media Act entrusts the supervision of

the observance of the Media Act to the Commissariat for the Media,

which organ can impose a fine where it considers that the Media Act has

been violated.   Section 65 of the Media Act, insofar as relevant,

reads:

     "1. The operator of a cable network transmits

     simultaneously and in full length to all connected to the

     cable network:

     a. the programmes of institutions which have obtained

     broadcasting time for national broadcasts;

     b. the programmes of institutions which have obtained

     broadcasting time for local and regional broadcasts ...

     d. the television programmes of the Dutch language section

     of the Belgian public broadcasting service, insofar as

     these can be received directly most of the time with

     reasonable quality at the place where the cable network is

     located by the use of an antenna which can be considered as

     regular having regard to the capacity of the cable network

     ...

     3.    The operator of a cable network shall not transmit the

     European programme (within the meaning of Section 16 para.

     2 (e)), when this programme does not comply with the

     requirements of Section 66 para. 1 (b) ..."

     Section 66 of the Media Act, insofar as relevant, provides:

     "1. The operator of a cable network can:

     a. transmit programmes which have been broadcast by a

     foreign broadcasting institution by way of a broadcasting

     station which can be received directly most of the time

     with reasonable quality at the place where the cable

     network is located by a regular individual antenna situated

     at that place;

     b. transmit other programmes than those referred to under

     a. which have been broadcast, in accordance with the

     legislation there in force, by a foreign broadcasting

     institution or a composition of such institutions.  Insofar

     as these programmes contain commercials, the transmission

     thereof is only allowed when the commercials are dealt with

     by a separate legal entity, when the commercials are

     clearly identifiable as such and can be clearly

     distinguished from other programme parts and are not

     broadcast on Sundays, when the allocated broadcasting time

     for commercials is at most five percent of the total

     broadcasting time ... and the proceeds thereof are fully

     used for the production of the programme.

     If however the above requirements are not met the

     transmission of such a programme is also allowed when the

     commercials it contains are not specifically aimed at a

     Dutch audience.

     2. For the application of what is contained in para. 1 (b)

     a commercial will in any event be considered as

     specifically aimed at a Dutch audience when the commercial

     is broadcast during or following a programme part or a

     connected whole of programme parts in which Dutch subtitles

     or an item in the Dutch language occur.

     3. Our Minister can grant an exemption from the prohibition

     as contained in para. 1 (b) in respect of broadcasting

     programmes which are broadcast in Belgium and aim at the

     Dutch speaking audience in Belgium."

     Section 70 para. 1 of the Media Act reads:

     "With the exception of the programmes referred to in this

     Chapter (Sections 65 up to and including 75), the operator

     of a cable network shall not simultaneously broadcast other

     programmes to more than one connected receiver."

     The wording of Section 66 para. 1(b) of the Media Act has

recently been altered in that the rules in respect of commercials

appearing in broadcasts of foreign broadcasting institutions are no

longer included in the text of this provision. At present, in order to

be eligible for transmission on Dutch cable networks, Dutch national

broadcasting institutions must comply with the requirements under Dutch

law and foreign broadcasting institutions must comply with the

legislation of their own country.

COMPLAINTS

1.   The applicant company complains that the prohibition to diffuse

its programmes via Dutch cable networks unjustly interfered with its

rights under Article 10 of the Convention.

2.2. The applicant company complains under Article 14 in conjunction

with Article 10 of the Convention that the Netherlands authorities'

decision not to consider it as a foreign broadcasting company was

discriminatory as two other broadcasting companies in a similar

position, RTL-Veronique and Radio 10, were allowed on Dutch cable

networks as foreign broadcasting companies.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 15 February 1991 and registered

on 4 April 1991.

     On 29 March 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

     The Government's observations were submitted on 10 June 1993 and

the applicant company's observations in reply were submitted on 5

August 1993.

THE LAW

1.   The applicant company complains that the prohibition to diffuse

its programmes via Dutch cable networks unjustly interfered with its

rights under Article 10 (Art. 10) of the Convention.

     Article 10 (Art. 10) of the Convention provides as follows:

     "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 responsibilities, 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 concede that the refusal to permit the applicant

company to transmit its programme on the Dutch cable network interfered

with the applicant company's right to impart information within the

meaning of Article 10 para. 1 (Art. 10-1) of the Convention. The

Government are, however, of the opinion that this interference was

justified under para. 2 of Article 10 (Art. 10-2). They submit that the

interference is based on Sections 65, 66 and 70 of the Media Act and,

given that the objective of the Dutch public broadcasting system is to

present a varied programme to a wide audience by guaranteeing the

diversity and independence in the supply of information by a non-

commercial broadcasting system, and thus to ensure freedom of

expression for the various social, cultural, religious and

philosophical groupings in the Netherlands, that the interference was

necessary in a democratic society for the protection of the rights of

others and for the prevention of disorder.

     Elaborating on the aim of the interference in the present case

with reference to the judgments of the European Court of Human Rights

in the cases of Groppera Radio AG and Others (Eur. Court H.R., judgment

of 28 March 1990, Series A no. 173,) and Autronic AG (Eur. Court H.R.,

judgment of 22 May 1990, Series A no. 178), the Government contend that

the protection of the diversity of the opinions expressed in

broadcasting constitutes protection of the rights of others, and that

the protection of cultural and political diversity may be regarded as

a factor in the prevention of disorder.

     The Government submit that the system set out in the Media Act

gives sufficient scope for private broadcasting institutions to express

their opinions. Forty holders of broadcasting franchises have obtained

broadcasting time. Until July 1992 only national commercial

broadcasting institutions were not granted permission to broadcast.

Since then national commercial broadcasting has become possible due to

the following factors: increasing pressure from the Dutch broadcasting,

publishing and advertising sectors to end the monopoly enjoyed by the

public broadcasting system in the Netherlands and to permit profit-

making activities, and the approval of EEC directives in the field, as

a result of which foreign commercial broadcasting institutions acquired

greater access to the national cable network. National commercial

broadcasting has, however, not been included in the regulations

governing the public system, but has been given a position alongside

it.

     The Government submit that the recent changes in the Media Act

have not changed the position of broadcasting institutions established

abroad with the evident intention of evading the Dutch statutory

regulations for national broadcasting institutions. Such institutions

are not regarded as foreign broadcasting institutions.

     The Government further point out that the applicant company was

established and is managed by Dutch nationals, is financed by Dutch

capital and that the Cable One programme is produced in the

Netherlands, is intended for the Dutch public and is broadcast from

Dutch territory.

     The applicant company emphasises that its programme was broadcast

lawfully and that, at the material time, Section 70 of the Media Act

was drafted as an unconditional ban and not as a licensing system

within the meaning of Article 10 para. 1 (Art. 10-1) of the Convention.

Since the Judicial Division did not accept the applicant company as a

foreign broadcasting institution, it was confronted with the absolute

and unconditional ban under Section 70 of the Media Act.

     The applicant company submits that an absolute and unconditional

ban on a form of expression covered by Article 10 para. 1

(Art. 10-1) of the Convention cannot be regarded as a restriction

justified under para. 2 of this provision, as such a ban can never

satisfy the condition that an interference must be proportionate to the

legitimate aim pursued.

     The applicant company contends that the Judicial Division, when

on 5 September 1990 it took its decision in the applicant company's

case, was already aware of the proposed amendment to the Media Act

authorising national commercial broadcasting. Before the Government

submitted this amendment to Parliament on 18 May 1990, the Council of

State, of which the Judicial Division forms a part, had in accordance

with the Constitution been consulted on this bill. The applicant

company finds that under these circumstances the justification invoked

by the Government, i.e. the protection of the national public system,

was no longer a tenable argument.

     Furthermore, the applicant company contends that the decision of

the Judicial Division was not based on technical considerations, since

the Media Act does not deal with the technical aspects of programme

transmission via cable networks, and that the rights of others were not

affected since its programme was intended for the general public and

did not, in technical terms, interfere with any other broadcast by any

other station.

     The Commission recalls that both broadcasting programmes over the

air and cable retransmissions of such programmes fall within the scope

of the rights enshrined in the first two sentences of Article 10 para.

1 (Art. 10-2) of the Convention (Eur. Court H.R., Groppera Radio AG and

Others judgment of 28 March 1990, Series A no. 173, p. 22, para. 55).

Consequently, there has been an interference with the applicant

company's rights under Article 10 para. 1 (Art. 10-1) of the

Convention.

     The Commission further recalls that the purpose of the third

sentence of Article 10 para. 1 (Art. 10-1) of the Convention is to make

it clear that States are permitted to control by a licensing system the

way in which broadcasting is organised in their territories,

particularly in its technical aspects (ibid. p. 24, para. 61), and that

since a State may enact legislation requiring the licensing of

broadcasting enterprises, it must also be legitimate for that State to

enact legislation which ensures compliance with the licence in

question, in particular by preventing means of circumventing the

conditions stated in the licence (cf. No. 10799/84, Dec. 17.5.84, D.R.

37 p. 236).

     The Commission notes that, although the applicant company is

incorporated under the laws of the United Kingdom, the broadcasting of

its programme via Dutch cable networks came under the Netherlands'

jurisdiction. The prohibition to diffuse its programmes via Dutch cable

networks was fully consistent with the rules of the Media Act, given

that the applicant company, on the basis of its particular features,

was not considered by the Judicial Division to be a foreign

broadcasting company and was therefore subject to the broadcasting

rules of the Netherlands. However, the Judicial Division's decision was

not based on technical considerations and the third sentence of Article

10 para. 1 (Art. 10-1) of the Convention, in the interpretation given

to it by the domestic courts, cannot be regarded as a sufficient

justification for the prohibition (Nos. 13914/88, 15041/89, 15717/89,

15779/89 and 17207/90, Informationsverein Lentia and Others v. Austria,

Comm. Report 9.9.92, para. 65).

     The question therefore arises whether the interference complained

of was justified under para. 2 of Article 10 (Art. 10-2) of the

Convention, namely whether it was "prescribed by law" and necessary in

a democratic society for one or more of the legitimate aims specified

in this provision.

     The Commission observes that the prohibition against the

transmission of the applicant company's programme via the Dutch cable

networks was based on Sections 65, 66 and 70 of the Media Act. It is

true that the Media Act does not contain a definition of a "foreign

broadcasting company", but the mere fact that a legislative provision

may give rise to problems of interpretation does not mean that it is

so vague and imprecise as to lack the quality of "law" in this

connection (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51 p. 136,

with further references). The Commission finds that, in the present

case, there was a sufficient legal basis and that the interference at

issue was therefore "prescribed by law" within the meaning of Article

10 para. 2 (Art. 10-2) of the Convention.

     The Commission notes that the interference complained of was

based on the maintenance of a pluralistic and non-commercial

broadcasting system and on the protection of the diversity of

expression of opinion in the Dutch broadcasting system. It therefore

finds that the legitimate aim pursued was the protection of the rights

of others within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention.

     As to the question whether the interference complained of was

"necessary", the Commission recalls that the term "necessary in a

democratic society" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention implies that the interference must

correspond to a "pressing social need" and be proportionate to the

legitimate aim pursued. In determining whether an interference is

"necessary" in a democratic society the Convention organs must also

take into account the margin of appreciation left to Contracting

States. The margin of appreciation is of particular relevance in an

area as complex and fluctuating as that of radio and television

broadcasting. This is confirmed by Article 10 (Art. 10) of the

Convention itself, in that it envisages in the third sentence of para.

1 a licensing system for broadcasting enterprises (Informationsverein

Lentia and Others v. Austria, ibid., paras. 78-79).

     The Commission observes that in the present case the applicant

company complains of not being allowed to broadcast its programme via

the Dutch cable network as a foreign broadcasting company. Under the

Media Act it is possible for broadcasting institutions to obtain

permission to broadcast their programmes in the Netherlands. The

Commission notes that the recent changes in the Media Act have not

affected the position of broadcasting institutions established abroad

with the evident intention of evading the Dutch statutory regulations

for national broadcasting institutions. They are not regarded as

foreign broadcasting institutions, but as national broadcasting

institutions subject to the rules on broadcasting applicable to such

institutions.

     The Commission notes that, while the applicant company is

incorporated under British law and has its seat in the United Kingdom,

the programme at issue is specifically intended for the Dutch public.

In these circumstances and having regard to the fact that both the

company and the Cable One programme have other strong links with the

Netherlands, the Dutch authorities could reasonably consider that these

broadcasts should be subject to those rules which normally apply to

Dutch broadcasting institutions.  There is no indication that these

rules, insofar as they are relevant to the present case, involve

restrictions which would be in violation of Article 10 (Art. 10) of the

Convention.

     In the circumstances, the Commission considers that the

interference at issue may reasonably be regarded as necessary in a

democratic society for the protection of the rights of others, as

envisaged by the second paragraph of Article 10 (Art. 10) of the

Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.2. The applicant company further complains under Article 14 in

conjunction with Article 10 (Art. 14+10) of the Convention that the

Netherlands authorities' decision not to consider it as a foreign

broadcasting company was discriminatory as two other broadcasting

companies in a similar position, RTL-Veronique and Radio 10, were

accepted on Dutch cable networks as foreign broadcasting companies.

     Article 14 (Art. 14) of the Convention provides as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Government submit that the Media Act contains no precise

indication of which broadcasting institutions may be regarded as

foreign. The Judicial Division has established the following criteria

to be met by broadcasting institutions if they are to be regarded as

possessing foreign status:

     - the institution must be established under foreign law;

     - the institution must be established abroad;

     - the institution must keep its accounts abroad and be liable to

     local taxes;

     - there must be no indication that the institution has been

     established abroad with the evident intention of evading the

     statutory regulations applicable in the Netherlands to national

     broadcasting institutions;

     - the institution's programme schedule must first be broadcast

     abroad and then transmitted from there to Dutch cable networks.

     The Government further submit that, on the basis of the above

criteria, the Judicial Division considered that the programme schedules

of both RTL-Veronique and Radio 10 were programme schedules of foreign

broadcasting institutions. The Government find that the situation of

the applicant company is fundamentally different from that of both RTL-

Veronique and Radio 10. The latter both form a part of already existing

foreign broadcasting enterprises. Their programmes are broadcast from

abroad and, according to the Commissariat for the Media, there are no

indications that they were established abroad with the evident

intention of evading Dutch media legislation. The applicant company,

however, was established and is managed by Dutch nationals, is financed

by Dutch capital and the Cable One programme is produced in the

Netherlands and is broadcast from an earth station in the Netherlands.

     The applicant company submits that the application of Sections

65, 66 and 70 of the Media Act constitutes discrimination on the basis

of nationality, since the system of the Media Act only envisaged

programmes of national broadcasting institutions forming a part of the

public broadcasting system and programmes of foreign broadcasting

companies. Programmes of stations, such as that of the applicant

company, which do not belong to either category, were thus confronted

with an absolute ban on the exercise of the rights contained in Article

10 para. 1 (Art. 10-1) of the Convention.

     The Commission recalls that Article 14 (Art. 14) does not forbid

every difference in treatment in the exercise of the rights and

freedoms guaranteed by the Convention. It refers in this connection to

the case-law of the Court concerning the criteria for assessing a

difference in treatment: There must be established an objective and

reasonable justification for the measure in question, as well as a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised (cf. Eur. Court H.R., Abdulaziz,

Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35,

paras. 71-72, and Eur. Court H.R., Fredin judgment of 18 February 1991,

Series A no. 192, p. 19, para. 60).

     The Commission notes the Government's statement - which has not

been contested by the applicant company - that there were a number of

important differences between the applicant company, on the one hand,

and RTL-Veronique and Radio 10, on the other.  In view of these

differences, the distinction made in accepting the two latter

institutions as foreign broadcasting enterprises, and not the applicant

company, must be considered to be based on objective and reasonable

grounds.

     The Commission finds, therefore, that the present case does not

disclose any appearance of discrimination contrary to Article 14

(Art. 14) of the Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

     (H.C. KRÜGER)                         (C.A. NORGAARD)

 

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