Nederlandse Omroepprogramma Stichting mod Holland, sagsnummer 16844/90
RESUMÉ
Sagen omhandlede en hollandsk non-profit radio/tv-station (herefter Klager), som overfor den hollandske stat havde public-service forpligtelser til eksempelvis at producere nyheds- og sportsudsendelser. I maj og juli 1988 havde Klager på sin sendeflade sendt to programmer. Det ene program omhandlede ferieaktiviteter, hvor aktiviteter ved en navngiven hotel-kæde blev sammenlignet med en campingplads, og hvor hotel-kæden ved navn blev nævnt op til flere gange. Det andet program var en sketch, hvor nogle unge drak Coca-Cola og efterfølgende ville indløse panten fra flaskerne til en navngiven snack. Under denne udsendelse blev Coca-Cola og snacken nævnt og Coca-Cola-flaskerne blev ligeledes vist med logo flere gange.På baggrund af disse udsendelse blev Klager af myndighederne idømt en bøde på samlet 15.000 guilders, idet myndighederne fandt, at programmerne var i strid med den hollandske medielovgivning, som blandt andet forbød direkte og indirekte reklame.Ved Den Europæiske Menneskerettighedsdomstol (i 1993 var det indledningsvist Kommissionen, der tog stilling til klagerne) påstod Klager blandt andet, at artikel 10 (dennes kommercielle ytringsfrihed) og artikel 14 sammenholdt med artikel 10 (diskrimination set i forhold til andre europæiske stationer) var blevet krænket.
Kommissionen udtalte indledningsvist vedrørende artikel 10 (Klagers kommercielle ytringsfrihed), at de omhandlede udsendelser faldt inden for artikel 10’s anvendelsesområde, idet artikel 10 ikke kan afgrænses til alene at omfatte visse former for ytringer. Kommissionen fandt herefter, at der ved ikendelsen af bøden var sket et indgreb i Klagers ytringsfrihed. Kommissionen undersøgte derefter lovhjemlen for indgrebet. I denne forbindelse fandt Kommissionen, at der var lovhjemmel for indgrebet og tilføjede, at en bestemmelse godt kan give fortolkningsproblemer uden samtidig at være så vag og upræcis, at bestemmelsen ikke har den efter konventions-praksis fornødne lovkvalitet. Kommissionen fandt endvidere, at bestemmelserne var både tilgængelige og tilstrækkeligt forudsigelige. Endeligt fandt Kommissionen, at indgrebet forfulgte det lovlige formål at beskytte andres rettigheder, herunder specielt børn og unge mod reklame. Ved indgrebet fandt Kommissionen ikke, at de hollandske myndigheder havde overskredet deres skønsmargin, og indgrebet kunne ifølge Kommissionen ikke siges at være uproportionalt.
Vedrørende diskriminationsklagen (artikel 14, smh. artikel 10) fandt Kommissionen, at diskrimination set ved sammenligning med lovgivning i andre medlemsstater ikke kan siges at være en sammenlignelig situation, hvorfor der ikke kan siges at foreligge diskrimination i den konkrete sag.
_________Beslutning (engelsk)__________
AS TO THE ADMISSIBILITY OF
Application No. 16844/90
by NEDERLANDSE OMROEPPROGRAMMA STICHTING
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 May 1990 by
NEDERLANDSE OMROEPPROGRAMMA STICHTING against the Netherlands and
registered on 10 July 1990 under file No. 16844/90;
Having regard to the observations submitted by the respondent
Government on 21 January 1993 and the observations in reply submitted
by the applicant on 3 May 1993;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, the Netherlands Broadcasting Programme Foundation
(Nederlandse Omroepprogramma Stichting), is a non-profit co-operative
organ of broadcasting institutions in the Netherlands. Its registered
seat is in Hilversum, the Netherlands. Before the Commission the
applicant is represented by Mr. E.J. Dommering, a lawyer practising in
The Hague.
The facts of the case, as submitted by the parties, may be
summarised as follows.
One of the applicant’s tasks is to produce and broadcast certain
collective programmes of a general interest, such as, inter alia, daily
news broadcasts and sport programmes.
On 14 May 1988 in the applicant’s broadcast “News for young
people” (Jeugdjournaal), which aims at an audience between 9 and 12
years old, a programme was presented regarding holiday resorts and
young people, in which a holiday at a “Centreparcs” resort where
specifically organised activities are proposed was set out against a
holiday at a camping site where no specifically organised activities
are proposed. The item included a short impression of a “Centreparcs”
resort and a camping, an interview with the managers of both places and
a discussion between two children who habitually pass their holiday in
either one of these places. In the presentation of this programme the
name “Centreparcs”, the exploiting company, was mentioned several
times.
On 16 July 1988 the applicant broadcast its programme “Klokhuis”
on everyday issues, which aims at an audience between 9 and 13 years
old. In the context of a feature on the recycling of glass, a sketch
was presented, in which someone drank “Coca-Cola” from several small
returnable bottles simultaneously through straws expressing the
intention to buy a bag of “Wokkels”, a savoury snack, with the deposit
money to be received upon the return of these bottles to the shop. In
the course of this sketch the names of “Coca-Cola” and “Wokkels” were
mentioned several times and “Coca-Cola” bottles were visible during
almost the entire duration of the sketch.
By letter of 15 August 1988 the Commissariat for the Media
(Commissariaat voor de Media) informed the applicant that it intended
to impose a sanction on the applicant, as it considered these and
certain other broadcasts, in view of the extensive attention given to
“Centreparcs”, the lengthy display of “Coca-Cola” bottles and the
repetitive mention of “Wokkels”, to be in violation of Section 52 of
the Media Act (Mediawet), which, inter alia, provides that broadcasts
must not contain direct or indirect commercial publicity unless
authorised under the Media Act or unavoidable.
Following a hearing and after having considered advice of the
Commission of Experts (Deskundigen Commissie), the Commissariat for the
Media, on 11 November 1988, imposed a fine of 8,000 guilders for the
news broadcast and a fine of 7,000 guilders for the “Klokhuis”
broadcast on the applicant for having violated Section 52 of the Media
Act.
The applicant’s appeal under the Administrative Decisions Appeals
Act (Wet Administratieve Rechtspraak Overheidsbeschikkingen) to the
Judicial Division of the Council of State (Afdeling Rechtspraak van de
Raad van State) against the two fines was rejected on 5 December 1989.
Insofar as the applicant invoked Article 6 of the Convention, the
Judicial Division held that this provision requires that a sanction
imposed must be proportionate to the committed offence. Noting that the
fines were set at 10% of the normal amounts, as it was the first time
the applicant was fined in this respect, the Judicial Division did not
consider the fines to be disproportionate to the offence.
Concerning the applicant’s complaint under Article 10 of the
Convention, the Judicial Division held that a prohibition on commercial
publicity constituted a condition for a broadcasting licence within the
meaning of the last sentence of Article 10 para. 1 of the Convention
and that, therefore, this prohibition did not contravene Article 10.
The Judicial Division added, however, that the authorities in
this respect do not enjoy an unlimited freedom, as in view of Articles
14, 17 and 18 of the Convention, the use of a licence system should not
give rise to arbitrariness, discrimination, unnecessary restrictions
or abuse of power. It should be subject to supervision by an
independent and impartial judge or administrative appeal organ. The
Judicial Division considered that the rules at issue complied with
these requirements.
In respect of the applicant’s complaint under Article 14 of the
Convention that the restrictions imposed on Dutch broadcasting
institutions are more severe than those of foreign broadcasting
institutions whose programmes can be received in the Netherlands, the
Judicial Division considered that the Netherlands authorities cannot
control restrictions imposed on foreign broadcasting institutions. The
Judicial Division, therefore, rejected the argument that Article 14 was
violated.
RELEVANT DOMESTIC LAW
The task of the Dutch Broadcasting Programme Foundation is set
out in Section 16 para. 2 of the Media Act, which provides, inter alia:
<Translation>
“Apart from other tasks of the Foundation under this Act,
it is entrusted with:
a. the co-ordination of the programmes of the institutions
which have obtained broadcasting time for national
broadcasts;
b. the producing and broadcasting of a programme;”
Section 40 para. 1 of the Media Act provides, inter alia:
<Translation>
“1. The Commissariat for the Media allocates […]
broadcasting time to broadcasting institutions, […] and
the Foundation on the understanding that […]
c. the Foundation will be allocated twice as much
broadcasting time for television broadcasts as a
broadcasting institution A […].”
Section 51 of the Media Act provides, inter alia:
<Translation>
“1. The Foundation uses the broadcasting time, allocated
in accordance with Section 40 para. 1, for national
broadcasts entirely for a collective programme.
2. The programme consists of items, which satisfy existing
social, cultural, religious or spiritual needs of the
people, which needs are insufficiently met by programmes of
other institutions, which have broadcasting time […].
3. Apart from the items mentioned under para. 2 the
programme includes items pre-eminently suitable for a
collective production. To this category belong those
programme items, which require a high frequency and set
regularity of broadcasting, which are of a general service
nature […].”
Section 50 para. 6 of the Media Act, insofar as relevant,
provides:
<Translation>
“The television and radio advertising association
(Stichting Etherreclame) uses its broadcasting time for a
programme consisting of commercials offered by third
parties. (…). The programme of the television and radio
advertising association is as such recognisable and clearly
distinct from programmes of other institutions having
obtained broadcasting time.”
Section 52 paras. 1 and 2 of the Media Act provide as follows:
<Translation>
“1. The programmes of institutions which have obtained
broadcasting time will not contain any commercial publicity
unless this is explicitly allowed under this Act.
2. Furthermore the programmes referred to in para. 1 do
not contain other commercial utterances unless this is
unavoidable. It can be determined by Order in Council
(algemene maatregel van bestuur) in which cases a
commercial utterance in a programme can be considered as
being unavoidable, as well as when it is permitted that
programmes contain commercial utterances.”
Section 1 of the Media Act, insofar as relevant, provides as
follows:
<Translation>
“1. (…)
r. commercials (reclameboodschappen): communications
which unmistakably aim at encouraging the public to
purchase a particular product or use a particular service,
or at giving it a favourable image of a particular company,
branch of industry of institution in order to promote the
sale of products or the use of services;
s. commercial utterances (reclame-uitingen): commercials
and other utterances which unmistakably result in the
public being encouraged to buy a particular product or to
use a particular service, or being given a favourable image
of a particular company, branch of industry or institution
so that the sale of products or the use of services will be
promoted.
2. The calling for support for or the giving of a
favourable view to institutions with a scientific,
cultural, spiritual, religious, political or charitable
character is not considered as a commercial or other
commercial utterance, insofar as it does not refer to
buying a certain product or the use of a particular service
which can be obtained at the commercial market.”
The Order in Council of 19 November 1987 implements the general
rules of the Media Act. Sections 26 up to and including 32 of this
Media Decree (Mediabesluit) deal with direct or indirect commercial
publicity within the meaning of Section 52 of the Media Act.
The Media Decree rules divide such publicity in unavoidable
publicity, being, generally speaking, commercial utterances belonging
to the normal street scene and which occur unintentionally and without
emphasis for some seconds in a programme, and avoidable publicity, the
latter category being either permitted under certain conditions in
educational, informative or sport programmes, or not permitted.
Section 134 of the Media Act entrusts the supervision of the
observance of the Media Act to the Commissariat of the Media. Section
135 of the Media Act entitles the Commissariat to impose an
administrative fine of up to 200,000 Dutch guilders per offence for the
non-observance of, inter alia, Section 52 of the Media Act.
Under Section 137 of the Media Act such a fine can be collected
either by way of an enforcement order (dwangbevel) or by way of
deducing the amount of the fine from the compensation paid by the
Commissariat of the Media to broadcasting institutions for the costs
of radio and television facilities.
COMPLAINTS
1. The applicant complains under Article 10 of the Convention that
its right to freedom of expression has been unjustly interfered with.
It submits that the rules of the Media Act on indirect commercial
publicity lack both clarity and precision, that the interference with
its right to freedom of expression lacks a legitimate aim and that it
was not necessary in a democratic society.
2. The applicant complains under Article 14 of the Convention in
conjunction with Article 10 that regulations on broadcasting
institutions imposed by the Dutch authorities are more stringent than
those imposed by authorities over foreign broadcasting institutions
whose broadcasts can be received in the Netherlands.
3. The applicant complains under Article 6 para. 1 of the Convention
that the criminal charge against it was determined by the Commissariat
for the Media, which is not an independent and impartial tribunal. The
applicant submits in particular that the Commissariat for the Media
does not only impose a sanction, i.e. a fine, but also immediately
executes this sanction, whereas an appeal to a judicial authority has
no suspensive effect.
4. The applicant complains under Article 6 para. 2 of the Convention
that the words “until proved guilty according to law” imply the
principle that a prosecuting authority carries the burden of proof in
respect of the facts with which an accused is charged, in the present
case, whether the commercial utterances were conducive to the sale of
the products at issue. The applicant complains that this proof was not
required in the present proceedings.
5. The applicant finally complains under Article 6 para. 3 (a) of
the Convention that the charges against it lacked both clarity and
precision as it could not be established from the charges against it
which part of the broadcasts was considered to constitute an offence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 May 1990 and registered on
10 July 1990.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
The Government’s observations were submitted on 21 January 1993
and the applicant’s observations in reply were submitted on 3 May 1993.
THE LAW
1. The applicant complains under Article 10 (Art. 10) of the
Convention that its right to freedom of expression has been unjustly
interfered with by the imposition of a fine in respect of two of its
broadcast programmes.
Article 10 (Art. 10) of the Convention reads as follows:
“1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
“2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society
(…) for the prevention of disorder (…), for the
protection of the (…) rights of others (…).”
The Government submit that the legal framework of the Dutch
broadcasting system is based on the principles of openness, diversity,
non-commerciality and co-operation. Under the Media Act the currently
eight Dutch broadcasting institutions are bound by several constraints,
among which the obligation to eschew advertising. They are allocated
national broadcasting time by the Commissariat for the Media, which
also allocates time to a number of educational institutions, political
parties and other groupings, such as organisations based on religious
or other philosophical principles, thereby guaranteeing a programming
schedule which permits the various shades of political, social and
religious or philosophical opinions in the Netherlands full expression.
The Government state that under the Media Act only the television
and radio advertising association “STER” (Stichting Ether Reclame) is
allowed to broadcast commercials. The “STER” does not produce the
commercials itself, but merely provides for the transmission of
commercials offered by third parties. Its revenue is passed on to the
Government, which uses it to defray the costs of implementing the Media
Act.
The Government observe that the requirement under the Media Act,
that advertising shall be clearly distinguishable as such and separate
from other programmes, is also laid down in Directive no 89/552/EEC of
3 October 1989 of the Council of the European Communities and the
European Convention on Transfrontier Television of 5 May 1989 of the
Council of Europe, given that throughout Europe advertising is becoming
an increasingly important source of financing for broadcasting
organisations.
The Government are of the opinion that Article 10 (Art. 10) of
the Convention does not include the right to introduce surreptitious
advertising in programmes such as news broadcasts. The right to provide
and disseminate information does not confer a general right of access
to broadcasting time on radio and television. The Government consider
that the Netherlands’ choice for a system in which a licence for
broadcasting commercials is exclusively granted to the “STER” is in
accordance with the aim contained in the third sentence of para. 1 of
Article 10 (Art. 10) of the Convention. Therefore, not to permit an
unexpected appearance of advertising as an integral part of a programme
by another broadcasting institution than the “STER” does not constitute
an interference with the right to freedom of expression.
The Government, alternatively, argue that, if the measure
complained of should be regarded as an interference with the
applicant’s rights under Article 10 (Art. 10) of the Convention, the
interference must be considered as being justified under para. 2 of
this provision as being prescribed by law and necessary in a democratic
society for the prevention of disorder and for the protection of the
rights of others, namely the rights of the general public – in
particular the vulnerable category of young people -, who must be
protected from misleading practices, the rights of other broadcasting
institutions subject to the same rules and the rights of other
advertisers. According to the Government the protection of third
parties also includes the promotion of pluralism in respect of
information.
The Government submit that both the Media Act and the Media
Decree are accessible to all, that their rules are sufficiently clear
and precise and that the consequences of their rules are readily
foreseeable, in particular having regard to the legal and technical
expertise the restricted group of broadcasting institutions in the
Netherlands may be expected to have. The Government admit that the
rules of the Media Act and the Media Decree sometimes need
clarification, but do not consider that the fact that legislation needs
interpretation is contrary to the Convention.
Having regard to their margin of appreciation the Government are
of the opinion that the interference complained of is proportionate to
the legitimate aim pursued. The restrictions on advertising contained
in the applicable rules do not deprive the broadcasting institutions
of the right to provide information. These rules do not regard the
contents of the information, but the way it is presented. The
programmes at issue were both recorded in advance and the emphatical
mention of “Centreparcs” and the focus on “Coca-Cola” and “Wokkels” was
unnecessary for the presentation of the programme items.
The applicant points out that the Dutch rules on advertisement
are more strict than those set out in the European Convention on
Transfrontier Television in the sense that the former also prohibit
commercial utterances, which are very broadly defined. The applicant
submits that in its decision of 5 December 1989 the Judicial Division
of the Council of State extended this broad definition by considering
that a “sales-boosting” effect is already present if products or
services are shown or the name of a product or service is mentioned in
a broadcast. Under Dutch law a commercial utterance can be judged as
prohibited without any examination of the intention of the broadcasting
institution, the context in which the utterance was made and whether
or not a payment in money or kind was received in return.
The applicant considers that the Dutch and the European rules on
surreptitious advertising are fundamentally different. The former
system drastically restricts the freedom of expression. Furthermore a
comparison with the systems used in other European States shows that,
contrary to the situation in the Netherlands, in general the monitoring
of surreptitious advertising in the public broadcasting service is left
largely to the broadcasting institutions themselves and that, where a
system provides the possibility to impose sanctions, sanctions are in
practice hardly ever imposed.
The applicant refutes the Government’s argument that there has
been no interference with its rights under Article 10 (Art. 10) of the
Convention, since the restrictive Dutch rules in respect of commercial
utterances directly interfere with the applicant’s freedom of
expression. Referring to the Court’s reasoning in the Barthold case
(Eur. Court H.R., judgment of 25 March 1985, Series A no. 90, paras.
42 and 55) and the dissenting opinion of Judge Martens, approved by
Judge Macdonald, in the case of Markt Intern Verlag Gmbh and Klaus
Beermann (Eur Court H.R., judgment of 20 November 1989, Series A no.
165), the applicant considers that the contents of the programmes at
issue cannot be regarded as constituting “advertisement” and that a
Contracting State’s margin of appreciation in respect of commercial
utterances must be examined in the light of a European standard.
The applicant further submits that directors, producers and
journalists of broadcasting institutions, when making programmes, are
either hampered in the exercise of their editorial freedom or risk
large fines when exercising this freedom as a result of the
inaccessibility and unpredictability of the criteria in the Dutch media
regulations. Producers do not have the time for repeated consultations
of specialised lawyers in order to prevent the imposition of large
fines, which entails the risk of self-censorship and results in
requesting the Commissariat for the Media’s prior consent for
particular programme parts already during the production thereof.
Under para. 2 of Article 10 (Art. 10-2) of the Convention, the
applicant submits that nothing in the draft history, text and practical
application of Dutch media regulations suggests that they seek to
protect consumers against misleading or deceptive practices and
companies against unfair competition. Furthermore, not the rules on
advertisement, but other Sections of the Media Act seek to guarantee
pluralism in the Dutch broadcasting system. The applicant finally
complains that it has not been examined in which context the utterances
were made, whether payment has been received in return and which impact
the utterances at issue had on the audience, and that the fines imposed
are disproportionate to the aim pursued.
The Commission recalls at the outset that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set out
in the Convention (cf. No. 11941/86, Dec. 5.10.88, D.R. 57, p. 100).
The Commission notes that the commercial utterances at issue were
made in the context of television programmes containing information of
a general nature and which were primarily aimed at a young audience.
Such programmes cannot be excluded from the scope of Article 10
(Art. 10) of the Convention, which does not apply solely to certain
types of information or ideas or forms of expression (cf. Eur. Court
H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment of 20
November 1989, Series A no. 165, para. 26).
The Commission is of the opinion that the fines imposed for
having broadcast prohibited commercial utterances in the context of
informative television programmes constituted an interference with the
applicant’s right under Article 10 para. 1 (Art. 10-1) of the
Convention. Such an interference is contrary to the Convention unless
it is “prescribed by law”, has an aim or aims that is or are legitimate
under para. 2 of Article 10 (Art. 10-2) and is “necessary in a
democratic society” for the aforesaid aim or aims.
As regards the condition “prescribed by law”, the Commission
considers that the interference had a legal basis in Sections 1 and 52
of the Media Act and in Sections 26 to 33 of the Media Decree, which
indicate with sufficient clarity under which circumstances commercial
utterances can be regarded as permitted. Moreover, the mere fact that
a legislative provision may give rise to problems of interpretation
does not mean that it is so vague and imprecise as to lack the quality
of “law” (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51, p. 136).
The Commission is satisfied that the texts of these provisions
were “adequately accessible” to the applicant (as to this criterion cf.
Eur. Court H.R., Sunday Times (No.1) judgment of 26 April 1979, Series
A no. 30, para. 49). As to foreseeability, the Commission considers
that the applicant, as a co-operative organ of broadcasting
institutions in the Netherlands, could reasonably foresee that the
utterances at issue might be considered as being contrary to the Media
Act and the Media Decree.
The Commission accepts that the interference complained of
pursued a legitimate aim, in that it was intended to protect the rights
of others and, in particular, the right of children to be protected
against indirect advertisement in television programmes primarily aimed
at a young audience and the right of companies to be protected against
unfair competition.
Finally the Commission must examine whether the interference
complained of was necessary in a democratic society. The Commission
recalls that the Contracting States have a certain margin of
appreciation in assessing the existence and extent of the necessity of
an interference, but this margin is subject to a supervision by the
Convention organs. The margin of appreciation is particularly important
in commercial matters and in an area as complex as that of unfair
competition, where the Convention organs must confine their review to
the question whether the measures taken on a national level are
justifiable in principle and proportionate (Markt Intern Verlag GmbH
and Klaus Beermann judgment, ibid., para. 33). The Commission considers
that the same principle applies in the present case concerning indirect
advertisement in television programmes.
The Commission notes that the two programmes at issue were
prerecorded and concerned alternative possibilities to spend holidays
and information on the recycling of glass respectively. Although the
Commission finds nothing to suggest that the applicant was
intentionally seeking to promote “Centreparcs” resorts, “Coca-Cola” or
“Wokkels”, it is of the opinion that, in view of the target audience
of these programmes, the specific position of the applicant in the
Netherlands broadcasting system and the respective amounts of the fines
imposed, the interference at issue cannot be said to be beyond the
Netherlands margin of appreciation or to be unreasonable or
disproportionate.
The Commission, therefore, concludes that the interference
complained of was a measure prescribed by law and could reasonably be
considered as necessary in a democratic society for the protection of
the rights of others.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains under Article 14 of the
Convention in conjunction with Article 10 (Art. 14+10) that regulations
on broadcasting institutions imposed by the Dutch authorities are more
stringent than those imposed by authorities on foreign broadcasting
institutions whose broadcasts can be received in the Netherlands.
The Commission notes that the applicant seeks to compare its
situation with that of a foreign broadcasting institution which is
subject to the national laws of another country. The Commission does
not find that these two situations can be considered as being analogous
and, therefore, no question of discrimination within the meaning of
Article 14 (Art. 14) of the Convention arises in the present case (cf.
Eur. Court H.R., Van der Mussele judgment of 23 November 1983, Series
A no. 70, para. 46).
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant finally complains under Article 6 para. 1
(Art. 6-1) of the Convention that the criminal charge against it was
determined by the Commissariat for the Media, which is not an
independent and impartial tribunal. It also complains that the fines
imposed violated Article 6 para. 2 (Art. 6-2) of the Convention in that
the Commissariat for the Media does not have to prove that the
commercial utterances were in fact conducive to the sale of the
products at issue. The applicant finally complains under Article 6
para. 3 (a) (Art. 6-3-a) of the Convention that the charges against it
lacked both clarity and precision.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides:
“1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair (…) hearing (…) by an independent
and impartial tribunal established by law. (…).
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly (…) of the nature and cause of the
accusation against him;”
The Government submit that Article 6 (Art. 6) of the Convention
does not apply to the proceedings at issue.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention only applies to proceedings in which a “civil right or
obligation” or a “criminal charge” is determined. The applicant does
not rely on the notion of “civil right” and the Commission finds that
no “civil right” is at issue. It observes in this respect that
disciplinary proceedings may involve the determination of a civil
right, when such proceedings can lead to someone being deprived of his
right to exercise his profession (cf. No. 11504/85, Dec. 7.11.88, D.R.
58, p. 48 and No. 12458/86, Dec. 18.1.89, D.R. 59, p. 113). This
situation does not arise in the present case.
The Commission does not find it necessary to resolve the question
whether or not the proceedings at issue concerned a determination of
a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention, as this part of the application is in any event
inadmissible for the following reasons.
Assuming that the proceedings at issue involved a determination
of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention, the Commission notes that, under the Administrative
Decisions Appeals Act, the applicant could, and in fact did, file an
appeal with the Judicial Division of the Council of State, a judicial
organ the independence and impartiality of which is not contested by
the applicant.
The Commission considers that where criminal charges have been
successively examined by different organs, Article 6 para. 1 (Art. 6-1)
does not necessarily demand that the first of them satisfies the
requirements of that provision (cf. mutatis mutandis, No. 111798/84,
Dec. 9.7.86, D.R. 48 p. 207). The Commission therefore finds that the
applicant’s case was examined by an independent and impartial tribunal
as required by Article 6 para. 1 (Art. 6-1).
The Commission does not find that the facts of the case raise an
issue under Article 6 para. 2 (Art. 6-2) of the Convention (cf., as
regards presumptions in criminal proceedings, Eur. Court H.R.,
Salabiaku judgment of 7 October 1988, Series A no. 141-A, pp. 14ff.,
paras. 26ff.).
As regards the applicant’s complaint under Article 6 para. 3
(Art. 6-3) of the Convention that the charges against it lacked both
clarity and precision, the Commission notes that the Commissariat for
the Media by letter of 15 August 1988 informed the applicant that it
intended to impose a sanction on the applicant for having violated
Section 52 of the Media Act in view of, inter alia, the extensive
attention given to “Centreparcs”, the lengthy display of “Coca-Cola”
bottles and the repetitive mention of “Wokkels” in two identified
broadcasts.
The Commission recalls its findings under Article 10 (Art. 10)
of the Convention that the Media Act and the Media Decree indicate with
sufficient clarity under which circumstances commercial utterances can
be regarded as permitted and that the applicant – as a co-operative
organ of broadcasting institutions in the Netherlands – could
reasonably foresee that the utterances at issue might be considered as
being contrary to the Media Act and the Media Decree.
In these circumstances the Commission finds that the letter of
15 August 1988 from the Commissariat for the Media to the applicant
contained sufficiently clear information for the purposes of Article
6 para. 3 (a) (Art. 6-3-a) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Udfærdiget af Tobias Jensen ÆLDRE NYERE