CASE OF RADIO ABC v. AUSTRIA

1. The case was referred to the Court on 28 August 1996 by the Government of the Republic of Austria (“the Government”) and by Radio ABC (Verein Alternative Broadcasting Corporation – “Radio ABC” ), an association under Austrian law, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 19736/92) against Austria lodged by Radio ABC with the European Commission of Human Rights (“the Commission”) under Article 25 on 30 December 1991.
The applications of the Government and Radio ABC referred to Article 48 of the Convention, as amended in respect of Austria by Protocol No. 9. The object of the applications was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.
2. In response to the enquiry made in accordance with Rule 35 § 3 (d) of Rules of Court B, the applicant association designated the lawyer who would represent it. The lawyer was given leave by the President to use the German language (Rule 28 § 3).
3. The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4). On 2 September 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr B. Walsh, Mr N. Valticos, Sir John Freeland, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr K. Jungwiert and Mr P. Kūris (Article 43 in fine of the Convention and Rule 21 § 5).
4. As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the Government’s memorial on 21 February 1997 and the applicant’s memorial on 26 and 27 February. On 7 May 1997 the Commission produced certain documents from the proceedings before it, as requested by the Registrar on the President’s instructions. At the hearing Radio ABC’s lawyer submitted a bill of costs in addition to the claims already submitted under Article 50 of the Convention.
5. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 May 1997. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the GovernmentMr W. Okresek, Head of the Constitutional Service, Federal Chancellery, Agent;
(b) for the CommissionMr B. Marxer, Delegate;
(c) for the applicantMr H. Wille, Rechtsanwalt (lawyer), of the Vienna Bar, Counsel.
The Court heard addresses by Mr Marxer, Mr Wille and Mr Okresek.
6. Subsequently, Mr Thór Vilhjálmsson, substitute judge, replaced Mr Walsh, who was unable to take part in the further consideration of the case.
7. Radio ABC is a non-profit-making association whose registered address is in Vienna. On 28 August 1989 it applied to the Post and Telecommunications Regional Head Office ( Post- und Telegraphendirektion ) for Vienna, Lower Austria and Burgenland for a licence to set up and operate a radio station and for allocation of a frequency on which it could broadcast programmes to the Vienna region.
8. On 9 January 1990 the Regional Head Office refused the above application. Relying on the Constitutional Law guaranteeing the independence of broadcasting (“the Constitutional Broadcasting Law”, see paragraph 16 below), which provided that activities of this type had to be authorised by federal legislation, it noted that such legislation had been enacted only in respect of the Austrian Broadcasting Corporation ( Österreichischer Rundfunk, “the ORF ”). Consequently, only the latter could operate in the field concerned.
9. On 25 September 1990 the Post and Telecommunications National Head Office ( Generaldirektion für die Post- und Telegraphenverwaltung ) dismissed an appeal by the applicant. It observed in particular that in its judgment of 16 December 1983 the Constitutional Court ( Verfassungsgerichtshof ) had held that the ORF ’s monopoly was compatible with Article 10 of the Convention (see paragraph 18 below).
10. Radio ABC then applied to the Constitutional Court, arguing in particular that the National Head Office’s decision was in breach of Article 10 of the Convention. It accepted that Article 10 permitted Contracting States to require the licensing of broadcasting enterprises, but submitted that since no such procedure had been laid down in Austrian law everyone had the right to broadcast freely.
11. On 30 September 1991 the Constitutional Court refused to consider the application, holding that, regard being had to its judgment of 16 December 1983, this did not have sufficient prospects of success.
12. After the entry into force, on 1 January 1994, of the Regional Broadcasting Law (see paragraph 19 below), the applicant association lodged two applications on 17 April 1994 in each of which it asked to be allocated one of the two frequencies reserved for private broadcasters in the Vienna region. On 25 January 1995 the Regional Broadcasting Authority ( Regionalradiobehörde ) gave two separate decisions refusing these applications on the ground that, regard being had to the requirements of section 20 (2) of the Regional Broadcasting Law, Radio ABC’s programmes were too specialised for it to be able to give them priority over those of other applicants. Radio ABC then appealed against these decisions to the Constitutional Court.
13. As several other appeals of the same type had been lodged with it, the Constitutional Court began proceedings of its own motion, on 3 May 1995, to review the constitutionality of section 2 (1) to (3) and (5) of the Regional Broadcasting Law (see paragraph 19 below). On 27 September 1995 it annulled, with immediate effect, these provisions and the frequency allocation plan based on them (see paragraph 20 below), thereby invalidating the decisions concerning the appellants taken by the Regional Broadcasting Authority. The Constitutional Court held that the annulled provisions contravened the principle of legality ( Legalitätsprinzip ), since the conditions for their application were not indicated with sufficient precision. As a result, it continued, there was no longer any legal basis on which operating licences could be granted to radio stations, so that a situation incompatible with the Convention had been brought into being.
A. The Telecommunications Law of 13 July 1949
14. According to the Telecommunications Law ( Fernmeldegesetz ) of 13 July 1949, “the right to set up and operate telecommunications installations ( Fernmeldeanlagen ) is vested exclusively in the federal authorities ( Bund )” (section 2 (1)). The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations (section 3 (1)). No licence is required in certain circumstances, including the setting up of an installation within the confines of a private property (section 5).
B. The Ministerial Ordinance of 18 September 1961 concerning private telecommunications installations
15. The Ministerial Ordinance of 18 September 1961 concerning private telecommunications installations ( Verordnung des Bundesministeriums für Verkehr und Elektrizitätswirtschaft über Privatfernmeldeanlagen ) lays down, inter alia, the conditions for setting up and operating private telecommunications installations subject to federal supervision. According to the case-law, it cannot however constitute the legal basis for the grant of licences.
C. The Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting
16. According to section 1 of 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
17. The Law of 10 July 1974 on the Austrian Broadcasting Corporation ( Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks ) established the Austrian Broadcasting Corporation with the status of an autonomous public-law corporation.
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 (section 2 (1) (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (section 3). Broadcasting time must be allocated to the political parties represented in the national parliament and to representative associations (section 5 (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 (sections 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 Constitutional Court ’s judgment of 16 December 1983
18. In a judgment of 16 December 1983 the Constitutional Court held 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 of the Convention ( Gesetzesvorbehalt ). The Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence 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 ORF, as no implementing legislation had been enacted in addition to the law governing that organisation (see the Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, pp. 8–9, § 10).
F. The Regional Broadcasting Law of 1993
19. The Regional Broadcasting Law of 9 July 1993 ( Regionalradiogesetz ), which came into force on 1 January 1994, governs the licensing of local and regional radio stations. Before the judgment of 27 September 1995 (see paragraph 13 above) section 2 provided:
“1. In agreement with the General Purposes Committee of the National Assembly ( Hauptausschuß des Nationalrates ), the Federal Minister for Economic Affairs and Transport shall, by means of an ordinance (the frequency allocation plan – Frequenznutzungsplan ), allocate terrestrial sound radio broadcasting capacities ( drahtlose terrestrische Übertragungskapazitäten für Hörfunk ), defined in terms of frequency and broadcasting location, to the Austrian Broadcasting Corporation and radio stations ( Programmveranstalter ).
2. In making the above allocation, the Federal Minister for Economic Affairs and Transport shall ensure:
(1) that there is no impediment to performance by the Austrian Broadcasting Corporation of the tasks imposed on it by law in the field of sound radio broadcasts;
(2) that radio stations are able to reach the widest possible audience within any one Land; and
(3) that attention is paid to the needs of local sound radio.
3. In the above-mentioned frequency allocation plan the Federal Minister for Economic Affairs and Transport shall, after consulting the Länder concerned and in agreement with the General Purposes Committee of the National Assembly, assign in accordance with paragraph 2, sub-paragraphs 2 and 3, each of the frequencies and broadcasting locations available for use by radio stations to an individual licence to broadcast within the Länder. In so doing he shall have particular regard to local topography, population density, technical parameters and Austria ’s international obligations in the field of telecommunications.
5. In urgent individual cases the telecommunications authorities ( Fernmeldebehörde ) may take decisions at variance with the frequency allocation plan, provided that within six months the plan is modified accordingly in conformity with paragraph 3.”
Section 4 requires the programmes of private radio stations to respect the principles of objectivity and diversity of opinion and to reflect the public, cultural and economic life of the region in which they are broadcast. Section 13 instituted regional broadcasting authorities ( Regional-radiobehörde ). Under section 20 (2), where a number of private broadcasters satisfying the statutory conditions apply for a licence, the regional broadcasting authority must give priority to the one which comes closest to achieving the objectives laid down in the Law, for example by reflecting a greater diversity of opinion.
20. On 27 September 1995 the Constitutional Court declared paragraphs 1 to 3 and 5 of section 2 null and void; accordingly, the frequency allocation plan based on them was likewise void.
21. On 1 May 1997 the amendments replacing the annulled provisions came into force.
PROCEEDINGS BEFORE THE COMMISSION
22. The applicant association applied to the Commission on 30 December 1991. It alleged that the refusal to grant it an operating licence constituted an unjustified interference with its right to impart information and was in breach of Article 10 of the Convention.
23. The Commission (First Chamber) declared the application (no. 19736/92) admissible on 18 October 1995. In its report of 11 April 1996 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 10. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4].
24. In its memorial the applicant association asked the Court to
“hold that the Austrian authorities’ decisions ... and the Austrian Constitutional Court ’s judgment of 30 September 1991 ... either wholly or partly breach Austria ’s obligations under the European Convention on Human Rights”.
25. In their memorial the Government made the following submission:
“In respect of these considerations and of the fact that the applicant association has no absolute right under Article 10 of the Convention to be granted a broadcasting licence, the Austrian Federal Government are of the opinion that there has been no breach of Article 10 of the Convention.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
26. The applicant association complained that it had been unable to obtain a broadcasting licence, contrary to Article 10 of the Convention, which provides:
“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.”
27. The Court notes that the restriction complained of amounts to an “interference” with the applicant association’s exercise of its freedom to impart information and ideas; that was not contested, moreover, by any of the participants in the proceedings. Accordingly, only the question whether the restriction was justified arises.
28. In its Informationsverein Lentia and Others v. Austria judgment the Court held that, through the supervisory powers over the media it conferred on the authorities, the monopoly system operated in Austria was capable of contributing to the quality and balance of programmes and was consistent with the third sentence of paragraph 1 of Article 10 (judgment of 24 November 1993, Series A no. 276, p. 15, § 33). Nevertheless, as in that judgment, it remains to be determined whether in the instant case the system concerned also satisfied the relevant conditions of paragraph 2 of Article 10.
29. The interference complained of was – and this was not disputed by any of the participants in the proceedings – “prescribed by law”. Its aim has already been held by the Court to be a legitimate one (see paragraph 28 above). On the other hand, a problem arises in connection with the question whether the interference was “necessary in a democratic society”.
30. In assessing the need for an interference the Contracting States enjoy a margin of appreciation, but that margin goes hand in hand with European supervision. Where, as in the present case, there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict because of the importance – frequently stressed by the Court – of the rights in question. The necessity for any restriction must be convincingly established (see, among other authorities, the Informationsverein Lentia and Others judgment cited above, p. 15, § 35).
In order to determine whether that is so in the present case, the Court will consider each of four different periods separately.
(a) First period: from the application to the Post and Telecommunications Regional Head Office (28 August 1989) to the entry into force of the Regional Broadcasting Law (1 January 1994)
31. The Court notes that during this first period there was no legal basis whereby an operating licence could be granted to any station other than the Austrian Broadcasting Corporation. In that respect the situation of Radio ABC was therefore no different from that of the applicants in the Informationsverein Lentia and Others case mentioned above. Moreover, the participants in the proceedings agreed on that point.
Accordingly, there was a breach of Article 10 during the period in question.
(b) Second period: from the entry into force of the Regional Broadcasting Law (1 January 1994) to the Constitutional Court ’s judgment declaring certain provisions of that Law null and void (27 September 1995)
32. The Government emphasised that Parliament’s intention in adopting the Regional Broadcasting Law (see paragraph 19 above) had been to draw the consequences for Austria of the Informationsverein Lentia and Others judgment cited above, but submitted that this judgment had not established an unconditional right for every radio station to obtain a broadcasting licence. On the contrary, it had recognised the State’s responsibility to preserve diversity of opinions and the objectivity and impartiality of the media, and consequently the need to impose, for that purpose, certain restrictions on freedom of expression. That was why the operating licence sought by the applicant association had been refused.