23
GROPPERA RADIO AG AND OTHERS v. SWITZERLAND JUDGMENT
the issue of a licence (number 2020 of the Radio Regulations), as Sound
Radio had never received a licence from the Italian authorities;
(b) the co-ordination principle, which required special agreements to be
concluded between States where the frequency used was between 100 and
108 MHz (number 584 of the Radio Regulations), because there was no
such agreement between Switzerland and Italy;
(c) the principle of economic use of the frequency spectrum (Article 33
of the International Telecommunication Convention and number 2666 of the
Radio Regulations), because the Pizzo Groppera had the most powerful
VHF transmitter in Europe.
The Government submitted, secondly, that the interference complained
of was for the "protection of the ... rights of others", as it was designed to
ensure pluralism, in particular of information, by allowing a fair allocation
of frequencies internationally and nationally. This applied both to foreign
radio stations, whose programmes had been lawfully retransmitted by cable
long before the appearance of Radio 24, and to Swiss local radio stations,
trials of which had been authorised in the Ordinance of 7 June 1982 (see
paragraph 13 above).
The applicants merely denied that their activities had adversely affected
any of the interests listed in paragraph 2 (art. 10-2).
The Commission expressed no view on this matter in its report, but
before the Court its Delegate acknowledged the legitimacy of the first aim
mentioned by the Government.
70. The Court finds that the interference in issue pursued both the aims
relied on, which were fully compatible with the Convention, namely the
protection of the international telecommunications order and the protection
of the rights of others.
(c) "Necessary in a democratic society"
71. The applicants submitted that the ban affecting them did not answer
a pressing social need; in particular, it went beyond the requirements of the
aims being pursued. It was tantamount to censorship or jamming.
The Government stated that they had had no other recourse seeing that
their representations to the Italian authorities continued to be fruitless,
whether made direct or through the International Telecommunication
Union. The refusal to grant the co-operative a redistribution licence related
only to Sound Radio’s programmes and in no way affected the stations
which complied with the criteria of Article 78 of the 1983 Ordinance;
furthermore, it was dictated by technical necessity, since a cable’s capacity
was not unlimited.
The Delegate of the Commission disagreed.
72. According to the Court’s settled case-law, the Contracting States
enjoy a certain margin of appreciation in assessing whether and to what
extent an interference is necessary, but this margin goes hand in hand with