SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46841/99
by SKYRADIO AG and Others
against Switzerland
The European Court of Human Rights (Second Section), sitting on 27 September 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrL. Wildhaber,
MrP. Lorenzen,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 18 December 1998 and registered on 18 March 1999,
Having deliberated, decides as follows:
THE FACTS
The first applicant is a radio company in foundation (in Gründung). The other five applicants, MM P. Hafter, H.-J. Heitz, H.-P. Meng, S. Thomson and B. Wehrli, are all Swiss nationals residing in Switzerland and the founders of the radio company. They are represented before the Court by MM L.A. Minelli and H.-J. Heitz, lawyers practising in Forch and Winterthur, respectively.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
Sky Radio was conceived as a radio station for young people as from 15 years of age living in the area of the town of Zürich. The radio station was to broadcast music which was popular with this age segment as well as to discuss problems of juveniles such as drugs, violence and education.
In 1996 the Federal Office for Communication (Bundesamt für Kommunikation) invited tenders for a concession for a local radio broadcasting station for the Zürich area. The applicants applied together with other candidates.
On 26 March 1997 the Federal Department for Traffic and Energy (Eidgenössisches Verkehrs- und Energiedepartment) awarded the concession to Radio Tropic and dismissed the other applications. In its decision, the Department held, inter alia, that Radio Tropic had been preferred, since it broadcast music from the Caribbean, from Latin America and Asia as well as news in different languages and thus contributed to the integration of different segments of society. The Department thereby referred in particular to Sections 3 and 11 §§ 1 and 2 of the Federal Radio and Television Act (Eidgenössisches Radio- und Fernsehgesetz).
The applicants’ further appeal was dismissed by the Federal Council (Bundesrat) on 1 July 1998. In its decision, the Federal Council considered at the outset that, as there was only one concession open for tenders, the authority granting the concession, who was aware of the factual situation, enjoyed a large margin of appreciation in deciding which broadcaster was the most adequate. Insofar as the applicants drew attention to certain vacant frequencies, the Federal Council confirmed the decision of the lower instance according to which some of the vacant frequencies available could in fact not be used on account of interferences, and other allegedly vacant frequencies were already occupied by other radio stations.
The decision further stated that in the Zürich area virtually all other local radio stations as well as the national radio broadcaster and foreign companies catered for young people, or those who felt young. On the other hand, the radio station chosen, Radio Tropic, aimed at the entire population and broadcast its programs in different languages, all staff speaking at least two languages, and provided for a true alternative to the existing local radio stations.
Meanwhile, the applicants also filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) against the decision of 26 March 1997 which the Federal Court (Bundesgericht) declared inadmissible on 15 July 1997 with reference to Section 99 § 1 (d) of the Federal Judiciary Act (Bundesrechtspflegegesetz).
B. Relevant domestic law
Section 3 § 1 of the Federal Radio and Television Act provide as follows:
“Instructions (Auftrag)
(1) Radio and television shall as a whole:
(a) contribute to the free expression of opinion and to a general, varied and objective information of the public and to its education and entertainment, and convey civic knowledge;
(b) consider, and bring closer to the public, the diversity of the country and its population and advance the understanding for other people;
(c) promote Swiss cultural enterprise and stimulate the public to participate in cultural life;
(d) facilitate contact with Swiss expatriates and promote the presence of Switzerland abroad as well as the understanding for its concerns;
(e) particularly consider Swiss audio-visual production, namely films;
(f) particularly consider European productions.”
Section 11 § 1 mentions various conditions for the granting of a licence, inter alia, the conditions stated in Section 3 § 1; that the applicant must be a person with Swiss citizenship and residence in Switzerland, or a company with its seat in Switzerland; and that the applicant must disclose the financial situation. Para. 2 of Section 11 states:
“If for the particular broadcasting area a number of applications have been submitted simultaneously, that applicant shall be preferred whose programmes have the largest share of auto-productions and who contributes most to the plurality of informations or culture and has the strongest connection with the broadcasting area.”
Section 99 § 1 (d) of the Federal Judiciary Act (Bundes-rechtspflegegesetz) provides:
“1 The administrative law appeal shall be inadmissible against:
...
(d) the granting or the refusal of concessions, in respect of which there is no entitlement under Federal law ...”
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that they had no access to a court which decided on their application for a concession. They submit that the matter resembled the granting of a professional licence and therefore concerned a “civil right” within the meaning of this provision. It is further pointed out that the Head of the Federal Department of Justice, which took the decision of 26 March 1997, was also one of the seven members of the Federal Council, i.e. the Swiss Government, which took the decision of 1 July 1998.
2. Under Articles 8 and 10 of the Convention they complain that they were refused the concession, although the authorities themselves admitted that there were still vacant frequencies.
THE LAW
1. The applicants complain under Article 6 § 1 of the Convention that they did not have access to a court. This provision states, insofar as relevant:
"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by a tribunal ...”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. Under Article 10 of the Convention the applicants complain that they were refused the concession. This provision states:
"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 Court recalls that a licensing system, such as established by the Swiss Radio and Television Act, is compatible with the Convention. However, its application must comply with the requirements in particular of Article 10 of the Convention (see the judgment of Informationsverein Lentia and Others v. Austria of 24 November 1993, Series A no. 276, p. 14, § 32). Thus, the refusal to grant the licence amounts to an interference with the applicants’ right under Article 10 of the Convention to freedom of information. The Court’s task is to examine whether this interference was justified by the conditions stated in § 2 of Article 10.
The Court notes that the authorities concerned, in particular the Federal Department for Justice and Police, referred in its decision of 26 March 1997 to Sections 3 and 11 §§ 1 and 2 of the Federal Radio and Television Act. The measure was, therefore, “prescribed by law” within the meaning of Article 10 § 2 of the Convention.
The Court furthermore recalls its case-law according to which the granting and refusal of a broadcasting licence may be made dependent under the third sentence of Article 10 § 1 of the Convention, inter alia, on such criteria as the nature and objectives of a proposed station and the rights and needs of a specific audience (see the Informationsverein Lentia and Others judgment cited above, p. 14, § 32). These criteria, which also in the present case lay at the basis of the decisions of the domestic authorities, serve as the legitimate aim required under Article 10 § 2 of the Convention (see the judgment cited above, p. 15, § 33).
Finally, in establishing whether the measure was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention, the Court recalls the fundamental role of freedom of expression in a democratic society, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive. Such a role cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor. These observations are especially valid in relation to audio-visual media. In such matters, however, Contracting States enjoy a margin of appreciation in assessing the need for an interference, though this margin goes hand in hand with European supervision, whose extent will vary according to the circumstances (see the judgment cited above, pp. 15-16, §§ 35, 38).
In the present case, the Court notes at the outset that only one frequency was available. As the domestic authorities pointed out in their decisions, other allegedly vacant frequencies could either not be used on account of interferences, or were already occupied by other radio stations.
Furthermore, in refusing to attribute the available frequency to the applicants, it does not appear unreasonable if the domestic authorities considered, inter alia, that in the area covered by the broadcasting concession there existed already different radio stations catering for young persons, whereas the radio station which eventually obtained the concession, aiming at the entire population and broadcasting music from different world regions as well as news in different languages, contributed to the integration of different segments of society.
Having regard to the margin of appreciation which is left to States in such matters and to the care with which the domestic authorities balanced the various interests, the Court finds that the interference with the applicants rights under Article 10 of the Convention was proportionate to the aims pursued and could, therefore, reasonably be considered “necessary in a democratic society” within the meaning of § 2 of this provision.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
3. Insofar as the applicants raise complaints under Article 8 of the Convention, the Court finds no issue under this provision. It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint under Article 6 § 1 of the Convention about lack of access to court;
Declares inadmissible the remainder of the application.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy