In the case of Telesystem Tirol Kabeltelevision v. Austria (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr P. Kuris,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 May 1997,
Delivers the following judgment, which was adopted on that date:
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Notes by the Registrar
1. The case is numbered 21/1996/640/824. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by
Telesystem Tirol Kabeltelevision Unterland Gesellschaft mbH & Co KG,
a limited partnership under Austrian law ("the applicant"), on
26 February 1996, within the three-month period laid down by
Article 32 para. 1 and Article 47 of the Convention (art. 32-1,
art. 47). It originated in an application (no. 19182/91) against the
Republic of Austria lodged by the applicant with the
European Commission of Human Rights ("the Commission") under
Article 25 (art. 25) on 29 November 1991.
The applicant's application bringing the case before the Court
referred to Article 48 of the Convention (art. 48), as amended in
respect of Austria by Protocol No. 9 (P9). The object of the
application was to obtain a decision as to whether the facts of the
case disclosed a breach by the respondent State of its obligations
under Article 10 of the Convention (art. 10).
2. On 29 March 1996 the Court's Screening Panel decided not to
decline consideration of the case and to submit it to the Court
(Article 48 para. 2 of the Convention) (art. 48-2).
3. On 23 April 1996 the applicant designated the lawyer who would
represent it (Rule 31 of Rules of Court B). The President gave the
lawyer leave to use the German language in both the written and the
oral proceedings (Rule 28 para. 3).
4. The Chamber to be constituted included ex officio Mr F. Matscher,
the elected judge of Austrian nationality (Article 43 of the
Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the
Court (Rule 21 para. 4). On 30 March 1996, in the presence of the
Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the
names of the other seven members, namely Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr J.M. Morenilla, Mr F. Bigi,
Mr P. Kuris and Mr E. Levits (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43). Subsequently, Sir John Freeland,
Mr A.B. Baka and Mr G. Mifsud Bonnici, substitute judges, replaced
Mr Bigi, who had died, and Mr Thór Vilhjálmsson and Mr Gölcüklü, who
were unable to take part in the further consideration of the case
(Rule 22 para. 1).
5. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Austrian Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in consequence,
the Registrar received the Government's and the applicant's memorials
on 25 September 1996.
6. On 20 November 1996 the Government sent to the Registrar by fax
the text of an agreement reached that day with the applicant. On the
same date the President decided to cancel the hearing initially
arranged to be held on 30 November 1996.
7. The Delegate of the Commission, who had been consulted about the
agreement, expressed his opinion on 7 May 1997.
AS TO THE FACTS
I. The circumstances of the case
8. Telesystem Tirol Kabeltelevision Unterland
Gesellschaft mbH & Co KG ("Telesystem Tirol Kabeltelevision") is a
limited partnership whose registered address is in Wörgl (Tyrol,
Austria).
Having obtained authorisation to set up a shared aerial
(Gemeinschaftsantennenanlage), the applicant was able to receive
broadcast programmes and retransmit them to subscribers via a
cable television network.
9. On 11 January 1989 it sent out to its subscribers, via the
cable network, some practical information about local life.
10. On the same day the Tirol and Vorarlberg Regional Post and
Telecommunications Head Office (Post- und Telegraphendirektion)
informed Telesystem Tirol Kabeltelevision that the transmission of this
type of information was in breach of the relevant regulations.
11. On 12 January 1989 the applicant applied for authorisation to
send out its own programmes via its cable network.
12. On 16 January 1989 the Regional Head Office rejected the above
application on the ground that under section 20 (1) of the
Broadcasting Ordinance (Rundfunkverordnung - see paragraph 19 below)
the applicant could use a shared aerial to pick up broadcasts and
retransmit them to its subscribers but not to send out its own
programmes on the cable network.
13. The applicant appealed against this decision to the National Post
and Telecommunications Head Office (Generaldirektion für die Post- und
Telegraphenverwaltung), which dismissed the appeal on 17 February 1989,
basing its decision in particular on the Constitutional Court's
judgment of 16 December 1983 (see paragraph 22 below).
14. Telesystem Tirol Kabeltelevision then applied to the
Constitutional Court (Verfassungsgerichtshof).
15. On 26 November 1990 the Constitutional Court, referring to its
judgment of 16 December 1983, decided not to give the application
further consideration on the ground that it did not have sufficient
prospects of success and passed it on to the Administrative Court
(Verwaltungsgerichtshof).
16. On 18 September 1991 the Administrative Court dismissed the
application. It held that the applicant was not content with picking
up and retransmitting information but was itself creating programmes
intended for the public at large and that, regard being had to the
Constitutional Court's judgment of 16 December 1983,
Telesystem Tirol Kabeltelevision could not therefore be authorised to
send out its own programmes.
II. Relevant domestic law
A. The Telecommunications Law of 13 July 1949
17. According to the Telecommunications Law (Fernmeldegesetz) of
13 July 1949, "the right to set up and operate telecommunications
installations (Fernmeldeanlagen) is vested exclusively in the
federal authorities (Bund)" (section 2 (1)). The latter may however
confer on natural or legal persons the power to exercise that right in
respect of specific installations (section 3 (1)). No licence is
required in certain circumstances, including the setting up of an
installation within the confines of a private property (section 5).
B. The Ministerial Ordinance of 18 September 1961 concerning
private telecommunications installations
18. The Ministerial Ordinance of 18 September 1961 concerning
private telecommunications installations (Verordnung des
Bundesministeriums für Verkehr und Elektrizitätswirtschaft über
Privatfernmeldeanlagen) lays down, inter alia, the conditions for
setting up and operating private telecommunications installations
subject to federal supervision. According to the case-law, it cannot
however constitute the legal basis for the grant of licences.
C. The 1965 Broadcasting Ordinance
19. Section 20 (1) of the 1965 Broadcasting Ordinance provides that
radio signals must be retransmitted in full to users immediately after
being picked up.
Under section 24 of the Ordinance, in the amended version in
force since 31 July 1993 (Official Gazette - Bundesgesetzblatt -
no. 507/1993) the bearers of a licence to operate a shared aerial may,
without having to seek further permission, send text via the
cable network, using their own equipment (paragraph 1). By means of
this type of teletext it is possible, inter alia, to impart information
to the members of a community or the population of a region in the form
of alphanumeric symbols, other graphical signs or pages of teletext.
This is an additional service provided to subscribers (via a separate
channel and the vertical interval of the television signal).
D. The Constitutional Law of 10 July 1974 guaranteeing the
independence of broadcasting
20. According to section 1 of the Constitutional Law of 10 July 1974
guaranteeing the independence of broadcasting (Bundesverfassungsgesetz
über die Sicherung der Unabhängigkeit des Rundfunks),
"...
2. Broadcasting shall be governed by more detailed rules to be
set out in a federal law. Such a law must, inter alia, contain
provisions guaranteeing the objectivity and impartiality of
reporting, the diversity of opinions, balanced programming and
the independence of persons and bodies responsible for carrying
out the duties defined in paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall be a
public service."
E. The Law of 10 July 1974 on the Austrian Broadcasting
Corporation
21. The Law of 10 July 1974 on the Austrian Broadcasting Corporation
(Bundesgesetz über die Aufgaben und die Einrichtung des
Österreichischen Rundfunks) established the
Austrian Broadcasting Corporation with the status of an autonomous
public-law corporation.
It is under a duty to provide comprehensive news coverage of
major political, economic, cultural and sporting events; to this end,
it has to broadcast, in compliance with the requirements of objectivity
and diversity of views, in particular current affairs, news reports,
commentaries and critical opinions (section 2 (1) (1)), and to do so
via at least two television channels and three radio stations, one of
which must be a regional station (section 3). Broadcasting time must
be allocated to the political parties represented in the
national Parliament and to representative associations (section 5 (1)).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes)
rules on all disputes concerning the application of the above-mentioned
law which fall outside the jurisdiction of an administrative authority
or court (sections 25 and 27). It is composed of seventeen independent
members, including nine judges, appointed for terms of four years by
the President of the Republic on the proposal of the
Federal Government.
F. The Constitutional Court's judgment of 16 December 1983
22. In a judgment of 16 December 1983 the Constitutional Court held
that the freedom to set up and operate radio and television stations
was subject to the powers accorded to the legislature under paragraph 1
in fine and paragraph 2 of Article 10 of the Convention (art. 10-1,
art. 10-2) (Gesetzesvorbehalt). The Constitutional Broadcasting Law
had instituted a system which made all activity of this type subject
to the grant of a licence by the federal legislature. This system was
intended to ensure objectivity and diversity of opinions
(Meinungsvielfalt), and would be ineffective if it were possible for
everybody to obtain the requisite authorisation. As matters stood, the
right to broadcast was restricted to the
Austrian Broadcasting Corporation, as no implementing legislation had
been enacted in addition to the law governing that organisation
(see the Informationsverein Lentia and Others v. Austria judgment of
24 November 1993, Series A no. 276, pp. 8-9, para. 10).
G. The Constitutional Court's judgments of 27 September 1995
and 8 October 1996
23. In a judgment of 27 September 1995 the Constitutional Court set
aside with effect from 1 August 1996 the rule limiting
cable distribution to the retransmission of programmes produced by
others ("passive broadcasting") and the transmission of text, on the
ground that it was contrary to Article 10 of the Convention (art. 10).
In that connection the Constitutional Court referred explicitly to the
judgment given by the European Court of Human Rights on
24 November 1993 in the case of Informationsverein Lentia and Others
(loc. cit.). Since 1 August 1996 the transmission of original
programmes ("active broadcasting") has accordingly been legal, just as
passive broadcasting already was.
24. In a judgment of 8 October 1996 the Constitutional Court declared
unconstitutional the prohibition of commercial advertising laid down
in section 24b (2) of the Broadcasting Ordinance, on the ground that
it was contrary to Article 10 of the Convention (art. 10) and
restricted the freedom to carry on a gainful occupation.
PROCEEDINGS BEFORE THE COMMISSION
25. Telesystem Tirol Kabeltelevision applied to the Commission on 29
November 1991. Relying on Article 10 of the Convention (art. 10), it
complained that, pursuant to Austrian law, it had been refused
permission to send out its own programmes on account of the
Austrian Broadcasting Corporation's monopoly.
26. On 17 January 1995 the Commission declared the application
(no. 19182/91) admissible. In its report of 18 October 1995 it
expressed the unanimous opinion that there had been a violation of
Article 10 of the Convention (art. 10). The full text of the
Commission's opinion is reproduced as an annex to this judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-III), but a copy of the Commission's report is
obtainable from the registry.
_______________
AS TO THE LAW
27. On 20 November 1996 the Court received by fax from
Mr Klaus Fabjan, Minister Plenipotentiary at the
Federal Ministry of Foreign Affairs, the following text, signed that
day by Mr Fabjan and the applicant's lawyer:
"...
1. The Government of the Republic of Austria will pay to the
applicant a sum amounting to altogether ATS 200,000 [Austrian
schillings] as compensation in respect of any possible claims
relating to the present application.
This amount will be paid to the applicant's counsel,
Mag. Dr. Eleonore Berchtold-Ostermann ...
2. The applicant declares its application settled.
3. The applicant waives the right to any further claims before
any national or international body against the
Republic of Austria relating to the present application.
4. The Austrian Government will take the necessary steps to
implement the terms of the friendly settlement within one month
after the Court has decided to strike the case out of its list.
In witness whereof the undersigned, being duly authorised
thereto, have signed this Statement."
In the same letter Mr Fabjan requested the Court to strike the
case out of its list. He drew attention to the fact that redress had
been afforded for the violation of Article 10 (art. 10) complained of
by the applicant in that, since the Constitutional Court's judgments
of 27 September 1995 and 8 October 1996 (see paragraphs 23 and 24
above), "the dissemination of various objective information services,
the prohibition of which the applicant company challenged at the
domestic level, and the dissemination of commercial advertising are now
legally permissible".
28. The Delegate of the Commission was consulted in accordance with
Rule 51 para. 2 of Rules of Court B and stated that he had no objection
to the friendly settlement reached by the parties. Moreover, he
assumed that "the matter which gave rise to the application, namely the
State monopoly on broadcasting, has been resolved to the satisfaction
of all concerned".
29. The Court takes formal note of the friendly settlement reached
by the Government and the applicant. It discerns no reason of
public policy militating against striking the case out of its list
(Rule 51 paras. 2 and 4 of Rules of Court B).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 57 para. 2, second sub-paragraph, of Rules of Court B on
9 June 1997.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy