AS TO THE ADMISSIBILITY OF
Application No. 26907/95
by Karl-Christian KRETZSCHMAR
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 6 December 1994
by Karl-Christian KRETZSCHMAR against Germany and registered on
29 March 1995 under file No. 26907/95;
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 facts of the case, as they have been presented by the
applicant, may be summarised as follows.
The applicant is a German national and resident in Hanover. He
is a practising lawyer and notary by profession.
On 1 August 1987 the applicant subscribed to the "Norddeutscher
Rundfunk", a German public broadcasting corporation with the status of
an autonomous public-law corporation, and has since been paying a
quarterly fee of DM 18 in respect of the radio in his car, which is
used for professional purposes.
In November 1991 the applicant instituted proceedings before the
Hamburg Administrative Court (Verwaltungsgericht) against the
"Norddeutscher Rundfunk", claiming payment of DM 144 and interest as
refund of the wireless licence fees paid in 1991, and further a
declaratory judgment to the effect that he was not obliged to pay radio
licence fees. He submitted that the levying of wireless licence fees
amounted to a restriction of his right to receive information and
violated Article 10 of the Convention. Moreover, he mainly used the
radio in his car to receive traffic news and otherwise only listened
to private radio stations.
On 25 June 1992 the Hamburg Administrative Court dismissed the
applicant's action. The Administrative Court found that the applicant
was obliged to pay wireless licence fees, pursuant to the relevant
provisions of the Broadcasting (Finance) Treaties (Rundfunkgebühren-
staatsvertrag/Rundfunkfinanzierungsstaatsvertrag).
As regards the applicant's argument that the fee was unlawful on
the ground that, except for the traffic news, he only listened to
private radio stations, the Administrative Court observed that traffic
news were mainly broadcast by public broadcasting corporations. In any
event, the wireless licence fee was not only levied from persons
listening to programmes broadcast by public broadcasting corporations.
In this respect, the Court considered that the wireless licence fee was
levied in respect of the facility to receive broadcasting programmes,
irrespective of the question whether and to what extent subscribers in
fact listened to their radios. The current technical facilities
required the wireless licence fees to be determined as flat rates, and
the facility to receive broadcasting programmes constituted as such an
advantage justifying a fee.
Moreover, the system of wireless licence fees could not be
objected to under the freedom of expression, as guaranteed under the
Basic Law (Grundgesetz). The Administrative Court, referring to the
case-law of the Federal Constitutional Court (Bundesverfassungs-
gericht), recalled that, in the dual - public and private - system of
broadcasting in Germany, the public broadcasting ensured the 'basic
supply' ('Grundversorgung') with programmes fully covering the variety
of ideas and opinions, which was necessary in a democratic society.
The wireless licence fees were a means to finance broadcasting and did
not amount to an interference with the right to receive information.
In particular the right to receive informations could not be understood
as a right to receive information free of charge. The Administrative
Court found that the same considerations applied to the applicant's
arguments under Article 10 of the Convention.
On 28 December 1993 the Hamburg Administrative Court of Appeal
(Oberverwaltungsgericht) dismissed the applicant's appeal. The
Administrative Court of Appeal confirmed the findings and reasoning of
the Administrative Court. As regards the applicant's submission that
he did not intend to challenge the broadcasting system and the wireless
radio fees in general, but only to the extent that the fee was levied
from persons solely listening to private stations, the Administrative
Court of Appeal noted that the applicant, according to his own
statements, was listening to traffic news which were also broadcast by
public broadcasting corporations.
On 20 May 1994 the Federal Administrative Court (Bundes-
verwaltungsgericht) dismissed the applicant's request for leave to
appeal. The applicant received the decision on 10 June 1994.
Meanwhile, on 22 February 1994 the Federal Constitutional Court,
in proceedings for a decision on the compatibility of statutory law
with the Basic Law referred to it by the Bavarian Administrative Court
of Appeal, rendered a judgment on constitutional questions relating to
wireless licence fees. The Federal Constitutional Court found inter
alia that the freedom of reporting by means of broadcasts
(Rundfunkfreiheit) required that broadcasting was not subjected to any
undue influences by the State or any groups in society, but reflected
the variety of subjects and opinions prevailing in society. In the
dual system of public and private broadcasting, the rules on the
financing of public broadcasting had to ensure that it could fulfil its
functions in forming public opinion, in the entertainment and
information of the general public, including its responsibilities in
cultural matters. The appropriate means to finance public broadcasting
was the levying of fees, which enabled it to offer a comprehensive
programme independent of shares of audience and the placement of
commercials. The deficits of private broadcasting in the choice of
subjects could only be accepted as long as the public broadcasting
remained fully operable. It was therefore justified to levy wireless
licence fees from all subscribers, i.e. all persons having a radio at
their disposal, irrespective of their habits in using it.
COMPLAINTS
The applicant complains that the levying of the wireless licence
fees amounts to a violation of this right to freedom of expression
under Article 10 of the Convention. He submits that he only receives
programmes from private stations.
As regards the conditions under Article 26 of the Convention, the
applicant submits that, having regard to the Federal Constitutional
Court judgment of 22 February 1994, he could not be expected to lodge
a constitutional complaint with the Federal Constitutional Court.
THE LAW
The applicant complains that the levying of the wireless licence
fees amounts to a violation of his right to freedom of expression under
Article 10 (Art. 10) of the Convention.
Article 10 (Art. 10) 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 Commission notes that the applicant, in respect of the radio
in his car used for professional purposes, subscribed to a public
broadcasting corporation and that wireless licence fees are levied from
him on a quarterly basis.
In the administrative court proceedings brought by the applicant,
the Hamburg Administrative Court, as confirmed by the Hamburg
Administrative Court of Appeal, found that the applicant was obliged
to pay wireless licence fees, pursuant to the relevant provisions of
the Broadcasting (Finance) Treaties. The fee in question was levied
in respect of the facility to receive broadcasting programmes,
irrespective of the question whether and to what extent subscribers in
fact listened to their radios. In the dual - public and private -
system of broadcasting in Germany, public broadcasting ensured the
'basic supply' ('Grundversorgung') with programmes fully covering the
variety of ideas and opinions, which was necessary in a democratic
society. The wireless licence fees were a means to finance
broadcasting and did not amount to an interference with the right to
receive information which could not be understood as a right to receive
information free of charge.
Moreover, the Federal Constitutional Court, in its judgment of
22 February 1994 rendered in another set of proceedings, found that the
rules on the financing of public broadcasting had to ensure that it
could fulfil its functions in forming public opinion, in the
entertainment and information of the general public, including its
responsibilities in cultural matters. The appropriate means to finance
public broadcasting was the levying of fees, which enabled it to offer
a programme independent of shares of audience and the placement of
commercials. The deficits of private broadcasting in the choice of
subjects could only be accepted as long as the public broadcasting
remained fully operable. It was therefore justified to levy wireless
licence fees from all subscribers, i.e. all persons having a radio at
their disposal, irrespective of their habits in using it.
The Commission considers that under the relevant German
legislation the right to receive information by means of broadcasting
is subject to the condition of subscribing to one of the public
broadcasting corporations and the payment of a wireless licence fee.
Assuming that this system of financing public broadcasting amounts to
an interference with the exercise of the freedom to receive
information, as guaranteed under Article 10 para. 1 (Art. 10-1), the
Commission finds that such interference was justified under paragraph
2 of Article 10 (Art. 10-2) for the following reasons.
The Commission finds that the levying of wireless licence fees,
based on the relevant provisions of the Broadcasting (Finance)
Treaties, was prescribed by law.
Moreover, the system of levying wireless licence fees from all
subscribers, i.e. all persons having a radio at their disposal, was a
means to ensure that public broadcasting could fulfil its functions in
forming public opinion, in the entertainment and information of the
general public, including its responsibilities in cultural matters, and
that it could offer a comprehensive programme independent of shares of
audience and the placement of commercials. The Commission finds that
the rules on financing public broadcasting thereby pursue the aim of
protecting the rights of others which is legitimate for the purposes
of Article 10 para. 2 (Art. 10-2).
As regards the question whether the interference in question was
"necessary in a democratic society", the Commission recalls that the
Contracting States enjoy a margin of appreciation in assessing the need
for an interference, but this margin goes hand in hand with European
supervision, whose extent will vary according to the circumstances
(cf., Eur. Court H.R., Informationsverein Lentia and Others judgment
of 24 November 1993, Series A no. 276, p. 15, para. 35).
The Commission recalls the fundamental role of freedom of
expression in a democratic society, in particular where, through the
press, it serves to impart information and ideas of general interest,
which the public is moreover entitled to receive. Such an undertaking
cannot be successfully accomplished unless it is grounded in the
principle of pluralism, of which the State is the ultimate guarantor.
This observation is especially valid in relation to audio-visual media,
whose programmes are often broadcast very widely (cf., Eur. Court H.R.,
Informationsverein Lentia and Others judgment, loc. cit., p. 16,
para. 38).
The Commission finds that the reasons advanced by the German
courts regarding the levying of wireless licence fees as a means to
finance public broadcasting are relevant and sufficient. Furthermore,
having regard to the amount of the fee in question, there is no
appearance of disproportionality to the legitimate aim pursued. The
interference complained of was, therefore, necessary in a democratic
society. There is, accordingly, no appearance of a violation of the
applicant's right under Article 10 (Art. 10).
It follows that 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 First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy