RADIO ABC v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 19736/92

                      by Radio ABC

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

           MM.   C.L. ROZAKIS, President

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 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 30 December 1991

by Radio ABC against Austria and registered on 23 March 1992 under file

No. 19736/92;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having regard to :

-    the Commission's decision of 17 January 1995 to communicate the

     application;

-    the observations submitted by the respondent Government on

     24 March 1995 and the observations in reply submitted by the

     applicant on 16 May 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

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

summarised as follows:

     The applicant is a non-profit making association with seat in

Vienna. Before the Commission the applicant association is represented

by Mr. H. Wille, a lawyer practising in Vienna.

A.   Particular circumstances of the case

     On 28 August 1989 the applicant association requested the Vienna,

Lower Austria and Burgenland Regional Postal Administration (Post- und

Telegraphen Direktion für Wien, Niederösterreich und Burgenland) to

grant it permission to establish and operate a radio installation and

to allocate it a frequency for the purpose of broadcasting programmes

in the Vienna area.

     On 9 January 1990, the Vienna, Lower Austria and Burgenland

Regional Postal Administration dismissed the applicant association's

request. It referred to the Constitutional Broadcasting Act of

10 July 1974, which provides that broadcasting shall be authorised by

federal law, and found that such a law had only been enacted with

regard to the Austrian Broadcasting Corporation (Österreichischer

Rundfunk). It followed that only the latter was allowed to operate

broadcasting.

     On 25 September 1990 the General Directorate of Post and

Telecommunications (Generaldirektion für die Post- und Telegraphenver-

waltung) dismissed the applicant association's appeal. It referred to

the decision of the Constitutional Court of 16 December 1983 (see

below, Relevant domestic law and practice) and recalled that according

to the Constitutional Court the broadcasting monopoly of the Austrian

Broadcasting Corporation was compatible with Article 10 of the

Convention.

     The applicant company lodged a complaint with the Constitutional

Court (Verfassungsgerichtshof). It submitted in particular that the

decision of the General Directorate of Post and Telecommunications

violated its right to receive and impart information and ideas under

Article 10 of the Convention. Although this article allowed

Contracting States to require the licensing of broadcasting

enterprises, no licensing proceedings had been established in Austrian

law. Therefore, everyone should be granted free access to broadcasting.

     On 30 September 1991 the Constitutional Court dismissed the

applicant association's complaint. The Court considered that in the

light of its own decision of 16 December 1983 the appeal offered no

prospects of success. The applicant's request that the case be

transferred to the Administrative Court (Verwaltungsgerichtshof)

remained unsuccessful.

     Following the entry into force of the Regional Radio Act

(Regionalradiogesetz - see below, Relevant domestic law and practice)

on 1 January 1994, the applicant association on 17 April 1994 requested

to be granted a broadcasting licence for one of the two frequencies

available to private broadcasters in the area of Vienna. On

25 January 1995 the Regional Radio Authority (Regionalradiobehörde),

in two separate decisions, dismissed this request. The authority,

referring to S. 20 para. 2 of the Regional Radio Act, gave priority to

other applicants. Thereupon, the applicant association lodged two

complaints with the Constitutional Court. On 21 June 1995 the

Constitutional Court ex officio introduced proceedings in order to

review whether certain provisions of the Regional Radio Act were in

accordance with the Constitution. All these proceedings are still

pending.

B.   Relevant domestic law and practice

1.   Telecommunications Act of 13 July 1949 ("Fernmeldegesetz")

     According to Section 2 para. 1 of the Telecommunications Act,

"the right to set up and operate telecommunications installations is

vested exclusively in the federal authorities" ("Das Recht,

Fernmeldeanlagen zu errichten und zu betreiben steht ausschliesslich

dem Bunde zu").  Section 3 envisages the authorization for private

persons or institutions to operate broadcasting installations.

Section 5 lists instances where broadcasting installations may be set

up without authorization, e.g. within the boundaries of a private

property.

2.   Private Telecommunications Installations Ordinance (1961)

("Verordnung des Bundesministeriums für Verkehr und Elektrizitäts-

wirtschaft über Privatfernmeldeanlagen")

     The Ordinance on Private Telecommunication Installations of 1961

concerns all broadcasting installations which, on the basis of the

Telecommunications Act, are subject to Federal supervision (Section 1).

The Ordinance states inter alia the conditions for the setting up and

operation of private broadcasting installations.  However, according

to the decisions of the Austrian courts and administrative authorities,

these provisions cannot constitute the basis for granting licences to

private applicants.

3.   Constitutional Broadcasting Act of 10 July 1974 ("Bundesverfas-

sungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks")

     Section 1 of the Constitutional Law of 10 July 1974 states:

     "(2) Broadcasting shall be governed by more detailed rules to be

     set out in a federal law.  Such a law must inter alia contain

     provisions guaranteeing the objectivity and impartiality of

     reporting, the diversity of opinions, balanced programming and

     the independence of persons and bodies responsible for carrying

     out the duties defined in paragraph 1.

     (3)   Broadcasting within the meaning of paragraph 1 shall be a

     public service."

     "(2)  Die näheren Bestimmungen für den Rundfunk und seine

     Organisation sind bundesgesetzlich festzulegen.  Ein solches

     Bundesgesetz hat insbesondere Bestimmungen zu enthalten, die die

     Objektivität und Unparteilichkeit der Berichterstattung, die

     Berücksichtigung der Meinungsvielfalt, die Ausgewogenheit der

     Programme sowie die Unabhängigkeit der Personen und Organe, die

     mit der Besorgung der im Abs. 1 genannten Aufgaben betraut sind,

     gewährleisten.

     (3)   Rundfunk gemäss Abs. 1 ist eine öffentliche Aufgabe."

4.   Radio Broadcasting Ordinance of 1965 ("Rundfunkverordnung")

     Section 20 para. 1 of the Radio Broadcasting Ordinance provides

that the radio signals received must be transmitted immediately,

completely and unaltered to the recipients.

5.   Broadcasting Corporation Act of 1974 ("Bundesgesetz über die

Aufgaben und die Einrichtung des Österreichischen Rundfunks")

     The Broadcasting Corporation Act sets up the Austrian

Broadcasting Corporation as an economic unit with legal personality

entrusted with the function of supplying the public with broadcasts.

These broadcasts must comply with certain criteria, for instance with

regard to the number and quality of programmes.  The programmes must

inform the public comprehensively of all important political, economic,

cultural and sports events by objective selection and dissemination of

news and reports.

6.   Constitutional Court's decision of 16 December 1983

(No. 9909/1983)

     The Constitutional Court's decision of 16 December 1983 concerned

programmes introduced into an internal cable television system.  The

Court found inter alia that the aim of the Austrian Constitutional

Broadcasting Act was to introduce a licensing requirement within the

meaning of Article 10, para. 1, last sentence.  This aim could not be

achieved if, in the absence of legislation, everybody was entitled

freely to broadcast.  So far, a law had only been enacted for the

Austrian Broadcasting Corporation.  It followed that only the latter

could operate broadcasting.

     According to the Constitutional Court's decision, broadcasting

included active cable broadcasting which therefore fell within the

scope of the Constitutional Broadcasting Act and its implementing

legislation.  Under the Telecommunications Act and the Ordinance on

Private Telecommunication Installations the telecommunications

authorities were competent to grant broadcasting licences.  An

authorization for the setting up and operation of broadcasting

installations could not be granted by the authorities before a federal

law on the subject had been enacted.

7.   The Regional Radio Act of 1993 (Regionalradiogesetz)

     The Regional Radio Act, which entered into force on 1 January

1994, concerns licensing requirements for private local and regional

radio broadcasters.

     According to S. 2 of this Act the Federal Minister for Public

Economy and Transport, by an ordinance, has to establish a plan for

allocating the available frequencies to the Austrian Broadcasting

Corporation and to the private broadcasters. S. 4 provides that the

programmes offered by private radio broadcasters have to comply with

the principles of objectivity and diversity of opinions and have to

reflect in particular the public, cultural and economic life of the

region in which they are broadcasted. Moreover, SS. 8 to 10 contain

certain formal requirements. S. 13 establishes the Regional Radio

Authority. S. 19 concerns the application for licences. S. 20 para. 2

provides that, if several private broadcasters, which fulfil the legal

requirements, apply for one licence the Regional Radio Authority has

to give priority to the applicant which best fulfils the objectives of

this Act, e.g. in that it offers greater diversity of opinions.

COMPLAINTS

     The applicant company complains under Article 10 of the

Convention about the decisions by the Austrian authorities refusing it

permission to establish and operate a radio station and to broadcast

programmes in the area of Vienna. It submits in particular that in

Austria, according to the contested decisions, a broadcasting monopoly

of the Austrian Broadcasting Corporation existed.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 30 December 1991 and registered

on 23 March 1992.

     On 17 January 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on 24 March

1995. The applicant replied on 16 May 1995.

THE LAW

     The applicant company complains under Article 10 (Art. 10) of the

Convention about the Austrian authorities' refusal to grant it

permission to establish and operate a radio station in the area of

Vienna, with a view to the general broadcasting monopoly of the

Austrian Broadcasting Corporation.

     Article 10 (Art. 10) 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 Government submit that the applicant association can no

longer claim to be a victim of a violation of its convention rights

within the meaning of Article 25 (Art. 25) of the Convention. They

refer in particular to the 1993 Regional Radio Act, which entered into

force on 1 January 1994, and - subject to certain licensing

requirements - introduced a possibility for private broadcasters to run

local or regional radio programmes.

     The applicant association contests the Government's view. It

submits in particular that, upon its request under the Regional Radio

Act, it was again refused a broadcasting licence for the area of

Vienna. Moreover, the Constitutional Court, after having received the

complaints by the applicant company and others about the refusal of

licences, ex officio introduced proceedings in order to examine the

constitutionality of some provisions of the said Regional Radio Act.

     The Commission recalls that someone, who has obtained adequate

redress for an alleged violation of the Convention can no longer claim

to be a victim (No. 10668/83, Dec. 13.5.87, D.R. 52 p. 177;

No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237).

     In the present case, the applicant association, in 1989,

requested permission to broadcast radio programmes in the area of

Vienna. In 1990, the competent authorities refused to grant this

permission. They referred to the Constitutional Broadcasting Act which,

in conjunction with the Broadcasting Corporation Act, established a

broadcasting monopoly of the Austrian Broadcasting Corporation. The

Regional Radio Act, which created a possibility for private radio

broadcasters to obtain local or regional broadcasting licences, only

entered into force on 1 January 1994. Until that time, the contested

prohibition was in accordance with Austrian law and the applicant

company did not receive any redress or compensation for the alleged

violation of its right to freedom of expression. Moreover, the entry

into force of the Regional Radio Act did not resolve the applicant's

case, as it was again refused a licence for broadcasting programmes in

the area of Vienna.

     In these circumstances, the Commission finds that the applicant

association can still claim to be a victim of a violation of its

Convention rights within the meaning of Article 25 (Art. 25) of the

Convention.

     As regards the compliance with Article 10 (Art. 10), the parties

have not made specific submissions. However, the Commission considers

that this issue raises questions of fact and law which can only be

determined by an examination of the merits. It follows that this

complaint cannot be declared inadmissible as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION ADMISSIBLE,

     without prejudging the merits of the case.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)

 

Full & Egal Universal Law Academy