Das organisations- und situationsbezogene Begründungsmodell korporativer Rechte des EGMR in Croatian Radio-Television/Kroatien

Whenever a corporation claims the infringement of its constitutional rights, the court must determine if the corporation is covered by the right in question. Both the German Constitutional Court and the US Supreme Court have years - if not centuries - of case law proving the importance of this legal question. In US-American and German case law two fundamental theories concerning corporate constitutional rights can be identified. The first one looks to the individual rights of the (human) persons associated with the corporation as both a requirement and a reason to grant a corporation protection. The second theory upholds the separation between corporation and owner. Therefore, it poses the question whether the corporation finds itself in a situation similar to others in which the protection of the right is usually invoked. Notably, the German Constitutional Court and the US Supreme Court apply the first approach, although both do so regarding different problems and with very different outcomes. While the US Supreme Court looks to the individuals associated with the corporation to increase corporate rights, the German Constitutional Court applies the approach to exclude corporations with ties to the state from the protection of the German Constitution. This article examines the approach of the European Court of Human Rights (ECtHR) to corporate constitutional rights in the recent judgment Croatian Radio-Television/Croatia and its general case law on the interpretation of the term »non-governmental organisation« in Art. 34 ECHR. In contrast to both courts mentioned above, the ECtHR does not »look through a corporation to the persons behind it« but always looks to the situation the corporate complainant finds itself in. Thus, the ECtHR applies the second theory of corporate constitutional rights. However, the court explicitly considers the situation of the organisation with a view to comparable private corporations invoking the right, e. g. whether the corporate complainant is governed by company law, if it has a monopoly or operates in a field with free market competition.