Opinion of the Advocate General — ECLI:EU:C:2007:303
Date: 2007-05-24
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Preliminary rulings – Reference to the Court – Court or tribunal of a Member State within the meaning of Article 234 EC – Definition (Art. 234 EC) 2. Freedom to provide services – Television broadcasting activities – Directive 89/552 – Definition of ‘teleshopping’ (Council Directive 89/552, Art. 1(f)) 3. Freedom to provide services – Television broadcasting activities – Directive 89/552 – Definition of ‘television advertising’ (Council Directive 89/552, Art. 1(c)) 1. The Bundeskommunikationssenat, which meets the criteria on establishment by law, permanence, compulsory jurisdiction and inter partes procedure, and which applies rules of law, must be regarded as a court or tribunal within the meaning of Article 234 EC. (see paras 20, 22) 2. On a proper construction of Article 1 of Directive 89/552 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, 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. Such a game cannot, however, constitute ‘teleshopping’ within the meaning of Article 1(f) of Directive 89/552 unless it constitutes an actual economic activity in its own right involving the supply of services and is not restricted to a mere offer of entertainment within the broadcast. (see paras 37, 47, operative part) 3. On a proper construction of Article 1 of Directive 89/552 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, 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(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. (see para. 47, operative part)