Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicants , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Ms Ana Ciubotaru , PERSON , Ms PERSON , Mr PERSON and PERSON , are NORP nationals who were born on DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE and on other unspecified dates and who live in GPE , GPE . PERSON is a NORP nongovernmental organisation located in GPE . They were all represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

NORP The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the PERSON and ORG set up an operation to capture CARDINAL GPE people , including Mr NORP and PERSON Ovidiu Ciubotaru and Mr PERSON , who lived in the town of PERSON and were suspected of a number of unlawful acts , including a robbery DATE . The police operation was set up on the basis of an order of DATE issued by ORG attached to ORG of the Interior concerning the identification and capture of , inter alia , the abovementioned individuals . The police officers were divided into CARDINAL teams and instructed to surround the town in order to prevent the wanted individuals from fleeing , to identify the homes of the suspects and to descend on the ORG homes simultaneously .

On DATE fortyfive police officers from the PERSON and PERSON Special Intervention Units and other regular police stations gathered and descended on the town of PERSON . After searching the PERSON homes , the police discovered that some of them were hiding in an abandoned house in the town . The police units surrounded the house . At this point other GPE people started gathering in the street , some of them armed with stones , wooden posts and axes , and started a violent demonstration against the police officers . A further QUANTITY police officers were called in support as a result of the violent behaviour of the crowd .

NORP The police asked the occupants of the house twice to give themselves up , and when they failed to respond the police started using tear gas to draw them out of the house . After tear gas had been used officer GPE negotiated with the occupants of the house for TIME , trying to persuade them to give themselves up , but CARDINAL of the suspects attacked him with an axe . More tear gas was used and another attempt at negotiation was made by GPE , but the police officer was attacked once more by the occupants of the house . The police officers used tear gas for a third time and CARDINAL of the applicants , Mr PERSON and Mr PERSON , as well as another suspect , Mr PERSON , came out of the house . Mr PERSON and Mr PERSON attacked police officer GPE with axes . Police officer GPE and his colleague PERSON opened fire in the direction of PERSON ORG Ciubotaru and Mr PERSON . As a result , Mr PERSON was shot in the thorax and stomach and died at the scene . Mr PERSON was shot in the back and taken to hospital .

In the course of this incident CARDINAL people in the crowd were also shot . The crowd became violent and some of the people in the crowd , including Mr Gelu Ciubotaru , started attacking the police officers . The officers launched verbal warnings and fired into the air to disperse the crowd and stop the attackers . Mr GPE attacked the police officers with a wooden post and grabbed police officer PERSON by the neck and hit him . Consequently , officer PERSON , who had also been injured by the crowd , started firing at Mr Gelu Ciubotaru ’s feet and then at his upper body . Mr NORP was shot in the thorax and died at the scene . Mr PERSON , a minor at the time of the events , was also shot in the right side of the thorax and was taken to hospital . According to the forensic report , quoted by the prosecutor at the conclusion of the criminal investigation which followed the incident , some of the parties injured in the events required the following number of DATE of medical care : DATE for Mr PERSON , DATE for Mr PERSON , QUANTITY DATE for officer ORG , and thirtyfive to DATE for officer C.V.S. Two other officers who were part of the support group called in to help the police officers who initiated the operation were also injured : ORG had a serious eye injury which almost caused him permanent blindness , while GPE received a leg injury .

On DATE Mr PERSON , PERSON , PERSON and PERSON signed authorisations for PERSON , a NORP nongovernmental organisation whose purpose is to defend the rights of the GPE community in GPE , to represent them before the state institutions , including , inter alia , the police , the ORG offices and the civilian and military courts in respect of the events of DATE . There is no evidence in the file that the remaining applicants signed similar authorisations . The signatures of the CARDINAL applicants on the authorisations signed on DATE , on the criminal complaints lodged against the police officers involved in the events of CARDINAL DATE and on the powers of attorney signed by them on CARDINAL DATE authorising their lawyer Mr PERSON to represent them before the ORG , appear not to match .

NORP PERSON also authorised legal representatives of its own choice to assist and represent it throughout the entire proceedings .

On an unspecified date in DATE the applicant PERSON lodged a criminal complaint against the police officers who had shot Mr PERSON , her son , who was a minor . Her complaint does not contain any indication that she would have liked to lodge a complaint on her own behalf .

On unspecified dates the applicants PERSON and PERSON also lodged criminal complaints against the police officers involved in the events of CARDINAL DATE . Mr PERSON argued that he had been hit several times on the head and body and PERSON Ovidiu Ciubotaru stated that he had been shot CARDINAL times , although neither of them was resisting arrest . The applicants’ signatures on the complaints lodged against the police officers appear not to match their signatures on the powers of attorney of CARDINAL DATE authorising Mr PERSON to represent them before the ORG .

On an unspecified date Mr PERSON also lodged a criminal complaint against the police officers who had shot and killed Mr PERSON , his son . His complaint does not contain any indication that he would have liked to complain against the police officers on his own behalf . A second power of attorney of CARDINAL DATE available in the file on PERSON PERSON name authorising Mr PERSON to represent him before the ORG was signed by Ms PERSON . Apart from her signature , Ms PERSON name does not appear on any of the powers of attorney available to the file authorising PERSON PERSON to represent the applicants before the ORG .

On an unspecified date Ms PERSON lodged a criminal complaint against the police officers who had shot and killed Mr GPE , her husband . Her complaint does not contain any indication that she would have liked to make a complaint against the police officers on her own behalf .

On an unspecified date the applicant PERSON lodged a criminal complaint against the police officers involved in the events of DATE . She stated that while she was trying to reach her dead son , Mr GPE , the police officers hit her on the back and head and pushed her into a ditch . She also stated that she was DATE at the time and could have not been seen as a threat by the officers .

DATE and DATE the domestic authorities heard victims of the events and their relatives , people who had been in the crowd , and suspected offenders , as well as other police officers who had taken part in the operation . CARDINAL sixtyfive people were heard by the authorities .

On DATE the police officers provided ORG with CARDINAL axes , allegedly used by the applicants to attack them on DATE . The same axes were delivered on CARDINAL DATE to the prosecutor investigating the case .

On DATE ORG of ORG produced a forensic expert report on the bullet wounds sustained by PERSON PERSON and Mr NORP and autopsy reports on the deceased , GPE and PERSON . According to the reports Mr Vasile Vâtu had been shot on DATE from the right with a firearm , using balls as ammunition . Mr ORG Ciubotaru had been shot twice , once in the left cheek and once in the left thigh . The wounds were not lifethreatening to any of the applicants . Furthermore , according to the autopsy reports Mr Gelu Ciubotaru had been shot twice , first in the right thigh and then in the thorax , the latter wound causing his death . Mr PERSON had been shot CARDINAL times , the first CARDINAL times in the left thigh , then once in the right thigh and lastly , once in the thorax . The wounds to his thighs had been caused by metal bullets . The wound in the thorax was the only one responsible for his death and had been caused by a rubber bullet fired at close range from a distance equal to the length of the barrel of the gun it had been fired from .

On DATE ORG investigated the scene of the crime and gathered the evidence found , including stones , wooden posts or sticks , parts of the wall penetrated by bullets , traces of blood and bullet shells for further examination .

On DATE ORG ordered a ballistic expert report on the weapons fired on DATE of the events .

On DATE PERSON informed ORG about the events of DATE and complained that police officers had shot and injured members of the GPE community . On DATE they submitted testimonial evidence gathered from people who had witnessed the events .

The investigation of the abovementioned incident was completed when the criminal investigation was discontinued by a PERSON prosecutor ’s office order of DATE . The actions of officers GPE and ORG were investigated on accusations of the crimes of murder and causing physical injuries , as were the actions of Mr Gelu Ciubotaru , Mr PERSON , Mr Ovidiu Ciubotaru and Mr PERSON for the crime of insulting behaviour towards a ORG agent . The investigating prosecutor held that the use of force by the CARDINAL policemen against Mr Gelu Ciubotaru , Mr PERSON , Mr Ovidiu Ciubotaru and Mr PERSON was justified because of the behaviour of the victims , which resulted in the policemen having to resort to legitimate self - defence . The investigating prosecutor , although he referred to PERSON PERSON case , did not identify the person responsible for shooting him and did not state whether or not the proceedings would be discontinued in respect of his injury . The investigation in respect of Mr Gelu Ciubotaru and Mr PERSON was terminated because of their deaths , and that in respect of the applicants Mr PERSON and PERSON Ovidiu Ciubotaru was terminated because it was held that their behaviour did not constitute a crime . The prosecutor ’s decision quotes the results of the forensic reports conducted in respect of all the victims of the incident but did not mention the evidence which led to the non - indictment conclusion .

On DATE Mr PERSON , the father of the deceased PERSON , lodged a complaint with ORG concerning unreasonable length of the criminal investigation launched in respect of the events of DATE , and challenged the outcome of the investigation .

ORG dismissed PERSON PERSON complaint by an order of DATE . The prosecutor ’s office held that the proceedings had not been excessively lengthy , given the number of ballistic and forensic reports carried out and the large number of witnesses heard , and that his son had been killed by the police officers in self defence .

On DATE PERSON challenged ORG Office decision of DATE in so far as the decision regarding the investigated policemen was concerned on behalf of Mr PERSON , PERSON ORG Ciubotaru , PERSON PERSON , Ms PERSON , and PERSON Eva Ciubotaru .

By an order of DATE ORG dismissed the challenge on the ground that the police officers had acted in legitimate selfdefence . Also , in respect of PERSON PERSON the unlawful act lacked a physicalinjury element . ORG acknowledged the challenge lodged by PERSON , to be introduced only on behalf of PERSON PERSON , Ms PERSON and Ms PERSON . ORG held that according to the available evidence Mr PERSON and Mr Ovidiu Ciubotaru were shot by GPE and ORG while they were preparing to hit GPE with an axe . At the same time , Mr PERSON could not be seen by the policemen because he was hidden behind a wall made of sawdust when he was shot in the thorax . The wound did not endanger his life .

On DATE PERSON appealed against ORG before the domestic courts . The appeal was also lodged on behalf of PERSON , PERSON , PERSON , PERSON and PERSON , but it had not been signed by those CARDINAL individuals . The applicant organisation argued that according to the witness statements and the evidence available to the file the domestic authorities tried to protect the police officers , who on DATE acted in an uncoordinated manner , misused their firearms and breached the applicable legal provisions in force at the time protecting the applicants’ right to life and their right not to be subject to inhuman and degrading treatment in a discriminatory way .

On DATE and DATE respectively Ms PERSON and PERSON PERSON died .

By a judgement of DATE PERSON of Appeal allowed an appeal by the applicants against the prosecutor ’s orders . The court dismissed the preliminary objection raised by ORG and the CARDINAL accused , namely that PERSON did not have standing to bring proceedings before the domestic courts concerning the events of DATE . The court held that because PERSON considered that GPE persons had been victims of discrimination they decided to represent them before the domestic courts in accordance with the authorisations signed by some of the parties concerned on DATE . The organisation also lodged a complaint before the domestic courts on its own behalf . Taking into account the organisation ’s object of activity and the provisions of section CARDINAL of Emergency Ordinance no . CARDINAL , the court considered that it could not deny in principle the organisation ’s legitimate interest and its standing to bring proceedings against state bodies in order to establish whether ethnic discrimination had occurred and whether the rights of its citizens had been protected . In respect of the merits of the case the court held , inter alia , that the operation of DATE had been a work mission and all the police officers involved had been ordered to take part in it . However , the investigation into the events had not been carried out correctly . In particular , the wounding of the police officers GPE and GPE was not directly relevant to the claim of selfdefence , as the QUANTITY police officers previously mentioned had been wounded in the final stages of the operation , when the police were retreating from the town , while the firearms had been used by the policemen at an earlier stage of the events . Moreover , the forensic expert report carried out over the course of the investigation did not establish with certainty if the rubber bullet Mr PERSON had been shot with by officer GPE could have been the only cause of death in the absence of the rest of the shots . The court considered that this was an important factor in determining the identity of the perpetrator of the killing , considering that the same person had been shot almost simultaneously by police officer PERSON , using live ammunition . Furthermore , the CARDINAL axes allegedly used by Mr PERSON and Mr Ovidiu Ciubotaru had not been forensically checked for their fingerprints . The court held that such evidence was important to determine whether the use of firearms by the officers had been justified . In addition , the investigation failed to determine the exact position of the other members of the police force and whether they could have stopped Mr PERSON attack against GPE At the same time , the investigation had failed to establish the distance and the angle from which Mr ORG had been shot . The circumstances of Mr PERSON shooting had also not been clarified by the investigation in view of the parties’ statements , in particular there was no lawful explanation concerning why he had been shot through a wall or precisely when he had been shot during the operation . Lastly , the file did not contain sufficient evidence concerning the reasons for the police operation to capture the applicants : in particular , the court considered that the orders to seek and capture the applicants , the documents containing the charges against them and the arrest warrants issued in their names were missing from the file . Consequently , the court decided to send the case back to the prosecutor ’s office in order to supplement the criminal investigation .

GPE , GPE and ORG lodged an appeal on points of law ( recurs ) against the judgment of DATE . They argued , inter alia , that the complaints lodged by PERSON before the domestic courts on behalf of the applicants contesting the prosecutor ’s office ’s order to discontinue the criminal investigation was not valid . In particular the authorisations signed by some of the applicants allowing PERSON to represent them before the courts did not comply with the formal requirements for powers of attorney provided by the applicable rules of criminal procedure . In addition , they submitted that the evidence in the file proved that the police officers had acted in selfdefence .

On DATE ORG attached to ORG of the Interior informed the investigating authorities that the axes allegedly used by PERSON PERSON and Mr Ovidiu Ciubotaru to attack the police officers had wooden handles which were uneven and pitted . Consequently , ORG did not have substances or a method allowing them to examine fingerprints on such surfaces .

At the hearings of CARDINAL May , DATE , DATE and DATE ORG adjourned the proceedings on account of procedural errors in summoning the parties and in order to allow them to read the written submissions attached to the file .

At the hearing of CARDINAL DATE ORG heard oral submissions from the parties and , because it needed time to deliberate , adjourned the proceedings to CARDINAL DATE , DATE and to CARDINAL DATE .

By a final judgment of DATE ORG allowed the appeals on points of law by GPE , ORG and ORG , quashed the judgment of DATE and declared inadmissible the applicants’ and PERSON ’s complaints against ORG order of DATE . It held that none of the natural persons had contested the prosecutor ’s office ’s order to discontinue the criminal investigation before the domestic courts . Only Mr PERSON lodged a complaint against the prosecutor ’s office ’s order of DATE , which was dismissed on DATE . He did not challenge the latter decision before the domestic courts . Moreover , none of the applicants had personally signed the challenge lodged by PERSON on their behalf . In addition , the appeal lodged by PERSON on behalf of the applicants against the prosecutor ’s office ’s order for the investigation to be discontinued was invalid . The nongovernmental organisation had not been empowered by the applicants to represent them before domestic courts on the form required by the applicable rules of criminal procedure , in particular Article CARDINAL ( CARDINAL ) of LAW , and therefore the organisation could not be considered to be the applicants’ representative . The applicants had not provided PERSON with a special and certified power of attorney as required by law . In so far as PERSON argument was concerned , that on the basis of section CARDINAL of Emergency Ordinance no . CARDINAL it had legal standing to bring proceedings before domestic courts , the court noted that the organisation had not sustained any prejudice as a result of the incident complained of , and the police action of DATE concerned the taking into custody of wanted individuals , and did not represent acts of discrimination as required by section CARDINAL of Emergency Ordinance no . CARDINAL . Consequently , it held that PERSON did not have legal standing to bring proceedings before the domestic courts .

The applicants lodged their application before the ORG with a letter dated DATE . The initial application form attached to the letter contained the names of Mr PERSON and PERSON Ovidiu Ciubotaru , Ms PERSON with the note that she was representing PERSON PERSON , Mr PERSON , Ms PERSON and the organisation PERSON . The application form was signed by PERSON PERSON , as the applicants’ representative . No powers of attorney were attached to the application . The applicants complained that some of them had sustained bullet wounds and some of their relatives had been killed , but none of them referred , either expressly or in substance , to any other complaints as a result of other types of injury sustained .

Following the ORG ’s request on DATE the ORG representative submitted powers of attorney signed on DATE by all the initial applicants , including Mr PERSON and Ms Ana Ciubotaru . In respect of Mr PERSON , Mr PERSON submitted CARDINAL powers of attorney bearing his name , CARDINAL of them signed however by Ms PERSON , whose name does not appear on any of the other powers of attorney . Moreover , PERSON PERSON name and/or signature were not present on any of the powers of attorney submitted before the Court . In addition , one of the powers of attorney had been filled in and signed by PERSON .

On DATE the ORG received CARDINAL sets of application forms which contained complaints identical to the ones mentioned in the first application form submitted by the applicants . Each application form bears the name of a different applicant , as follows : PERSON PERSON , PERSON Ovidiu Ciubotaru , Ms PERSON , Mr PERSON , Ms PERSON and the organisation PERSON .

The name of PERSON PERSON does not appear on any of the application forms or the powers of attorney submitted by the applicants at any stage of the proceedings before the Court .

Article CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW provides , inter alia , that the breach of the rules concerning the lodging of a complaint before the court renders the complaint null and void . The nullity can not be corrected and can be examined at any stage of the proceedings as well as by the court of its own motion .

Article CARDINAL ( CARDINAL ) of LAW provides that a complaint can be lodged by a person , either on their own behalf or through a representative authorised by a certified mandate attached to the complaint .

The relevant legal provisions , in particular a description of the development of the law concerning complaints against decisions of the prosecutor ( Articles CARDINAL and CARDINAL of LAW introduced by PERSON no . ORG applicable from DATE ) , are set forth in the judgment of PERSON GPE ( ( no . CARDINAL ) , no . CARDINAL , § § CARDINAL , DATE ) .

Section CARDINAL ( CARDINAL ) and ( CARDINAL ) of Emergency Ordinance no . CARDINAL/CARDINAL on combating discrimination provides that nongovernmental organisations involved in the protection of human rights , or justifying a legitimate interest in combating discrimination , have legal standing to initiate proceedings if the discrimination occurs in their field of activity and targets a community or a group of people . They also have legal standing in cases where discrimination targets an individual at the latter ’s request .


CASE OF CENTRO EUROPA 7 S.R.L. AND DI STEFANO v. ITALY

Preliminary objection allowed (Article 35-3 - Ratione personae);Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award

András Sajó;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Linos-Alexandre Sicilianos;Nona Tsotsoria

The first applicant , ORG CARDINAL S.r.l . ( “ the applicant company ” ) , is a limited liability company operating in the television - broadcasting sector , with its registered office in GPE . The second applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He is the statutory representative of the applicant company .

By a ministerial decree of DATE , the appropriate authorities granted ORG CARDINAL S.r.l . a licence for nationwide terrestrial television broadcasting in accordance with PERSON no . PERSON ( see paragraphs CARDINAL below ) , authorising it to install and operate an analogue television network . The licence specified that the applicant company was entitled to CARDINAL frequencies covering PERCENT of national territory . As regards the allocation of the frequencies , the licence referred to the national frequency - allocation plan , adopted on DATE . It indicated that the installations should be brought into line with the requirements of the “ assignment plan ” ( piano di assegnazione ) within DATE and that the measures taken to that end should conform to the adjustment programme ( programma di adeguamento ) drawn up by ORG ( PERSON per le garanzie nelle comunicazioni – AGCOM ) in conjunction with ORG ( “ the Ministry ” ) . It appears from the PERSON judgment no . CARDINAL of CARDINAL DATE ( see paragraph CARDINAL below ) that , under the terms of the licence , the allocation of frequencies was deferred until such time as the authorities had adopted the adjustment programme , on the basis of which the applicant company should have upgraded its own installations . The adjustment programme should , in turn , have taken into account the requirements of the national frequency - allocation plan . However , the plan was not implemented . A succession of transitional schemes that benefited existing channels were applied at national level , with the result that , even though it had a licence , the applicant company was unable to broadcast until DATE as it had not been allocated any frequencies .

The applicant company , through its statutory representative , made a number of applications to the administrative courts .

In DATE the applicant company served formal notice on the Ministry to allocate frequencies to it . In a note of DATE , the ORG refused its request .

In DATE the applicant company lodged an application with ORG against ORG and ORG ( a network of NORP television channels controlled by ORG ) , complaining that the authorities had not allocated it any broadcasting frequencies . The application was also directed against ORG because the PERSON channel had been authorised to broadcast on frequencies that should have been transferred to the applicant company .

On DATE ORG found in favour of the applicant company , holding that the authorities were required either to allocate the frequencies or to revoke the licence . Accordingly , it declared the note of DATE void .

ORG appealed to the Consiglio di Stato . In judgment no . CARDINAL of CARDINAL DATE , the PERSON dismissed the appeal and upheld ORG judgment . It noted that no deadline had been set in the licence for the authorities to adopt the adjustment programme drawn up by ORG in conjunction with the ORG , but that the applicant company had been given DATE to make improvements to its installations . Accordingly , the Consiglio di Stato found that the adjustment programme should have been approved promptly .

The Consiglio di Stato added that ORG had to give a decision on the applicant company ’s request to be allocated frequencies , in accordance with a judgment delivered in the meantime by ORG ( DATE see paragraphs CARDINAL - CARDINAL below ) .

On DATE the applicant company , because it had still not obtained the frequencies , brought proceedings against ORG in the PERSON , complaining that the judgment of DATE had not been executed .

On DATE the Ministry extended the validity of the licence granted in DATE until the analogue switch - off date and allocated ORG CARDINAL S.r.l . a single channel with effect from DATE .

The PERSON consequently held in judgment no . CARDINAL of DATE that ORG had properly executed its judgment of CARDINAL DATE .

On DATE the applicant company brought a further application in ORG , arguing that the decree of DATE by which the frequencies had been allocated was insufficient in that , contrary to the terms of the licence , it concerned a single channel that did not cover PERCENT of national territory . In its application the company sought the annulment of the decree and an award of damages .

On DATE the applicant company signed an agreement with ORG ( the former ORG ) , which undertook to assign to it additional frequencies in accordance with the terms of the licence .

On DATE , pursuant to CARDINAL of the clauses of that agreement , the applicant company asked for the proceedings pending before ORG to be struck out .

On DATE the applicant company applied to ORG to restore the case to its list . It sought the annulment of the decree of DATE by which the frequencies had been allocated , and an award of damages . It argued that the administrative authorities had not complied fully with their obligation to allocate additional frequencies and had failed to observe the agreement of CARDINAL DATE and the decision of DATE .

Paragraph CARDINAL of the agreement in question stated :

“ ORG S.r.l . undertakes to request , by DATE , the striking out of application no . CARDINAL pending before ORG , to allow it to lapse for failure to submit a fresh application to schedule a hearing within the statutory time - limit and , by DATE , to waive the claims for compensation brought in that application , provided that , by the date on which the case lapses , this agreement , the decision allocating the additional frequencies and the decision of DATE have not in the meantime become invalid .

The ORG , for its part , undertakes to comply fully with its obligation to allocate additional frequencies , and with this agreement and the decision of DATE . Should it fail to do so , ORG CARDINAL and the opposing authorities shall regain full possession of their respective procedural prerogatives . In the event that the assignment of the additional frequencies becomes invalid , it is specified that ORG CARDINAL S.r.l . may reactivate application no . PERSON only if it would be impossible in this situation for LOC Way ORG . to operate CARDINAL or more of the installations mentioned in Technical Attachment A. ”

The proceedings are currently pending before ORG .

In the meantime , on DATE , while its initial application was still pending before ORG , the applicant company had lodged a further application with the same court , seeking in particular an acknowledgment of its entitlement to have the frequencies allocated and compensation for the damage sustained .

In a judgment of DATE , ORG dismissed the application , holding in particular that the applicant company had only a legitimate interest ( interesse legittimo ) , that is , an individual position indirectly protected as far as was consistent with the public interest , and not a personal right ( diritto soggettivo ) to be allocated frequencies for analogue terrestrial television broadcasting .

The applicant company appealed to the Consiglio di Stato , arguing that , since it had been granted a licence by the appropriate authorities , it did in fact have a personal right . In particular , it contended that Legislative Decree no . CARDINAL/CARDINAL and Law no . CARDINAL/CARDINAL did not comply with Community legislation ( see paragraphs CARDINAL below ) .

On DATE the PERSON decided to restrict its examination to the applicant company ’s claim for damages and not to rule at that stage on the request for allocation of frequencies .

It nevertheless observed that the failure to allocate frequencies to ORG . had been due to essentially legislative factors .

It noted that section CARDINAL(CARDINAL ) of PERSON no . PERSON ( see paragraph CARDINAL below ) enabled the “ de facto occupants ” of radio frequencies authorised to operate under the previous system to continue broadcasting until new licences were awarded or applications for new licences were rejected , and in any event not after DATE .

It further noted that section CARDINAL(CARDINAL ) of PERSON no . PERSON ( see paragraph CARDINAL below ) authorised the continuation of such broadcasts by entrusting ORG with the task of setting a deadline , on the sole condition that programmes were to be broadcast simultaneously on terrestrial frequencies and by satellite or cable . It pointed out that , in the event of failure by ORG to set a deadline , ORG had set CARDINAL DATE as the date by which programmes broadcast by the “ over - quota channels ” ( that is , existing national television channels exceeding the concentration restrictions imposed by section PERSON ) of PERSON no . ORG ) were to be broadcast by satellite or cable only , with the result that the frequencies to be allocated to licence holders such as the applicant company would have been freed up . The PERSON observed , however , that the deadline had not been complied with following the intervention of the national legislature : section CARDINAL of Legislative Decree no . CARDINAL , which had subsequently become PERSON no . CARDINAL/CARDINAL ( see paragraph CARDINAL below ) , had prolonged the activities of the over - quota channels pending the completion of an ORG investigation into the development of digital television channels . It added that section CARDINAL(CARDINAL ) of PERSON no . PERSON ( see paragraph CARDINAL below ) had subsequently , by a general authorisation mechanism , extended the possibility for over - quota channels to continue broadcasting on terrestrial frequencies until the national frequency - allocation plan for digital television was implemented , with the result that those channels had not been required to free up the frequencies intended for allocation to licence holders , such as the applicant company .

Law no . DATE had therefore had the effect , according to the Consiglio di Stato , of blocking the frequencies intended for allocation to holders of analogue licences and of preventing new operators from participating in digital television trials .

That being so , the Consiglio di Stato decided to stay the proceedings and requested the ECJ to give a preliminary ruling on the interpretation of the provisions , in LAW , on freedom to provide services and competition , Directive CARDINAL ( “ the Framework Directive ” ) , Directive CARDINAL ( “ the Authorisation Directive ” ) , Directive CARDINAL ( “ the Competition Directive ” ) and LAW , in so far as LAW referred to it .

On DATE the ECJ gave judgment . It declared CARDINAL questions inadmissible , holding that it did not have sufficient information to give a ruling on them .

With regard to the question concerning LAW , the ECJ concluded as follows :

“ By its first question , the national court asks the ORG , essentially , to state whether the provisions of LAW ] , in so far as LAW refers thereto , preclude , in television - broadcasting matters , national legislation the application of which makes it impossible for an operator holding rights , such as ORG , to broadcast without the grant of broadcasting radio frequencies .

By those questions , the national court is thus seeking to determine whether there are infringements of Community law for the purpose of ruling on an application for compensation for the losses flowing from such infringements .

... Article CARDINAL ORG and , from the date on which they became applicable , LAW , LAW , the second sub - paragraph of LAW and LAW must be interpreted as precluding , in television - broadcasting matters , national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective , transparent , non - discriminatory and proportionate criteria .

That answer , by itself , thus enables the national court to rule on the application made by ORG for compensation for the losses suffered .

Consequently , regard being had to the ORG ’s answer to the second , fourth and fifth questions , it is not necessary to rule on the first and third questions . ”

As to the merits , the ECJ observed that the existing channels had been authorised to pursue their broadcasting activities as a result of a series of measures by the national legislature , to the detriment of new broadcasters which nevertheless held licences for terrestrial television broadcasting . It noted that these measures had entailed the successive application of transitional arrangements structured in favour of the incumbent networks , and that this had had the effect of preventing operators without broadcasting frequencies , such as the applicant company , from accessing the television - broadcasting market even though they had a licence ( granted , in the applicant company ’s case , in DATE ) . The ECJ held :

“ ... PERSON no . CARDINAL/CARDINAL ... does not merely allocate to the incumbent operators a priority right to obtain radio frequencies , but reserves them that right exclusively , without restricting in time the privileged position assigned to those operators and without providing for any obligation to relinquish the radio frequencies in breach of the threshold after the transfer to digital television broadcasting . ”

The ECJ added that the application of the transitional schemes was not in accordance with the new common regulatory framework ( ORG ) , which implemented provisions of LAW , in particular those on freedom to provide services in the area of electronic communications networks and services . It observed in that connection that several provisions of the ORG stated that the allocation and assignment of frequencies had to be based on objective , transparent , non - discriminatory and proportionate criteria . In the ECJ ’s view , such criteria had not been applied in the present case , since the status of the existing channels had not been amended under the transitional schemes and they had continued their broadcasting activities to the detriment of operators such as the applicant company , which , because it had not been allocated any broadcasting frequencies , had been unable to exercise its rights and make use of its licence .

The ECJ therefore reached the following conclusions :

“ ... it must be stated that , in the area of television broadcasting , freedom to provide services , as enshrined in LAW ORG and implemented in this area by the ORG , requires not only the grant of broadcasting authorisations , but also the grant of broadcasting radio frequencies .

An operator can not exercise effectively the rights which it derives from Community law in terms of access to the television - broadcasting market without broadcasting radio frequencies .

Article CARDINAL ORG and , from the date on which they became applicable , LAW and of ORG on a common regulatory framework for electronic communications networks and services ( Framework Directive ) , LAW , the second subparagraph of LAW and LAW CARDINAL of ORG and of ORG on the authorisation of electronic communications networks and services ( Authorisation Directive ) , and ORG Directive CARDINAL of DATE on competition in the markets for electronic communications networks and services must be interpreted as precluding , in television - broadcasting matters , national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective , transparent , non - discriminatory and proportionate criteria . ”

In decision no . CARDINAL of DATE , the PERSON concluded that it could not allocate frequencies in the government ’s place or compel the government to do so . It ordered the government to deal with the applicant company ’s request for frequencies in a manner consistent with the criteria laid down by the ECJ . It made the following observations in particular :

“ The adoption by the authorities of a specific measure relates more to issues of performance and implementation than to damages : in cases involving an unlawful refusal to take an administrative measure that has been requested , the adoption of the measure does not amount to compensation , but rather to the performance of an obligation incumbent upon the authorities , unless the private party concerned has sustained any damage . ”

With regard to the request for the allocation of frequencies , the Consiglio di Stato observed :

“ Where legitimate interests are at stake , however , it is not possible to envisage a specific means of redress because inaction , a delay or an unlawful refusal will always have an impact on a situation that was or remains unsatisfactory , with the result that there is nothing to restore ; the issue in relation to such interests concerns the practical implementation of any ruling setting aside the measure complained of .

Applying these principles to the present case , the PERSON finds that the appellant ’s request for an order requiring the authorities to allocate the network or frequencies is inadmissible . ”

The PERSON deferred until DATE its final decision on the payment of compensation to the applicant company , holding that it was necessary to wait for the relevant regulations to be passed by the government before assessing the amount .

The PERSON requested both parties to comply with the following requirements by DATE . ORG was , firstly , to specify what frequencies had been available following the public tendering procedures in DATE and why they had not been allocated to the applicant company and , secondly , to justify its assertion that the licence granted to the applicant company had expired in DATE .

The applicant company , for its part , was asked by the Consiglio di Stato to submit a report on its activities DATE , and also to explain why it had not taken part in the DATE public tendering procedure for the allocation of frequencies .

The PERSON also asked ORG to explain why the national frequency - allocation plan for terrestrial television broadcasting had never been implemented . Lastly , it dismissed the applicant company ’s request for the suspension of the provisional authorisation granted to a channel belonging to the ORG group ( PERSON ) for the use of the frequencies .

In its reply , ORG explained to the Consiglio di Stato that the national frequency - allocation plan had been implemented only on DATE . According to ORG , this delay was due to several factors . Firstly , the legal situation was complicated because it was difficult to identify the available broadcasting frequencies as a result of the court decisions in which the over - quota channels had been allowed to continue broadcasting . In addition , the transitional arrangements introduced by LAW no . PERSON ( see paragraphs CARDINAL - CARDINAL below ) , which had allowed the channels in question to continue broadcasting in analogue mode , had prevented the plan from being implemented on account of the incompatibility between the interests of the channels likely to be allowed to broadcast under the plan and the interests of the channels that were legally entitled to continue their existing operations .

The applicant company submitted an expert valuation by the commercial bank PERSON assessing the damage sustained at MONEY ( ORG ) . The valuation was based on the profits achieved by PERSON , the over - quota channel which should have relinquished the frequencies allocated to the applicant company .

In a judgment of DATE , the PERSON , on the basis of LAW ( see paragraph CARDINAL below ) , ordered the Ministry to pay the applicant company the sum of EUR CARDINAL in compensation . It observed that , over DATE , ORG had acted negligently by having granted ORG CARDINAL S.r.l . a licence without assigning it any broadcasting frequencies .

The PERSON found that there was a causal link between the conduct of the administrative authorities and the damage alleged , and that the award of the licence to ORG . had not conferred on it the immediate right to pursue the corresponding economic activity ; accordingly , the compensation should be calculated on the basis of the legitimate expectation of being allocated the frequencies by the appropriate authorities .

In the opinion of the Consiglio di Stato , the fact that the frequencies had not been allocated until DATE was attributable to the authorities . Damage had thus been sustained as a result of an unlawful act for which the authorities incurred non - contractual liability , concerning both the breach of legitimate expectations and the delay in allocating the frequencies . The fact that the authorities had launched a public tendering procedure for the frequencies in DATE , although the situation in the broadcasting sector had not been clarified and there were outstanding technical issues , had been “ risky ” . The PERSON considered that the question of redress for the damage sustained by the applicant company should take this context into account . The authorities’ conduct had not been characterised by “ significant gravity ” ( notevole gravità ) and the unlawful act was thus attributable to “ negligent ” and not intentional conduct on their part .

The PERSON added that the pecuniary damage should be assessed with effect from DATE , since ORG had ruled that the “ transition period ” after which legislation would have to be passed to allow licence holders to start broadcasting had expired on DATE ( see paragraph CARDINAL below ) . As to the criteria for determining the damages to be awarded , the PERSON pointed out that , as regards the losses sustained , the applicant company had been fully aware , at the time of the call for tenders , from being allocated had been largely foreseeable . Accordingly , the applicant company should have known that it was unlikely to obtain the frequencies , at least in the short term . In addition , it could have purchased the frequencies under LAW no . CARDINAL/CARDINAL ( see paragraph CARDINAL below ) .

Having regard to the above considerations , the Consiglio di Stato , without ordering an expert valuation , decided to award the applicant company ORG CARDINAL,CARDINAL for the losses sustained . As regards loss of earnings , it found that , from DATE , the applicant company could have achieved profits but had been unable to do so because of the delay in allocating the frequencies ; the amount could be assessed at ORG CARDINAL,CARDINAL . It refused to take into account the expert valuation submitted by the applicant company and held that it was unlikely that the company would have purchased shares in the market , even in the event that the over - quota channels had relinquished the frequencies . In the PERSON view , the comparison between the applicant company and the CARDINAL leading operators ( ORG and PERSON ) was unjustified , especially as it did not take into account the other nationwide operator ( La CARDINAL ) , which , although it had greater economic power than the applicant company , was nevertheless operating at a loss .

In judgment no . CARDINAL/CARDINAL the Constitutional Court , on the basis of LAW , reaffirmed the principle of the monopoly enjoyed by the ORG television corporation ORG on public - interest grounds . It held that the technical limitations on the number of frequencies justified the monopoly , and also laid down the requirement of objectivity and impartiality in public - service broadcasting .

Law no . CARDINAL of DATE ( Nuove norme in materia di diffusione radiofonica e televisiva ) transferred control of public - service broadcasting from the executive to the legislature . A bicameral parliamentary committee was set up with responsibility for the general management and supervision of radio and television services . ORG ’s board of management was then appointed by ORG . A third channel of the ORG network was launched in DATE , with particular emphasis on regional programmes .

In judgment no . CARDINAL of DATE , ORG declared unconstitutional the provisions of PERSON no . ORG establishing a monopoly or oligopoly on local broadcasting . In the light of that decision , commercial operators were authorised to run local television channels .

The allocation and voluntary redistribution of local frequencies subsequently encouraged the development of large regional or national operators , including the ORG group . The group ’s first channel was ORG , which started broadcasting nationwide in DATE ; by DATE , having taken over CARDINAL other channels ( ORG and GPE ) , PERSON had managed , together with ORG , to establish a “ duopoly ” of public and private operators .

Law no . CARDINAL of DATE , entitled “ Provisions governing the public and private broadcasting system ” ( GPE sistema radiotelevisivo pubblico e privato ) , transferred the power to appoint members of ORG ’s board from the parliamentary committee to ORG and the ORG .

In judgment no . CARDINAL of DATE , ORG declared unconstitutional the provisions allowing the CARDINAL channels controlled by ORG ( ORG , ORG and GPE ) to occupy a dominant position . It held that the provision whereby the same operator could hold several television - broadcasting licences on condition that it did not exceed PERCENT of the total number of national channels – that is , CARDINAL channels in DATE was not sufficient to prevent concentration of television channels , and was accordingly in breach of LAW in that it did not make it possible to guarantee the plurality of information sources . ORG considered that the existence of legislation to prevent dominant positions from being established was an essential requirement to justify the ORG ’s relinquishment of its monopoly on broadcasting . The creation of such dominant positions in this sector would not only have had the effect of changing the rules on competition but would also have led to the emergence of an oligopoly and would have breached the fundamental principle of plurality of information sources . ORG thus held that the mere coexistence of a ORG - owned company and private companies ( a mixed system ) within the broadcasting sector was not sufficient to secure respect for the right to receive information from several competing sources . As it had previously stated in decision no . CARDINAL/CARDINAL , it reaffirmed that a ORG - owned company could not by itself ensure a balance precluding the establishment of a dominant position in the private sector .

On DATE , in a referendum , the NORP electorate rejected by a majority ( PERCENT ) a proposal to amend existing legislation by prohibiting a private entrepreneur from controlling CARDINAL television channel .

Law no . CARDINAL of DATE , which came into force on CARDINAL DATE , established ORG . Section PERSON ) of the PERSON imposed concentration restrictions in the television - broadcasting sector , prohibiting the same operator from holding licences to broadcast nationwide on PERCENT of the television channels operating on terrestrial frequencies .

Section CARDINAL(CARDINAL ) provided that operators authorised to broadcast under the previous legal framework could continue to transmit their programmes at national and local level until new licences were awarded or applications for new licences were rejected , but in any event not after DATE .

Section CARDINAL(CARDINAL ) provided that ORG was to adopt , by DATE at the latest , a national frequency - allocation plan for television broadcasting , on the basis of which new licences were to be awarded by CARDINAL DATE at the latest .

In decision no . CARDINAL of DATE , ORG adopted the national frequency - allocation plan ; subsequently , in decision no . CARDINAL of DATE , it adopted regulations on the conditions and procedure for awarding licences for analogue terrestrial television broadcasting .

Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL introduced a transitional scheme whereby existing national television channels exceeding the concentration restrictions imposed by section PERSON ) ( known as “ over - quota channels ” ) could continue broadcasting on a temporary basis on terrestrial frequencies after DATE , provided that they complied with the obligations imposed on channels holding licences and that their programmes were broadcast simultaneously on satellite or cable .

Section CARDINAL(CARDINAL ) of the same PERSON entrusted ORG with the task of determining the date by which , in view of the real and significant increase in viewers of cable or satellite television , the over - quota channels were to broadcast by satellite or cable only , thus relinquishing terrestrial frequencies .

On DATE the ORG delivered a judgment concerning section CARDINAL ) of PERSON no . CARDINAL . It held that the transition period laid down in that provision was acceptable , given that at the time the law was passed the alternative means of transmission in GPE could not be said to have been competitive in relation to traditional analogue broadcasting , hence the need to introduce a transition period to encourage the development of digital broadcasting . However , ORG declared unconstitutional the failure to specify a fixed deadline for the expiry of the transition period . Referring to the technical conclusions set out in ORG ’s decision no . CARDINAL , resulting from a study of the number of cable and satellite television viewers in GPE , it ruled that DATE was a reasonable date for the expiry of the transition period .

ORG held , in particular :

“ ... the present NORP private television system operating at national level in analogue mode has grown out of situations of simple de facto occupation of frequencies ( operation of installations without licences and authorisations ) , and not in relation to any desire for greater pluralism in the distribution of frequencies and for proper planning of terrestrial broadcasting ... This de facto situation does not therefore guarantee respect for external pluralism of information , which is an ‘ essential requirement’ laid down by the relevant constitutional case - law ... In this context , given the persistence ( and aggravation ) of a situation which was ruled illegal in judgment no . CARDINAL and the continued operation of channels considered ‘ over ORG by the legislature in DATE , a deadline must be set that is absolutely certain , definitive and hence binding , in order to ensure compatibility with constitutional rules ... ”

Legislative Decree no . CARDINAL of DATE , which , as amended , became PERSON no . CARDINAL of DATE , authorised operators lawfully engaged in television broadcasting on terrestrial frequencies to continue broadcasting until the national frequency - allocation plan for digital television was implemented .

Section CARDINAL provided that operators which were not currently broadcasting but had been awarded a licence could purchase broadcasting installations and connections that were in lawful use on the date on which LAW came into force .

Section CARDINAL bis provides :

“ In order to ensure the opening of the digital terrestrial television market , operators that are lawfully engaged in digital television broadcasting , via satellite or cable , may conduct trials by means of simultaneous repeats of programmes that have already been broadcast on analogue frequencies . ”

Section CARDINAL of Legislative Decree no . CARDINAL of DATE , which , as amended , became PERSON no . CARDINAL of DATE , authorised the over - quota channels to continue broadcasting on analogue and digital television networks pending the completion of an investigation into the development of digital television channels .

Law no . CARDINAL of DATE ( known as the “ LAW ” ) specified the different stages for the launch of digital broadcasting on terrestrial frequencies .

Section CARDINAL of the PERSON provides :

“ ( CARDINAL ) Pending the implementation of the national frequency - allocation plan for digital television , operators engaged in television - broadcasting activities on any basis at national or local level which fulfil the conditions necessary to obtain authorisation for digital terrestrial broadcasting trials , in accordance with ... Legislative Decree no . CARDINAL [ of DATE ] , which , as amended , has become PERSON no . CARDINAL [ of DATE ] , may conduct such trials , including by simultaneous repeats of programmes already broadcast on analogue frequencies , until the conversion of the networks has been completed , and may apply , from the date of entry into force of this PERSON , ... for the licences and authorisations necessary for digital terrestrial broadcasting .

( CARDINAL ) ORG broadcasting trials may be conducted using installations lawfully broadcasting on analogue frequencies on the date of entry into force of this PERSON .

( CARDINAL ) NORP In order to allow digital networks to be set up , transfers of installations or branches of undertakings between operators lawfully engaged in television broadcasting at national or local level shall be authorised , on condition that the acquisitions are intended for digital broadcasting .

( CARDINAL ) With effect from the date of entry into force of this PERSON , a licence to operate a television channel shall be granted , upon request , to persons lawfully engaged in television broadcasting by virtue of a licence or the general authorisation provided for in subsection ( CARDINAL ) above , where they can show that they have attained coverage of PERCENT of the population or of the local catchment area .

( CARDINAL ) NORP In order to facilitate the conversion of the analogue system to the digital system , the broadcasting of television programmes shall be carried on through installations lawfully operating on the date of entry into force of this PERSON ... ”

DATE . AGCOM approved a “ first level ” frequency - allocation plan for national and regional channels on DATE , and the “ integrated plan ” – supplementing the “ first - level plan ” with a “ second - level plan ” ( allocation of frequencies to local channels ) DATE on DATE .

This provision reads as follows :

“ Any unlawful act which causes damage to another shall render the perpetrator liable in damages under civil law . ”

The relevant parts of this Recommendation , adopted by ORG on DATE at the ORG meeting of ORG , read as follows .

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Stressing also that the media , and in particular the public - service broadcasting sector , should enable different groups and interests in society – including linguistic , social , economic , cultural or political minorities – to express themselves ;

Noting that the existence of a multiplicity of autonomous and independent media outlets at the national , regional and local levels generally enhances pluralism and democracy ;

Recalling that the political and cultural diversity of media types and contents is central to media pluralism ;

Stressing that GPE should promote political and cultural pluralism by developing their media policy in line with LAW , which guarantees freedom of expression and information , and with due respect for the principle of independence of the media ;

Noting that there are already some cases of bottlenecks in the area of the new communications technologies and services , such as control over conditional access systems for digital television services ;

Noting also that the establishment of dominant positions and the development of media concentrations might be furthered by the technological convergence between the broadcasting , telecommunications and computer sectors ;

Convinced that transparency as regards the control of media enterprises , including content and service providers of the new communications services , can contribute to the existence of a pluralistic media landscape ;

Recalling also the provisions on media pluralism contained in LAW to LAW ;

Bearing in mind the work conducted within the framework of ORG and other international organisations in the area of media concentrations and pluralism ,

Recommends that the governments of the member States :

i. examine the measures contained in the appendix to this Recommendation and consider the inclusion of these in their domestic law or practice where appropriate , with a view to promoting media pluralism ;

ii . evaluate on a regular basis the effectiveness of their existing measures to promote pluralism and/or anti - concentration mechanisms and examine the possible need to revise them in the light of economic and technological developments in the media field . ”

The relevant parts of this Recommendation , adopted by ORG on DATE at the CARDINALth meeting of ORG , read as follows .

Recalling that the existence of a wide variety of independent and autonomous media , permitting the reflection of diversity of ideas and opinions , as stated in its Declaration on the freedom of expression and information of DATE , is important for democratic societies ;

Bearing in mind Resolution no . CARDINAL on the future of public - service broadcasting adopted at the CARDINALth European Ministerial Conference on Mass Media Policy ( Prague , DATE ) , and recalling its Recommendation No R ( CARDINAL ) CARDINAL on the guarantee of the independence of public - service broadcasting ;

Stressing the specific role of the broadcasting media , and in particular of public - service broadcasting , in modern democratic societies , which is to support the values underlying the political , legal and social structures of democratic societies , and in particular respect for human rights , culture and political pluralism ;

Noting that in parallel with the multiplication of the number of channels in the digital environment , concentration in the media sector is still accelerating , notably in the context of globalisation , and recalling to the member GPE the principles enunciated in Recommendation no . R ( CARDINAL ) CARDINAL on measures to promote media pluralism , in particular those concerning media ownership rules , access to platforms and diversity of media content ;

Recommends that the governments of the member GPE , taking account of the principles set out in the appendix :

a. create adequate legal and economic conditions for the development of digital broadcasting that guarantee the pluralism of broadcasting services and public access to an enlarged choice and variety of quality programmes , including the maintenance and , where possible , extension of the availability of transfrontier services ;

b. protect and , if necessary , take positive measures to safeguard and promote media pluralism , in order to counterbalance the increasing concentration in this sector ;

The relevant parts of this Recommendation , adopted by ORG on DATE at the ORG meeting of ORG , read as follows .

Recalling LAW ( ETS No . CARDINAL ) , which guarantees freedom of expression and freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers ;

Recalling its Declaration on the freedom of expression and information , adopted on DATE , which stresses that a free flow and wide circulation of information of all kinds across frontiers is an important factor for international understanding , for bringing peoples together and for the mutual enrichment of cultures ;

Recalling its ORG on the independence and functions of regulatory authorities for the broadcasting sector and its Explanatory Memorandum , which stress the importance of the political , financial and operational independence of broadcasting regulators ;

Recalling the opportunities provided by digital technologies as well as the potential risks related to them in modern society as stated in its Recommendation NORP on measures to promote the democratic and social contribution of digital broadcasting ;

Recalling its Recommendation No . R ( CARDINAL ) CARDINAL on measures to promote media pluralism and its Recommendation No . R ( CARDINAL ) CARDINAL on measures to promote media transparency , the provisions of which should jointly apply to all media ;

Noting that , since the adoption of Recommendations No . R ( CARDINAL ) CARDINAL and No . R ( CARDINAL ) CARDINAL , important technological developments have taken place , which make a revision of these texts necessary in order to adapt them to the current situation of the media sector in LOC ;

Reaffirming that media pluralism and diversity of media content are essential for the functioning of a NORP society and are the corollaries of the fundamental right to freedom of expression and information as guaranteed by LAW ;

Considering that the demands which result from LAW will be fully satisfied only if each person is given the possibility to form his or her own opinion from diverse sources of information ;

Recognising the crucial contribution of the media in fostering public debate , political pluralism and awareness of diverse opinions , notably by providing different groups in society – including cultural , linguistic , ethnic , religious or other minorities DATE with an opportunity to receive and impart information , to express themselves and to exchange ideas ;

Reaffirming that , in order to protect and actively promote the pluralistic expressions of ideas and opinions as well as cultural diversity , member GPE should adapt the existing regulatory frameworks , particularly with regard to media ownership , and adopt any regulatory and financial measures called for in order to guarantee media transparency and structural pluralism as well as diversity of the content distributed ;

Bearing in mind that national media policy may also be oriented to preserve the competitiveness of domestic media companies in the context of the globalisation of markets and that the transnational media concentration phenomena can have a negative impact on diversity of content ,

Recommends that governments of member PERSON :

i. consider including in national law or practice the measures set out below ;

ii . evaluate at national level , on a regular basis , the effectiveness of existing measures to promote media pluralism and content diversity , and examine the possible need to revise them in the light of economic , technological and social developments on the media ;

iii . exchange information about the structure of media , domestic law and studies regarding concentration and media diversity .

Recommended measures

I. Measures promoting structural pluralism of the media

General principle

Member GPE should seek to ensure that a sufficient variety of media outlets provided by a range of different owners , both private and public , is available to the public , taking into account the characteristics of the media market , notably the specific commercial and competition aspects .

CARDINAL.CARDINAL . Where the application of general competition rules in the media sector and access regulation are not sufficient to guarantee the observance of the demands concerning cultural diversity and the pluralistic expressions of ideas and opinions , member GPE should adopt specific measures .

When adapting their regulatory framework , member GPE should pay particular attention to the need for effective and manifest separation between the exercise of political authority or influence and control of the media or decision - making as regards media content .

NORP Other media contributing to pluralism and diversity

Member GPE should encourage the development of other media capable of making a contribution to pluralism and diversity and providing a space for dialogue . These media could , for example , take the form of community , local , minority or social media . ...

II . Measures promoting content diversity

Allocation of broadcasting licences and must carry / must offer rules

Member GPE should consider introducing measures to promote and to monitor the production and provision of diverse content by media organisations . In respect of the broadcasting sector , such measures could be to require in broadcasting licences that a certain volume of original programmes , in particular as regards news and current affairs , is produced or commissioned by broadcasters .

Member GPE should consider the introduction of rules aimed at preserving a pluralistic local media landscape , ensuring in particular that syndication , understood as the centralised provision of programmes and related services , does not endanger pluralism .

Member GPE should envisage , where necessary , adopting must - carry rules for other distribution means and delivery platforms than cable networks . Moreover , in the light of the digitisation process – especially the increased capacity of networks and proliferation of different networks – member GPE should periodically review their must - carry rules in order to ensure that they continue to meet well - defined general interest objectives . Member GPE should explore the relevance of a must - offer obligation in parallel to the must - carry rules so as to encourage public - service media and principal commercial media companies to make their channels available to network operators that wish to carry them . Any resulting measures should take into account copyright obligations . ”

This resolution , adopted by ORG on DATE , reads as follows .

“ CARDINAL . GPE is a founding member of ORG and strongly supports the ideals for which it stands . ORG is therefore concerned by the concentration of political , commercial and media power in the hands of CARDINAL person , Prime Minister PERSON .

ORG can not accept that this anomaly be minimised on the grounds that it only poses a potential problem . A democracy is judged not only by its day - to - DATE operations but by the principles the country upholds with regard to its own citizens and internationally . The ORG recalls that , in accordance with LAW and the case - law of ORG have a duty to protect and , when necessary , take positive measures to safeguard and promote media pluralism .

The Assembly deplores the fact that several consecutive NORP governments DATE have failed to resolve the problem of conflict of interest and that appropriate legislation has not yet been adopted by the present ORG . It disagrees that the leading principle of the Frattini Bill currently under consideration – that only managers , not owners , should be held responsible DATE provides a genuine and comprehensive solution to the conflict of interest concerning PERSON .

Through GPE , GPE ’s main commercial communications and broadcasting group , and CARDINAL of the largest in the world , Mr PERSON owns CARDINAL of the nationwide broadcasting in the country . His role as head of government also puts him in a position to influence indirectly the public broadcasting organisation , ORG , which is ORG ’s main competitor . As PERSON and PERSON command together PERCENT of the television audience and over DATE of the resources in this sector , Mr PERSON exercises unprecedented control over the most powerful media in GPE .

This duopoly in the television market is in itself an anomaly from an antitrust perspective . The status quo has been preserved even though legal provisions affecting media pluralism have twice been declared anti - constitutional and the competent authorities have established the dominant positions of ORG and the CARDINAL television channels of ORG . An illustration of this situation was a recent decree of the Prime Minister , approved by ORG , which allowed the third channel of ORG and ORG ’s PERSON to continue their operations in violation of the existing antitrust limits until the adoption of new legislation . Competition in the media sector is further distorted by the fact that the advertising company of ORG , has a dominant position in television advertising . ORG the continued exclusion of a potential national broadcaster , LOC CARDINAL , winner of a DATE government tender to broadcast on frequencies occupied by ORG channel , PERSON .

The ORG believes that the newly - adopted ‘ GPE Law’ on the reform of the broadcasting sector may not effectively guarantee greater pluralism simply through the multiplication of television channels in the course of digitalisation . At the same time , it manifestly allows PERSON to expand even further , as it gives the market players the possibility to have a monopoly in a given sector without ever reaching the antitrust limit in the overall integrated system of communications ( ORG ) . The ORG notes that these concerns led the President of the Republic to oppose the previous version of the law .

The ORG is particularly concerned by the situation of ORG , which is contrary to the principles of independence laid down in ORG DATE ( DATE ) on public - service broadcasting . ORG has always been a mirror of the political system of the country and its internal pluralism has moved from the proportionate representation of the dominant political ideologies in the past to the winner - takes - all attitude reflecting the present political system . The ORG notes with concern the resignations of the President of ORG and of CARDINAL of the most popular journalists in the country in protest against the lack of balanced political representation in ORG and against the political influence over ORG ’s programming .

While the printed media in GPE has traditionally provided greater pluralism and political balance than the broadcasting sector , most NORP receive their news through the medium of television . The high cost of newspaper compared to television advertising is having a damaging effect on the NORP printed media . However , the ORG wishes to record its approval of government measures to help small- and medium - sized newspapers and other measures to boost newspaper readership .

The ORG is extremely concerned that the negative image that GPE is portraying internationally because of the conflict of interest concerning PERSON PERSON , could hamper the efforts of ORG aimed at promoting independent and unbiased media in the new democracies . It considers that GPE , as one of the strongest contributors to the functioning of the Organisation , has a particular responsibility in this respect .

The ORG points out that several international bodies , such as the LOC representative on ORG and , most recently , ORG , have expressed concerns similar to its own . It welcomes the measures for safeguarding media pluralism proposed in the ORG resolution on the risks of violation , in ORG and especially in GPE , of freedom of expression and information ( LAW ) of DATE , namely that the protection of media diversity should become a priority of ORG competition law .

The ORG therefore calls on the NORP ORG :

i. to pass as a matter of urgency a law resolving the conflict of interest between ownership and control of companies and discharge of public office , and incorporating penalties for cases where there is a conflict of interest with the discharge of public office at the highest level ;

ii . to ensure that legislation and other regulatory measures put an end to the long - standing practice of political interference in the media , taking into account in particular the Committee of Ministers’ Declaration on freedom of political debate in the media , adopted on DATE ;

iii . to amend LAW in line with the principles set out in Committee of Ministers’ Recommendation No . R ( CARDINAL ) CARDINAL on measures to promote media pluralism , in particular :

a. by avoiding the emergence of dominant positions in the relevant markets within the ORG ;

b. by including specific measures to bring an end to the current ORG duopoly ;

c. by including specific measures to ensure that digitalisation will guarantee pluralism of content .

The ORG calls on ORG :

i. to initiate measures to bring the functioning of ORG into line with ORG Recommendation DATE ( DATE ) on public - service broadcasting , with the declaration of the CARDINALth European Ministerial Conference on Mass Media Policy in GPE and with ORG No . R ( CARDINAL ) CARDINAL on the guarantee of the independence of public - service broadcasting and Rec(CARDINAL)CARDINAL on measures to promote the democratic and social contribution of digital broadcasting ;

ii . to give a positive international example by proposing and supporting initiatives within ORG and ORG aimed at promoting greater media pluralism at NORP level .

The ORG asks ORG to give an opinion on the compatibility of ORG and PERSON with the standards of ORG in the field of freedom of expression and media pluralism , especially in the light of the case - law of ORG . ”

ORG opinion , adopted at its CARDINALrd Plenary Session ( DATE ) , reads in its relevant parts as follows .

“ ORG of ORG has requested ORG to give an opinion on whether or not the CARDINAL NORP laws on the broadcasting system ( ‘ the GPE Law’ ) and on the conflict of interest ( ‘ the PERSON Law’ ) are in conformity with ORG in the fields of freedom of expression and pluralism of the media .

While the case - law of ORG does not offer specific guidance on the matter , certain pertinent principles may nonetheless be derived from that case - law : in primis that freedom of expression has a fundamental role in a NORP society , in particular where , through the press , it serves to impart information and ideas of general interest , which the public is moreover entitled to receive , and that the ORG is the ultimate guarantor of pluralism , especially in relation to audio - visual media , whose programmes are often broadcast very widely .

Media pluralism is achieved when there is a multiplicity of autonomous and independent media at the national , regional and local levels , ensuring a variety of media content reflecting different political and cultural views . In the ORG ’s opinion , internal pluralism must be achieved in each media sector at the same time : it would not be acceptable , for example , if pluralism were guaranteed in the print - media sector , but not in the television CARDINAL . Plurality of the media does not only mean , in the ORG ’s view , the existence of a plurality of actors and outlets , it also means the existence of a wide range of media , that is to say different kinds of media .

ORG set out certain tools for promoting media pluralism , which include :

– a legislative framework establishing limits for media concentration ; the instruments for achieving this include permissible thresholds ( to be measured on the basis of CARDINAL or of a combination of elements such as the audience share or the capital share or revenue limits ) which a single media company is allowed to control in CARDINAL or more relevant markets ;

– specific media regulatory authorities with powers to act against concentration ;

– specific measures against vertical integration ( control of key elements of production , broadcasting , distribution and related activities by a single company or group ) ;

– independence of regulatory authorities ;

– transparency of the media ;

– pro - active measures to promote the production and broadcasting of diverse content ;

– granting , on the basis of objective and non - partisan criteria , within the framework of transparent procedures and subject to independent control , direct or indirect financial support to increase pluralism ;

– self - regulatory instruments such as editorial guidelines and statutes setting out editorial independence .

In respect of the provisions in the Gasparri Law aiming at protecting media pluralism , the Commission considers at the outset that the mere increase in the number of channels which will be brought about by digital television is not sufficient in itself to guarantee media pluralism . Newly available channels may have very small audiences but with similar amounts of output . Finally , larger companies will enjoy greater purchasing power in a wide range of activities such as programme acquisitions , and will thus enjoy significant advantages over other national content providers .

The Commission considers therefore that the threshold of PERCENT of the channels is not a clear indicator of market share . It should be combined , for instance , with an audience share indicator .

As regards the second threshold set out in LAW , that is PERCENT of the revenue in ORG ) , the Commission considers that ORG certainly reflects a modern trend but should not , at least in this very broad definition , be used already at this stage instead of the ‘ relevant ORG criterion , as its effect is to dilute the effectiveness of the instruments aimed at protecting pluralism . Indeed , it may allow an individual company to enjoy extremely high degrees of revenue shares in individual markets , whilst at the same time remaining below the PERCENT threshold for the whole sector .

Indeed , the Commission notes that the combined effect of the new framework set out in LAW has relaxed the previous anti - concentration rules whose maximum permissible levels had been exceeded by PERSON and PERSON . PERSON has accordingly been allowed to continue to occupy analogue frequencies .

The Commission considers therefore that the ORG criterion should be replaced by the previously used ‘ relevant ORG criterion , as is the case in the other NORP countries .

As regards the provisions on migration of radio and television broadcasters from analogue to digital frequencies , the ORG has the impression that LAW has taken the approach of attempting to hold back on finding a real solution to the problem of media concentration in the television market until some future point in time and it relies heavily on the point when digitalisation will come into full effect . In the Commission ’s view , this approach is not satisfactory , as , if the status quo is maintained , it is likely that PERSON and PERSON will remain the dominant actors in NORP television . In this respect , the ORG recalls that while general anti - trust measures [ are aimed ] against the abuse of dominant positions , in the media sector dominant positions are forbidden as such .

In respect of the privatisation of ORG , which should lead to a lesser degree of politicisation of the public broadcaster , the ORG notes that change at ORG will allow for government control over the public broadcaster for an unforeseeable period of time . For as long as the present government stays in office , this will mean that , in addition to being in control of its own CARDINAL national television channels , the Prime Minister will have some control of the CARDINAL public national television channels . ORG expresses concern over the risk that this atypical situation may even strengthen the threat of monopolisation , which might constitute , in terms of the case - law of ORG , an unjustified interference with freedom of expression .

NORP The discussion paper of DATE by the Commissioner for Human Rights reads in its relevant part as follows .

“ CARDINAL.CARDINAL The case of GPE

The history of the so - called ‘ NORP PERSON is illustrative of how broadcast monopolisation ( through over - consolidation and super - mergers ) can pose an acute danger even in older democracies .

Freedom of expression and press freedoms are in a healthy state in GPE . However , the television - broadcasting market is regularly referred to as the ‘ NORP PERSON .

In DATE , no third force has been able to constrain the so - called duopoly : domination of the nationwide television channel market by the private owner , PERSON , and the public owner PERSON , ORG . The duopoly was accompanied by a practical monopoly by ORG in the commercial television sector and the advertisement market . Before digitalisation , the duopoly ’s audience share was PERCENT ( both owned CARDINAL channels ) . Combined revenues and the advertisement market also provided evidence of the duopoly .

GPE also has an ongoing record of control over public - service television by political parties and governments . As its Prime Minister PERSON co - owns ORG , the usual fears of governmental control of ORG are aggravated by worries of widespread governmental control of the nation ’s most important source of information , television .

The so - called ORG and Frattini Laws of DATE were supposed to provide guarantees for future pluralism of the media , and outlaw ‘ twohat’ situations , respectively . However , neither universal digitalisation nor equal competition rules alone can guarantee cultural diversity and political pluralism in the media , especially if the already existing media concentration is practically maintained or even enhanced by the law . ORG rules of transition from analogue to digital , despite their innovative force , allow the duopoly to use its acquired economic might to expand into new digital markets .

NORP standards prohibit undue political or partisan ownership or control of private broadcasters in order to avoid government or political interference . GPE and the GPE impose restrictions on direct ownership or control of broadcast media by political actors ; ORG countries also require broadcasters to maintain independence from political parties and politicians . GPE , despite its PERSON , does neither . ”

DATE . ORG resolution on the risks of violation , in ORG and especially in GPE , of freedom of expression and information ( LAW ( CARDINAL/CARDINAL(INI ) ) reads in its relevant parts as follows .

“ ... Situation in GPE

Notes that the level of concentration of the television market in GPE is currently the highest within LOC and that while NORP television offers CARDINAL national channels and CARDINAL regional and local channels , the market is characterised by the duopoly between ORG and ORG where both operators together account for PERCENT of the total audience share and collect PERCENT of advertising resources , as against PERCENT for GPE , PERCENT for GPE , PERCENT for GPE and PERCENT for GPE ;

Notes that the ORG group is the largest private television and communications group in GPE and CARDINAL of the largest in the world and controls ( inter alia ) television networks ( ORG ) and advertising franchise holders ( ORG ’CARDINAL ) , both of which have been formally found to hold a dominant position in breach of national law ( Law no . [ CARDINAL ] ) by ORG ( decision CARDINAL ) ;

Notes that CARDINAL of the sectors in which the conflict of interests is most obvious is advertising , given that in DATE the ORG group was in receipt of CARDINAL of television advertising resources , amounting to a total of MONEY , and that the main NORP companies have transferred much of their investment in advertising from printed matter to the ORG networks and from PERSON to ORG ;

Notes that the President of ORG has not resolved his conflict of interests as he had explicitly pledged , but on the contrary has increased his controlling shareholding in the company ORG from PERCENT ) , thereby drastically reducing his own net debt through a marked increase in advertising revenue to the detriment of ORG revenues ( and ratings ) and , above all , of advertising funding for the written press ;

Regrets the repeated and documented instances of governmental interference , pressure and censorship in respect of the corporate structure and schedules ( even as regards satirical programmes ) of the ORG public television service , starting with the dismissal of CARDINAL well - known professionals at the sensational public request of the President of ORG in DATE in a context in which an absolute majority of the members of the ORG board of governors and the respective parliamentary control body are members of the governing parties , with this pressure then being extended to other media not under his ownership , leading inter alia to the resignation of the editor of ORG in DATE ;

Notes , therefore , that the NORP system presents an anomaly owing to a unique combination of economic , political and media power in the hands of CARDINAL man – the current President of ORG and to the fact that ORG is , directly or indirectly , in control of all national television channels ;

Notes that in GPE the broadcasting system has been operating in extralegal circumstances for DATE , as repeatedly recognised by ORG , and in the face of which the efforts of the ordinary legislator and the competent institutions have proved ineffective in re - establishing a legal regime ; ORG and ORG each continue to control CARDINAL terrestrial analogue television broadcasters , despite the fact that ORG in its judgment no . CARDINAL of DATE has ruled it impermissible for one and the same entity to broadcast PERCENT of the television programmes transmitted domestically on terrestrial frequencies ( i.e. CARDINAL programmes ) and has found the regulatory regime under PERSON no . CARDINAL to be contrary to LAW , despite being a ‘ transitional regime’ ; nor did PERSON no . ORG ( establishing ORG and rules on telecommunication and radio and television systems ) abide by the prescriptions of ORG which , in its judgment CARDINAL , declared the constitutional illegitimacy of LAW thereof , ‘ in so far as it does not provide for the establishing of a hard - and - fast deadline , in any event not exceeding DATE , by which the programmes transmitted by broadcasters exceeding the limits referred to in paragraph CARDINAL of Article CARDINAL must be broadcast exclusively via satellite or via cable’ ;

Notes that ORG declared in DATE ( Case CARDINAL/CARDINAL ) that the present NORP private television system operating at national level and in analogue mode has grown out of situations of simple de facto occupation of frequencies ( operation of installations without concessions and authorisations ) , and not in relation to any desire for greater pluralism in the distribution of frequencies and proper planning of broadcasting ... This de facto situation does not therefore guarantee respect for external pluralism of information , which is an essential requirement laid down by the relevant constitutional case - law ... In this context , given the continued existence ( and aggravation ) of the situation which was ruled illegal by Judgment no . CARDINAL in DATE and of networks considered ‘ ORG by the DATE legislature , a final deadline must be set that is absolutely certain , definitive and hence absolutely binding in order to ensure compatibility with constitutional rules ; notes that , nonetheless , the deadline for the reform of the audio - visual sector has not been respected and that the law for the reform of the audio - visual sector has been sent back by the President of GPE a new examination by the ORG due to the non - respect of the principles declared by ORG ;

Hopes that the legislative definition contained in the draft act for reform of the audio - visual sector ( DATE , point G of the NORP law ) of the ‘ integrated system of ORG as the only relevant market does not conflict with Community competition rules within the meaning of LAW or with numerous judgments of ORG , and does not render impossible a clear and firm definition of the reference market ;

Hopes also that the ‘ system for assigning frequencies’ provided for in the draft Gasparri law does not constitute mere legitimisation of the de facto situation and does not conflict , in particular , with Directive CARDINAL/CARDINAL/EC , Article CARDINAL of CARDINAL or Directive CARDINAL , which specify , inter alia , that the assigning of radio frequencies for electronic communication services must be based on objective , transparent , non - discriminatory and proportionate criteria ;

Highlights its deep concern in relation to the non - application of the law and the non - implementation of the judgments of ORG , in violation of the principle of legality and of the rule of law , and at the incapacity to reform the audio - visual sector , as a result of which the right of its citizens to pluralist information has been considerably weakened for DATE ; a right which is also recognised in GPE ;

Is concerned that the situation in GPE could arise in other member GPE and the accession countries if a media magnate chose to enter into politics ;

Regrets that ORG has yet to adopt a regulation resolving the conflict of interests of the President of ORG , which , it was promised , would take place within DATE of his government ;

Considers that the adoption of a general reform of the audio - visual sector could be facilitated if it were to contain specific and adequate safeguards to prevent actual or future conflicts of interest in the activities of local , regional or national executive members who have substantial interests in the private audio - visual sector ;

Hopes , moreover , that the draft PERSON law on conflict of interests will not stop at de facto recognition of the Premier ’s conflict of interests , but will provide for adequate mechanisms to prevent this situation from continuing ;

Regrets that , if the obligations of the member GPE to ensure pluralism in the media had been defined after the DATE Green Paper on pluralism , the current situation in GPE could possibly have been avoided ;

Invites the NORP ORG :

– to accelerate its work on the reform of the audio - visual sector in accordance with the recommendations of ORG and the President of the Republic , taking account of the provisions in LOC which are incompatible with Community law , as noted by those authorities ;

– to find a genuine and appropriate solution to the problem of a conflict of interest of the President of ORG who also directly controls the principal provider of private and , indirectly , public television , the main advertising franchise holder and many other activities connected with the audio - visual and media sector ,

– to take measures to ensure the independence of the public - service broadcaster . ”