# C_2007315EN.01001501.xml

| 22.12.2007 | EN | Official Journal of the European Union | C 315/15 |
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22.12.2007

EN

Official Journal of the European Union

C 315/15

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Judgment of the Court (Fourth Chamber) of 18 October 2007 (reference for a preliminary ruling from the Bundeskommunikationssenat (Austria)) — Kommunikationsbehörde Austria (KommAustria) v Österreichischer Rundfunk (ORF)

(Case C-195/06) (1)

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(Freedom to provide services - Television broadcasting activities - Directives 89/552/EEC and 97/36/EC - Definition of ‘teleshopping’ and ‘television advertising’ - Prize game)

(2007/C 315/24)

Language of the case: German

Referring court

Bundeskommunikationssenat

Parties to the main proceedings

Applicant: Kommunikationsbehörde Austria (KommAustria)

Applicant:

Defendant: Österreichischer Rundfunk (ORF)

Defendant:

Re:

Reference for a preliminary ruling — Bundeskommunikationssenat — Interpretation of Article 1(c) and (f) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60) — Television broadcast offering viewers the opportunity to participate in a prize game by means of dialling a special telephone number — Definition of ‘television advertising’ and ‘teleshopping’

Operative part of the judgment

On a proper construction of Article 1 of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, a broadcast or part of a broadcast during which a television broadcaster offers viewers the opportunity to participate in a prize game by means of immediately dialling a premium rate telephone number, and thus in return for payment,

| — | is covered by the definition given by Article 1(f) of teleshopping if that broadcast or part of a broadcast represents a real offer of services having regard to the purpose of the broadcast of which the game forms part, the significance of the game within the broadcast in terms of time and of anticipated economic effects in relation to those expected in respect of that broadcast as a whole and also to the type of questions which the candidates are asked; |
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is covered by the definition given by Article 1(f) of teleshopping if that broadcast or part of a broadcast represents a real offer of services having regard to the purpose of the broadcast of which the game forms part, the significance of the game within the broadcast in terms of time and of anticipated economic effects in relation to those expected in respect of that broadcast as a whole and also to the type of questions which the candidates are asked;

| — | is covered by the definition given by Article 1(c) of television advertising if, on the basis of the purpose and content of that game and the circumstances in which the prizes to be won are presented, the game consists of an announcement which seeks to encourage viewers to buy the goods and services presented as prizes to be won or seeks to promote the merits of the programmes of the broadcaster in question indirectly in the form of self-promotion. |
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is covered by the definition given by Article 1(c) of television advertising if, on the basis of the purpose and content of that game and the circumstances in which the prizes to be won are presented, the game consists of an announcement which seeks to encourage viewers to buy the goods and services presented as prizes to be won or seeks to promote the merits of the programmes of the broadcaster in question indirectly in the form of self-promotion.

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(1)  OJ C 243, 1.10.2005.

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