CASE OF TELE 1 PRIVATFERNSEH v. AUSTRIA
Violation of Art. 10 as regards the first period;No violation of Art. 10 as regards the second period;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
8. The applicant is a limited liability company with its seat in Vienna. On 30 November 1993 it applied to the Telecommunications Office (Fernmeldebüro, ‘the Telecommunications Office’) for Vienna, Lower Austria and Burgenland for a licence to set up and operate a television transmitter in the Vienna area. 9. On 1 June 1994 the Telecommunications Office dismissed the applicant’s request. It referred to the Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, 'the Constitutional Broadcasting Law'), which provides that broadcasting shall be authorised by federal legislation and noted that such legislation had only been enacted in respect of the Austrian Broadcasting Corporation (Österreichischer Rundfunk, ‘the ORF’) and within the field of regional radio broadcasting. However, no legislation had been adopted in respect of regional television. It followed that the authorisation could not be granted. 10. On 1 December 1994 the Federal Ministry of Public Economy and Transport (Bundesministerium für öffentliche Wirtschaft und Verkehr) dismissed the applicant's appeal. 11. On 14 December 1994 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). Referring to the judgment by the European Court of Human Rights in the case of Informationsverein Lentia and Others v. Austria (of 24 November 1993, Series A no. 276), the applicant argued that the Ministry's decision was in breach of its right to freedom of expression as guaranteed by Article 10 of the Convention. In particular, it submitted that the Constitutional Broadcasting Law, if interpreted in a way compatible with Article 10, allowed everyone to broadcast freely unless restrictions were laid down by law. As no law regulating private television broadcasting had been enacted, the refusal of an authorisation to set up and operate a television transmitter lacked a legal basis. Alternatively, if one followed the approach of the Constitutional Court’s judgment of 16 December 1983, namely that any broadcasting had to be explicitly authorised by federal legislation, the current legal situation was unconstitutional as the legislator had failed to enact legislation except for the ORF and private regional radio broadcasting. 12. On 5 March 1996 the Constitutional Court dismissed the applicant's complaint. Confirming its decision of 16 December 1983, it repeated that, according to the Constitutional Broadcasting Law, broadcasting had to be authorised by federal legislation. So far federal legislation had been enacted for radio and television broadcasting by the ORF and for terrestrial broadcasting of regional radio programs. The Broadcasting Ordinance (Rundfunkverordnung) contained the legal basis for passive and, following the Constitutional Court's judgment of 27 September 1995, also active cable broadcasting of radio and television programs as of 1 August 1996. However, no legislation had been enacted for terrestrial broadcasting of television programs, apart from the legislation referring to the ORF. As a result of this legal situation other broadcasters than the ORF were not allowed to organise terrestrial television broadcasting. 13. The Constitutional Court observed that, in the present case, this licensing system was directly prescribed by constitutional law and therefore not subject to review by the Constitutional Court. Moreover, the unlawfulness of terrestrial broadcasting of television programs by private broadcasters originated from the legislator's failure to enact the corresponding implementing legislation. Since this failure was comprehensive and did not only refer to specific areas or questions, the Constitutional Court had no power to review the constitutionality of the legislator's failure to enact the implementing legislation. Only the European Court of Human Rights was competent to find in a legally binding way whether or not the impossibility of terrestrial television broadcasting by stations other than the ORF was in breach of the Convention. 14. According to the Telecommunications Law (Fernmeldegesetz) of 13 July 1949 the "right to set up and operate telecommunications installations 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). The Telecommunications Law of 13 July 1949 was annulled by the 1993 Telecommunications Act (section 48 in conjunction with section 53 (1)) with effect of 1 April 1994. According to section 49 (2) of the 1993 Telecommunications Act, the 1949 Telecommunications Law continued to apply to requests for setting up and operating telecommunications installations which were made before its entry into force. 15. Section 20 (1) of the 1965 Broadcasting Ordinance provides that radio signals must be retransmitted in full to users immediately after being picked up. Under section 24a of the Ordinance, in the amended version in force since 31 July 1993 (Official Gazette - Bundesgesetzblatt - no. 507/1993) the bearers of a licence to operate a shared aerial may, without having to seek further permission, send text via the cable network, using their own equipment (paragraph 1). By means of this type of teletext it is possible, inter alia, to impart information to the members of a community or the population of a region in the form of alphanumeric symbols, other graphical signs or pages of teletext. This is an additional service provided to subscribers. These provisions were set aside by the Constitutional Court's judgment of 27 September 1995 (see paragraph 21 below). 16. According to Article 1 of the Constitutional Broadcasting Law "... 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. “ 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 (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. 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. 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, 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. 19. On 8 July 1992 the Administrative Court decided that the Constitutional Broadcasting Law of 10 July 1974 did not cover “passive” broadcasting via cable, in other words the broadcasting in their entirety by cable of programmes picked up by an aerial. Consequently, the mere fact that such programmes originated from a foreign station and were directed principally or exclusively at an Austrian audience could not constitute grounds for refusing the licence necessary for this type of operation. 20. The Regional Broadcasting Law of 9 July 1993 (Regionalradio-gesetz), which came into force on 1 January 1994, governs the licensing of local and regional terrestrial radio stations. It provides for the allocation of one regional radio licence for each of the Länder and of two such licences for Vienna and for the allocation of local radio licences as required by local demand (section 2). Any programme has to comply with the principles of objectivity and diversity of opinions (section 4). 21. In a judgment of 27 September 1995 the Constitutional Court set aside with effect from 1 August 1996, a passage in the second sentence of section 20 (1) of the Broadcasting Ordinance and its section 24a, i.e. the rules limiting cable distribution to the retransmission of programmes produced by others ("passive cable broadcasting") and the transmission of text, on the ground that it was contrary to Article 10 of the Convention. In that connection the Constitutional Court referred explicitly to the judgment given by the European Court of Human Rights on 24 November 1993 in the case of Informationsverein Lentia and Others v. Austria (loc. cit.). Since 1 August 1996 the transmission via cable of original programmes ("active cable broadcasting") has accordingly been legal, just as passive cable broadcasting already was. 22. The 1997 Cable and Satellite Broadcasting Act (Kabel- und Satelliten-Rundfunkgesetz), which entered into force on 1 July 1997, provides that satellite broadcasting requires a licence by the Broadcasting Authority (section 3 (1)). Cable broadcasting has to be notified to the authority. The notification has to show that the requirements of sections 5 and 6 are complied with (section 4 (1) and (2)). Cable and satellite broadcasters have to be Austrian nationals or legal persons with seat in Austria (section 5 (1)). Certain legal persons such as public law institutions, the political parties and the ORF are excluded from cable and satellite broadcasting (section 5 (2)). The owners of domestic or foreign daily newspapers or weekly periodicals are also excluded from cable and satellite broadcasting (section 6 (1)). When filing a request for a satellite broadcasting licence, the applicant has to show that the requirements of sections 5 and 6 are complied with (section 8 (1)). Further, except where the programme will specialise in a particular area, the applicant has to show that it will comply with the following requirements. It has to respect the principles of objectivity and diversity of opinions and shall reflect public, cultural and economic life of the broadcasting area in an adequate way. Further, it shall give relevant groups of society as well as relevant organisations a possibility to express their opinions (section 8 (2) and section 14).