AS TO THE ADMISSIBILITY
Application No. 13914/88
by INFORMATIONSVEREIN LENTIA
Application No. 15041/89
by Jörg HAIDER
Application No. 15717/89
by Arbeitsgemeinschaft Offenes
Radio (AGORA)
Application No. 15779/89
by Wilhelm WEBER
Application No. 17207/90
by RADIO MELODY Ges.m.b.H.
against Austria
The European Commission of Human Rights sitting in private on
15 January 1992, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M. P. PELLONPÄÄ
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 16 April 1987 by
Informationsverein Lentia against Austria and registered on 3 June 1988
under file No. 13914/88;
Having regard to the application introduced on 15 May 1989 by
Jörg Haider against Austria and registered on 23 May 1989 under file
No. 15041/89;
Having regard to the application introduced on 27 September 1989
by Arbeitsgemeinschaft Offenes Radio (AGORA) against Austria and
registered on 30 October 1989 under file No. 15717/89;
Having regard to the application introduced on 18 September 1989
by Wilhelm Weber against Austria and registered on 20 November 1989
under file No. 15779/89;
Having regard to the application introduced on 20 August 1990 by
Radio Melody Ges.m.b.H. against Austria and registered on 26 September
1990 under file No. 17207/90;
Having regard to:
-the Commission's decision of 13 July 1990 to join Applications
Nos. 15041/89, 15717/89 and 15779/89 and to give notice of these
applications and of Application No. 13914/88 to the respondent
Government inviting them to submit observations in writing on their
admissibility and merits;
-the Government's observations of 14 November 1990 on Application
No. 13914/88 and of 15 November 1990 on Applications Nos. 15041/89,
15717/89 and 15779/89;
-the applicants' observations in reply of 29 January 1991
(Application No. 15717/89), 27 February 1991 (Applications
Nos. 15041/89 and 15779/89) and 15 May 1991 (Application No. 13914/88);
-the Commission's decision of 12 July 1991 to give notice of
Application No. 17207/90 to the respondent Government and to invite
them to submit observations in writing on the admissibility and merits
of this application;
-the Commission's decision of 3 September 1991 to invite the
parties in Applications Nos. 13914/88, 15041/89, 15717/89 and 15779/89
to an oral hearing on the admissibility and merits;
-the Governments's observations on Application No. 17207/90 of
2 October 1991 and the applicant's observations in reply of
8 November 1991;
-the Commission's decision of 6 December 1991 to include
Application No. 17207/90 in the hearing already decided in the other
cases;
-the Commission's decision of 14 January 1992 to join all five
cases;
-the parties' submissions at the oral hearing on 15 January 1992;
Having deliberated;
Decides as follows:
THE FACTS
The facts agreed between the parties may be summarised as
follows:
The first applicant, Informationsverein Lentia, is a private
association established in Linz, Upper Austria. It is represented by
Mr. Bruno Binder, a lawyer practising in Linz who has been instructed
by the association's president, Mr. Alois Höfler.
The second applicant, Mr. Jörg Haider, is an Austrian citizen
residing in Klagenfurt, Carinthia. He is the Chairman of the Austrian
Liberal Party (FPÖ) and Deputy Governor (Landeshauptmann-
Stellvertreter) of the province of Carinthia. He is represented by
Messrs. Dieter Böhmdorfer and Wolfram Themmer, lawyers practising in
Vienna.
The third applicant, Arbeitsgemeinschaft Offenes Radio (AGORA),
is a private association established at Eisenkappel, Carinthia. It is
represented by Mr. Thomas Höhne, a lawyer practising in Vienna who has
been instructed by the association's president, Mrs. Brigitte Busch.
The fourth applicant, Mr. Wilhelm Weber, is an Austrian citizen
born in 1941 who resides at St. Andrä in Lavanttal, Carinthia. He is
represented by Messrs. Dieter Böhmdorfer and Wolfram Themmer, lawyers
practising in Vienna.
The fifth applicant, Radio Melody Ges.m.b.H., is a limited
liability company established and registered in Salzburg. It is
represented by Mr. Wilfried Haslauer, a lawyer practising in Salzburg.
A.THE PARTICULAR CIRCUMSTANCES OF THE CASES
a)Application No. 13914/88 (Informationsverein Lentia)
The association was founded by the joint owners and inhabitants
of a residential development (Wohnhausanlage) in Linz comprising some
450 apartments and 30 shops. The aim of the association was to improve
communication between the members by establishing an internal cable
television system, the programme of which was to be limited to
questions of common concern relating to their property rights.
On 9 June 1978 the association applied to the Linz Regional
Directorate of Post and Telecommunications (Post- und Telegraphen-
direktion) for a licence under the Telecommunications Act (Fernmelde-
gesetz, Fed. Law Gazette No. 170/1949). As no decision was handed down
within the statutory time-limit of six months as stipulated in
Section 73 of the Code of General Administrative Procedure (Allgemeines
Verwaltungsverfahrensgesetz), the association asked for a transfer of
jurisdiction (Devolution) to the Federal Ministry of Transport -
Directorate General of Post and Telecommunications (Bundesministerium
für Verkehr - Generaldirektion für die Post- und Telegraphen-
verwaltung).
On 23 November 1979 the Ministry rejected the application
essentially on the ground that in substance the association intended
to establish a private radio station for which there was no legal basis
under Austrian law.
The Ministry observed that the Federal Constitutional Law for
Securing the Independence of Broadcasting (Bundesverfassungsgesetz über
die Sicherung der Unabhängigkeit des Rundfunks, Fed. Law Gazette
No. 396/1974, hereafter referred to as Constitutional Law on
Broadcasting) had reserved to the federal legislation the regulation
of broadcasting and its organisation. Any broadcasting therefore could
take place only on the basis of a special federal law. Such a federal
law only existed for the public "Austrian Broadcasting Corporation"
(Österreichischer Rundfunk - ORF; cf. Bundesgesetz über die Aufgaben
und die Einrichtung des Österreichischen Rundfunks, Federal Law on the
Functions and the Organisation of the Austrian Broadcasting
Corporation, Fed. Law Gazette No. 397/1974), and therefore no one else
was entitled to operate a radio station, including "active cable
television". There was accordingly no legal basis for granting the
licence requested by the applicant association. In so far as the
association had invoked Article 10 of the Convention, the Ministry
referred to the last sentence of paragraph 1 of this provision. In the
Ministry's opinion the Austrian constitutional legislature had made use
of the authorisation to require the licensing of broadcasting
enterprises by reserving special legislation for the operation of any
radio station ("Von dem ... Genehmigungsvorbehalt hat der
österreichische Verfassungsgesetzgeber Gebrauch gemacht, indem er
beschlossen hat, dass Rundfunk jeweils nur nach Erlassung eines eigenen
Bundesgesetzes betrieben werden darf").
The applicant association's constitutional complaint against this
decision was rejected by the Constitutional Court (Verfassungs-
gerichtshof) on 16 December 1983 (Collection of Constitutional Court
decisions No. 9909/83). The Constitutional Court observed that
Article 10 of the Convention included the right to impart information
and ideas inter alia through broadcasting. However, this right was
subject to the restrictions stipulated in the last sentence of
paragraph 1 (authorisation of the State to introduce a licensing
requirement) and in paragraph 2 (authorisation of the State to subject
the exercise of broadcasting freedom to certain legal restrictions).
Having regard to the admissibility of such legal restrictions, an
administrative decision could violate the right to operate a radio or
television station only if it was taken without a legal basis, if the
law applied was unconstitutional, or if it was applied in an arbitrary
manner (denkunmögliche Gesetzesanwendung). However, the decision
complained of had not interpreted the Constitutional Law on
Broadcasting in an arbitrary manner. The wording of this
Constitutional Law suggested that its aim was to introduce a licensing
requirement and that the special legislation referred to therein was
not intended to prescribe the limitations, but the conditions for any
broadcasting which thereby was required to comply with the principles
of objectivity and pluralism. This constitutional aim could not be
achieved if, in the absence of legislation, anybody would be entitled
to broadcast free from any restrictions. As a law had so far only been
enacted for the Austrian Broadcasting Corporation, without providing
for licences to other broadcasting enterprises, only the Corporation
was legally entitled to broadcast. This was also the predominant view
of legal writers and the Austrian Supreme Court (Oberster Gerichtshof).
Article 10 of the Convention authorised a licensing requirement as
stipulated in the Constitutional Law on Broadcasting, and therefore was
not violated.
The Constitutional Court then examined what activities were to
be regarded as broadcasting within the meaning of the above
Constitutional Law. It found that, according to legal doctrine,
broadcasting included active cable broadcasting (active cable
television) which therefore fell within the scope of the Constitutional
Law and its implementing legislation. The applicant association's view
that its cable television system was not to be qualified as
broadcasting because it was addressed to a limited audience, was
misconceived. The persons who could receive the programme were not
predetermined and individualised, they were potentially all people
present in several hundred apartments and shops and therefore
constituted a general public.
Finally, it was to be determined whether the telecommunication
authorities had been competent to refuse an authorisation exclusively
on the basis of the broadcasting legislation. The court found that
these authorities were competent for the granting of licences under the
Telecommunications Act and the Ordinance on Private Telecommunication
Installations (Privatfernmeldeanlagenverordnung, Fed. Law Gazette
No. 239/1961). It noted that they had not raised any objections
against the installation planned by the applicant association from a
technical point of view, and that the Constitutional Law on
Broadcasting did not contain express provisions on the application of
the broadcasting legislation by those authorities. However, the court
considered that this Constitutional Law was to be applied by all
authorities which could influence the operation of broadcasts and that
the Telecommunications Act and the Ordinance on Private
Telecommunication Installations were accordingly to be read subject to
the proviso that "an authorisation for the setting-up and operation of
telecommunication installations intended to engage in broadcasting in
the meaning of Article I paragraph 1 of the Constitutional Law on
Broadcasting may not be granted by the telecommunication authorities
before a federal law on the subject has been enacted in accordance with
Article I para. 2 of this Constitutional Law".
The Constitutional Court concluded that there had been no
violation of Article 10 of the Convention nor of any other
constitutional provision. It referred the case to the Administrative
Court (Verwaltungsgerichtshof) as requested by the applicant
association.
The Administrative Court rejected the association's complaint by
a decision of 10 September 1986 which was served on the association on
17 October 1986. It essentially confirmed the views expressed by the
Constitutional Court which had been criticised by the applicant
association. In particular, it rejected the argument that the
Telecommunications Act could be seen as a special law referred to by
the Constitutional Law on Broadcasting and that the latter
Constitutional Law could not be applied by the telecommunication
authorities. Even though the Telecommunications Act did not prohibit
broadcasting, the telecommunication authorities were required to comply
with the constitutional principle laid down in Article 18 para. 1 of
the Federal Constitution (Bundes-Verfassungsgesetz) according to which
all administrative acts could be taken only on the basis of the law,
and to examine in this context whether the provisions of the
Constitutional Law on Broadcasting created an obstacle for granting the
authorisation requested. Neither the Telecommunications Act nor any
other legal provision gave the applicant association a right to be
granted this authorisation, and therefore its refusal had not been
unlawful. Nor did the Administrative Court find the reasons of the
refusal self-contradictory or insufficient as alleged by the applicant
association.
b)Application No. 15041/89 (Mr. Jörg Haider)
This applicant states that in the years 1987-1989 he had plans
to establish jointly with others a private radio station in Carinthia.
However, those plans had to be abandoned because an examination of the
legal situation in Austria revealed that there was no legal possibility
of obtaining a licence. In support of this submission the applicant
has submitted a letter dated 14 January 1992 from a financial
consultant in Klagenfurt who had assisted him in the matter. The
Government do not contest that the applicant actually pursued plans to
set up a private radio station.
The applicant has not taken any domestic proceedings. He states
that it would not have been reasonable for him to apply for a radio
licence the grant of which was excluded by the Austrian legislation as
interpreted by the Constitutional Court, in particular in its above
judgment concerning the case of Informationsverein Lentia. He
furthermore states that he could not reasonably be expected to provoke
an administrative decision by operating a radio station illegally.
He finally refers to a referendum requested by the Liberal Party
of which he is the Chairman and which aimed at the abolition of the
public broadcasting monopoly in Austria.
c)Application No. 15717/89, Arbeitsgemeinschaft Offenes Radio
(AGORA)
This applicant association is a member of the Fédération
européenne des radios libres (FERL) and subscribes to the principles
of the draft European Charter of Free Radios elaborated by this
organisation. Its aim is to promote pluralism of the media and
liberalisation of broadcasting in the whole Austrian territory as well
as to establish a multicultural radio station in Carinthia. This
station would transmit a bilingual or multilingual non-commercial
programme financed by contributions of the listeners and provide an
open forum for groups of persons who otherwise lack access to
audiovisual media. A particular target group would be the population
of the bilingual area of Southern Carinthia, and for this purpose the
programmes would be moderated in both the German and Slovene languages.
Particular efforts would be made for the promotion of the Slovene
language and culture and the interests of the Slovene linguistic
minority in general. There would also be co-operation with other local
radio stations in Yugoslavia and Italy to reflect the multilinguistic
identity of the region (Alpen-Adria-Raum). The proponents of this
radio station already operate a mobile station on Italian territory on
the basis of an Italian radio licence. The installations could be
transferred to Austria at any time.
In 1988 the association took proceedings to obtain a licence for
a private radio station. The application was rejected by the
Klagenfurt Regional Directorate of Post and Telecommunications on
19 December 1989. This decision was confirmed by the Federal Ministry
for Public Economy and Transport - Directorate General of Post and
Telecommunications (Bundesministerium für öffentliche Wirtschaft und
Verkehr - Generaldirektion für die Post- und Telegraphenverwaltung)
on 9 August 1990, and by the Constitutional Court on 30 September 1991.
The decisions rely on the Constitutional Court's earlier case-law, in
particular in the case of Informationsverein Lentia.
d)Application No. 15779/89 (Mr. Wilhelm Weber)
This applicant is the shareholder of an Italian company which
operates a private radio station transmitting broadcasts to Austria on
a commercial basis. He is interested in operating such a radio station
himself on Austrian territory.
He did not take any proceedings for obtaining a radio licence in
Austria, since in his view an application for such a licence would not
have had any prospects to succeed, having regard to the state of the
legislation and its interpretation by the Constitutional Court.
e)Application No. 17207/90 (Radio Melody Ges.m.b.H.)
One of the aims of the applicant company is to set up and operate
a private local radio station in Salzburg. To this end it applied on
8 November 1988 to the Linz Regional Directorate of Post and
Telecommunications to be granted a licence and to be attributed a
frequency band.
The Regional Directorate rejected the application on
28 April 1989. Its decision was confirmed by the Federal Ministry for
Public Economy and Transport - Directorate General of Post and
Telecommunications on 12 July 1989 and by the Constitutional Court on
18 June 1990. The decisions rely on the Constitutional Court's earlier
case-law, in particular in the case of Informationsverein Lentia.
The applicant company refrained from complaining to the
Administrative Court since that Court is not competent to review
legislation as to its conformity with the constitutional law or the
Convention.
B.RELEVANT LEGISLATION
The Constitutional Law on Broadcasting (Bundesverfassungsgesetz
über die Sicherung der Unabhängigkeit des Rundfunks, Fed. Law Gazette
No. 396/1974) describes broadcasting (Article I para. 1) as a public
task (Article I para. 3) and reserves its regulation to the federal
legislation which is required to observe certain principles including
objectivity and impartiality of information, pluralism of opinions,
well-balanced programmes, and independence of the persons and bodies
entrusted with functions of broadcasting (Article I para. 2).
This Constitutional Law has been implemented by the Federal Law
on the Functions and the Organisation of the Austrian Broadcasting
Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des
Österreichischen Rundfunks, Fed. Law Gazette No. 397/1974, hereafter
referred to as the Broadcasting Act) which set up the Austrian
Broadcasting Corporation as an economic unit with legal personality
entrusted with the function of supplying the public with broadcasts
according to certain criteria. Apart from those mentioned in the above
Constitutional Law (repeated in Section 2 para. 2 of the Act) they
include:
a) As regards the number of programmes
- even and steady supply to the whole population in Austria,
according to current technical standards of reception in so far as
economically feasible, with at least two television and three radio
programmes (Section 3 para. 1), one of the latter being a regional
programme which takes into consideration the particular interests of
the Provinces (Section 3 para. 2);
- operation of a Government-sponsored short-wave radio programme
for listeners abroad (Section 4);
b) As regards the content of the programmes
- the comprehensive information of the public of all important
political, economic, cultural and sports events by objective selection
and dissemination of news and reports; transmission and conveyance of
comments, opinions and critical statements of importance for the public
having due regard to the plurality of views represented in public
discussions; own comments and analysis based on the principle of
objectivity (Section 2 para. 1, sub-para. 1);
- dissemination and promotion of education, art, science and
sport, as well as entertainment (Section 2 para. 1, sub-paras. 2-5);
- planning of the programme as a whole having due regard to the
importance of legally recognised churches and religious communities
(Section 2 para. 3);
- providing broadcasting-time to political parties represented
in Parliament and to interest groups, to a degree which does not exceed
1% per programme, the broadcasting-time being distributed between the
various groups according to their importance in public life
(Belangsendungen, Section 5 para. 1);
- providing broadcasting-time on radio and television for paid
commercials (Section 5 para. 3).
The Broadcasting Act furthermore contains detailed provisions on
the organisation of the Austrian Broadcasting Corporation. Apart from
the Director General (Generalintendant) its organs are collegiate
bodies including the Governing Board (Kuratorium), the Board of
Listeners and Spectators (Hörer- und Sehervertretung), and the Board
of Audit (Prüfungskommission). In addition, a "Commission for
Safeguarding Observance of the Broadcasting Act" ("Kommission zur
Wahrung des Rundfunkgesetzes") was set up outside the organisational
framework of the Corporation.
According to the Act these bodies and their members are
independent and free from instructions.
The Director General (Sections 9 and 10) is equally independent
and free from instructions (Section 6 para. 2), but his appointment can
be terminated at any moment by a decision taken with a two-thirds
majority by the Governing Board. In particular he is competent for
laying down general programme guidelines, elaboration of the long-term
programme, staff plans, etc., and he may also delegate certain tasks
to other Directors (Direktoren, Programmintendanten, Landesintendanten)
whom he has to control and co-ordinate.
The Governing Board (Sections 7 and 8) takes all decisions of
importance, including the appointment and dismissal of the Director
General and other Directors, adoption of long-term plans on programme
techniques and finance, fixing of broadcasting contributions and other
fees, approval of collective agreements, settling fundamental problems
of broadcasting and programmes, and attribution of transmission-time
to interest groups. It is composed of 30 members, including:
- six members appointed by the Government on the basis
of proposals by the political parties according to their
representation in Parliament;
- nine members appointed by the Provinces;
- four members appointed by the Federal Government;
- six members appointed by the Board of Listeners and
Spectators;
- five members appointed by the Central Works Council
(Zentralbetriebsrat) of the Austrian Broadcasting
Corporation.
The decisions are taken by simple majority and there is no
provision on minority rights or on the articulation of opinions other
than that of the majority.
The Board of Listeners and Spectators (Sections 15 and 16) has
the following tasks: appointment of six members of the Governing Board
by a two-thirds majority, proposals for the nomination of four members
of the "Commission for Safeguarding Observance of the Broadcasting
Act", applications to the latter Commission, and making proposals for
the programmes, technical improvements, etc. But for the
above-mentioned exception it takes its decisions by simple majority.
The Board is composed of 35 members, including:
- 15 members appointed by professional organisations and interest
groups, i.e. the Chamber of Commerce (Bundeskammer der
gewerblichen Wirtschaft), the Conference of the Presidents of the
Chambers of Agriculture (Präsidentenkonferenz der Landwirt-
schaftskammern), the Conference of the Workmen's Chambers
(Arbeiterkammertag), the Chambers of the liberal professions, the
Austrian Trade Union Federation (Österreichischer
Gewerkschaftsbund), the Christian Churches and the Academies of
the political parties (politische Akademien);
- 20 members appointed by the Federal Chancellor to represent
various groups of society, i.e. science, education, art, sport,
youth, elderly people, parents and families, tourism, motorists
and consumers, having regard to proposals of institutions and
organisations representative of these groups.
The "Commission for Safeguarding the Observance of the
Broadcasting Act" (Sections 25-27) exercises a "subsidiary and limited
legal control" over the Austrian Broadcasting Corporation, in so far
as the matter does not come within the jurisdiction of a court of law
or of another administrative authority. In particular, it decides on
alleged violations of the Broadcasting Act, especially alleged
violations of the principle of objectivity.
It is composed of 17 members appointed by the Federal President
upon proposals of the Federal Government for a period of four years,
including:
- nine judges proposed by the President of the Supreme Court, the
Presidents of the four Courts of Appeal, a representative
professional organisation of judges, the Conference of Austrian
Bar Councils (Rechtsanwaltskammertag), and the Chamber of
Notaries;
- four members proposed by the Central Works Council;
- four members proposed by the Board of Listeners and Spectators.
Decisions are taken by simple majority of Chambers composed of
three judges and one member from each of the other groups. The
decisions can be challenged before the Constitutional Court, but not
before the Administrative Court. They are of a declaratory nature and
do not entail any direct legal consequences for the employees concerned
of the Austrian Broadcasting Corporation which is obliged to comply
with those decisions.
The journalists employed by the Austrian Broadcasting Corporation
(Section 17) are independent and responsible for the programmes which
they produce. The Corporation is required to respect their
journalistic freedom within the limits of the Broadcasting Act, in
particular it may not order them to produce and accept responsibility
for programmes which would be in conflict with that freedom.
Legitimate refusals by the journalists may not be sanctioned. The
observance of these principles is safeguarded by the Statute of
Journalists (Redakteursstatut) concluded between the Corporation and
the elected representation of the journalists (Section 18).
This Statute provides, inter alia, that, in order to fulfil the
Corporation's programme requirements, the journalists preparing
programmes under their responsibility must also include contributions
which are in conflict with their own personal views. Journalists
called upon to select programmes may reject or amend contributions.
In cases of "substantial" interference this requires the consent of the
journalist who has prepared the programme. If no agreement can be
reached, the programme should, if possible, be postponed. If this is
not possible, the journalist concerned has the right not to be named
and can refuse responsibility (Section 3 para. 2 of the Statute).
Eventually, a settlement or arbitration procedure may take place in
such cases (Section 3 paras. 3-8).
The Broadcasting Act does not prohibit other broadcasting
enterprises than the Austrian Broadcasting Corporation, but due to the
inactivity of the legislature there is no legal basis on which such
enterprises could operate. In particular the Telecommunications Act
(Fernmeldegesetz, 1949) and the Ordinance on Private Telecommunications
Installations (Privatfernmeldeanlagenverordnung, 1961) issued under it
do not provide such a basis although they contain provisions on radio
licences. This view has been confirmed by the Austrian Constitutional
Court (Verfassungsgerichtshof) in a decision of 16 December 1983
(Collection of Constitutional Court decisions No. 9909/83 -
Informationsverein Lentia, see above).
On the other hand the Constitutional Court has held that, under
Article 10 of the Convention, the broadcasting monopoly must be
exercised in compliance with the principles of objectivity and
pluralism, by well-balanced programmes offered by the public
Broadcasting Corporation (decision of 27 June 1986, Collection of
Constitutional Court decisions No. 10948/85 - Impala / Die ganze
Woche).
This may imply restrictions on journalistic freedom. The
"Commission for Safeguarding Observance of the Broadcasting Act" found
a violation of the principle of objectivity in critical and provocative
questions as well as in the expression of their own views by
journalists who had interviewed the Federal President Dr. Waldheim
(decision No. 438/5 - RFK 88 of 3 May 1988). This decision was quashed
by the Constitutional Court, but the latter stated that the principle
of objectivity as laid down in the Constitutional Law on Broadcasting
and in the Broadcasting Act limited the freedom of expression of
journalists employed by the Austrian Broadcasting Corporation (decision
No. 12086/89 of 21 June 1989).
The Constitutional Court cannot examine the compatibility of the
Constitutional Law on Broadcasting as such with Article 10 of the
Convention. In a Constitutional Court decision of 14 October 1987
(decision No. 11500/87 - Miltner) it was stated that a conflict between
the Convention and other provisions of Austrian constitutional law
could not be resolved by finding an unconstitutionality of these
provisions. If in such a case there was a breach by Austria of her
international obligations under the Convention, this could only be
taken up before the Convention organs in Strasbourg.
The inactivity of the legislature, i.e. its failure to enact
legislation as a basis for broadcasting by others than the Austrian
Broadcasting Corporation cannot be challenged either before the
Constitutional Court.
There is no legislation dealing specifically with the reception
and retransmission of foreign broadcasts in Austria. A number of
private radio stations exist abroad near the Austrian border which
transmit programmes specially directed at an Austrian audience, and
there appears to be no interference by the Austrian authorities with
the reception of these programmes. This also applies to the programmes
which the third and fourth applicants at present transmit from Italy.
It further appears that in many local cable networks foreign television
programmes can be received in Austria.
As from 1 July 1987 Austria was allocated by the International
Telecommunications Union (I.T.U.) a number of additional frequencies
for broadcasting purposes. There are now five FM frequencies which can
be used throughout the country, of which two can be regionalised, and
a number of new local frequencies. This is more than can actually be
used by the public Broadcasting Corporation.
The continued justification of the Austrian broadcasting monopoly
is being questioned by legal writers and media specialists and also by
politicians of the big political parties, in particular the Liberal
Party which has organised a referendum (Volksbegehren) for the
abolition of the public broadcasting monopoly, but also the
Conservative People's Party and members of the Socialist Party.
Various proposals have recently been made for liberalising the
monopolistic structure of broadcasting in Austria. They include plans
for enabling others than the Austrian Broadcasting Corporation to
prepare programmes which would still be transmitted by the services of
the Corporation. An agreement to this effect was concluded in 1987 by
the Austrian Broadcasting Corporation with the League of Austrian
Newspaper Editors (Verband Österreischischer Zeitungsherausgeber) for
the establishment of a so-called "Print-Radio". It was followed by the
elaboration of a draft bill for an "Experimental Broadcasting Act"
(Hörfunkversuchsgesetz) by the Broadcasting Corporation together with
the Newspaper Editors. This project, however, met with criticism
because it limited access to broadcasting to owners of the media. The
Government themselves are now pursuing plans to enact legislation which
would allow the establishment of local private radio stations outside
the framework of the Austrian Broadcasting Corporation.
COMPLAINTS
All applicants complain that the broadcasting system which exists
at present in Austria is not in line with the requirements of
Article 10 of the Convention, in particular because it does not provide
for any licensing procedure for private stations. The applicants
submit that in any event it is no longer justified to uphold a public
broadcasting monopoly, or that at least the manner in which this
monopoly is exercised in Austria is too restrictive to allow a really
free flow of information and opinions. It does not ensure that the
freedom of expression, in particular that of minority groups, can be
exercised to the degree now technically possible and required in a
modern democracy.
In this context, in particular the second applicant submits that
within the monopoly the required standard of objectivity and pluralism
of opinions is not effectively ensured, political minorities thus being
deprived of sufficient access to the audiovisual media.
The third applicant observes that the Broadcasting Act does not
provide for the representation of ethnic minorities in the various
organs of the Austrian Broadcasting Corporation and that the programmes
intended for these minorities are insufficient. The programme for the
Slovene minority in Carinthia is limited to 50 minutes per day and
allegedly does not sufficiently reflect the views and needs of the
minority population itself. This applicant therefore also complains
of a violation of Article 14 of the Convention by an alleged
discrimination of this minority as regards its right of access to
broadcasting.
The first applicant, too, complains of discrimination contrary
to Article 14 of the Convention in that it is being treated differently
from hotels, hospitals or institutions for elderly people whose
internal cable television systems are not regarded as constituting
broadcasting.
Finally, the fifth applicant complains of a violation of
Article 6 of the Convention, more precisely of the right to legal
protection by the courts. In this respect it invokes the Klass case
(No. 5029/79, Comm. Report 9.3.77, para. 59) where it was stated that
different considerations from those applying to secret surveillance
measures, to which Article 6 was found to be inapplicable, might arise
"if interferences with the use of postal and telecommunications
services would be directed against private activities involving the
exercise of 'civil rights'. That would be the case if ... the State
could arbitrarily exclude people from the use of those services thereby
destroying their private business". The applicant company considers
that this must also apply, mutatis mutandis, to the use of
telecommunications services in the area of broadcasting.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 13914/88 was introduced on 16 April 1987 and
registered on 3 June 1988.
Application No. 15041/89 was introduced on 15 May 1989 and
registered on 23 May 1989.
Application No. 15717/89 was introduced on 27 September 1989 and
registered on 30 October 1989.
Application No. 15779/89 was introduced on 18 September 1989 and
registered on 20 November 1989.
On 13 July 1990 the Commission examined the above four
applications. It decided to join the proceedings in Applications
Nos. 15041/89, 15717/89 and 15779/89 and to give notice of all four
applications to the respondent Government who were invited to submit
observations in writing on their admissibility and merits before
31 October 1990. This time-limit was subsequently extended, at the
Government's request, until 14 November 1990.
The Government's observations on Application No. 13914/88 were
submitted on 14 November, those on the other three applications on
15 November 1990.
The applicants were invited to submit observations in reply
before 31 January 1991. Only the third applicant submitted
observations within this time-limit, on 29 January 1991. The second
and fourth applicants submitted their observations, after having been
granted an extension of the time-limit, on 27 February 1991. The first
applicant, after having been reminded by the Commission's Secretariat
that no observations had been received within the time-limit, stated
that it had not considered further observations necessary. It
nevertheless submitted some observations on 15 May 1991.
In the meantime Application No. 17207/90 had been introduced on
20 August 1990 and registered on 26 September 1990.
On 12 July 1991 the Commission decided to give notice also of
this application to the respondent Government and invite them to submit
observations in writing on its admissibility and merits before
1 October 1991.
The Government submitted their observations on this application
on 2 October 1991 and the applicant replied on 8 November 1991.
In the meantime, the Commission had decided on 3 September 1991
to invite the parties in Applications Nos. 13914/88, 15041/89, 15717/89
and 15779/89 to an oral hearing on the admissibility and merits. On
6 December 1991 the Commission decided to include also Application
No. 17207/90 in the hearing.
On 14 January 1992 the Commission decided to join all five cases.
The hearing took place on 15 January 1992. At the hearing, the
Government were represented by their Agent, Mr. Helmut Türk, who was
assisted by Mrs. Sabine Bernegger, of the Federal Chancellery, and
Mr. Rainer Fischer-See, of the Austrian Broadcasting Corporation,
Advisers. The applicants were represented as follows: the first
applicant by Mr. Georg Lehner, a lawyer practising in Linz; the second
applicant, who was present himself, by Mr. Dieter Böhmdorfer, assisted
by Mrs. Susanne Riess, Mr. Walter Meischberger and Mr. Peter
Westenthaler, Advisers; the third applicant, whose President,
Mrs. Brigitte Busch, and a further member of the Governing Board,
Mr. Vladimir Wakounig, were present, by Mr. Thomas Höhne; the fourth
applicant by Mr. Dieter Böhmdorfer assisted by Mr. Walter Dillenz,
Adviser; the fifth applicant by Mr. Wilfried Haslauer. Furthermore,
Mr. Hannes Tretter of the University of Vienna acted as Adviser for the
second, third, fourth and fifth applicants.
THE LAW
1.All applicants complain of a violation of Article 10 (Art. 10)
of the Convention which reads 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 applicants complain first of all that under the Austrian
legislation, as interpreted by the Constitutional Court, they are
unable to obtain licences for private radio stations or, in the case
of the first applicant, for a private cable television system.
They observe that under Austrian constitutional law the operation
of private radio stations or cable television systems is not as such
inadmissible, but since implementing legislation has been enacted only
in respect of the Austrian Broadcasting Corporation there exists a de
facto monopoly of this Corporation. In the applicant's view the
legislature's failure to enact provisions which would allow others than
the Austrian Broadcasting Corporation access to the audiovisual media
is incompatible with Article 10 (Art. 10) which guarantees freedom of
expression, including freedom to broadcast, to "everyone". While it
is true that the last sentence of Article 10 para. 1 (Art. 10-1) allows
States to subject broadcasting and television enterprises to a
licensing requirement, the applicants consider that this provision
presupposes the existence of a licensing procedure which, however, is
lacking in Austria.
Even if at the time of drafting the Convention broadcasting
monopolies were regarded as being compatible with Article 10 (Art. 10),
the Convention must, according to the applicants, be given a dynamic
interpretation taking into account technical developments and changes
in prevailing views. Due to the technical progress in the area of
radio and television the reasons which may earlier have justified
broadcasting monopolies, in particular the constraints caused by the
scarcity of available frequencies, have disappeared. Simultaneously,
the prevailing attitudes concerning the audiovisual media have
undergone fundamental changes with the result that public broadcasting
monopolies have been abolished in almost all European States.
In support of their view that broadcasting monopolies must now
be seen as being incompatible with Article 10 (Art. 10), the applicants
also rely on the fact that several Contracting States have entered
specific reservations concerning such monopolies when they acceded to
the Convention.
The applicants further invoke the case-law of the Convention
organs. They consider that at least since the Telebiella case
(No. 6452/74, Sacchi v. Italy, Dec. 12.3.76, D.R. 5 p. 43) the
Commission has abandoned its earlier view that a broadcasting monopoly
could be justified under the last sentence of Article 10 para. 1
(Art. 10-1). It follows from the judgments of the European Court of
Human Rights in the cases of Groppera (28 March 1990, Series A no. 173)
and Autronic (22 May 1990, Series A no. 178) that notwithstanding this
provision restrictions in this area must also be justified under
Article 10 para. 2 (Art. 10-2) of the Convention. In the applicants'
view this does not leave the last sentence of Article 10 para. 1
(Art. 10-1) without object because it allows the application of a
licensing requirement even if this requirement could not be justified
under Article 10 para. 2 (Art. 10-2).
The applicants contest the justification of the Austrian
broadcasting monopoly under the latter provision. They claim that
there exists no urgent social need to maintain this monopoly which
cannot therefore be regarded as being necessary in a democratic
society. In their view restrictions of access to the audiovisual media
should in principle be limited to a regulation of the technical
aspects. It is not permitted to impose restrictions relating to the
contents of the programmes which in substance amount to prior
censorship. In this context they oppose the argument that it is
necessary to maintain the monopoly for the purpose of ensuring balanced
programmes and plurality of opinions which in their view is not
achieved having regard to the organisational structure of the Austrian
Broadcasting Corporation. In their view the necessary pluralism can
also be ensured by competition between several broadcasting enterprises
which need not necessarily by subjected to the same criteria concerning
the preparation of their programmes as the existing monopolistic
broadcasting enterprise.
The applicants observe that even in Austria itself the
monopolistic structure of the audiovisual media has been undermined to
a certain degree in that in wide areas programmes can be received from
private radio stations transmitting from foreign soil. These
programmes are often directed especially at an Austrian audience. In
addition, foreign television programmes, including programmes of
private stations, are also accessible to Austrians in many cable
networks. The Austrian authorities do not interfere with and even
actively contribute to this situation, and therefore it is in the
applicants' view particularly unreasonable if they do not allow the
establishment of private stations in Austria where they could be better
controlled.
The Government contest the applicants' arguments. They claim
that the first applicant has filed its application out of time because
it should have submitted the case to the Commission within six months
from the Constitutional Court's decision of 16 December 1983. In the
Government's view this was the final domestic decision within the
meaning of Article 26 (Art. 26) of the Convention. The applicant's
further complaint to the Administrative Court did not in the
Government's opinion constitute an effective remedy to be taken into
account for the purposes of Article 26 (Art. 26). While the
Administrative Court was not formally bound by the Constitutional
Court's earlier decision, it could not review the question of the
constitutionality of the legislation underlying the administrative
decision which the applicant sought to challenge, and this question was
the heart of the matter. Having regard to the express findings of the
Constitutional Court according to which the activity intended by the
applicant was to be qualified as broadcasting in the sense of the
Austrian radio legislation, it was also unrealistic to assume that the
Administrative Court would qualify this activity differently. The
Government therefore request that Application No. 13914/88 should be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
The Government accept that the other four applicants must be
regarded as having complied with the requirements of Article 26
(Art. 26). In the case of the second and fourth applicants who did not
take any domestic remedies, they recognise that in view of the
Constitutional Court's decision in the case of the first applicant such
remedies would not have had any prospects of succeeding.
The Government also accept that these four applicants can claim
to be victims within the meaning of Article 25 (Art. 25) of the
Convention. They were directly affected by the Austrian broadcasting
legislation because they were in fact prevented from establishing
private radio stations in Austria. In this context the Government
admit that also the second applicant, although he did not actually
engage in broadcasting as did the third and fourth applicants, actually
pursued plans to set up a private radio station.
The Government further accept that there has been an interference
with the applicants' right to freedom of expression. They contend,
however, that this interference was justified under the last sentence
of Article 10 para. 1 (Art. 10-1) or, in the alternative, under Article
10 para. 2 (Art. 10-2) of the Convention.
In the Government's view the last sentence of Article 10 para. 1
(Art. 10-1) of the Convention would be deprived of any meaning if
Article 10 para. 2 (Art. 10-2) were also to be applied to the licensing
of broadcasting and television enterprises. The inclusion of this
provision in the Convention shows that broadcasting and television are
of special political importance in a democratic society and that they
may be treated differently from the print media to which other criteria
apply. While freedom of expression is guaranteed as an individual
right also when exercised through broadcasting and television, these
media serve the community as a whole and therefore require to be
regulated by the State in a manner which ensures that the public is
being informed objectively and impartially through balanced programmes.
State legislation enjoys a wide margin of appreciation in this respect,
provided that the system chosen remains within the bounds of the
Convention. The establishment of a broadcasting monopoly is not in the
Government's opinion as such incompatible with Article 10 (Art. 10).
Its conformity with this provision depends on the manner in which it
is organised.
The Government submit that at the time when the Convention was
drafted broadcasting monopolies existed in the large majority of the
Contracting States and were regarded as being compatible with
Article 10 (Art. 10). Nothing can be gained from the argument that
several States subsequently entered reservations when acceding to the
Convention. In fact only Portugal made a formal reservation, France
and Spain only made interpretative declarations. In the Government's
view it is decisive that the original Contracting States which had
broadcasting monopolies did not consider it necessary to make any
reservations in this respect.
The Government do not overlook that since then there have been
considerable technological developments and changes of views concerning
the audiovisual media which led to the abolition or liberalisation of
broadcasting monopolies in many States. Also in Austria plans are
being considered for a liberalisation of the monopolistic structure of
broadcasting. However, in the Government's view these developments
have not led to a consolidated European standard. In a number of
Council of Europe member States the organisation of private broadcasts
has not been put on a stable and universally acceptable basis. A
cautious approach is therefore required when relying on these
developments for purposes of interpretation of Article 10 (Art. 10).
In any event the Government consider that in this context it is also
necessary to take into account the specific conditions existing in each
country.
The Austrian broadcasting legislation providing for the monopoly
of the Austrian Broadcasting Corporation is, in the Government's
opinion, in line with the requirements of Article 10 (Art. 10). The
legislation is based on the principles of balanced programmes,
objective reporting, plurality of opinions, and independence of
journalists. The organisation of the broadcasting monopoly thus
corresponds to the concept of broadcasting as laid down in the last
sentence of Article 10 para. 1 (Art. 10-1). The licensing requirement
in this provision can also be fulfilled by legislation, and since the
system adopted by the Austrian legislation corresponds to the
Convention concept there is no need to justify it under Article 10
para. 2 (Art. 10-2). Only restrictions going beyond this basic concept
would have to be justified under this provision.
But even if the monopoly as such had to be justified under
Article 10 para. 2 (Art. 10-2), it would according to the Government
have to be regarded as being necessary in a democratic society. It
pursues the purpose of preventing disorder and protecting the rights
of others. The Government refer to the relatively small Austrian
market in which it would not be possible to operate many radio stations
on a viable economic basis. The funds available for commercials would
have to be divided up between the public Broadcasting Corporation, the
print media and any new radio stations. Since there would only be a
limited number of such stations, it would appear unavoidable to subject
them to regulations ensuring their independence and objectivity.
Otherwise there would be a danger of one-sided programmes, undesirable
concentration and abuse of media power. In this situation it was
justified to maintain the public broadcasting monopoly which by its
organisation guaranteed well-balanced, objective and pluralistic
programmes.
The Commission must first consider the Government's objections
concerning the admissibility of Application No. 13914/88. It notes
that the association which brought this application has exhausted all
remedies which were available to it in the Austrian legal system. The
only question is whether it has also fulfilled the requirement in
Article 26 (Art. 26) of the Convention according to which an
application must be introduced within six months after the final
domestic decision.
The Government claim that the final decision in this case was the
Constitutional Court's judgment of 16 December 1983, the further
complaint to the Administrative Court not constituting an effective
remedy. In the Government's submission after the Constitutional Court's
decision nothing was left for the Administrative Court to decide.
However, the Commission notes that the Constitutional Court's
function was limited to a review of the constitutionality of the
impugned measure. It further observes that the Administrative Court
discussed at length and in detail the interpretation of the relevant
legislation. This shows that in the circumstances it was not wholly
unreasonable for the applicant association to pursue the case before
the Administrative Court. Since the association filed the application
within six months of the Administrative Court's decision, the
conditions of Article 26 (Art. 26) have been met.
As regards the other four applicants, the Commission notes that
the Government do not question their compliance with the requirements
of Article 26 (Art. 26). The Commission also agrees with the
Government that all applicants, including the second applicant, can
claim to be victims of a violation of their rights under Article 10
(Art. 10) of the Convention since they had sufficiently concrete plans
to set up private radio stations and were prevented from doing so by
the state of the Austrian legislation. There has thus been an
interference with their right to freedom of expression as guaranteed
by Article 10 (Art. 10) of the Convention.
As to the justification of this interference, the Commission
notes that it is in dispute between the parties whether only the last
sentence of Article 10 para. 1 (Art. 10-1) or also Article 10 para. 2
(Art. 10-2) is applicable and whether these provisions allow a
monopolistic system of broadcasting which excludes any possibility to
obtain licences for private radio stations. In the light of the
parties' submissions, the Commission considers that the applicants'
complaints in this respect raise complex and difficult questions of law
and fact which cannot be resolved at this stage. The applicants'
complaints therefore cannot be rejected as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention
but require an examination as to the merits.
2.The first and third applicants also invoke Article 14
(Art. 14) of the Convention which 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."
a)The first applicant claims that it has been discriminated against
in that its intended activities were qualified as broadcasting for
which a licence could not be granted under the Telecommunications Act
whereas cable television systems of hotels, hospitals and institutions
for elderly people are not regarded as broadcasts and can therefore be
licensed under the Telecommunications Act.
The Government consider this complaint to be manifestly ill-
founded. They submit that the distinction made is based on objective
and reasonable criteria because the audience in the residential
development concerned was not limited to a closed circle of people as
in the case of the other institutions referred to.
The Commission considers that the first applicant's complaint in
this respect cannot be rejected as being manifestly ill-founded and it
accordingly reserves also this aspect of the case for an examination
as to the merits.
b)As regards the third applicant, its complaint of discrimination
is based on the argument that the interests of linguistic minorities
are not sufficiently taken into account in the context of the public
broadcasting monopoly, and that for this reason it is unjustified to
refuse a radio licence to an applicant who intends to transmit specific
programmes for such a minority.
The Government contest this complaint on the ground that the
applicant association has not exhausted the domestic remedies because
it failed to challenge particular programmes of the Austrian
Broadcasting Corporation before the Commission for Safeguarding
Observance of the Broadcasting Act. The third applicant further cannot,
in the Government's view, claim to be a victim within the meaning of
Article 25 (Art. 25) of the Convention because its only concern is to
set up a private radio station of its own.
The Commission considers that the procedure referred to by the
Government was not open to the third applicant in relation to its
particular complaint. It must therefore be regarded as having exhausted
the domestic remedies. The Commission furthermore considers that the
third applicant's complaint is so closely related to its principal
complaint under Article 10 (Art. 10) that it cannot be separated from
it. This part of the application must therefore also be reserved for
an examination as to the merits.
3.The fifth applicant finally complains of a violation of Article 6
para. 1 (Art. 6-1) of the Convention in that no judicial procedure is
available to it for obtaining a radio licence. The first sentence of
this provision reads as follows:
"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 applicant claims that the decision to grant a radio licence
is a determination of "civil rights" within the meaning of Article 6
para. 1 (Art. 6-1). It submits that the possibility of obtaining a
radio licence is excluded by the Austrian legislation as interpreted
by the Constitutional Court, and that for this reason no judicial
procedure is available in connection with a licensing procedure.
The Government consider that the fifth applicant has failed to
exhaust the domestic remedies in this respect because it did not invoke
Article 6 (Art. 6) and did not even in substance raise this complaint
in its constitutional complaint. The applicant admits that it did not
invoke Article 6 (Art. 6), but claims that it referred to the absence
of a judicial procedure and thereby submitted the substance of this
complaint to the Constitutional Court.
The Government further submit that in any event the applicant did
apply for a licence under the Telecommunications Act. The Government
contest that a civil right was involved in this procedure, but even if
the applicant's claim concerned a civil right the relevant decisions
were subject to review by the Constitutional Court and the
Administrative Court which in the Government's view fulfilled the
requirements of Article 6 (Art. 6).
The Commission may leave open the question whether or not the
fifth applicant has exhausted the domestic remedies regarding its
complaint under Article 6 (Art. 6) as this complaint must in any event
be rejected for the following reasons:
The applicant itself admits that there was no right under
Austrian law to obtain a radio licence. This view has been clearly
confirmed by the Constitutional Court and the Administrative Court in
the case of the first applicant. The absence of a "right" therefore
results directly from the state of the Austrian legislation. As no
individual "right" exists in Austria to obtain a radio licence, the
question whether such a right would be "civil" in nature does not
arise. In the absence of any right provided for in the domestic legal
system, the Convention does not require the establishment of a judicial
procedure for the determination of such a right (cf. No. 10475/83,
Dyer v. the United Kingdom, Dec. 9.10.84, D.R. 39 p. 246).
The fifth applicant's above complaint must accordingly be
rejected as being incompatible, ratione materiae, with the provisions
of the Convention in accordance with Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission
1.Unanimously declares INADMISSIBLE the fifth applicant's complaint
under Article 6 para. 1 of the Convention.
2.Unanimously declares ADMISSIBLE the remainder of Application
No. 17207/90 as well as Applications Nos. 13914/88, 15717/89 and
15779/89.
3.By a majority, declares ADMISSIBLE Application No. 15041/89.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy