HINS AND HUGENHOLTZ v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 25987/94

                      by Arnout W. HINS and Peter B. HUGENHOLTZ

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

7 March 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           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 29 June 1994 by

by Arnout W. HINS and Peter B. HUGENHOLTZ against the Netherlands and

registered on 19 December 1994 under file No. 25987/94;

     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 applicants are both Dutch nationals, born in 1952 and 1955

respectively, and reside in Amsterdam.

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

summarised as follows.

a.   Particular circumstance of the present case

     On 6 June 1986, the applicants requested a license for the

installation and operation of a television transmitter in order to

retransmit television programmes from foreign commercial broadcasting

stations. They stated that they had the intention to install and

exploit one or more regional television stations in the province of

Noord-Holland and that the station(s) would be used to broadcast

programmes in this region in addition to the programmes offered by the

public broadcast service.

     On 11 March 1987, the Minister of Transport, Public Works and

Water Management (Minister van Verkeer en Waterstaat - hereinafter

referred to as "the Minister") rejected the request, holding that

pursuant to Section 2 of the Radio Broadcast Transmitter Act 1935

(Radio Omroep Zenderwet 1935) - as amended in 1983 - broadcast

installations for regional broadcasts belong to the monopoly of N.V.

Nozema. The Minister further held that, as the applicants had not been

awarded any broadcasting time under the Broadcast Act (Omroepwet), no

interest was served by issuing a licence which, on the basis of other

statutory or other legal rules, could not be used.

     The applicants filed an appeal against this decision with the

Judicial Division of the Council of State (Afdeling Rechtspraak van de

Raad van State).

     On 10 August 1989, following adversarial proceedings, the

Judicial Division quashed the Minister's decision of 11 March 1987. It

held that the Minister had failed to indicate on what grounds it was

found that the applicants' request fell within the scope of Section 1

(a) of the Radio Broadcast Transmitter Act and not, as argued by the

applicants, within the scope of Section 2 third sentence of that Act.

     On 4 December 1989, the applicants filed a new request with the

Minister. The Minister informed them by letter of 23 April 1990, inter

alia, that in the meantime the Broadcast Act had been replaced by the

Media Act (Mediawet), and that the latter Act does not require the

allocation of broadcasting time or permission for relaying programmes

from other Member States of the European Community.

     As regards the question whether the authorisation sought would

be contrary to the Radio Broadcast Transmitter Act, the Minister

informed the applicants that this should be examined under Section 1

(a), as amended on 1 January 1988, and Section 2 para. 4 of that Act.

However, given N.V. Nozema's priority right as regards the installation

and use of broadcast transmitters under Section 2 para. 4, the Minister

stated that, to this end, N.V. Nozema had been requested to contact the

applicants directly in order to obtain all information required for

reaching its decision and to determine its position speedily. The

Minister adjourned the decision on the applicant's request pending the

decision of N.V. Nozema.

     On 21 May 1990, the applicants filed an objection (bezwaar)

against the Minister's decision to adjourn his final decision. The

Minister rejected their objection on 4 March 1991 as ill-founded.

     Following the applicants' appeal against the decision of

4 March 1991, the Industrial Appeals Tribunal (College van Beroep voor

het Bedrijfsleven) decided on 27 January 1993 that, as regards the

relaying of foreign programmes from other Member States of the European

Communities, the N.V. Nozema does not enjoy a priority right. It

decided that the Minister should determine the applicants' request

within four months insofar as this request concerned relaying

programmes from other Member States of the European Communities.

     On 1 February 1993, the applicants requested the Minister, in

addition to their previous request, to grant them an authorisation for

a television transmitter network with an almost national coverage. The

Minister rejected this request on 23 April 1993. In this decision it

was stated, inter alia, that within a short delay frequencies were to

be distributed in accordance with the broadcast frequency policy

elaborated in consultation with the Dutch Parliament. The Minister did

not consider it useful, in view of the costs and the time needed for

installing transmitters, to allocate frequencies on a temporary basis

pending a final allocation.

     As the applicants had filed a petition (verzoekschrift) with the

Industrial Appeals Tribunal in relation to the Minister's failure to

take a new decision following the Tribunal's decision of

27 January 1993, the Minister, on 9 July 1993, decided to take an

explicit decision although in his opinion it appeared from the

applicants' submissions that they were aware of the fact that no

television frequencies were available for their intended activities.

     In his decision of 9 July 1993, the Minister examined the

applicants' requests of 6 June 1986 and 4 December 1989, insofar as

these requests concerned relaying programmes from other Member States

of the European Communities, under Section 17 para. 7 (b) of the

Telecommunications Facilities Act (Wet op de Telecommunicatievoor-

zieningen) and in the light of the broadcast frequency distribution

policy which had been established in the meantime.

     The Minister noted that, according to information provided to

Parliament, unused television frequencies are to be used for

terrestrial digital radio and regional public broadcasts and that,

therefore, no frequencies are left for (re)transmission of television

programmes from foreign stations. The Minister further noted that this

was confirmed in the provisional inventory of the remaining frequency

capacity, which had been presented to Parliament on 23 December 1992

and in respect of which a final determination was imminent.

     The Minister further noted that it was indicated in the

provisional inventory that, in case the regional public broadcasting

organisations would not be interested in using these frequencies, it

could be possible to allocate these frequencies for (national)

commercial broadcasts. The Minister stated, however, that already four

public regional broadcasting organisations had shown interest in using

television frequencies and that he intended, after having completed the

consultations with Parliament, to finally determine the inventory of

the available remaining frequency capacity in agreement with the

Minister of Welfare, Health and Cultural Affairs. The Minister further

stated that, once this determination has been completed, the regional

public broadcasting organisations would be invited to state, within a

reasonable time, whether or not they wished to avail themselves of

these frequencies.

     The Minister added, however, that in agreement with himself the

Minister of Welfare, Health and Cultural Affairs had informed

Parliament by letter of 16 June 1993 that, following the decision of

27 January 1993 of the Industrial Appeals Tribunal and a decision of

19 March 1993 of the Judicial Division of the Council of State

(Afdeling Rechtspraak van de Raad van State), broadcast frequencies

would in the future be allocated to selected commercial broadcasting

organisations (omroepinstellingen) for commercial broadcasts. The

Minister found that allocating frequencies to transmitter companies

(zendermaatschappijen) did not fit into this policy.

     After having noted that the applicants had failed to indicate

which programmes they would relay the Minister held that in the

allocation of scarce frequencies the public authorities had established

a certain policy and that in a situation where frequencies were to be

allocated to transmitter companies, who would then be able to conclude

contracts for the transmission of certain programmes at their own

discretion, it would be impossible to implement this policy established

in agreement with Parliament. After having noted that, following

further consultations with Parliament planned for September, the final

inventory would be established and subsequently the procedure for

frequency applications would be determined, the Minister rejected the

applicants' request for relaying television broadcasts from foreign

broadcasting stations under Section 17 para. 7 (b) of the

Telecommunications Facilities Act.

     The applicants' subsequent appeal against the decision of

9 July 1993 was, following adversarial proceedings in which a hearing

was held on 18 November 1993, rejected by the Industrial Appeals

Tribunal on 5 January 1994.

     Noting that, on 1 January 1994, the General Administrative Law

Act (Algemene Wet Bestuursrecht) had entered into force and the 1954

Industrial Appeals Act (Wet Administratieve Rechtspraak

Bedrijfsorganisatie) had been amended, the Industrial Appeals Tribunal

decided that, in accordance with the relevant transitory rules, the

applicants' appeal was to be decided on the basis of the law as in

force until 1 January 1994.

     In the appeal proceedings before the Industrial Appeals Tribunal

the applicants submitted six complaints, which were all rejected.

     The first complaint concerned the fact that the Minister had not

respected the time-limit of four months within which he should have

determined the applicants' request. The Tribunal held that this could

only entail consequences in the determination of damages flowing from

the contested decision in case this decision would be quashed on

another ground and that this was not the case.

     The second complaint concerned the reservation for the regional

public broadcast service of the frequency sought by the applicants,

i.e. the frequency Alkmaar channel 55, 100 Kw ERP. The Minister

submitted on this point that reserving frequencies emphasises the

pluriformity of the broadcast system. The Minister referred in this

respect to Section 30 of the Media Act according to which regional

broadcasting organisations must make broadcasts fulfilling the

requirement of pluriformity and that the programming policy is

determined by a representative programming council.

     As regards the second complaint, the Tribunal accepted the

Minister's policy that regional frequencies are in principle reserved

for the regional public broadcast service. The Tribunal noted that this

policy had found a wide support in the Dutch Parliament. It further

took into account that it is a part of this policy that if, after

having been granted a reasonable time to decide, the regional public

broadcasting organisations show no interest in using these frequencies,

these frequencies may be offered to other interested parties. The

Tribunal, noting that the programmes the applicants intended to

retransmit were not specifically aimed at the public in the region at

issue but at a foreign audience, did not find the Minister's position

in the present case unreasonable.

     The third complaint concerned the argument that the Minister's

decision to grant a delay to the regional public broadcasting

organisations was unreasonable as the "Stichting Radio Noord-Holland",

the sole competent regional broadcasting organisation, had not

expressed a wish to exercise its priority right as regards the

allocation of the frequency sought by the applicants. The applicants

argued that the result of this decision, i.e. leaving a frequency

unused, is contrary to Article 10 of the Convention. The Tribunal held

on this point that the Minister could grant regional public

broadcasting organisations a reasonable delay for deciding whether and,

if so, under which conditions they wish to broadcast television

programmes and that pending such a delay a licence could be refused.

In view of all implications of such a decision and of the fact that an

allocation of a television frequency for commercial broadcasts cannot

easily be reversed given the important investments involved, the

Tribunal held that the fact that the relevant broadcasting

organisation(s) had not (yet) or only in a non-committal way expressed

interest could not entail the consequence argued by the applicants.

     The fourth complaint was that the Minister's "broadcast frequency

policy" at issue lacked a statutory basis and thus was contrary to

Article 10 of the Convention. Referring to its above findings, the

Industrial Appeals Tribunal rejected this complaint as being based on

an erroneous conception of the law.

     The fifth complaint raised by the applicants was that the

decision of 9 July 1993 deprived them of the possibility to offer their

services to tenders of foreign television programmes and thus

constituted a restriction of the free movement of services contrary to

Section 59 of the EC Treaty. The Industrial Appeals Tribunal held in

this respect, referring to case-law of the Court of Justice of the

European Communities, that to grant a priority right to the regional

public broadcast service is not contrary to the applicable EC rules.

     The sixth and last complaint was the alleged absence of a legal

basis for the Minister's reasoning that regional broadcast frequencies

in any event could not be allocated to transmitter companies who do not

make programmes themselves. On this point the Industrial Appeals

Tribunal agreed with the applicants that it is not possible to refuse

a licence on the sole ground that the applicant is not a broadcasting

company. However, it further found that the applicable rules do not

prevent that a decision on a licence application, in the context of a

wider policy, is weighed against other (potential) requests which are,

either via a transmitter licence or otherwise, aimed at obtaining a

frequency. In this connection it referred to its findings on the second

complaint.

     Insofar as the applicant had invoked Article 10 of the

Convention, the Industrial Appeals Tribunal did not make any explicit

finding under this provision.

b.   Relevant domestic law

     Public broadcasting in the Netherlands is, as from

1 January 1988, governed by the Media Act, which aims at a public

broadcasting system based on openness, diversity, non-commerciality and

co-operation in order to guarantee full expression of the various

shades of political, social and religious or philosophical opinions in

the Netherlands.

     The Media Act lays down the requirements which have to be met by

broadcasting organisations who wish to gain access to the Dutch public

broadcasting system. If a broadcasting organisation meets the

requirements of the Media Act, broadcasting time may be allocated by

the Commissariat for the Media (Commissariaat voor de Media) which,

pursuant to Section 134 of the Media Act, supervises the observance of

the Media Act.

     The Radio Broadcast Transmitter Act 1935 contains the rules

governing the installation and exploitation of broadcast transmitters.

Pursuant to Section 1 (a) of this Act the N.V. Nozema (Naamloze

Vennootschap Nederlandsche Omroep Zender Maatschappij) has been founded

as an organ of co-operation between the Minister of Interior (Minister

van Binnenlandse Zaken) and a number of representative national

broadcasting organisations.

     According to Section 2 of the Radio Broadcast Transmitter Act,

N.V. Nozema is exclusively entrusted with the installation and

exploitation of broadcast transmitters for which it does not need an

authorisation within the meaning of the Telegraph and Telephone Act

1904 (Telegraaf- en Telefoonwet 1904).

     Section 2 para. 4 of the Radio Broadcast Transmitter Act

provides:

     "No authorisation based on Section 17 of the Telecommunica-

     tion Facilities Act for the installation and use of a

     (broadcast transmitter) equipment shall be granted until

     after the NOZEMA has been provided with the opportunity to

     decide, on the ground of Section 1 para. 2, on the use and

     exploitation of this equipment."

     Pursuant to Section 17 of the Telecommunication Facilities Act,

which on 1 January 1989 replaced the Telegraph and Telephone Act 1904,

a Ministerial authorisation is required for the installation and use

of broadcast equipments.

     Under Section 17 para. 7 (b) of Telecommunications Facilities Act

an authorisation cannot be granted when an efficient use of the air

waves does not permit such a grant.

COMPLAINTS

1.   The applicants complain that the refusal to grant them a licence

for the installation and operation of a television transmitter violated

their rights under Article 10 of the Convention in that the

interference with their rights under this provision cannot be regarded

as justified.

2.   The applicants complain under Article 14 of the Convention that

they were discriminated against in that priority was given to regional

non-commercial broadcasting organisations. They submit that, in the

absence of public funding, the only way to run a regional television

station is by transmitting advertisements and contracting sponsors. In

such a situation there is no relevant distinction between commercial

and non-commercial broadcasters

3.   The applicants complain under Article 6 para. 1 and Article 13

of the Convention that they did not have an effective remedy against

the refusal of the licence. They submit that in the proceedings before

the Industrial Appeals Tribunal, which led to the decision of

27 January 1993, their argument based on Article 10 of the Convention

was not dealt with. They further complain that the Minister altered the

reasons for rejecting their request in the course of the proceedings

at issue. The applicants find it unacceptable that the Government can

submit new reasons on every occasion, while individuals have one chance

only. They finally complain that, in the proceedings which resulted in

the decision of 5 January 1994, the Industrial Appeals Tribunal

dismissed their claims referring to Article 10 of the Convention,

whereas instead it should have declared the Minister's decision

overdue.

THE LAW

1.   The applicants complain that the refusal to grant them a licence

for the installation and operation of a television transmitter violated

their rights under Article 10 (Art. 10) of the Convention, both in

itself and taken in conjunction with Article 14 (Art. 14) (Art. 10+14)

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."

     Article 14 (Art. 14) of the Convention reads:

     "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 first question the Commission must examine is whether there

has been an interference with the applicants' rights under Article 10

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

     The present case concerns the refusal by the Dutch authorities

to grant a television transmitter licence to the applicants. It thus

relates principally to the freedom enshrined in Article 10 para. 1

(Art. 10-1) "to ... impart information and ideas without interference

by public authority". The Commission finds that the refusal at issue

constituted an interference with the applicants' right to impart

information and ideas.

     However, according to the third sentence of Article 10 para. 1

(Art. 10-1) of the Convention, Article 10 (Art. 10) does "not prevent

States from requiring the licensing of broadcasting ... enterprises".

Although the third sentence refers to "broadcasting" rather than to the

reception and/or retransmission of broadcasts, by envisaging a

licensing system, the Contracting States are allowed under this

provision of the Convention to regulate, by way of a licensing system,

broadcasting activities in their territories. This may lead to

interferences whose aims will be legitimate under this sentence, even

though they do not correspond to any of the aims set out in paragraph

2 of Article 10 (Art. 10-2) of the Convention (cf. Eur. Court H.R.,

Groppera Radio AG and Others judgment of 28 March 1990, Series A no.

173, p. 24, para. 61; and Informationsverein Lentia and Others judgment

of 24 November 1993, Series A no. 276, pp. 14-15, paras. 32-33).

     The Commission recalls that in a decision on the grant or refusal

of a broadcasting licence regard may be had not only to technical

aspects, but also to such matters as the nature and objectives of a

proposed station, its potential audience at national, regional or local

level and the needs of a specific audience (Informationsverein Lentia

and Others judgment, loc. cit., p. 14, para. 32).

     The Commission notes that in the present case the applicants

sought a licence in order to relay television programmes from

commercial foreign stations via a particular regional frequency and

that this licence was refused as the regional public broadcasting

organisation(s), enjoying a priority right as regards the allocation

of broadcasting facilities, had not yet decided whether or not to start

regional broadcasts.

     The Commission further notes that, if regional public

broadcasting organisations show no interest in using regional

frequencies for broadcast activities aimed at the audience in that

particular region, these frequencies may be offered to other interested

parties. The Commission cannot find such a system incompatible with the

third sentence of Article 10 para. 1 (Art. 10-1) of the Convention.

     However, although the aim of the interference at issue is

legitimate under the third sentence of paragraph 1 of Article 10

(Art. 10-1) of the Convention without corresponding to any of the aims

set out in paragraph 2 (Art. 10-2) of this provision, the compatibility

of this interference must nevertheless be assessed in the light of the

other requirements of Article 10 para. 2 (Art. 10-2) of the Convention

(Informationsverein Lentia and Others judgment, loc. cit., p. 14, para.

32).

     As regards the question whether the interference is prescribed

by law, the Commission recalls that the phrase "prescribed by law" in

Article 10 para. 2 (Art. 10-2) must be given the same interpretation

as the phrase "in accordance with the law" in Article 8 para. 2

(Art. 8-2) of the Convention (Eur. court H.R. Silver judgment of

25 March 1983, Series A no. 61, p. 33, para. 85). Where the Convention

refers to domestic law, it is primarily the task of the national

authorities to apply and interpret domestic law. The Convention organs

have a limited jurisdiction in controlling the manner in which this is

done (cf. No. 10689/83, Dec. 14.5.84, D.R. 37 p. 225 and Eur. Court

H.R., Otto-Preminger-Institut judgment of 20 September 1994, Series A

no. 295-A, p. 17, para. 45).

     The phrase "prescribed by law", or the equivalent phrase "in

accordance with the law" do, however, not merely refer back to domestic

law, but also relate to the quality of the law. A norm must be

formulated with sufficient precision and a law conferring a discretion

is not in itself inconsistent with the requirement of foreseeability

provided that the scope of the discretion and the manner of its

exercise are indicated with sufficient clarity (Eur. Court H.R., Olsson

judgment of 24 March 1988, Series A no. 130, p. 30, para. 61; Kruslin

and Huvig judgments of 24 April 1990, Series A no. 176-A and B

respectively, pp. 22-25, paras. 30-36, and pp. 54-57, paras. 29-35).

     The Commission notes that in the present case the applicants'

request for a licence was rejected on the basis of Section 17 para. 7

(b) of the Telecommunications Facilities Act, under which a licence

cannot be granted when an efficient use of the air waves does not

permit such a grant. The Commission notes that the Minister's policy

as regards the efficient use of air waves had received a wide support

in the Dutch Parliament. The Commission finds it established that the

applicants were sufficiently aware of the relevant statutory rules, the

Minister's policy, which the domestic court found to have a legal

basis, and the consequences thereof for their intended activities.

     Accordingly, the Commission finds that the interference was

"prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention. The Commission has further already held

the aim to be legitimate.

     As regards the notion of necessity, the Commission recalls that

the phrase "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 that the Contracting States enjoy

a margin of appreciation, but this goes hand in hand with European

supervision. In cases where there has been an interference with the

rights and freedoms guaranteed by Article 10 para. 1 (Art. 10-1) of the

Convention, this supervision must be strict because of the importance

of these rights and freedoms. The necessity for any restriction must

be convincingly established (cf. Eur. Court H.R., Autronic AG judgment

of 22 May 1990, Series A no. 178, p. 26, para. 61; and Otto-Preminger-

Institut judgment, loc. cit., p. 19, para. 50).

     The Commission notes that the present case does not concern a

situation in which an absolute monopoly position was held by a public

broadcasting organisation. It concerns the situation in which in the

allocation of, per definition, scarce frequencies at a regional level,

regional public broadcasting organisations enjoy a priority right of

limited duration. Such organisations are provided with the opportunity

to decide within a reasonable delay whether they wish to make use of

a given frequency. If this is not the case, this frequency can be

offered to other interested parties.

     The Commission notes that public broadcasting in the Netherlands

is governed by the Media Act, which aims at a public broadcasting

system based on openness, diversity, non-commerciality and co-operation

in order to guarantee full expression of the various shades of

political, social and religious or philosophical opinions in the

Netherlands (see also No. 21472/93, Dec. 11.1.94, D.R. 76 p. 129 at p.

132).

     The Commission further notes that the applicants did not wish to

relay programmes specifically aimed at the audience in the region of

Noord-Holland, but programmes from foreign commercial broadcasting

stations primarily aimed at a foreign audience. It has not been argued

or appeared that the nature of these foreign programmes is compatible

with the aim of pluralism pursued in the Dutch broadcast system and

policy.

     It is true that the applicants' request for a licence was

rejected in a final decision. However, insofar as can be established

from the applicants' submissions, this refusal is not definite because

the reason for the refusal was that the regional public broadcasting

organisation had not yet indicated whether or not it wished to use the

frequency at issue. Only when this question has been resolved, within

a reasonable time, clarity can be obtained whether or not this

frequency can be allocated to another interested party such as the

applicants. The applicants have not raised any complaints relating to

the duration of that period of reflection granted to regional public

broadcasting organisations.

     Also taking into account that the applicants' request for a

licence was not refused in order to prevent reception of television

broadcasts of foreign commercial stations, but on the basis of an

established policy as regards the efficient use of airwaves aimed at

safeguarding pluralism in the media, the Commission cannot find that

granting a priority right, which is only valid for a limited period of

time, to regional public broadcasting organisations vis-à-vis persons

or private organisations seeking to exploit commercial broadcasts in

the field of allocation of regional frequencies is disproportionate.

     Insofar as the applicants complain that the priority right at

issue constitutes a discriminatory treatment between them on the one

hand and regional public broadcasting organisations on the other, which

is contrary to Article 14 (Art. 14) of the Convention, the Commission

recalls that this provision prohibits different treatment without any

objective and reasonable justification of persons in "relevantly"

similar situations (cf. No. 23419/94, Dec. 6.9.95, D.R. 82 p. 41).

     The Commission notes that the applicants, who sought permission

to install and exploit broadcasting equipment in order to receive and

relay television programmes of foreign commercial stations, seek to

compare their situation with the situation of a regional public

broadcasting organisation in the Dutch media system.

     The Commission considers that these two situations cannot be

regarded as comparable for the purposes of Article 14 (Art. 14) of the

Convention.

     Even assuming that these two situations could be considered as

"relevantly" similar, the Commission, having regard to its above

findings under Article 10 (Art. 10) of the Convention, is of the

opinion that there are objective and reasonable grounds for the

difference in treatment complained of.

     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.   The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that they did not have a fair hearing in the proceedings at

issue and under Article 6 para. 1 in conjunction with Article 13

(Art. 6-1+13) of the Convention that they did not have an effective

remedy against the refusal of the licence.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

     "In the determination of his civil rights and obligations ...

     everyone is entitled to a fair ... hearing ... by a ... tribunal

     ..."

     Article 13 (Art. 13) of the Convention provides:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     In determining whether Article 6 para. 1 (Art. 6-1) of the

Convention has been violated, the Commission must first examine whether

the proceedings at issue involved a determination of the applicants'

civil rights and obligations within the meaning of this provision.

     The Commission recalls that for Article 6 para. 1 (Art. 6-1) of

the Convention to be applicable under its "civil" head, there must be

a "dispute" 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. As

regards the question whether the dispute relates to a "civil" right it

must be determined whether the outcome of the proceedings is directly

decisive for the right in question, mere tenuous connections or remote

consequences not being sufficient to make Article 6 para. 1 (Art. 6-1)

applicable (cf. Eur. Court H.R., Masson and Van Zon judgment of

28 September 1995, Series A no. 327, para. 44).

     The Commission notes that it appears from the Industrial Appeals

Tribunal's decision of 5 January 1994 that, as long as competent

regional broadcasting organisations have not indicated that they do not

wish to make use of the available regional broadcasting facilities

which they should do within a reasonable time, other interested parties

like the applicants cannot claim a right to such facilities.

     It is true that proceedings concerning a licence or an

authorisation for conducting professional activities have been found

to involve a determination of civil rights within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R.,

König judgment of 28 June 1978, Series A no. 27, pp. 31-32, paras. 91-

95; Benthem judgment of 23 October 1985, Series A no. 97, pp. 14-16,

paras. 32-36; Pudas judgment of 27 October 1987, Series A no. 125-A,

p. 16, paras. 37-38; and Van de Hurk judgment of 19 April 1994, Series

A no. 288, p. 16, para. 43), but there can be no "right" if the

existence of that right depends on certain conditions which have not,

or not yet, been fulfilled.

     Noting that, in the present case, given the absence of a clear

position of the competent regional public organisation(s) on the matter

it was not yet open for third parties, not being regional public

broadcasting organisations, such as the applicants, to seek

authorisation to install and exploit the regional broadcast facilities

at issue, the Commission finds that the proceedings at issue, at that

point in time, did not concern a "right" which could arguably be said

to be recognised under Dutch law (cf. Masson and Van Zon judgment, loc.

cit., para. 52). Consequently, the proceedings at issue did not, at

that point in time, involve a determination of the applicants' civil

rights or obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

     Insofar as the applicants invoke Article 13 (Art. 13) of the

Convention, the Commission recalls that this provision has been

interpreted by the Court as requiring a remedy in domestic law only in

respect of grievances which can be regarded as "arguable" in terms of

the Convention (cf. Eur. Court H.R., Boyle and Rice judgment of

27 April 1988, Series A no. 131, p. 23, para. 52).

     Having regard to its above conclusions in respect of the

Convention complaints submitted, the Commission considers that the

applicants did not have any "arguable claim" of a violation of the

provisions invoked for these complaints. In these circumstances the

Commission finds no appearance of a violation or Article 13 (Art. 13)

of the Convention.

     It follows that this part of the application is also 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.

Secretary to the Commission          President of the Commission

        (H.C. KRÜGER)                         (S. TRECHSEL)

 

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