4
admitted the argument of the company that, in the words of the Court, using “contradictory
concepts, using them indistinctly, […] had argued that RCTV had a preferential right, a right
to extension of the concession, and a reasonable expectation of renewal or of an automatic
renewal”19.
14.
Far from this being the case, the Court rejected – and quite rightly – each and every
one of these argument.
a.
“[T]he Court notes that the electromagnetic spectrum is a public commodity
within the State’s domain and, therefore, its ownership cannot be claimed by private
individuals. Consequently, it is not possible to affirm that RCT.V and, in particular, its
shareholders had acquired a right to, or ownership of, the spectrum.”20
b.
“[T]he possibility that the State would renew RCTV’s concession for the use of
the electromagnetic spectrum in 2007 cannot be considered an acquired right to an asset
already incorporated into the company’s property. This possibility was a mere expectation of
renewal that was conditional on the State’s authority to establish controls over a resource
that it owned. Consequently, the financial benefits that the shareholders might have received
as a result of the renewal of the concession cannot be considered acquired rights or assets
that were part of the direct property of the shareholders and that could be protected by Article
21 of the American Convention.”21
c.
The law in force in Venezuela “makes no mention whatsoever that the State
was obliged to grant the renewal, nor does it establish an automatic extension to those who
requested the transformation of titles. Furthermore, it should be underlined that expert
witness Morles Hernández stated that:
Under Venezuelan law there is no explicit legal formula that indicates that the holder of
a concession has a right to the renewal of the administrative contract.”22
d.
��In addition, regarding whether, under international law, there was an
obligation to renew broadcasting concessions, the Court concludes that this obligation is not
established in international law. Also, regarding whether a right to the renewal of broadcasting
frequency concessions may be deduced from comparative law, the Court has no evidence and
no arguments were presented that could support this assertion.”23
e.
Based on the above, it may be concluded that the alleged restriction in this case
is not derived from the fact that the concession held by RCTV was not renewed automatically,
because it cannot be deduced from the preceding analysis that the State was obliged to do
this.
Lack of congruence between the legal grounds accepted by the Court and the final decision
to require the re-establishment of the concession
15.
Consequently, the final decision to require the re-establishment of the concession of
the television channel to RCTV is contrary to the legal reasoning presented by the Court. In
19
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 172.
20
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 342.
21
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 343.
22
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 178.
23
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 179.
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