CASE OF INFORMATIONSVEREIN LENTIA AND OTHERS v. AUSTRIA
(Application no. 13914/88; 15041/89; 15717/89; 15779/89; 17207/90)
24 November 1993
In the case of Informationsverein Lentia and Others v. Austria*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention")** and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mrs E. Palm,
Mr F. Bigi,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 29 May and 28 October 1993,
Delivers the following judgment, which was adopted on the last-mentioned date:
There appeared before the Court:
- for the Government
Mr F. Cede, Ambassador,
Legal Adviser at the Ministry of Foreign Affairs, Agent,
Mrs S. Bernegger, Federal Chancellery, Adviser;
- for the Commission
Mr J.A. Frowein, Delegate;
- for the applicants
Mr D. Böhmdorfer, Rechtsanwalt,
Mr W. Haslauer, Rechtsanwalt,
Mr T. Höhne, Rechtsanwalt,
Mr G. Lehner, Rechtsanwalt,
Mr H. Tretter, Counsel.
The Court heard addresses by the above-mentioned representatives, as well as their replies to its questions.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
A. Informationsverein Lentia
The National Head Office rejected the application on 23 November 1979. In its view, Article 1 para. 2 of the Constitutional Law guaranteeing the independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, "the Constitutional Broadcasting Law", see paragraph 19 below) had vested in the federal legislature exclusive authority to regulate this activity; it had exercised that authority only once, by enacting the Law on the Austrian Broadcasting Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks, see paragraph 20 below). It followed that no other person could apply for such licence as any application would lack a legal basis. Furthermore there had been no violation of Article 10 (art. 10) of the Convention since the legislature - in its capacity as a maker of constitutional laws (Verfassungsgesetzgeber) - had merely availed itself of its power to set up a system of licences in accordance with the third sentence of paragraph 1 (art. 10-1).
It took the view that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph 1 in fine and paragraph 2 of Article 10 (art. 10-1, art. 10-2) (Gesetzesvorbehalt). Accordingly, an administrative decision could infringe that provision only if it proved to have no legal basis, or its legal basis was unconstitutional or again had been applied in an arbitrary manner (in denkunmöglicher Weise an[ge]wendet). In addition, the Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence (Konzession) by the federal legislature. This system was intended to ensure objectivity and diversity of opinions (Meinungsvielfalt), and would be ineffective if it were possible for everybody to obtain the requisite authorisation. As matters stood, the right to broadcast was restricted to the Austrian Broadcasting Corporation (Österreichischer Rundfunk, ORF), as no implementing legislation had been enacted in addition to the law governing that organisation.
Contrary to its assertions, the first applicant had in fact intended to broadcast within the meaning of the constitutional law, because its programmes were to be directed at a general audience of variable composition. The broadcasting law therefore provided a legal basis for the decision in issue.
Consequently, the Constitutional Court rejected the complaint and remitted it to the Administrative Court.
B. Jörg Haider
C. Arbeitsgemeinschaft Offenes Radio (AGORA)
D. Wilhelm Weber
E. Radio Melody GmbH
II. THE RELEVANT DOMESTIC LAW
A. The Telecommunications Law of 13 July 1949 ("Fernmeldegesetz")
B. The Ministerial Ordinance of 18 September 1961 concerning private telecommunications installations ("Verordnung des Bundesministeriums für Verkehr und Elektrizitätswirtschaft über Privatfernmeldeanlagen")
C. The Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting ("Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks")
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."
D. The Law of 10 July 1974 on the Austrian Broadcasting Corporation ("Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks")
It is under a duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (Article 2 para. 1 (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (Article 3). Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations (Article 5 para. 1).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all disputes concerning the application of the above-mentioned law which fall outside the jurisdiction of an administrative authority or court (Articles 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government.
E. The case-law concerning "passive" cable broadcasting
F. Subsequent developments
PROCEEDINGS BEFORE THE COMMISSION
(a) that there had been a violation of Article 10 (art. 10) (unanimously as regards the first applicant and by fourteen votes to one for the others);
(b) that it was not necessary also to examine the case from the point of view of Article 14 (art. 14) (unanimously as regards the first applicant and by fourteen votes to one for the third applicant).
The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment*.
THE GOVERNMENT’S FINAL SUBMISSIONS
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
"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 (art. 10) 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 contested this claim, whereas the Commission in substance accepted it.
In this connection the fact that Mr Haider and Mr Weber never applied for a broadcasting licence (see paragraphs 12 and 15 above) is of no consequence; before the Commission the Government accepted that those two applicants could be regarded as victims and the Government did not argue to the contrary before the Court.
A. Paragraph 1, third sentence (art. 10-1)
This may lead to interferences whose aims will be legitimate under the third sentence of paragraph 1, even though they do not correspond to any of the aims set out in paragraph 2. The compatibility of such interferences with the Convention must nevertheless be assessed in the light of the other requirements of paragraph 2.
B. Paragraph 2 (art. 10-2)
In opting to keep the present system, the State had in any case merely acted within its margin of appreciation, which had remained unchanged since the adoption of the Convention; very few of the Contracting States had had different systems at the time. In view of the diversity of the structures which now exist in this field, it could not seriously be maintained that a genuine European model had come into being in the meantime.
As a result of the technical progress made over the last decades, justification for these restrictions can no longer today be found in considerations relating to the number of frequencies and channels available; the Government accepted this. Secondly, for the purposes of the present case they have lost much of their raison d’être in view of the multiplication of foreign programmes aimed at Austrian audiences and the decision of the Administrative Court to recognise the lawfulness of their retransmission by cable (see paragraph 21 above). Finally and above all, it cannot be argued that there are no equivalent less restrictive solutions; it is sufficient by way of example to cite the practice of certain countries which either issue licences subject to specified conditions of variable content or make provision for forms of private participation in the activities of the national corporation.
II. APPLICATION OF ARTICLE 50 (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
The Court examined the applicants’ claims in the light of the observations of the participants in the proceedings and the criteria laid down in its case-law.
They based their claims on the assumption that they would not have failed to obtain the licences applied for if the Austrian legislation had been in conformity with Article 10 (art. 10). This is, however, speculation, in view of the discretion left in this field to the authorities, as the Delegate of the Commission correctly pointed out. No compensation is therefore recoverable under this head.
B. Costs and expenses
The Government took the view that the first of those amounts was reasonable and that it should, however, in their view, be increased to 165,000 schillings to take account of the proceedings before the Court.
Making an assessment on an equitable basis, the Court awards 165,000 schillings each to the applicants "Informationsverein Lentia", "AGORA" and "Radio Melody", for the proceedings conducted in Austria and in Strasbourg. Mr Haider and Mr Weber, who appeared only before the Convention institutions, are entitled to 100,000 schillings each.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 10 (art. 10);
2. Holds that it is not necessary also to examine the case under Article 14 read in conjunction with Article 10 (art. 14+10);
3. Holds that Austria is to pay, within three months, in respect of costs and expenses, 165,000 (one hundred and sixty-five thousand) Austrian schillings to each of the applicants "Informationsverein Lentia", "AGORA" and "Radio Melody", and 100,000 (one hundred thousand) Austrian schillings each to the applicants Haider and Weber;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 24 November 1993.
* The case is numbered 36/1992/381/455-459. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.
* Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 276 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.