19
spectrum is a public commodity, so that it is owned by the Venezuelan State, and this
ownership cannot be claimed by private individuals. Thus, it is not possible, nor would it be
appropriate, to affirm that a concession confers a right to, or ownership of, the spectrum. 85
68.
That said, the concession is the means by which the State decides to grant a portion
of the electromagnetic spectrum so that a media outlet, constituted by its shareholders, can
exercise a right protected by the Convention. As the judgment explains, “preventing
participation in the administrative procedures for the adjudication of the titles or the renewal
of the concession” constitutes a violation of the right to freedom of expression. However, what
the majority opinion overlooked was the effects on the right to property of the indirect
restrictions to freedom of expression.
69.
In the case of Centro Europa 7 S.R.L. Di Stefano v. Italy, for example, the European
Court noted that, as of July 28, 1999, the applicant company held a license that allowed it to
install and exploit television terrestrial broadcasting activities, that would cover 80% of
national territory. However, this license did not grant the concession to use the
electromagnetic spectrum. The laws of Italy established a special procedure to adjudicate this
spectrum and, according to the law, this adjudication should be made within the 24 months
following the award of the license. In the opinion of the Strasbourg Court, in the area of radio
and television broadcasting, freedom to provide services requires not only the grant of
broadcasting authorizations, but also the grant of broadcasting radio frequencies, because an
operator cannot exercise effectively the rights of access to the television-broadcasting market
without broadcasting radio frequencies.”86.
70.
The applicant company submitted that it had been “deprived of its possessions” in the
sense of Article 1 of Protocol 1, because not only had the State, without justification, abstained
from granting it a broadcasting license, but it had also refused to ensure that the license
granted was effective, However, the European Court did not agree with this argument because
“there had been no State interference or expropriation of the applicant company’s substantive
interest in operating an analogue television network, as shown by the fact that it was now
able to broadcast television programmes with the allocation of a frequency on the
electromagnetic spectrum.” “Nevertheless, the possibility of engaging in the activity
corresponding to the license was affected by several measures which, in essence, were aimed
at delaying the start-up date; this, in the Court’s view, represents a means of controlling the
use of property.”87
71.
In the opinion of the European Court, “Article 1 of Protocol 1 protected interests related
to the exploitation of the license, which constitute property interests protected by the right to
property, because the applicant company had a legitimate expectation which was linked to
property interests such as the operation of an analogue television network by virtue of the
license, which had a sufficient basis to constitute a substantive interest that could be protected
as a “possession” within the meaning of the rule laid down in the first sentence of Article 1 of
Protocol No. 1.”88
72.
First, in the case of Centro Europa 7, the European Court reached the conclusion on
the violation a freedom of expression because the State had not allowed the applicant
company to exercise its information activities owing to the absence of the concession of a
85
Case of Granier et al. (Radio Caracas Televisión) v. Venezuela, para. 342.
ECHR, Case of del Centro Europa 7 S.R.L. and Di Stefano v. Italy, Application No. 38433/09, June 7, 2012,
para. 175.
86
87
ECHR, Case of del Centro Europa 7 S.R.L. and Di Stefano v. Italy, para. 186.
88
ECHR, Case of del Centro Europa 7 S.R.L. and Di Stefano v. Italy, para. 179.
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