33 GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT DISSENTING OPINION OF JUDGE BERNHARDT DISSENTING OPINION OF JUDGE BERNHARDT Unlike the majority of the Court, I think that the legal basis for the interference by the Swiss authorities with freedom of expression in the present case is not sufficient under the Convention. Admittedly, the case raises most difficult questions concerning the correct interpretation of Article 10 (art. 10) of the Convention. In the actual context, three points are of primary importance. (1) The second sentence of the Article expressly mentions freedom to receive and impart information "regardless of frontiers". This freedom of cross-boundary communication is an essential element of present-day democracy and must be taken into account when interpreting the other provisions in Article 10 (art. 10). (2) The third sentence of the first paragraph of this Article (art. 10-1) expressly permits the licensing of broadcasting enterprises. Even if modern technical developments permit a far greater number of radio and television enterprises and channels than was the case when the Convention was drafted, States still have the right and the duty to ensure the orderly regulation of communications, and this can only be achieved by a licensing system. Whether a licensing system can be used for preserving a State monopoly in this field in spite of the modern developments can be left open in the present context, since such a monopoly no longer exists in Switzerland. It seems also to be undisputed that a licensing system cannot be used for imposing censorship and cannot justify the suppression of legally permitted information and ideas. I further agree with the majority of the Court that the retransmission of radio programmes by cable can be made conditional on a licence, although under the terms of the third sentence of Article 10 § 1 (art. 10-1) this is by no means beyond doubt. It can hardly be doubted that the prohibition of such retransmission cannot be left to the unfettered discretion of the executive. This implies that the second paragraph of Article 10 (art. 10-2) comes into play and must be respected when a State operates a licensing system. (3) The question, therefore, is whether the interference by the Swiss authorities in the present case satisfies the requirements of Article 10 § 2 (art. 10-2), as developed in the case-law of the Convention organs. Among these requirements, a first condition is that a restriction must be "prescribed by law". Here a first problem arises which has been discussed neither by the parties nor in the present judgment, but which needs further consideration. As far as can be seen, the Swiss legislature has until now never enacted any substantive provisions on broadcasting licences; instead it has given the Government, by means of Federal Act of 1922 governing correspondence by telegraph and telephone as interpreted in practice, complete freedom to regulate this field. (The Act primarily concerns telegraph and telephone communications, since in 1922 radio did not yet exist). Is the requirement in Article 10 § 2 (art. 10-2) that restrictions must be "prescribed by law"