Communicated on 11 September 2018
FOURTH SECTION
Application no. 51010/10
TELECOMPANIYA IMPULS, TOV
against Ukraine
lodged on 27 August 2010
STATEMENT OF FACTS
The applicant, Telecompaniya Impuls, TOV (“the applicant company”), is a privately owned company registered in Ukraine. It is represented before the Court by V.V. Yefymenko, a lawyer practising in Vyshgorod.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant company is a television and radio broadcasting company. It applied for a licence to provide programme services. On 30 January 2008 the licensing authority issued an invoice to the applicant company requiring it to pay a licence fee in the amount of 3337.96 Ukrainian hryvnias (UAH – approximately 445 euros (EUR) at the material time). On 20 February 2008 the applicant company paid the fee. On 6 March 2008 the licensing authority issued the licence to the applicant company authorising it to provide programme services. In Annex no. 7 to the licence the licensing authority indicated the list of television and radio programmes to be provided as part of the programme service.
The applicant company lodged a claim with the domestic courts, seeking reimbursement of the fee that it had been requested to pay and the annulment of Annex no. 7 to the licence. In particular, it argued that the conditions had no legal basis in domestic law.
On 5 November 2008 the Donetsk Circuit Administrative Court allowed the applicant company’s claim. The court found that the conditions – to pay the licence fee and the limitation of the list of television and radio programmes – were not in compliance with the domestic law in force. The court ordered reimbursement of the fee to the applicant and the annulment of the disputed Annex no. 7.
The licensing authority appealed. On 27 February 2009 the Donetsk Administrative Court of Appeal partly amended the judgment of the first-instance court but still held in the applicant’s favour.
The licensing authority appealed in cassation. In its appeal on points of law it made arguments only with respect to the payment of the licence fee. The applicant company in its observations to the appeal on points of law argued that the impugned conditions were illegal and disproportional and invoked, inter alia, Article 10 of the Convention and Article 1 of Protocol No. 1 to the Convention.
On 14 April 2010 the Higher Administrative Court quashed the judgments of the lower courts and rejected the applicant’s claim both as to the licence fee and as to Annex no. 7. The higher court found the conditions to be in compliance with the domestic law. The court did not evaluate the decisions of the lower courts and did not respond to the arguments raised by the applicant company in its observations to the appeal on points of law.
B. Relevant domestic law
The relevant provisions of the Television and Radio Broadcasting Act (Закон “Про телебачення і радіомовлення”), as in force at the material time, read as follows:
Section 39 – Broadcasting on multichannel networks
“6. The operator of a multichannel network may provide a programme service subject to obtaining a licence to provide programme services.
7. The provision of a programme service to a subscriber is performed on the basis of an agreement between the subscriber and licensee concluded in accordance with the applicable legislation. The agreement must specify:
the type of programme package provided (universal programme service, standard package or customised package);
the list of television and radio programmes to be provided to a subscriber;
the fee for the package and/or the fee for the provision of certain television and radio programmes.
8. Until termination of the above agreement, the provider is not permitted to amend the characteristics of the programme service defined in subsection 7 of this section without the official consent of the subscriber.”
Section 40 – Licensing of programme service providers
“3. A request for a licence to provide programme services shall be lodged in accordance with the requirements of section 24 of this Act. The request shall have annexed to it:
(a) the general concept of bundling programmes acquired for rebroadcast;
(b) documents confirming the acquisition of programmes from another broadcaster and the right for their rebroadcast;
...
4. The general concept (principles) of selecting programmes for rebroadcast (offers to subscribers) is a mandatory annex to the broadcasting licence. This annex should be re-registered annually.
...
6. Based on the results of the examination of the request the licensing authority may decide:
(a) to issue the licence to the programme service provider;
(b) to approve the package (packages) of programmes of the universal programme service in the town, village, etc. and/or on the territories where the programme service is to be provided ...”
The Act does not contain the requirement to pay a fee for the licence to provide programme services. However, on 19 April 2006 the licensing authority issued Instruction no. 357, which defines the procedure for issuing a programme service licence. Paragraph 10 of the Instruction provides that a fee is payable for the licence.
COMPLAINTS
The applicant company complains under Article 6 of the Convention that the decision of the Higher Administrative Court of 14 April 2010 was not reasoned.
It also complains under Article 10 of the Convention that the limitation of the list of programmes that it was permitted to provide amounted to a violation of its right to freedom of expression.
Lastly, the applicant company complains of a violation of its property rights as secured by Article 1 of Protocol No. 1 to the Convention owing to the fact that it was unlawfully required to pay a licence fee.
QUESTIONS TO THE PARTIES
1. Have the limitation of the list of programs and the requirement to pay the licence fee amounted to an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2? Were the reasons given by the domestic courts to justify the alleged interference with the applicant company’s rights under Article 10 of the Convention relevant and sufficient?
2. Has there been an interference with the applicant’s possessions within the meaning of Article 1 of Protocol No. 1? In the affirmative, was this interference in compliance with the requirements of Article 1 of Protocol No. 1?
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