The award of a licence to exercise the activity of radio broadcasting
Access to the media
Distribution of frequencies
Absolute factors for preference in the award of a licence
Absolute priority attributed to media professionals
RULING Nº 16/99
12 of January of 1999
The principle of equality is not merely a formal requirement; as a substantive principle, it entails equal treatment for what is equal and unequal treatment for what is not equal. It does not preclude the possibility of any discrimination whatsoever, but rather implies prohibition of arbitrary discrimination and of distinctions that have no rational justification or sufficient material foundation. In other words, provision may be made in law for non-arbitrary preferential treatment, as long as such treatment is both reasonable and appropriate in the light of the legislature's discretionary powers.
The granting of absolute priority, on the basis of previous experience in the mass media field, in an open competition for radio broadcasting licences, precludes a fair assessment and creates a form of discrimination with no objective justification, since it is purely a means of giving exclusive preference to those already established in the sector.
The rule challenged in the Court allows absolute priority to be given in the awarding of radio broadcasting licences to applications submitted by firms whose members are mostly media professionals, or to those submitted by companies that own regional newspapers (and that must have been set up, in each case, at least three years previously).
The Court held that these factors could be taken into consideration in the final decision on the competition, but that the absolute priority provided for by the rule was unconstitutional, since it violated the principle of equality (Article 13 of the Constitution) in addition to those of freedom of expression and information (Article 37.1 of the Constitution) and the right of access to the media (Article 38.4 of the Constitution).
With regard to the principle of equality, there are established precedents.
This judgment upholds judgment no. 645/98 (Diário da República (Official Gazette), Series II, no. 51, 17.11.98, 3095-3096), in which the same rule was found to be unconstitutional.