19
GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
58. The Government disputed this contention. They did not deny that
Groppera Radio AG was a broadcasting enterprise but they included in that
category community-antenna companies which received programmes over
the air and retransmitted them by cable. Furthermore, they distinguished
between two national licensing systems: the Italian one, applicable to
Groppera Radio AG, and the Swiss one, applicable to the co-operative.
They considered that they had made legitimate use of the second system in
refusing to endorse the application for a licence, as to have done so would
have breached Switzerland’s international undertakings - especially as
Sound Radio used VHF, a frequency intended purely for national
broadcasting - and would have been to disregard the conditions attaching to
the licences granted to cable companies.
59. The Court agrees with the Government that the third sentence of
Article 10 § 1 (art. 10-1) is applicable in the present case. What has to be
determined is the scope of its application.
60. The insertion of the sentence in issue, at an advanced stage of the
preparatory work on the Convention, was clearly due to technical or
practical considerations such as the limited number of available frequencies
and the major capital investment required for building transmitters. It also
reflected a political concern on the part of several States, namely that
broadcasting should be the preserve of the State. Since then, changed views
and technical progress, particularly the appearance of cable transmission,
have resulted in the abolition of State monopolies in many European
countries and the establishment of private radio stations - often local ones in addition to the public services. Furthermore, national licensing systems
are required not only for the orderly regulation of broadcasting enterprises
at the national level but also in large part to give effect to international rules,
including in particular number 2020 of the Radio Regulations (see
paragraph 35 above).
61. The object and purpose of the third sentence of Article 10 § 1 (art.
10-1) and the scope of its application must however be considered in the
context of the Article as a whole and in particular in relation to the
requirements of paragraph 2 (art. 10-2).
There is no equivalent of the sentence under consideration in the first
paragraph of Articles 8, 9 and 11 (art. 8, art. 9, art. 11), although their
structure is in general very similar to that of Article 10 (art. 10). Its wording
is not unlike that of the last sentence of Article 11 § 2 (art. 11-2). In this
respect, however, the two Articles (art. 10, art. 11) differ in their structure.
Article 10 (art. 10) sets out some of the permitted restrictions even in
paragraph 1 (art. 10-1). Article 11 (art. 11), on the other hand, provides only
in paragraph 2 (art. 11-2) for the possibility of special restrictions on the
exercise of the freedom of association by members of the armed forces, the
police and the administration of the State, and it could be inferred from this
that those restrictions are not covered by the requirements in the first