AS TO THE ADMISSIBILITY OF
Application No. 13920/88
by NEDERLANDSE OMROEPPROGRAMMA STICHTING
against the Netherlands
The European Commission of Human Rights sitting in private
on 11 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 22 April 1988
by NEDERLANDSE OMROEPPROGRAMMA STICHTING against the Netherlands and
registered on 9 June 1988 under file No. 13920/88;
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, the Netherlands Broadcasting Programme
Foundation (Nederlandse Omroepprogramma Stichting) is a non-profit
cooperative foundation of all Dutch broadcasting organisations. It is
represented before the Commission by Mr. E.J. Dommering, a lawyer
practising in The Hague.
The facts of the case, as submitted by the applicant's
representative, may be summarised as follows.
The applicant foundation, also on behalf of the other
broadcasting organisations, negotiates and makes agreements with
the Royal Dutch Football Association (Koninklijke Nederlandse Voetbal
Bond, KNVB) about the broadcasting on radio and television of football
matches.
On 1 August 1980, the KNVB summoned the applicant before the
Regional Court (Arrondissementsrechtbank) of Amsterdam. On 14 April
1982, this Court gave, as requested by the KNVB, a declaratory
judgment (verklaring voor recht), authorising the KNVB to oppose the
broadcasting on television and radio of KNVB-organised football
matches, in the sense that the KNVB may request compensation in
exchange for its broadcasting permission. The broadcasting of
football matches by the applicant without the permission of the KNVB
would amount to an unlawful act in respect of the latter.
The applicant appealed against this ruling to the Amsterdam
Court of Appeal (Gerechtshof) which, on 11 April 1985, partly rejected
it. The Court of Appeal made a distinction between merely informing
the public on the one hand, and extensively reporting on the match in
such a way that the public almost fully experiences the match, on the
other hand. Only in the latter respect did the Court of Appeal confirm
the judgment of the Regional Court.
On 10 July 1985, the applicant appealed to the Supreme Court.
On 23 October 1987 the Supreme Court rejected the distinction made by
the Court of Appeal and confirmed the judgment of the Regional Court.
The Supreme Court, inter alia, rejected the argument that this
ruling was in violation of Article 10 of the Convention. It held that
this provision did not mean that someone who withholds information
from the media acts thereby in violation thereof. The same applies,
according to the Supreme Court, if the organiser of a match or the
owner or user of a stadium (which is accessible to the public, who
pay an entrance fee) sets conditions for broadcasting, in particular
financial compensation.
COMPLAINTS
The applicant foundation claims that the right of the KNVB, as
confirmed by the Supreme Court, to ask for financial compensation for
radio and television coverage of football matches which are held under
the auspices of the KNVB, is in violation of its right to receive and
impart information. It also alleges that this constitutes a
discrimination of broadcasting in relation to the print media. It
invokes Article 10 of the Convention, both taken alone and in
conjunction with Article 14 of the Convention.
THE LAW
1. The applicant complains that the obligation to pay financial
compensation for radio and television coverage of football matches
violates its right to receive and impart information. It invokes
Article 10 (Art. 10) of the Convention.
Article 10 para. 1 (Art. 10-1), insofar as relevant, reads as
follows:
"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."
The Commission notes that the football matches referred to in
the present case are organised by a private organisation. Admission
is subject to conditions under private law. The question arises,
however, whether the respondent Government was obliged under Article
10 (Art. 10) of the Convention to ensure a right to free reporting of these
matches by radio and television.
The financing of football matches normally consists, to a
large extent, of fees paid by the general public attending the match.
Another important source of financing is, in many European countries,
money paid by the television and radio in order to obtain the
right to direct reporting of the match.
In these circumstances, it cannot be considered an
interference with the right to freedom of expression as guaranteed by
Article 10 (Art. 10) of the Convention if the organiser of a match
limits the right to direct reporting of the match to those with whom
the organiser has concluded agreements on the conditions for such
reporting.
It follows that the present complaint is manifestly
ill-founded within the meaning of Article 27 para.2
(Art. 27-2) of the Convention.
2. The applicant foundation also complains that broadcasting
by radio and television is discriminated against in comparison to the
print media, because the latter are not required to pay any
compensation for the gathering of news. It invokes Article 14
(Art. 14) of the Convention in conjunction with Article 10 (Art. 10)
of the Convention.
Article 14 (Art. 14) reads as follows:
"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."
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
**violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
In the present case the applicant failed to raise this
complaint before the Supreme Court and has, therefore, not exhausted
the remedies available to him under Dutch law. Moreover, an
examination of the case does not disclose the existence of any special
circumstances which might have absolved the applicant, according to
the generally recognised rules of international law, from exhausting
the domestic remedies at his disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and this part of
the application must be rejected under Article 27 para. 3 (Art. 27-3)
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) (C. A. NØRGAARD)
Full & Egal Universal Law Academy