Application No. 26079/94
by CDI HOLDING AG
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 June 1994 by
CDI HOLDING AG against the Slovak Republic and registered on
21 December 1994 under file No. 26079/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 28 February 1996 to communicate the
application;
- the applicant company's request of 29 July 1996 to withdraw the
case.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a limited company with its registered office in
Vienna. In June 1993 it merged with D. Ltd and became the successor
of the latter. Before the Commission the applicant company is
represented by Mr. Klaus Maleschitz, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
On 14 December 1989 D. Ltd concluded a contract with the then
Czechoslovak Radio. Under the contract, D. Ltd was entitled to
broadcast in German under the name "Radio CD International" on the
frequency of 101,8 MHz which was assigned to the Czechoslovak Radio.
The technical prerequisites for the broadcasting covering an area of
75 kilometres around Bratislava, i.e. also the area of Vienna, were to
be provided by the Czechoslovak Radio. The contract was concluded for
a period up to 31 December 1994 and could be extended until the end of
1997.
On 12 December 1991 a subsidiary of D. Ltd in Slovakia concluded
a contract with the Administration of Radiocommunications (Správa
rádiokomunikácií) concerning the hire purchase of a FM transmitter and
of an antenna. Unless it lost the right to use the frequency of 101,8
MHz, the Administration of Radiocommunications undertook to transmit
"Radio CD International" by means of this equipment for eight years.
Possible disputes were to be settled pursuant to Czechoslovak law.
On 23 December 1992 D. Ltd concluded a contract with the Slovak
Radio, the successor of the Czechoslovak Radio in Slovakia, by which
several provisions of the original contract of 1989 were amended. The
renewed contract was concluded for the period up to the end of 1997,
and D. Ltd had an irrevocable right to an extension until the end of
2000.
The Slovak Radio undertook to broadcast the applicant company's
programmes on another frequency of corresponding quality if, as a
result of national or international events, they could not be
transmitted on 101,8 MHz. Unless the liability of D. Ltd was involved,
its possible loss resulting from interruption of the broadcasting was
to be covered by the Slovak Radio.
Possible disputes were to be decided by an arbitration court in
Munich pursuant to the Rules of Procedure of the Arbitration Court of
the International Chamber of Commerce in Paris. The parties agreed
that the substantive law of the Czech and Slovak Federal Republic and,
after 1 January 1993, Slovak law was applicable. Proceedings before
the ordinary courts were excluded.
On 24 September 1993 the Telecommunications Office
(Telekomunikacny úrad) requested the Slovak Telecommunications
(Slovenské telekomunikácie) to eliminate technical shortcomings in
broadcasts on 101,8 MHz. Since it was allegedly impossible to
eliminate the shortcomings, the Slovak Telecommunications had to
interrupt transmissions on 101,8 MHz on 30 September 1993.
On 12 October 1993, following intervention by the Ministry of
Transport, Telecommunications and Public Works, the Telecommunications
Office delivered a provisional permit to transmit on 101,8 MHz until
the end of 1993.
The applicant company learned that the frequency of 101,8 MHz
would be withdrawn from the Slovak Radio and be transferred into
private ownership. The applicant company's subsidiary in Slovakia
tried to obtain a private radio broadcasting licence but was not
successful.
On 20 December 1993 the applicant company asked the Slovak Radio
to arrange for its programmes to be broadcast on another suitable
frequency after 1 January 1994.
On 1 January 1994 the Slovak Telecommunications interrupted the
applicant company's broadcasts. On 11 February 1994 the applicant
company was informed that following the expiry of the provisional
permit of 12 October 1993 the Slovak Telecommunications were no longer
entitled to transmit on 101,8 MHz. As this was a relevant condition
under the contract of 12 December 1991, the Slovak Telecommunications
did not consider themselves bound by that contract.
On 11 February 1994 the applicant company's lawyer informed the
director of the Slovak Telecommunications that another company had
announced that it would broadcast on 101,8 MHz as from 14 February
1994. The applicant company intended to take appropriate legal actions
on both national and international level if such broadcasts began.
The applicant company's broadcasts were resumed on 15 July 1994
on 96,6 MHz and were due to be terminated on 31 December 1995.
At the end of December 1995 the applicant company reached an
agreement with the Slovak Radio and its programmes have continued to
be broadcast.
COMPLAINTS
The applicant company alleged a violation of Article 10 of the
Convention in that on 1 January 1994 the competent Slovak authorities
interrupted its broadcasts. It considered that this interference was
not compatible with the requirements laid down in Article 10 para. 2
of the Convention.
The applicant company further alleged a violation of Article 6
para. 1 of the Convention in that it had had no fair hearing before the
broadcasting was interrupted, and in that the authorities which took
the relevant decision and subsequently interrupted the broadcasting
were neither impartial nor independent.
Finally, the applicant company complained under Article 1 of
Protocol No. 1 that because of the interruption of the broadcasting it
suffered damage amounting to 50 million Austrian schillings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 June 1994 and registered on
21 December 1994.
On 28 February 1996 the Commission decided to communicate the
application to the respondent Government.
On 6 May 1996 the President of the Second Chamber granted an
extension, until 3 July 1996, of the time-limit for the submission of
the respondent Government's observations.
By letters of 1 and 3 July 1996 respectively the manager of the
applicant company and the Agent of the respondent Government informed
the Commission that a settlement of the case on domestic level was
envisaged.
On 4 July 1996 the President of the Second Chamber granted a
further extension, until 3 August 1996, of the time-limit fixed for the
submission of the respondent Government's observations.
By letter dated 29 July 1996 the manager of the applicant company
informed the Commission that the relations between the applicant
company and the Slovak Radio were settled by an agreement. He further
informed the Commission of the applicant company's intention to
withdraw its application.
REASONS FOR THE DECISION
In view of the declaration by the manager of the applicant
company that the latter wishes to withdraw its application registered
under file No. 26079/94, the Commission notes that the applicant
company no longer intends to pursue its petition within the meaning of
Article 30 para. 1 (a) of the Convention.
The Commission finds no special circumstances regarding respect
for human rights as defined in the Convention which require examination
of the application to be continued, in accordance with Article 30 para.
1 in fine of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy