AS TO THE ADMISSIBILITY OF
Application No. 27388/95
by Nicola GRAUSO
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 April 1997, 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
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 March 1995 by
Nicola GRAUSO against Poland and registered on 23 May 1995 under file
No. 27388/95;
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, an Italian citizen born in 1949, is a businessman
and resides in Cagliari, in Italy. Before the Commission he is
represented by Mr R. Smoktunowicz, a lawyer practising in Warsaw.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
In 1991 the applicant set up a Polish-Italian joint-venture
television broadcasting company in Poland.
In the meantime, as a new law on television broadcasting was due
to be passed by the Polish Parliament, the applicant's company
commenced broadcasting its programme without any licence.
On 29 December 1992 the Polish Parliament passed the new Law on
Radio and Television Broadcasting (see Relevant domestic law).
On 2 June 1993 the National Council of Radio and Television
Broadcasting (Krajowa Rada Radiofonii i Telewizji), in accordance with
the above-mentioned new Law of 29 December 1992, issued an ordinance
which established, inter alia, the requirements for applications for
obtaining a broadcasting licence and rules of procedure in respect of
the granting and withdrawal of broadcasting licences.
On 28 June 1993 the President of the National Council of Radio
and Television Broadcasting announced in the press that the process
of granting licences for national, regional and local radio and
television broadcasting had commenced. This process was based on the
provisions of the Law on Radio and Television Broadcasting of 29
December 1992 and the Code of Administrative Procedure. The Council
indicated that in the first stage of the procedure priority would be
given to applications for licences to broadcast national television
programmes by means of high-power transmitters. The Council also
stated that it was making efforts to obtain a larger number of
frequencies and channels, and that the possibility of supplementing the
list of available frequencies was not excluded. The announcement in
question contained a list of currently available frequencies and
television channels for low-power and high-power transmitting stations
as well as the locations of the respective stations.
On an unspecified date, the applicant's Polish-Italian joint-
venture broadcasting company applied for the licence for local
television broadcasting by means of low-power transmitters.
On 22 October 1993 the National Council of Radio and Television
Broadcasting announced in the press a list of applicants seeking the
licence for broadcasting by means of low-power transmitters.
On 24 November 1993 a deed of association was concluded between
eighteen broadcasting companies. Among them were companies in which
the applicant was the principal shareholder. They established a new
joint-stock broadcasting company, i.e. Polish Private Television S.A.
On 30 November 1993 Polish Private Television S.A. applied for
a licence for national television broadcasting by means of high-power
transmitters.
On 15, 16 and 17 January 1994 the National Council of Radio and
Television Broadcasting examined applications for national television
broadcasting licences. The applicants presented their applications in
public. They were also entitled to make oral submissions and
supplement their applications.
On 11 February 1994 the National Council of Radio and Television
Broadcasting issued a resolution which was published in the press. The
resolution indicated that, following the examination of all
applications, it was intended to grant the national television
broadcasting licence to Polish Satellite Television "Polsat" since this
company offered the best technical and programme conditions required
for a national television broadcasting. The Council indicated that,
due to the limited number of high-power television channels, certain
low-power-operated channels were to be temporarily granted for the use
of this company.
On 1 March 1994 the President of the National Council of Radio
and Television Broadcasting granted the licence for national television
broadcasting to Polish Satellite Television "Polsat". The decision was
based on, in particular, sections 33 and 35 of the Law of 29 December
1992 on Radio and Television Broadcasting. According to para. XXV of
the decision, Polish Private Television S.A. was, along with the eight
other applicants, refused the licence. In his grounds for refusal, the
President referred in particular to the fact that a considerable number
of companies in the group Polish Private Television S.A. had previously
broadcast their programmes without any licence.
On 7 March 1994 the Polish Private Television S.A. and other
companies lodged a complaint against the above decision with the
Supreme Administrative Court (Naczelny S*d Administracyjny). The
complaint contested the lawfulness of the decision in question and
alleged errors of law. It also contained submissions contesting the
fact that certain low-power television channels had been granted to
Polish Satellite Television "Polsat", which, in the complainants' view,
made it impossible to obtain a further licence for local broadcasting
by means of low-power transmitters.
On 5 August 1994 the Supreme Administrative Court, on the
complainants' request, decided to stay the enforcement of the decision
of 1 March 1994 until the date of the final judgment.
On 22 September 1994 the Supreme Administrative Court annulled
para. XIII of the contested decision (concerning the granting of the
licence with respect to certain high-power television channels which
were not yet available) and upheld the remainder of the decision. The
court held that a decision to grant a broadcasting licence had a
discretionary character although the organ issuing such a decision had
to comply with the criteria set out in the Law of 29 December 1992 on
Radio and Television Broadcasting. The court did not find a violation
of the provisions of the relevant Law. Also, the court stressed that
the whole licensing process was fundamentally affected by the limited
number and category of frequencies and channels, which the Minister of
Communication was gradually transferring into the hands of the National
Council of Radio and Television Broadcasting. Finally, the court found
that as the process of transferring channels and frequencies was
pending, the complainants had not lost the possibility of applying for
a broadcasting licence in the future.
On an unspecified date the police seized certain movables
(apparently, the transmitters and other broadcasting devices) belonging
to the applicant's companies.
Relevant domestic law and practice
The Law of 29 December 1992 on Radio and Television Broadcasting
was the first legal instrument to set up the rules of granting
broadcasting licences for private companies. Until this date, the
existing public radio and television had an absolute monopoly in the
broadcasting sector.
Section 33 of the Law provides:
"1. Radio and television broadcasting, except by public radio
and television, shall be subject to obtaining a licence.
2. The President of the National Council of Radio and
Television Broadcasting shall be competent to grant a
broadcasting licence.
3. The President shall grant the licence on the basis of a
resolution of the Council. His decision shall be final."
Section 35, insofar as relevant, provides:
"1. A licence may be granted in favour of an individual who is
a Polish citizen and who permanently resides in Poland. It may
also be granted in favour of a legal person having its registered
office in Poland.
2. A licence may be granted in favour of a company of which one
or more of the members is a foreign national, provided that:
(1) Not more than 33% of the whole capital of the company is put
up by a foreign national or by foreign nationals."
At the time of the enactment of the Law of 29 December 1992 the
National Council of Radio and Television Broadcasting had at its
disposal a limited number and category of frequencies which could
potentially be used for broadcasting. The frequencies and channels
were gradually transferred by the Minister of Communications for the
purposes of broadcasting by private companies. This process is still
continuing.
COMPLAINTS
1. The applicant complains under Article 10 of the Convention that
the refusal to grant a broadcasting licence to his companies violated
his right to impart information and ideas and his right to conduct
broadcasting.
2. Under Article 11 of the Convention the applicant complains that
the Polish authorities violated his right of free association with
others as the refusal to grant the broadcasting licence prevented his
companies from grouping their broadcasting stations in a network.
3. He further complains under Article 14 of the Convention that, in
the course of the licence-granting process, he was discriminated
against on the ground of his Italian nationality, as Polish law
provides that a foreign person cannot hold more than 33% of the shares
in a radio or television broadcasting company.
4. The applicant also complains under Article 6 of the Convention
that the Supreme Administrative Court failed to examine many of his
arguments raised in his complaint against the unfavourable decision on
the broadcasting licence.
5. Finally, the applicant complains under Article 1 of Protocol
No. 1 to the Convention that certain possessions belonging to his
companies were seized by the Polish authorities following the refusal
to grant a broadcasting licence.
THE LAW
1. The applicant complains that the refusal to grant a broadcasting
licence to his companies violated his right to freedom to impart
information and ideas and his right to conduct broadcasting.
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 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 interest of
national security, territorial integrity or public safety, for
the prevention of disorder and crime, for the protection of
health and 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 Commission recalls that the right to freedom of expression
guaranteed in Article 10 (Art. 10) includes among other things the
freedom to impart information and ideas through broadcasting (see,
inter alia, No. 10746/84, Dec. 16.10.86, D.R. 49, p. 139). It also
notes that the applicant does not complain about the existence in
Poland of a licensing system per se, whereby, according to the
Convention organs' case-law, the States are permitted to regulate the
way in which broadcasting is organised in their territories,
particularly in its technical aspects (see Eur. Court HR,
Informationsverein Lentia and Others v. Austria judgment of 24 November
1993, Series A no. 276, p. 14, para. 32).
However, even though States are permitted to apply licensing
measures under Article 10 para. 1 (Art. 10-1), third sentence, the
refusal to grant a broadcasting licence may, as in the present case,
amount to an interference with the freedom of expression. Such
interference is in breach of Article 10 (Art. 10), unless it is
justified under paragraph 2 of Article 10 (Art. 10-2), i.e. it is
"prescribed by law", has an aim or aims which is or are legitimate and
is "necessary in a democratic society".
The Commission observes that the decision as to which of a number
of competing companies would be granted a broadcasting licence was
based on sections 33 and 35 of the Law of 29 December 1992 on Radio and
Television Broadcasting. The measure applied was therefore "prescribed
by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention.
Furthermore, given the continuing limitation on the number of
frequencies and channels available, the measure served "the prevention
of disorder", which is a legitimate aim under Article 10 para. 2
(Art. 10-2) of the Convention.
It remains to be examined whether the interference at issue was
"necessary in a democratic society" within the meaning of Article 10
para. 2 (Art. 10-2) of the Convention. The Commission recalls that
this term implies that the interference must correspond to a "pressing
social need" and be proportionate to the legitimate aim pursued. Also,
in determining whether an interference is "necessary in a democratic
society" the Convention organs must take into account that a margin of
appreciation is left to the Contracting States (see Eur. Court HR,
Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990,
Series A no. 173, p. 28, para. 72 and Markt Intern Verlag GmbH and
Klaus Beermann v. Germany judgment of 20 November 1989, Series A
no. 165, pp. 19 et seq., para. 33).
In the present case, the Commission notes that, on the one hand,
the authorities were faced with the limited number of frequencies and
channels available at the material time and were obliged to choose
between different broadcasting enterprises. On the other hand, when
deciding to attribute the broadcasting licence to another company, they
considered that this company offered the best technical and programme
conditions required for a national private television broadcasting.
As a result, the applicant did not obtain the licence in question, at
least for a certain period of time.
The Commission finds that the authorities in their decisions
carefully balanced the competing interests at stake. If, in
consequence, they did not grant the applicant a broadcasting licence
for the time being, it cannot be said that their assessment went beyond
the margin of appreciation left to national authorities in such matters
(see Informationsverein Lentia and Others v. Austria judgment loc.
cit.).
It follows that the interference in question was justified under
Article 10 para. 2 (Art. 10-2) of the Convention as it could be
considered as "necessary in a democratic society ... for the prevention
of disorder" within the meaning of this provision.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 11 (Art. 11) of the
Convention that the Polish authorities violated his right to freedom
of association with others because the refusal to grant the
broadcasting licence prevented his broadcasting stations from grouping
in a network. Under Article 14 (Art. 14) of the Convention he
complains that in the course of the licensing process he was
discriminated against on the ground of his nationality. However, the
Commission observes that these complaints do not raise any separate
issue under the Convention.
It follows that this part of application is also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains under Article 6 (Art. 6) of the
Convention that the Supreme Administrative Court failed to examine many
of his arguments raised in his complaint against the unfavourable
decision on the broadcasting licence.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ... "
The Commission recalls that, according to the principles
established in the Convention organs' case-law, Article 6 para. 1
(Art. 6-1) of the Convention applies only to disputes over a "right"
which can be said, at least on arguable grounds, to be recognised under
domestic law. The dispute must be genuine and serious; it may relate
not only to the actual existence of a right but also to its scope and
the manner of its exercise; and finally, the result of the proceedings
must be directly decisive for the right in question (see Eur. Court HR,
Zander v. Sweden judgment of 25 November 1993, Series A no. 279, p. 38,
para. 22).
In the present case the applicant could not, even on arguable
grounds, claim under Polish law to have a right to obtain a
broadcasting licence. As a result, the proceedings in question did not
involve a determination of the applicant's "civil rights and
obligations" falling within the scope of Article 6 (Art. 6) of the
Convention. This provision is not, therefore, applicable in the
present case.
It follows that this part of application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
4. Insofar as the applicant complains under Article 1 of Protocol
No. 1 (P1-1) to the Convention that certain possessions belonging to
his companies were seized by the Polish authorities following the
refusal to grant the broadcasting licence, the Commission observes that
the applicant failed to sufficiently substantiate this complaint.
It follows that the remainder 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy