GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
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European supervision covering both the legislation and the decisions
applying it; when carrying out that supervision, the Court must ascertain
whether the measures taken at national level are justifiable in principle and
proportionate (see, as the most recent authority, the Markt Intern Verlag
GmbH and Klaus Beermann judgment of 20 November 1989, Series A no.
165, pp. 19-20, § 33).
73. In order to verify that the interference was not excessive in the
instant case, the requirements of protecting the international
telecommunications order as well as the rights of others must be weighed
against the interest of the applicants and others in the retransmission of
Sound Radio’s programmes by cable.
The Court reiterates, firstly, that once the 1983 Ordinance had come into
force, most Swiss cable companies ceased retransmitting the programmes in
question (see paragraph 18 above). Moreover, the Swiss authorities never
jammed the broadcasts from the Pizzo Groppera, although they made
approaches to Italy and the International Telecommunication Union (see
paragraphs 39-42 above). Thirdly, the impugned ban was imposed on a
company incorporated under Swiss law - the Maur co-operative - whose
subscribers all lived on Swiss territory and continued to receive the
programmes of several other stations. Lastly and above all, the procedure
chosen could well appear necessary in order to prevent evasion of the law; it
was not a form of censorship directed against the content or tendencies of
the programmes concerned, but a measure taken against a station which the
authorities of the respondent State could reasonably hold to be in reality a
Swiss station operating from the other side of the border in order to
circumvent the statutory telecommunications system in force in
Switzerland.
The national authorities accordingly did not in the instant case overstep
the margin of appreciation left to them under the Convention.
C. Conclusion
74. In conclusion, no breach of Article 10 (art. 10) is made out, as the
disputed measure was in accordance with paragraph 1 (art. 10-1) in fine and
satisfied the requirements of paragraph 2 (art. 10-2).
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
75. In their original application Groppera Radio AG and Mr Marquard,
Mr Fröhlich and Mr Caluzzi also relied on Article 13 (art. 13) of the
Convention, claiming that they had not had an "effective remedy before a
national authority" in order to have it determined whether Article 78 § 1 (a)
of the 1983 Ordinance was compatible with the Convention, and in
particular with Article 10 (art. 10).