Unione Europea
Di seguito un articolo pubblicato su Medialaws a firma del professor Oreste Pollicino, docente di diritto dell’informazione presso l’Università Bocconi e direttore di Medialaws, sito che propone analisi e approfondimenti tecnici su Leggi e Policy dei Media, offerti in una prospettiva comparativa, con il quale Key4biz ha avviato una collaborazione editoriale.
In the Grand Chamber judgment of the 7th of June 2012, in the case Centro Europa 7 S.r.l. and Di Stefano v. Italy (application no. 38433/09), the European Court of Human Rights (ECtHR) held it had been a violation of Article 10 (freedom of expression and information) and a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights and condemned the Italian State to pay the applicant company, within three months, EUR 10,000,000 (ten million euros).
The problems for the Italian State go far beyond the (high) pecuniary sanction which must be paid to the applicant. Here, as it will be seen below, is at the stake the credibility of the Italian legal system with regard to the persistence, after more than 20 years from the fall of the state monopoly, of a broadcasting legislation which, instead to fight, continues to reinforces the exiting dominant positions and duopolies in the relevant market.
The Europa 7 saga is really a telling example in this respect. The unique case of a company operating in the television broadcasting sector, which since 1999 has been granted by the license for broadcaster but that, for almost 10 years, has not been able to broadcast because the frequencies which the applicant had the right to obtain were de facto occupied by other broadcasters.
Factual and legal background
But let’s look back to the origins of the case, by making reference to the factual and legal background as described by the decision itself (adopted by the ECtHR, as it has been said, some weeks ago)
By a ministerial decree of 28 July 1999 the appropriate authorities granted Centro Europa 7 S.r.l. a licence for nationwide terrestrial television broadcasting in accordance with Law no. 249/1997, authorising it to install and operate an analogue television network. The licence specified that the applicant company was entitled to three frequencies covering 80% of national territory. As regards the allocation of the frequencies, the licence referred to the national frequency allocation plan, adopted on 30 October 1998. It indicated that the installations should be brought into line with the requirements of the “assignment plan” (piano di assegnazione) within twenty-four months and that the measures taken to that end should conform to the adjustment programme (programma di adeguamento) drawn up by the Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni – hereinafter “AGCOM”) in conjunction with the Ministry of Communications (“the Ministry”).
It appears from the Consiglio di Stato’s judgment no. 2624 of 31 May 2008 that, under the terms of the licence, the allocation of frequencies was deferred until such time as the authorities had adopted the adjustment programme, on the basis of which the applicant company should have upgraded its own installations. The adjustment programme should, in turn, have taken into account the requirements of the national frequency allocation plan. However, the plan was not implemented. A succession of transitional schemes that benefited existing channels were applied at national level, with the result that even though it had a licence, the applicant company was unable to broadcast until June 2009 as it had not been allocated any frequencies. The applicant company, through its statutory representative, made a number of applications to the administrative courts.In November 1999 the applicant company served formal notice on the Ministry to allocate frequencies to it. In a note of 22 December 1999 the Ministry refused its request.
1. Proceedings on the merits
In 2000 the applicant company lodged an application with the Lazio Regional Administrative Court against the Ministry and RTI (a network of Italian television channels controlled by the Mediaset group), complaining that the authorities had not allocated it any broadcasting frequencies. The application was also directed against RTI because the Retequattro channel had been authorised to broadcast on frequencies that should have been transferred to the applicant company. On 16 September 2004 the Regional Administrative Court found in favour of the applicant company, holding that the authorities were required either to allocate the frequencies or to revoke the licence. Accordingly, it declared the note of 22 December 1999 void. RTI appealed to the Consiglio di Stato. In judgment no. 2624 of 31 May 2008 the Consiglio di Stato dismissed the appeal and upheld the Regional Administrative Court’s judgment. It noted that no deadline had been set in the licence for the authorities to adopt the adjustment programme drawn up by AGCOM in conjunction with the Ministry, but that the applicant company had been given twenty-four months to make improvements to its installations. Accordingly, the Consiglio di Stato found that the adjustment programme should have been approved promptly.The Consiglio di Stato added that the Ministry had to give a decision on the applicant company’s request to be allocated frequencies, in accordance with a judgment delivered in the meantime by the Court of Justice of the European Union (“the CJEU” )
2. Enforcement proceedings
On 23 October 2008 the applicant company, having still not obtained the frequencies, brought proceedings against the Ministry in the Consiglio di Stato, complaining that the judgment of 31 May 2008 had not been executed. On 11 December 2008 the Ministry extended the validity of the licence granted in 1999 until the analogue switch-off date and allocated Centro Europa 7 S.r.l. a single channel with effect from 30 June 2009.The Consiglio di Stato consequently held in judgment no. 243/09 of 20 January 2009 that the Ministry had properly executed its judgment of 31 May 2008.On 18 February 2009 the applicant company brought a further application in the Regional Administrative Court, arguing that the decree of 11 December 2008 by which the frequencies had been allocated was insufficient in that, contrary to the terms of the licence, it concerned a single channel that did not cover 80% of national territory. In its application the company sought the annulment of the decree and an award of damages.On 9 February 2010 the applicant company signed an agreement with the Ministry of Economic Development (the former Ministry of Communications), which undertook to assign it additional frequencies in accordance with the terms of the licence.On 11 February 2010, pursuant to one of the clauses of that agreement, the applicant company asked for the proceedings pending before the Regional Administrative Court to be struck out.On 8 March 2011 the applicant company applied to the Regional Administrative Court to restore the case to its list. It sought the annulment of the decree of 11 December 2008 by which the frequencies had been allocated, and an award of damages. It argued that the administrative authorities had not complied fully with its obligation to allocate additional frequencies and had failed to observe the agreement of 9 February 2010 and the decision of 11 December 2008.
Paragraph 6 of the agreement in question stated:
“Centro Europa 7 S.r.l. undertakes to request, by 11 February 2010, the striking out of application no. 1313/09 pending before the Lazio Regional Administrative Court, to allow it to lapse for failure to submit a fresh application to schedule a hearing within the statutory time-limit and, by the same date, to waive the claims for compensation brought in that application, provided that, by the date on which the case lapses, this agreement, the decision allocating the additional frequencies and the decision of 11 December 2008 have not in the meantime become invalid. The Administration, for its part, undertakes to comply fully with its obligation to allocate additional frequencies, and with this agreement and the decision of 11 December 2008. Should it fail to do so, Centro Europa 7 and the opposing authorities shall regain full possession of their respective procedural prerogatives. In the event that the assignment of the additional frequencies becomes invalid, it is specified that Centro Europa 7 S.r.l. may reactivate application no. 1313/09 only if it would be impossible in this situation for Europa Way S.r.l. to operate one or more of the installations mentioned in Technical Attachment A.”
The proceedings are currently pending before the Regional Administrative Court.
B. Second set of administrative proceedings
1. Proceedings before the Regional Administrative Court
In the meantime, on 27 November 2003, while its initial application was still pending before the Regional Administrative Court, the applicant company had lodged a further application with the same court, seeking in particular an acknowledgment of its entitlement to have the frequencies allocated and compensation for the damage sustained. In a judgment of 16 September 2004 the Regional Administrative Court dismissed the application, holding in particular that the applicant company had only a legitimate interest (interesse legittimo), that is, an individual position indirectly protected as far as was consistent with the public interest, and not a personal right (diritto soggettivo) to be allocated frequencies for analogue terrestrial television broadcasting.
2. Appeal to the Consiglio di Stato
The applicant company appealed to the Consiglio di Stato, arguing that since it had been granted a licence by the appropriate authorities, it did in fact have a personal right. In particular, it contended that Legislative Decree no. 352/2003 and Law no. 112/2004 did not comply with Community legislation. On 19 April 2005 the Consiglio di Stato decided to restrict its examination to the applicant company’s claim for damages and not to rule at that stage on the request for allocation of frequencies. It nevertheless observed that the failure to allocate frequencies to Centro Europa 7 S.r.l. had been due to essentially legislative factors.It noted that section 3(2) of Law no. 249/1997 () enabled the “de facto occupants” of radio frequencies authorised to operate under the previous system to continue broadcasting until new licences were awarded or applications for new licences were rejected, and in any event not after 30 April 1998. It further noted that section 3(7) of Law no. 249/1997 authorised the continuation of such broadcasts by entrusting AGCOM with the task of setting a deadline, on the sole condition that programmes were to be broadcast simultaneously on terrestrial frequencies and by satellite or cable. It pointed out that in the event of failure by AGCOM to set a deadline, the Constitutional Court had set 31 December 2003 as the date by which programmes broadcast by the “over-quota channels” (that is, existing national television channels exceeding the concentration restrictions imposed by section 2(6) of Law no. 249/1997) were to be broadcast by satellite or cable only, with the result that the frequencies to be allocated to licence holders such as the applicant company would have been freed up. The Consiglio di Stato observed, however, that the deadline had not been complied with following the intervention of the national legislature: section 1 of Legislative Decree no. 352/2003, which had subsequently become Law no. 43 of 24 February 2004 , had prolonged the activities of the over-quota channels pending the completion of an AGCOM investigation into the development of digital television channels. It added that section 23(5) of Law no. 112/2004 had subsequently, by a general authorisation mechanism, extended the possibility for over-quota channels to continue broadcasting on terrestrial frequencies until the national frequency allocation plan for digital television was implemented, with the result that those channels had not been required to free up the frequencies intended for allocation to licence holders, such as the applicant company.Law no. 112/2004 had therefore had the effect, according to the Consiglio di Stato, of blocking the frequencies intended for allocation to holders of analogue licences and of preventing new operators from participating in digital television trials. That being so, the Consiglio di Stato decided to stay the proceedings and requested the CJEU to give a preliminary ruling on the interpretation of the provisions of the Treaty on freedom to provide services and competition, Directive 2002/21/EC (“the Framework Directive”), Directive 2002/20/EC (“the Authorisation Directive”), Directive 2002/77/EC (“the Competition Directive”) and Article 10 of the European Convention on Human Rights, in so far as Article 6 of the Treaty on European Union referred to it.
3. Judgment of the CJEU
On 31 January 2008 the CJEU gave judgment. It declared two questions inadmissible, holding that it did not have sufficient information to give a ruling on them.With regard to the question concerning Article 10 of the Convention, the CJEU concluded as follows:
“By its first question, the national court asks the Court, essentially, to state whether the provisions of Article 10 of the ECHR, in so far as Article 6 EU refers thereto, preclude, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights, such as Centro Europa 7, to broadcast without the grant of broadcasting radio frequencies. By those questions, the national court is thus seeking to determine whether there are infringements of Community law for the purpose of ruling on an application for compensation for the losses flowing from such infringements. Article 49 EC and, from the date on which they became applicable, Article 9(1) of the Framework Directive, Article 5(1), the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive and Article 4 of the Competition Directive must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.
That answer, by itself, thus enables the national court to rule on the application made by Centro Europa 7 for compensation for the losses suffered. Consequently, regard being had to the Court’s answer to the second, fourth and fifth questions, it is not necessary to rule on the first and third questions.”That answer, by itself, thus enables the national court to rule on the application made by Centro Europa 7 for compensation for the losses suffered.
As to the merits, the CJEU observed that the existing channels had been authorised to pursue their broadcasting activities as a result of a series of measures by the national legislature, to the detriment of new broadcasters which nevertheless held licences for terrestrial television broadcasting. It noted that these measures had entailed the successive application of transitional arrangements structured in favour of the incumbent networks, and that this had had the effect of preventing operators without broadcasting frequencies, such as the applicant company, from accessing the television broadcasting market even though they had a licence (granted, in the applicant company’s case, in 1999). The CJEU held:”… Law no. 112/2004 … does not merely allocate to the incumbent operators a priority right to obtain radio frequencies, but reserves them that right exclusively, without restricting in time the privileged position assigned to those operators and without providing for any obligation to relinquish the radio frequencies in breach of the threshold after the transfer to digital television broadcasting.”The CJEU added that the application of the transitional schemes was not in accordance with the new common regulatory framework (NCRF), which implemented provisions of the Treaty, in particular those on freedom to provide services in the area of electronic communications networks and services. It observed in that connection that several provisions of the NCRF stated that the allocation and assignment of frequencies had to be based on objective, transparent, non-discriminatory and proportionate criteria. In the CJEU’s view, such criteria had not been applied in the present case since the status of the existing channels had not been amended under the transitional schemes and they had continued their broadcasting activities to the detriment of operators such as the applicant company, which, not having been allocated any broadcasting frequencies, had been unable to exercise their rights and make use of their licence.
The CJEU therefore reached the following conclusions:
“… it must be stated that, in the area of television broadcasting, freedom to provide services, as enshrined in Article 49 EC and implemented in this area by the NCRF, requires not only the grant of broadcasting authorisations, but also the grant of broadcasting radio frequencies. An operator cannot exercise effectively the rights which it derives from Community law in terms of access to the television broadcasting market without broadcasting radio frequencies.Article 49 EC and, from the date on which they became applicable, Article 9(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), Article 5(1), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), and Article 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.”
4. Resumption of proceedings in the Consiglio di Stato
In decision no. 2622/08 of 31 May 2008 the Consiglio di Stato concluded that it could not allocate frequencies in the Government’s place or compel the Government to do so. It ordered the Government to deal with the applicant company’s request for frequencies in a manner consistent with the criteria laid down by the CJEU. It made the following observations in particular:
“The adoption by the authorities of a specific measure relates more to issues of performance and implementation than to damages: in cases involving an unlawful refusal to take an administrative measure that has been requested, the adoption of the measure does not amount to compensation, but rather to the performance of an obligation incumbent upon the authorities, unless the private party concerned has sustained any damage.”
With regard to the request for the allocation of frequencies, the Consiglio di Stato observed:
“Where legitimate interests are at stake, however, it is not possible to envisage a specific means of redress because inaction, a delay or an unlawful refusal will always have an impact on a situation that was or remains unsatisfactory, with the result that there is nothing to restore; the issue in relation to such interests concerns the practical implementation of any ruling setting aside the measure complained of.
Applying these principles to the present case, the Consiglio finds that the appellant’s request for an order requiring the authorities to allocate the network or frequencies is inadmissible.”
The Consiglio di Stato deferred until 16 December 2008 its final decision on the payment of compensation to the applicant company, holding that it was necessary to wait for the relevant regulations to be passed by the Government before assessing the amount.
The Consiglio di Stato requested both parties to comply with the following requirements by 16 December 2008. The Ministry was, firstly, to specify what frequencies had been available following the public tendering procedures in 1999 and why they had not been allocated to the applicant company and, secondly, to justify its assertion that the licence granted to the applicant company had expired in 2005. The applicant company, for its part, was asked by the Consiglio di Stato to submit a report on its activities between 1999 and 2008, and also to explain why it had not taken part in the 2007 public tendering procedure for the allocation of frequencies.
The Consiglio di Stato also asked AGCOM to explain why the national frequency allocation plan for terrestrial television broadcasting had never been implemented. Lastly, it dismissed the applicant company’s request for the suspension of the provisional authorisation granted to a channel belonging to the Mediaset group (Retequattro) for the use of the frequencies. In its reply AGCOM explained to the Consiglio di Stato that the national frequency allocation plan had been implemented only on 13 November 2008. According to AGCOM, this delay was due to several factors. Firstly, the legal situation was complicated because it was difficult to identify the available broadcasting frequencies as a result of the court decisions in which the over-quota channels had been allowed to continue broadcasting. In addition, the transitional arrangements introduced by Law no. 66/2001, which had allowed the channels in question to continue broadcasting in analogue mode, had prevented the plan from being implemented on account of the incompatibility between the interests of the channels likely to be allowed to broadcast under the plan and the interests of the channels that were legally entitled to continue their existing operations. The applicant company submitted an expert valuation by the commercial bank Unipol assessing the damage sustained at 2,175,213,345.00 euros (EUR). The valuation was based on the profits achieved by Retequattro, the over-quota channel which should have relinquished the frequencies allocated to the applicant company. In a judgment of 20 January 2009 the Consiglio di Stato, on the basis of Article 2043 of the Civil Code ordered the Ministry to pay the applicant company the sum of EUR 1,041,418 in compensation. It observed that over a period of ten years, the Ministry had acted negligently by having granted Centro Europa 7 S.r.l. a licence without assigning it any broadcasting frequencies.The Consiglio di Stato found that there was a causal link between the conduct of the administrative authorities and the damage alleged, and that the award of the licence to Centro Europa 7 S.r.l. had not conferred on it the immediate right to pursue the corresponding economic activity; accordingly, the compensation should be calculated on the basis of the legitimate expectation of being allocated the frequencies by the appropriate authorities. In the opinion of the Consiglio di Stato, the fact that the frequencies had not been allocated until 11 December 2008 was attributable to the authorities. Damage had thus been sustained as a result of an unlawful act for which the authorities incurred non-contractual liability, concerning both the breach of legitimate expectations and the delay in allocating the frequencies. The fact that the authorities had launched a public tendering procedure for the frequencies in 1999, although the situation in the broadcasting sector had not been clarified and there were outstanding technical issues, had been “risky”. The Consiglio di Stato considered that the question of redress for the damage sustained by the applicant company should take this context into account. The authorities’ conduct had not been characterised by “significant gravity” (notevole gravità) and the unlawful act was thus attributable to “negligent” and not intentional conduct on their part.The Consiglio di Stato added that the pecuniary damage should be assessed with effect from 1 January 2004, since the Constitutional Court had ruled that the “transition period” after which legislation would have to be passed to allow licence holders to start broadcasting had expired on 31 December 2003. As to the criteria for determining the damages to be awarded, the Consiglio di Stato pointed out that, as regards the losses sustained, the applicant company had been fully aware, at the time of the call for tenders, of the circumstances of the case and the conditions to which the licence was subject. Furthermore, the sequence of events that had prevented the frequencies from being allocated had been largely foreseeable. Accordingly, the applicant company should have known that it was unlikely to obtain the frequencies, at least in the short term. In addition, it could have purchased the frequencies under section 1 of Law no. 66 of 20 March 2001.Having regard to the above considerations, the Consiglio di Stato, without ordering an expert valuation, decided to award the applicant company EUR 391,418 for the losses sustained. As regards loss of earnings, it found that, from 1 January 2004, the applicant company could have achieved profits but had been unable to do so because of the delay in allocating the frequencies; the amount could be assessed at EUR 650,000. It refused to take into account the expert valuation submitted by the applicant company and held that it was unlikely that the company would have purchased shares in the market, even in the event that the over-quota channels had relinquished the frequencies. In the Consiglio di Stato’s view, the comparison between the applicant company and the two leading operators (Mediaset and RAI) was unjustified, especially as it did not take into account the other nationwide operator (La 7), which, although it had greater economic power than the applicant company, was nevertheless operating at a loss.
At this point, after having exhausted the internal judicial remedies, Europa 7 applied before the ECtHR alleging that the failure to allocate the applicant company the necessary frequencies for television broadcasting had infringed, among other things, it right to freedom of expression and, especially, its freedom to impart information and ideas protected by article 10 of the European Convention of Human Rights .
The reasoning of the Court
It is very interesting the reasoning of the ECtHR with regard to the alleged violation of the above mentioned provision.
In particular the Court considers it appropriate at the outset to recapitulate the general principles established in its case-law concerning pluralism in the audiovisual media. As it has often noted, there can be no democracy without pluralism. Democracy thrives on freedom of expression. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself (see Manole and Others v. Moldova, no. 13936/02, § 95, ECHR 2009 (extracts), and Socialist Party and Others v. Turkey, 25 May 1998, §§ 41, 45 and 47, Reports 1998-III).
In this connection, the Court observes that to ensure true pluralism in the audiovisual sector in a democratic society, it is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audiovisual market. It is necessary in addition to allow effective access to the market so as to guarantee diversity of overall programme content, reflecting as far as possible the variety of opinions encountered in the society at which the programmes are aimed.
Freedom of expression, as secured in Article 10 § 1, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress (see Lingens v. Austria, 8 July 1986, § 41, Series A no. 103). Freedom of the press and other news media affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.
It is incumbent on the press to impart information and ideas on political issues and on other subjects of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, for example, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Lingens, cited above, §§ 41-42).
The audiovisual media, such as radio and television, have a particularly important role in this respect. Because of their power to convey messages through sound and images, such media have a more immediate and powerful effect than print (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 79, ECHR 2004-XI). The function of television and radio as familiar sources of entertainment in the intimacy of the listener’s or viewer’s home further reinforces their impact (see Murphy v. Ireland, no. 44179/98, § 74, ECHR 2003-IX).
A situation whereby a powerful economic or political group in society is permitted to obtain a position of dominance over the audiovisual media and thereby exercise pressure on broadcasters and eventually curtail their editorial freedom undermines the fundamental role of freedom of expression in a democratic society as enshrined in Article 10 of the Convention, in particular where it serves to impart information and ideas of general interest, which the public is moreover entitled to receive (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, §§ 73 and 75, ECHR 2001-VI; see also De Geillustreerde v. the Netherlands, no. 5178/71, Commission decision of 6 July 1976, § 86, Decisions and Reports 8, p. 13). This is true also where the position of dominance is held by a State or public broadcaster. Thus, the Court has held that, because of its restrictive nature, a licensing regime which allows the public broadcaster a monopoly over the available frequencies cannot be justified unless it can be demonstrated that there is a pressing need for it (see Informationsverein Lentia and Others, cited above, § 39).
The Court observes that in such a sensitive sector as the audiovisual media, in addition to its negative duty of non-interference the State has a positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective pluralism. This is especially desirable when, as in the present case, the national audiovisual system is characterised by a duopoly.
With this in mind, it should be noted that in Recommendation CM/Rec(2007)2 on media pluralism and diversity of media content the Committee of Ministers reaffirmed that “in order to protect and actively promote the pluralistic expressions of ideas and opinions as well as cultural diversity, member states should adapt the existing regulatory frameworks, particularly with regard to media ownership, and adopt any regulatory and financial measures called for in order to guarantee media transparency and structural pluralism as well as diversity of the content distributed”.
The question arising in the instant case is whether there has been interference by the public authorities with the applicant company’s right to “impart information and ideas” and, if so, whether the interference was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” for achieving them (see RTBF v. Belgium, no. 50084/06, § 117, ECHR 2011 (extracts)).
Whether there was interference
The Court has held that the refusal to grant a broadcasting licence constitutes interference with the exercise of the rights guaranteed by Article 10 § 1 of the Convention (see, among other authorities, Informationsverein Lentia and Others, cited above, § 27; Radio ABC v. Austria, 20 October 1997, § 27, Reports 1997-VI; Leveque v. France (dec.), no. 35591/97, 23 November 1999; United Christian Broadcasters Ltd v. the United Kingdom (dec.), no. 44802/98, 7 November 2000; Demuth v. Switzerland, no. 38743/97, § 30, ECHR 2002-IX; and Glas Nadezhda EOOD and Anatoliy Elenkov, cited above, § 42). It is of little consequence whether the licence is refused following an individual application or participation in a call for tenders (see Meltex Ltd and Movsesyan, cited above, § 74).
The Court observes that the present case differs from those cited in the preceding paragraph in that it does not concern a refusal to grant a licence. On the contrary, following a call for tenders, the applicant company was granted a licence on 28 July 1999 for analogue terrestrial television broadcasting (see paragraph 9 above). However, since it was not allocated any broadcasting frequencies, it was unable to transmit programmes until 30 June 2009.
The Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37). The failure to allocate frequencies to the applicant company deprived the licence of all practical purpose since the activity it authorised was de facto impossible to carry out for nearly ten years. This accordingly constituted a substantial obstacle to, and hence an interference with, the applicant company’s exercise of its right to impart information and ideas.
Whether the interference was “prescribed by law”
(i) General principles
The third sentence of Article 10 § 1 entitles States to regulate by means of a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects. The granting of a licence may also be made conditional on other considerations, such as the nature and objectives of a proposed channel, 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 (see United Christian Broadcasters Ltd, cited above, and Demuth, cited above, §§ 33-35). Such regulation must have a basis in “law”.
The expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken, cited above, § 52; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A, and Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998-II).
One of the requirements flowing from the expression “prescribed by law” is foreseeablilty. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable citizens to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30; Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260-A; and Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III)
The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see RTBF v. Belgium, cited above, § 104; Rekvényi, cited above, § 34; and Vogt v. Germany, 26 September 1995, § 48, Series A no. 323).
In particular, a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities (see Tourancheau and July v. France, no. 53886/00, § 54, 24 November 2005) and against the extensive application of a restriction to any party’s detriment (see, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 36, ECHR 1999-IV).
(ii) Application of the above principles in the instant case
In the instant case, therefore, the Court must determine whether Italian legislation laid down with sufficient precision the conditions and procedure whereby the applicant company could have been allocated broadcasting frequencies in accordance with the licence it had been granted. This is especially important in a case such as the present one, in which the relevant legislation concerned the conditions of access to the audiovisual market.
The Court notes that on 28 July 1999 the appropriate authorities granted the applicant company a licence for nationwide terrestrial television broadcasting in accordance with Law no. 249/1997, authorising it to install and operate an analogue television network. As regards the allocation of frequencies, the licence referred to the national frequency allocation plan, adopted on 30 October 1998, and gave the applicant company twenty-four months to bring its installations into line with the relevant requirements However, as is clear from the decisions of the domestic courts (, that obligation could not be satisfied by the applicant company until such time as the authorities had adopted the adjustment programme and implemented the frequency allocation plan. The Court considers that in such circumstances the applicant company could reasonably have expected the authorities to adopt, within the twenty-four months following 28 July 1999 at the latest, the instruments needed to regulate its terrestrial broadcasting activities. Provided that it upgraded its installations as it was required to do, the applicant company should then have been entitled to transmit television programmes.
However, the frequency allocation plan was not implemented until December 2008 and the applicant company was allocated a channel to broadcast its programmes with effect from 30 June 2009 only In the meantime, several channels had continued on a provisional basis to use various frequencies that were supposed to have been allocated under the plan. The Consiglio di Stato held that this state of affairs was due to essentially legislative factors. The Court will briefly examine those factors.
It notes firstly that section 3(1) of Law no. 249/1997 provided that the “over-quota” channels (see paragraph 60 above) could continue to broadcast at both national and local level until new licences were awarded or applications for new licences were rejected but, in any event, not after 30 April 1998 (see paragraph 57 above). However, section 3(6) of the same Law established a transitional scheme whereby the over-quota channels could continue broadcasting on terrestrial frequencies on a temporary basis after 30 April 1998, provided that they complied with the obligations imposed on channels holding licences and that their programmes were broadcast simultaneously on satellite or cable
The applicant company could have inferred from the above-mentioned legislative framework applicable at the time the licence was granted that from 30 April 1998 the possibility for the over-quota channels to continue broadcasting would not affect the rights of new licence holders. However, this framework was amended by Law no. 66 of 20 March 2001, which regulated the transition from analogue to digital television and, once again, authorised over-quota channels to continue broadcasting on terrestrial frequencies pending the implementation of the national frequency allocation plan for digital television (see paragraph 63 above).
On 20 November 2002, by which time the plan had still not been implemented, the Constitutional Court held that the transition from terrestrial frequencies to cable or satellite broadcasting for over-quota channels should be completed by 31 December 2003 at the latest, irrespective of the stage reached in the development of digital television (see paragraph 62 above). In the light of that judgment, the applicant company could have expected that the frequencies which should have been allocated to it would be freed up by the start of 2004. However, a further extension was ordered as a result of national legislation.
Section 1 of Legislative Decree no. 352/2003 allowed the over-quota channels to continue operating pending the completion of an AGCOM investigation into the development of digital television channels. Subsequently, Law no. 112/2004 (section 23(5)), by a general authorisation mechanism, extended the possibility for over-quota channels to continue broadcasting on terrestrial frequencies until the national frequency allocation plan for digital television was implemented (see paragraphs 65-67 above), with the result that those channels were no longer required to free up the frequencies that should have been transferred to operators holding licences, such as the applicant company.
The Court observes that the successive application of these laws had the effect of blocking the frequencies and preventing operators other than the over-quota channels from participating in the early stages of digital television. In particular, the laws in question postponed the expiry of the transitional scheme until the completion of an AGCOM investigation into the development of digital television channels and until the implementation of the national frequency allocation plan, that is to say, with reference to events occurring on dates which were impossible to foresee. In this connection, the Court agrees with the CJEU’s finding to the effect that:
“… Law no. 112/2004 does not merely allocate to the incumbent operators a priority right to obtain radio frequencies, but reserves them that right exclusively, without restricting in time the privileged position assigned to those operators and without providing for any obligation to relinquish the radio frequencies in breach of the threshold after the transfer to digital television broadcasting.”
The Court therefore considers that the laws in question were couched in vague terms which did not define with sufficient precision and clarity the scope and duration of the transitional scheme.
In addition, the CJEU, to which the matter had been referred by the Consiglio di Stato, noted that these measures by the national legislature had entailed the successive application of transitional arrangements structured in favour of the incumbent networks, and that this had had the effect of preventing operators without broadcasting frequencies, such as Centro Europa 7 S.r.l., from accessing the television broadcasting market even though they had a licence (granted, in the applicant company’s case, in 1999 ).
Having regard to the foregoing, the Court considers that the domestic legislative framework lacked clarity and precision and did not enable the applicant company to foresee, with sufficient certainty, the point at which it might be allocated the frequencies and be able to start performing the activity for which it had been granted a licence, this notwithstanding the successive findings of the Constitutional Court and the CJEU. It follows that the laws in question did not satisfy the foreseeability requirements established by the Court in its case-law.
the Court further notes that the authorities did not observe the deadlines set in the licence, as resulting from Law no. 249/1997 and the judgments of the Constitutional Court, thereby frustrating the applicant company’s expectations. The Government have not shown that the company had effective means at its disposal to compel the authorities to abide by the law and the Constitutional Court’s judgments. Accordingly, it was not afforded sufficient guarantees against arbitrariness.
Conclusion
In conclusion, the Court considers that the legislative framework, as applied to the applicant company, which was unable to operate in the television broadcasting sector for more than ten years despite having been granted a licence in a public tendering procedure, did not satisfy the foreseeability requirement under the Convention and deprived the company of the measure of protection against arbitrariness required by the rule of law in a democratic society. This shortcoming resulted, among other things, in reduced competition in the audiovisual sector. It therefore amounted to a failure by the State to comply with its positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective media pluralism. These findings are sufficient to conclude that there has been a violation of Article 10 of the Convention in the instant case.
The above conclusion dispenses the Court from examining whether the other requirements of paragraph 2 of Article 10 of the Convention were complied with in the instant case, namely whether the laws prolonging the transitional scheme pursued a legitimate aim and were necessary in a democratic society for achieving that aim.
It is not a painless conclusion for the Italian State, if, as mentioned above, the Court holds that the Italian State is to pay the applicant company, within three months, EUR 10,000,000 (ten million euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage.
More than that, after having been highly criticized by the Luxembourg Court, the national broadcasting system has now been also the target of very significant objections in the case law of the Strasbourg Court.
A coalition of the two European Courts against the unbearable Italian status quo.
Is it not enough to finally make a serious attempt to change it?
