7
GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
committing an offence if it continued to retransmit them, and it required the
co-operative to cancel within thirty days all the technical arrangements
made for receiving and broadcasting the programmes in question.
20. On 31 July 1984 this order was confirmed by the national head
office of the PTT.
2. The judicial proceedings
21. The co-operative and two of its subscribers challenged this decision
by bringing an administrative-law appeal in the Federal Court.
22. On 30 August 1984 the Pizzo Groppera transmitter was damaged by
lightning. It ceased broadcasting and has never resumed since, although the
applicants claimed that the damage was quickly repaired. Later, in an
interview published in the Tages-Anzeiger Magazin on 13 December 1986,
Mr Marquard acknowledged that he had made an error of business judgment
in acquiring the radio station.
23. Groppera Radio AG joined the appeal by filing pleadings on 18
September 1984. It claimed that it too was a victim of the provisions of the
1983 Ordinance concerning community-antenna licences, as the restrictions
they imposed considerably reduced the number of its listeners, thereby
cutting its revenue and jeopardising its financial survival.
24. On 12 November 1984 the Federal Court informed the parties that it
had learned that the Pizzo Groppera transmitter had been destroyed and
would apparently not be repaired. As there was no interest in pursuing the
proceedings, the court proposed striking out the appeals without taking a
decision on the merits ("die Beschwerde ohne Sachentscheid
abzuschreiben").
The applicants refused to consent to this.
25.
The Federal Court gave judgment on 14 June 1985, after
deliberating in public on the same day.
It ruled that the appeals were admissible inasmuch as they were directed
not against the ban on retransmission itself but against the sanctions
imposed by the PTT for disregarding the ban.
It went on to dismiss the appeals for the following reasons (translated
from German):
"3. The Court can normally only hear an administrative appeal if the appellant has
a live (present or future) interest in taking proceedings. If the interest in taking
proceedings has ceased to exist, the case becomes purely academic and must not
continue unless special circumstances require a decision on the merits, for example
where it would otherwise not be possible to give a binding ruling on matters of
principle in time ...
(a) the Maur community-antenna co-operative and its subscribers have only a
contingent interest in taking proceedings, depending on whether Sound Radio is going
to resume broadcasting; so long as there are no broadcasts, there is nothing to feed into