AS TO THE ADMISSIBILITY OF
Application no. 6754/05
by 92.9 HIT FM RADIO GMBH
The European Court of Human Rights (First Section), sitting on 30 September 2010 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
André Wampach, Deputy Section Registrar.
Having regard to the above application lodged on 16 February 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,
Having deliberated, decides as follows:
The applicant company, 92.9 Hit FM Radio GmbH, is a limited liability company with its registered office in Vienna. It was represented by Mr C. Ebert, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 December 1997 the Regional Radio and Cable Broadcasting Authority (Regionalradio- und Kabelrundfunkbehörde, – “the RRCBA”) decided to award a licence for a local radio station for the Vienna no. 1 area (one out of a total of four licences for the Vienna area) under the Regional Radio Broadcasting Act (Regionalradiogesetz – “the RRBA”). The licence was awarded to the applicant company, then called K4 Privatradio GmbH, and was issued for seven years, starting on 1 April 1998 and terminating on 31 March 2005. At that time the applicant company was owned by ten shareholders, each owning between 25.1% and 0.9% of the shares. At the same time the RRCBA dismissed applications for the same licence from eleven competitors of the applicant company. This decision was served on all parties and contained the information that a complaint could be filed against the decision with the Constitutional Court within six weeks after the decision had been served.
By 22 January 1998 five of the applicant company's fellow applicants for the licence had filed complaints with the Constitutional Court. They argued, inter alia, that the granting of the licence to the applicant company was in breach of Article 10 of the Convention, and asked for a review of the provisions on the establishment of the RRCBA, arguing that those rules were unconstitutional. They also applied for their complaints to have suspensive effect
On an unspecified date the applicant company, assisted by counsel, commented on the complaints and opposed the request for suspensive effect.
On 3 March 1998 the Constitutional Court refused to grant suspensive effect.
On 1 April 1998 the applicant company started to broadcast its radio programmes.
On an unspecified date the Constitutional Court opened proceedings for review of the constitutionality of section 13 RRBA.
In 1999, following an amendment of the RRBA dated 1 August 1999, the applicant company's licence was extended to a total duration of ten years, that is, until 31 March 2008.
On 29 June 2000 the Constitutional Court quashed section 13 RRBA, on which the establishment of the RRCBA was based. It held that the RRCBA was a special type of administrative authority, namely one whose members included a judge, which rendered all its members independent and not subject to instructions (weisungsfreie Verwaltungsbehörde mit richterlichem Einschlag). Only in exceptional circumstances, in particular if the authority was an instance of appeal, could authorities of this kind be held to be constitutional. Since the RRCBA was the only instance to decide on the granting of the licence and no complaint to the administrative courts was allowed by the RRBA, there was insufficient review of the lawfulness of its decisions. Accordingly, section 13 RRBA was unconstitutional.
Subsequently, on 28 September 2000, the Constitutional Court also quashed the RRCBA's decision of 5 December 1997 on the grounds that it had been rendered by an unconstitutional authority.
In the meantime, on 12 July 2000, the RRBA had been amended and the Private Broadcasting Authority (Privatrundfunkbehörde – “the PBA”), a provisional authority set up to replace the RRCBA, was established.
On 19 December 2000 the PBA granted the applicant company a provisional licence for six months, in order to give it the opportunity to continue broadcasting while fresh proceedings for the award of a broadcasting licence were conducted.
The RRBA was replaced by the new Private Radio Act (Privatradiogesetz – “the PRA”) on 6 March 2001; on 30 March 2001 the Act establishing the Communications Authority Austria (KommAustria Gesetz – “the CAAA”) was adopted.
On 18 June 2001 the Communications Authority Austria (Kommuni-kationsbehörde Austria – “the CAA”), which had replaced the former PBA, granted the licence for a local radio station for the Vienna no. 1 area to company D. and dismissed the licence applications of the other six participants, including the applicant company. The CAA examined the company structure and proposed programme content of each of the participants. It found that company D. provided a coherent package of radio programmes for an older audience, focusing on local news and Schlager music (German-language easy-listening music). Since this age group was underrepresented in the current radio landscape the application was given precedence. The granting of the licence to this broadcaster was therefore in the interests of plurality of the media landscape.
As regards the other applicants for the licence, the CAA noted that the shareholder structure of the applicant company had changed fundamentally since its first application for the radio broadcasting licence at issue, as it was now owned by one company and one foundation, both belonging to the Krone media group. The Krone media group, besides owning several print media, was a shareholder in companies holding radio broadcasting licences. The Krone media group operated, under the name Krone Hit Radio, Austria's first nationwide private radio station, consisting of twelve local broadcasters and covering an area of approximately five million inhabitants. As regards the Vienna area, one company belonging to that group already operated another radio station in Vienna and it was not in the interests of plurality for the same area to be covered by two radio broadcasting stations belonging to the same media group.
In comparison to the applicant company, company D. was more independent, because none of its shareholders was active in the radio or print industry in Vienna and it could therefore better contribute to plurality of opinion. Furthermore, company D. provided for a larger number of self-produced programmes, although it would have to purchase world news from another provider at the beginning. Although the applicant company produced its own news, it would still provide fewer self-produced programmes.
The applicant company stopped broadcasting and operating the next day.
On 29 June 2001 the applicant company appealed. It argued that the authority had incorrectly calculated the percentage of its shares held directly and indirectly by the various companies belonging to the Krone media group. It had also incorrectly applied the law because section 6(2) PRA, which stated that the authority should “take into account whether one of the applicants has already made use of the licence to be granted” should have priority over any other criterion for granting a radio broadcasting licence. Four other unsuccessful applicants for the licence also appealed.
On 14 December 2001 the Federal Communications Panel (Bundeskommunikationssenat – “the FCP”) dismissed all the appeals. It found that the CAA had described in detail the organisational set-up of the different applicants for the licence, their respective owners in the case of shareholder-owned companies and their previous experience in the field of broadcasting. The CAA had concluded that a group of participants including the applicant company met the basic professional, organisational and financial requirements of the PRA as regards their structure and the proposed programme content. Therefore the CAA had had to decide which participant out of this group was the best suited on the basis of the criteria set out under section 6 PRA. This had been the one which, within the licence area, would best fulfil the requirements of plurality of opinion through its range of programmes and which offered a greater number of self-produced programmes (Beiträge). One further element which had to be taken into account was whether an applicant for a licence had used a licence previously granted in accordance with the law. The CAA had taken this element sufficiently into account.
On 25 January 2002 the applicant company filed a complaint with the Constitutional Court in which it complained about breaches of the principle of equality, of its right to peaceful enjoyment of its possessions and of its right to freedom of expression. It submitted in particular that the Austrian authorities had grossly misinterpreted section 6(2) of the PRA as, in the applicant's view, the fact that a company had already held a broadcasting licence should be taken as the decisive criterion when issuing a further licence.
On 25 September 2002 the Constitutional Court dismissed the applicant company's complaint and, 'at its request, transferred the case to the Administrative Court. It found, inter alia, that the criteria set forth in section 6 of the PRA were sufficiently precise and therefore were not in contradiction with the principle of legality. Moreover, the decision taken by the authority had not been arbitrary. If the competent authority could only grant one licence and therefore had to make a choice between several applicants, all of which satisfied the basic criteria, it had to explain in detail the reasons for its choice. The competent authority had done so properly and without making a mistake sufficiently serious to raise an issue under constitutional law (ein in die Verfassungssphäre reichender Irrtum).
On 18 November 2002 the applicant company supplemented its complaint to the Administrative Court.
The Administrative Court dismissed the complaint on 15 September 2004. It held that section 6(2) of the PRA did not oblige the authority to grant the licence to the previous holder, but that the provision in question was just one element amongst others in the decision-making process. The authority's decision to put more emphasis on protecting diversity of opinion than on protecting the economic interests of previous licence holders was therefore in conformity with the law. In the interests of media diversity it was not in accordance with the aim and wording of the PRA, where there was a choice between several suitable applicants, for the licence to be awarded to one which had already broadcast in the licence area as part of a media group (Medienverband).
B. Relevant domestic law
1. The Regional Radio Broadcasting Act 1993
Section 13 of the Regional Radio Broadcasting Act, published in Federal Law Gazette (Bundesgesetzblatt) 506/1993 (Regionalradiogesetz), in so far as relevant, reads as follows:
“(1) The Regional Radio and Cable Broadcasting Authority shall be established within the Federal Chancellery as a twelve-member collegiate body comprising the members appointed in accordance with paragraph 4 plus one judge. The members shall be experts in the field, with at least five years' proven experience in the media or administrative sectors.
(2) In accordance with Article 20 § 2 of the Constitution, the members of the Regional Radio and Cable Broadcasting Authority shall not be subject to any instructions or directions in the performance of their duties.
(3) The members of the Authority appointed in accordance with paragraph 4, and the judge member, shall be appointed by the Federal President on a proposal from the Federal Government. Their term of office shall be five years.
(11) The Regional Radio and Cable Broadcasting Authority shall rule at last instance. Its decisions may not be set aside or varied in administrative proceedings.”
Section 13 of the Regional Radio Broadcasting Act was amended on 12 July 2000 and the Private Broadcasting Authority (Privatrundfunkbehörde) was established. This provision, in so far as relevant, reads as follows:
“(1) The Private Broadcasting Authority shall be established within the Federal Chancellery as a twelve-member collegiate body comprising the members appointed in accordance with paragraph 4 plus one judge. The members shall be experts in the field, with at least five years' proven experience in the media or administrative sectors.
(2) In accordance with Article 20 § 2 of the Constitution, the members of the Private Broadcasting Authority shall not be subject to any instructions or directions in the performance of their duties.
(3) The members of the Private Broadcasting Authority appointed in accordance with paragraph 4, and the judge member, shall be appointed by the Federal President on a proposal from the Federal Government. Their term of office shall be five years.
(11) The Private Broadcasting Authority shall rule at last instance. Its decisions may not be set aside or varied in administrative proceedings. An appeal shall lie to the Constitutional Court against the decisions of the Private Broadcasting Authority. ”
2. The Private Radio Act 2001
Section 6 of the Private Radio Act (Privatradiogesetz), in so far as relevant, reads as follows:
“(1) If several applicants meeting the legal requirements (section 5(1) and (2)) apply for a licence, the regulating authority shall give priority to the applicant who seems to be the best suited on the basis of the submitted documents and the results of the procedure to guarantee compliance with the objectives of this Act, especially by guaranteeing that he/she will ensure greater plurality of opinion overall, and who can be expected to produce autonomous programmes which also take into account listeners' interests in the transmission area or, in the case of special programmes, whose planned programme content can be expected, in the light of the existing overall range of programmes broadcast under this federal law, to render a special contribution to the plurality of opinion in the target area, and who can be expected to produce a range of programmes with the highest share of individually-produced contributions.
(2) The Authority shall also take into account whether one of the applicants has already made use of the licence to be granted in accordance with the law.”
3. Federal Act of 2001 establishing the Communications Authority Austria and the Federal Communications Panel
The Federal Act establishing the Communications Authority Austria (Kommunikationsbehörde Austria) and the Federal Communications Panel (Bundeskommunikationssenat), published in Federal Law Gazette 32/2001, reads, in so far as relevant, as follows:
“(1) The Communications Authority Austria (“KommAustria”) shall be established with administrative responsibility for regulating the broadcasting sector.
(2) The Federal Communications Panel shall be established to oversee the regulation of the broadcasting sector and supervise the lawfulness of the activities of the Austrian Broadcasting Corporation.
“(1) The administrative responsibility referred to in section 1(1) shall encompass the tasks entrusted to KommAustria on the basis of separate federal legislation, including:
1. the award of broadcasting licences
“(1) KommAustria shall comprise the head of the Authority and as many staff members as are required.
(2) The head of the Authority and his or her deputy shall be officially appointed following an open competition procedure in accordance with section 3 of the Official Vacancies Act 1989.
(3) KommAustria shall come under the direct authority of the Federal Chancellor. It shall act as an independent authority in its dealings with third parties. All the Authority's dealings shall be conducted under the name of Communications Authority Austria (“KommAustria”).
(4) KommAustria shall have its headquarters in Vienna.”
“(1) The Federal Communications Panel shall be established within the Federal Chancellery to oversee the decisions of KommAustria and supervise the lawfulness of the activities of the Austrian Broadcasting Corporation.
(2) The Federal Communications Panel shall rule at last instance
1. on appeal against decisions of KommAustria, with the exception of appeals in criminal administrative proceedings
(3) The decisions of the Federal Communications Panel may not be set aside or varied in administrative proceedings. An appeal shall lie to the Constitutional Court against the decisions of the Federal Communications Panel.”
“(1) The Federal Communications Panel shall comprise five members, two of whom must be members of the judiciary. The members of the Federal Communications Panel shall be independent in the exercise of their functions and shall not be subject to any instructions or directions. The Panel shall elect a Chair and Vice-Chair from among the members belonging to the judiciary.
(2) The members of the Federal Communications Panel shall be appointed by the Federal President on a proposal from the Federal Government for a term of office of six years. A substitute member shall be appointed in respect of each member, to sit in his or her absence.”
4. The Constitutional Court's decision of 29 June 2000
In a decision of 29 June 2000 the Constitutional Court examined the constitutionality of section 13 of the Regional Radio Broadcasting Act 1993 and held, in particular, as follows:
“The requirements of the constitutionally established rule of law are not satisfied where the acts of the administrative authorities are subject to the law but no review of the lawfulness of those acts is possible.
It is therefore in breach of the Constitution for the legislature to entrust to a single authority acting at first and last instance responsibility both for administrative management and for overseeing that management. The Constitution requires the administrative authorities to be subordinated to the supreme administrative bodies. The Private Broadcasting Authority does not satisfy that requirement.
The Constitutional Court's responsibility for reviewing the decisions of the administrative authorities, entrusted to it by constitutional law, is thereby rendered meaningless. A regulation can be compatible with the Constitution and in accordance with the principle of the rule of law only if the Constitutional Court can conduct a comprehensive review of all State administrative acts.
This is not the case in relation to the Private Broadcasting Authority.
From a rule-of-law perspective, the duty of the administrative authorities to comply strictly with the law within the meaning of Article 8 of the Constitution, and not just to respect fundamental rights, must be guaranteed.
These considerations apply in any event to section 13 of the Regional Radio Broadcasting Act in the version in force on 5 December 1997, the date of the impugned decision.
The relevant provision of the Regional Radio Broadcasting Act is therefore unconstitutional and must be repealed.”
5. The Federal Constitution Act
Article 144 of the Federal Constitution Act (Bundes-Verfassungsgesetz), in so far as relevant, reads as follows:
“(1) The Constitutional Court shall hear complaints against decisions of the administrative authorities, including those of independent administrative tribunals, where the applicant claims that the decision has infringed a right secured by the Constitution or that his or her rights have been violated by the enforcement of a regulation contrary to the law, an Act contrary to the Constitution or an international treaty incompatible with Austrian law. A complaint may only be lodged once all other remedies have been exhausted.
(2) Up to the time of the hearing the Constitutional Court may, by means of a decision, decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133.”
6. The Constitutional Court Act
Section 82(1) of the Constitutional Court Act (Verfassungsgerichtshofs-gesetz) reads as follows:
“Appeals shall only lie under Article 144 (1) of the Constitution once administrative remedies have been exhausted and within six weeks of the decision taken at last instance being served on the plaintiff.”
The applicant company complained under Article 1 of Protocol No. 1 that, in view of the investments it had made, the refusal to grant it a radio licence after the Constitutional Court had revoked the licence awarded to it amounted to a deprivation of its property.
The applicant company further complained under Article 10 of the Convention that the Austrian authorities' decision had infringed its right to impart information.
1. The applicant company complained under Article 1 of Protocol No. 1 that the refusal to grant it a radio licence amounted to a deprivation of its property, arguing that it had made substantial investments following the original granting of the licence for a period of at least seven years.
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government submitted that the applicant company had at no time had a secured legal position; therefore, the radio broadcasting licence at issue did not constitute a possession within the meaning of Article 1 of Protocol no. 1. After the applicant company had been granted the licence by the RRCBA, proceedings before the Constitutional Court, the only court competent to verify the lawfulness of the licence granted, had been instituted by some of the unsuccessful applicants. In those proceedings they had secured a positive outcome because the Constitutional Court had eventually revoked the licence. The mere fact that suspensive effect had not been granted in the Constitutional Court proceedings and that the applicant company had meanwhile started to broadcast did not confer an undisputed right on it because it had been all the time aware of the ongoing proceedings. Once the licence had been revoked and the procedure for the granting of the licence started anew, the applicant company had had the same opportunity as before to win the licence, but had not succeeded. Thus, at no stage had it had an undisputed possession.
This assertion was disputed by the applicant company, which considered the decision of the RRCBA as a final one because complaint proceedings before the Constitutional Court constituted an extraordinary rather than an ordinary remedy. Since under the relevant provisions of the RRBA a licence holder would lose the licence if it did not broadcast for more than one year, the applicant company had been compelled to take up broadcasting immediately after the licence had been granted. This circumstance had to be taken into account when characterising a broadcasting licence as final or otherwise. Moreover, the procedure after the revoking of the licence by the Constitutional Court could not be understood as a continuation of the first procedure because the applicant company had been confronted with a different group of participants. Legal certainty required, however, that in the event of cancellation of a licence when the previously successful applicant had started broadcasting under the licence, only the same participants as in the first round should be involved. In such circumstances the subsequent revocation of the licence amounted to a deprivation of the applicant company's property.
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent from the formal classification in domestic law (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 60, ECHR 2000-XII). “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” (which must be of a nature more concrete than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, ECHR 2002-VII, § 69 and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). A claim may be regarded as an asset only when it is sufficiently established to be enforceable (see, inter alia, Kopecký v. Slovakia [GC], cited above, § 49 and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset. By way of contrast, a conditional claim, that is, one which depends upon a future uncertain event, cannot be considered an asset (see Gavella v. Croatia (dec.), no. 33244/02, 11 July 2006.
Also, the holding of a licence which is one of the principal conditions for the carrying on of a company's business may qualify as a possession within the meaning of Article 1 of Protocol No. 1 (see Tre Traktörer AB v. Sweden, 7 July 1989, § 53, Series A no. 159).
In the present case the RRCBA, on 5 December 1997, granted the applicant company one out of a total of four local radio licences for the Vienna area. Four of the other participants filed complaints with the Constitutional Court against that decision. On 28 September 2000 the Constitutional Court quashed the RRCBA's decision of 5 December 1997, after having repealed in separate proceedings the relevant provisions of the RRBA on the establishment of the RRCBA as unconstitutional. Subsequently the PBA, a provisional authority replacing the RRCBA following the Constitutional Court's decision, granted the applicant company a provisional licence valid for six months. On 18 June 2001 the CCA, as the authority competent for the granting of radio broadcasting licences, eventually granted the local radio licence to company D., thereby dismissing the applicant company's request for the licence.
Having regard to these circumstances the Court finds that at no stage of the proceedings had the applicant company been the holder of a radio broadcasting licence on the basis of a final decision which had become enforceable and thus would have constituted a possession within the meaning of Article 1 of Protocol No. 1.
In this context the Court cannot accept the applicant company's argument that a complaint to the Constitutional Court was merely an extraordinary remedy which could only change a decision that had already become final. Having regard to the relevant provisions of the Austrian Federal Constitutional Act and the Constitutional Court Act, the Court considers that such a complaint, even though it can be raised only after all administrative appeal proceedings have been terminated, must be considered a proper remedy. Thus, a decision which can still be challenged by this remedy cannot be considered a final one for the purposes of Article 1 of Protocol No. 1.
The Court is also not persuaded by the applicant company's further argument that, because it had started to broadcast its programmes on 1 April 1998, the licence granted by the RRCBA should be considered as a final decision. It is true that the applicant company had started to broadcast at the time indicated in the licence and had made investments in order to do so. However, the applicant company, assisted by counsel, had not only been aware of the pending Constitutional Court proceedings in which it participated as a party but had also opposed the granting of suspensive effect to the decision of the RRCBA, which might have reduced the risk of unprofitable investment.
For these reasons, the Court is not satisfied that the RRCBA's decisions of 5 December 1997 gave rise to a legal position of the applicant company which was sufficiently established to qualify as an asset for the purposes of Article 1 of Protocol No. 1.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
2. The applicant company further complained that the refusal to grant it a broadcasting licence in the second round of the procedure had violated its right to freedom of expression, protected by Article 10 § 1 of the Convention, which 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 argued that, according to the Court's settled case-law, States were permitted to regulate radio broadcasting by a licensing system with regard to considerations such as the nature and objectives of a proposed station as well as its potential audience. The refusal to grant the applicant company a licence after the RRCBA's decision had been quashed was within the State's margin of appreciation. The CAA had carefully examined the proposed programme content and the company structure of the various applicants for the licence and had concluded that the comparison between the individual applicants showed that company D. was better suited in terms of its programmes and structure to meet the requirements of media diversity and plurality of opinion. The authority had not disregarded in its decision the fact that the applicant had already held a licence, but since there had been a number of changes in the applicant company's organisational structure and connections with other radio stations and media undertakings, it had found that the granting of a new licence would have increased the highly dominant position of a large media group. The FCP as the appeal authority and the Constitutional Court and Administrative Court had scrutinised this decision carefully and arrived at the conclusion that the CAA had properly weighed the different interests involved. There was therefore no breach of Article 10 of the Convention.
The applicant company contested these arguments. It submitted that the domestic authorities' decisions had been arbitrary and not necessary in a democratic society, since 22 other radio stations had been awarded a licence again. The Austrian authorities had incorrectly applied section 6(2) PRA because the fact that a company had already held a broadcasting licence was the decisive criterion when issuing a further licence and the domestic authorities had no margin of appreciation in that regard. The applicant company therefore considered that the refusal of the radio licence by the CAA constituted a breach of its rights under Article 10 of the Convention.
The Court considers that the refusal of a broadcasting licence constitutes interference with the applicant company's freedom to impart information and ideas (see Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 74, 17 June 2008 and Informationsverein Lentia and Others v. Austria, judgment of 24 November 1993, Series A no. 276, p. 13, § 27).
It must therefore be determined whether that interference was “prescribed by law”, pursued one or more legitimate aims under the third sentence of paragraph 1 of Article 10 or under paragraph 2 thereof, and was “necessary in a democratic society”.
In this respect the Court reiterates that under the third sentence of Article 10 § 1 States are permitted to regulate by means of a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects. The grant of a licence may also be made conditional on such matters as the nature and objectives of a proposed station, its potential audience at national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments. This may lead to instances of interference whose aims will be legitimate under the third sentence of paragraph 1, even though they may not correspond to any of the aims set out in paragraph 2. However, the compatibility of such interference must be assessed in the light of the requirements of paragraph 2 (see Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 76, 17 June 2008).
Having regard to the wording of the relevant provisions of the PRA, and in particular section 6 thereof, the Court considers that the CAA's refusal to grant the applicant company a radio broadcasting licence had a legal basis in domestic law and was therefore “prescribed by law” within the meaning of Article 10 § 2 of the Convention; this is not in dispute between the parties.
It is also not in dispute between the parties that the interference at issue pursued a legitimate aim. In this respect the Court has held in the past that, because the amount of radio spectrum available for broadcasting was limited the establishment of a licence system based on such criteria as the nature and objectives of the proposed station and its potential audience, in order to attempt to ensure that the limited spectrum was distributed in such a way as to satisfy as many radio listeners as possible, pursued a legitimate aim under Article 10 § 2 of the Convention (see Brook v. the United Kingdom (dec.), no. 38218/97 and United Christian Broadcasters Ltd v. the United Kingdom (dec.), no. 44802/98, 7 November 2000).
As regards whether an instance of interference is “necessary in a democratic society” the Court reiterates that the adjective “necessary” within the meaning of Article 10 § 2 of the Convention implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing the need for interference, although that margin goes hand in hand with European supervision, whose extent will vary according to the circumstances (see Demuth v. Switzerland, no. 38743/97, § 40, ECHR 2002-IX).
Although broadcasting enterprises have no guarantee of any right to a licence under the Convention, the rejection by a State of a licence application must not be manifestly arbitrary or discriminatory and the necessity for any restriction must be convincingly established (see United Christian Broadcasters Ltd, cited above).
The applicant company argued that the domestic authorities had misinterpreted the provision of section 6(2) PRA. As it had been the holder of a radio broadcasting licence awarded previously by the RRCBA, it had an unconditional right to be granted the licence and the authorities therefore did not have any margin of appreciation in that regard.
The Court considers that the CAA, in a comprehensive decision which covered 63 pages, carefully examined the applicant company's arguments and gave detailed reasons for its decision not to award the licence to the applicant company. These arguments were reviewed on appeal by the FCP, the Constitutional Court and the Administrative Court, which explained at length why they considered that the CAA had correctly applied the criteria under the PRA and had given sufficient reasons for its choice.
The CAA, which had to assign one radio licence for which there were seven applicants, acknowledged that the applicant company, like several other applicants for the licence, met the basic organisational and financial requirements under the PRA, and examined the company structure and proposed programme content of each broadcaster. It awarded the licence to company D. because the latter provided a coherent package of radio programmes for an older audience, an age group which was underrepresented in the current radio landscape, and because it would broadcast more self-produced programmes. As regards the company structure it found that company D. was more independent because none of its shareholders was active in the radio or print industry in Vienna, whereas the applicant company, at the time it applied for the licence, was owned by a company and a foundation both belonging to a media group which operated a nationwide radio network consisting of twelve local broadcasters, one of them already operating in the Vienna area. The CAA concluded that the applicant company's essentially economic interest in being awarded a radio broadcasting licence again was outweighed by considerations based on the plurality of opinion and variety of the media landscape.
The Court cannot find that the reasons given by the domestic authorities for refusing the applicant company's request for a broadcasting licence were arbitrary or went beyond the margin of appreciation left to the national authorities in such matters. In this respect the Court reiterates that the Court should not substitute its own evaluation for that of the national authorities, where those authorities, on reasonable grounds, considered the restriction on the applicant's freedom of expression to be necessary (see Demuth, cited above, § 48). Thus, there is no appearance of a breach of Article 10 of the Convention.
It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Christos
Deputy Registrar President
92.9 HIT FM RADIO GMBH v. AUSTRIA DECISION
92.9 HIT FM RADIO GMBH v. AUSTRIA DECISION