GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
10
(iii) an order (no. 509/82) referring the case to the Constitutional Court as sections 1, 2 and 45 of the 1975 Law appeared to raise a constitutional
issue - and staying the proceedings.
32. The Constitutional Court gave its decision on 6 May 1987 in a
judgment (no. 153/1987) which was filed at the registry on 13 May. It
declared section 2(1) of the impugned Law to be unconstitutional as it did
not make any provision for the possibility of broadcasting programmes
abroad under licences issued to private companies by the State authorities.
II.
SWITZERLAND
TELECOMMUNICATIONS LAW
AND
INTERNATIONAL
A. The International Telecommunication Convention
33.
The International Telecommunication Convention, which was
concluded in the International Telecommunication Union on 25 October
1973 and revised on 6 November 1982, has been ratified by all the Council
of Europe’s member States. In Switzerland it has been published in full in
the Official Collection of Federal Statutes (1976, p. 994, and 1985, p. 1093),
and in the Compendium of Federal Law (0.784.16).
Article 33, entitled "Rational Use of the Radio Frequency Spectrum",
provides:
"Members shall endeavour to limit the number of frequencies and the spectrum
space used to the minimum essential to provide in a satisfactory manner the necessary
services. To that end they shall endeavour to apply the latest technical advances as
soon as possible."
Article 35 § 1 reads:
"All stations, whatever their purpose, must be established and operated in such a
manner as not to cause harmful interference to the radio services or communications
of other Members or of recognised private operating agencies, or of other duly
authorised operating agencies which carry on radio service, and which operate in
accordance with the provisions of the Radio Regulations."
34. The Convention is supplemented and clarified by three sets of
administrative rules: the Radio Regulations, the Telegraph Regulations and
the Telephone Regulations. Only the first of these is relevant in the instant
case.
B. The Radio Regulations
35. The Radio Regulations date from 21 December 1959 and were
likewise amended in 1982 and also on other occasions. They run to over a
thousand pages and - except for numbers 422 and 725 - have not been