CELEX: 62006CC0195
Language: en
Date: 2007-05-24
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 24 May 2007. # Kommunikationsbehörde Austria (KommAustria) v Österreichischer Rundfunk (ORF). # Reference for a preliminary ruling: Bundeskommunikationssenat - Austria. # Freedom to provide services - Television broadcasting activities - Directives 89/552/EEC and 97/36/EC - Definition of ‘teleshopping’ and ‘television advertising’ - Prize game. # Case C-195/06.

OPINION OF ADVOCATE GENERAL
      RUIZ-JARABO COLOMER
      delivered on 24 May 2007 1(1)
      
      Case C‑195/06
      Kommunikationsbehörde Austria (KommAustria)
      v
      Österreichischer Rundfunk (ÖRF)
      (Reference for a preliminary ruling from the Bundeskommunikationssenat, Austria)
      (Television broadcasting – Directive 89/552 in the version of Directive 97/36 – Interpretation of Article 1(c) and (f) – Definition of television advertising and teleshopping – Game of chance participation in which necessitates a call to a premium rate telephone number)I –  Introduction
      1.     Nowadays we are everywhere besieged and invaded by marketing. Every branch of the media disseminates advertisements, promotions
         or good deals. Newspapers, cinema, television, radio, the internet, even telephones are used to publicise the merits of all
         kinds of products, urging consumers to purchase a product in the belief that it will make their lives easier or bring them
         greater happiness, even at the risk of saturating their capacity to take in such messages or of assaulting them. (2) The emergence of advertising has encouraged the development of modern commerce (3) which has gone beyond the local or national sphere and evolved into a global interdependent market. The patter of charlatans,
         street traders, tricksters, discoverers of elixirs, of pain-relieving balms or of miraculous herbs, tooth-pullers, hair-restorer
         and cure-all sellers, hawkers, pedlars and hucksters of all kinds, who would once have extolled their goods in the markets
         and fairs of old, has been replaced by advertising campaigns which reach millions of consumers. (4)
      
      2.     Together with the internet, television provides perhaps the most provocative tool for the dissemination of advertising owing
         to its intensity and its ability to penetrate and stimulate. That factor explains the underlying concern 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, (5) known as the ‘Television without Frontiers Directive’, which regulates advertising activity, making it subject to a certain
         number of rules and to standards which must be maintained while allowing Member States the freedom to lay down more stringent
         rules (26th recital in the preamble to that directive).
      
      3.     At the same time, television opens up a window through which life, real or imaginary, may enter every home, and business too,
         making it possible to obtain goods and services without needing to go out. Teleshopping is spreading on many channels and
         forms a significant market which the Community could not ignore, wherefore Directive 97/36/EC of the European Parliament and
         of the Council of 30 June 1997 (6) amended Directive 89/552 with a view to addressing that phenomenon and protecting consumers by regulating the form and content
         of such spots so that they are distinguishable from those devoted to advertising alone (Recitals 36 and 37 in the preamble
         to Directive 97/36).
      
      4.     Against that background and pursuant to Article 234 EC, the Bundeskommunikationssenat (Federal Communications Board), Austria,
         has referred to the Court of Justice for a preliminary ruling two questions seeking clarification of the concepts of ‘television
         advertising’ and ‘teleshopping’, used by Article 1(c) and 1(f) respectively of Directive 89/552, in the version of Directive
         97/36. It has submitted those questions because, in the dispute in the main proceedings, it is called upon to classify correctly
         a television broadcast forming part of another longer and more wide-ranging broadcast, in which viewers are invited to participate
         in a game by dialling a premium-rate telephone number. (7)
      
      II –  The legal framework
      A –    Community law
      5.     The aim of Directive 89/552 is to eliminate from the Community obstacles to the free dissemination and movement of information
         and ideas by means of television. Impediments usually arising out of disparities between national laws, the directive seeks
         to coordinate the latter by establishing a minimum common denominator (9th, 11th and 13th recitals). For that reason, by virtue
         of Article 3(1) Member States remain free to require their own broadcasters to comply with stricter or more detailed rules
         than those laid down in the directive.
      
      6.     Article 1(c) defines ‘television advertising’ as ‘any form of announcement broadcast whether in return for payment or for
         similar consideration or broadcast for self-promotional purposes by a public or private undertaking in connection with a trade,
         business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and
         obligations, in return for payment’.
      
      7.     Article 1(f) defines ‘teleshopping’ as ‘direct offers broadcast to the public with a view to the supply of goods or services,
         including immovable property, rights and obligations, in return for payment’.
      
      8.     Article 10 (8) provides that both types of broadcast must be readily recognisable as such and kept quite separate from other parts of the
         programme service by optical and/or acoustic means (paragraph 1), that isolated advertising is to remain the exception (paragraph
         2), and prohibits subliminal and surreptitious advertising and teleshopping (paragraphs 3 and 4).
      
      9.     Articles 18 and 18a (9) limit the transmission time for teleshopping spots and windows by indicating maximum daily and hourly percentages.
      
      B –    The Austrian legislation
      1.      Quasi-constitutional legislation relating to the Bundeskommunikationssenat
      10.   The Bundeskommunikationssenat, a body answerable to the Federal Chancellery, was established by the Bundesgesetz (federal
         law) über die Einrichtung einer Kommunikationsbehörde Austria und eines Bundeskommunikationssenates (10) (‘the KOG’) to monitor the decisions of the Kommunikationsbehörde Austria (Austrian Telecommunications Regulatory Authority,
         ‘KommAustria’) and the Österreichischer Rundfunk (Austrian Broadcasting Service, ‘the ÖRF’).
      
      11.   Paragraph 11(2) of the KOG gives the Bundeskommunikationssenat jurisdiction to decide, as the body of last administrative
         instance, on appeals against decisions of KommAustria, with the exception of appeals relating to penalties.
      
      12.   Judicial appeals against the rulings of the Bundeskommunikationssenat may be brought before the Verwaltungsgerichtshof (11) (Administrative Court) (Paragraph 11(3) of the KOG).
      
      13.   The term of office of the five members of the Bundeskommunikationssenat, three of whom belong to the judiciary (one of the
         latter must also be the chairperson), lasts for six years and is renewable. The grounds for removal from office are governed
         by Paragraph 12 of the KOG, which stipulates that the members must be independent and declares that they are not bound by
         directions from elsewhere.
      
      14.   With regard to procedural matters, Paragraph 14 of the KOG refers to the Allgemeines Verwaltungsverfahrensgesetz (12) (Law on administrative procedure, ‘the AVG’).
      
      2.      The Broadcasting Law
      15.   Paragraph 47(1) of the Bundesgesetz über den Östereichischen Rundfunk (13) (Federal law on the Austrian Broadcasting Corporation, ‘the ÖRF-Gesetz’) states that its aim is to transpose Directive 89/552,
         as amended by Directive 97/36.
      
      16.   Paragraph 13(1) provides that the ÖRF may allocate, within its programme schedule and in return for payment, broadcasting
         time for commercial advertising, which it defines using the same words as Article 1(c) of the Television without Frontiers
         Directive.
      
      17.   Paragraph 13(2) prohibits the allocation of teleshopping slots, which it defines in the same terms as Article 1(f) of the
         Television without Frontiers Directive.
      
      18.   Last, Paragraph 13(3) reproduces Article 10(1) of the Television without Frontiers Directive exclusively with regard to advertising.
      III –  The facts, the dispute in the main proceedings and the questions referred for a preliminary ruling
      19.   During the ‘Quiz Express’ programme, broadcast by the ÖRF on 1 April 2005, the presenter, while a premium-rate telephone number
         was displayed on the screen, launched an offer inviting the public to take part in a prize game (Gewinnspiel in German) by dialling that number. The company providing the telephone service received EUR 0.70 per call, a portion of
         which it passed on to the ÖRF. (14)
      
      20.   The game comprised three stages. In the first, a single call was put through purely at random. In the second, the lucky caller
         had to answer the questions put by the presenter. In the final stage, which enabled those who had not been selected to participate
         in a weekly draw, the element of chance arose again.
      
      21.   KommAustria reported the ÖRF to the Bundeskommunikationssenat, arguing that, by devoting part of the broadcast to teleshopping,
         the ÖRF had in its opinion infringed Paragraph 13(2) of the ÖRF-Gesetz.
      
      22.   In order to resolve the matter, the Bundeskommunikationssenat stayed proceedings and referred the following questions to the
         Court of Justice for a preliminary ruling:
      
      ‘(1)      On a proper construction of Article 1(f) of Directive 89/552 … in the version of Directive 97/36 … does “teleshopping” include
         broadcasts or parts of broadcasts in which the broadcaster offers viewers the opportunity to participate in the broadcaster’s
         prize games by directly dialling premium-rate telephone numbers, and for valuable consideration therefore?
      
      (2)      If the answer to that question should be negative, is Article 1(c) of Directive 89/552 …, in the version of Directive 97/36
         …, to be interpreted to the effect that “television advertising” includes announcements in broadcasts or parts of broadcasts
         in which the broadcaster offers viewers the opportunity to participate in the broadcaster’s prize games by directly dialling
         premium-rate telephone numbers, and for valuable consideration therefore?’
      
      IV –  The procedure before the Court
      23.   The order for reference was registered at the Court Registry on 27 April 2006. The ÖRF, the Commission and the Italian and
         Portuguese Governments lodged written observations, and oral argument was presented by the representatives of the first two
         at the hearing held on 29 March 2007, which was also attended by representatives of the United Kingdom Government and of KommAustria.
      
      V –  The jurisdiction of the Court
      24.   This is the first time that the Bundeskommunikationssenat has submitted a reference for a preliminary ruling to the Court,
         for which reason I think it appropriate to examine whether that body satisfies the characteristics of a ‘court or tribunal’
         for the purposes of Article 234 EC. The Bundeskommunikationssenat itself feels the need to justify its status in the order
         for reference, employing certain arguments supported by the Commission in the latter’s written observations.
      
      25.   In order to determine whether a particular body has the status of a court or tribunal, the Court has hitherto restricted itself
         to laying down a number of criteria for guidance, such as whether the body concerned is established by law, whether it is
         permanent, whether its members are independent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether its decisions are judicial in nature, and whether it applies rules of law. (15)
      
      26.   In principle, the Bundeskommunikationssenat satisfies those characteristics, for the following reasons:
      (a)      there is no doubt that the Bundeskommunikationssenat is a body established by law, since it was created by the KOG; nor is
         there any doubt that it is a permanent, stable body, which may be inferred from Paragraph 11 of the KOG which provides that
         its task is to monitor KommAustria and to oversee ÖRF.
      
      (b)      intervention by the Bundeskommunikationssenat is not optional but instead compulsory, because it decides on appeals brought
         against decisions of KommAustria, with the exception of appeals concerning penalties.
      
      (c)      the operational independence of the Bundeskommunikationssenat would appear to be beyond doubt: it is composed of five members,
         of whom three belong to the judiciary (from whose number the chairperson and deputy chairperson are elected), who perform
         their duties free from any external directions or instructions. (16) They are appointed for a renewable term of six years by the Federal Chancellor on a proposal by the Government.
      
      (d)      the procedure provides for inter partes proceedings, since the parties may put forward their arguments (Paragraph 37 of the AVG) and are also entitled to do so at
         a hearing for which leave is given by the Bundeskommunikationssenat of its own motion or following a request from the parties
         (Paragraph 39(2) of the AVG). The administration gives written reasons for its position (Paragraph 38 of the AVG) and summons
         witnesses and experts to attend the hearing together with the parties (Paragraphs 40 and 41 of the AVG). The right to a fair
         hearing is guaranteed (Paragraph 43(3) of the AVG).
      
      (e)      lastly, there is no doubt that the Bundeskommunikationssenat gives its decisions in accordance with legal principles.
      27.   However, it is important not to be deceived by those initial appearances. In my Opinion in De Coster, (17) I argued that the attitude adopted by the Court in respect of the concept of court or tribunal of a Member State has given
         rise to decisions that are too flexible and not sufficiently consistent, for which reason I propose a change of bearing with
         a view to taking a firmer, more decisive course which, by focusing on the raison d’être of the preliminary ruling, would encourage fruitful cooperation between courts.
      
      28.   For that purpose, I proposed in the abovementioned Opinion that, as a general rule, only bodies which form part of the judicial
         power of each Member State should be included in the definition of Article 234 EC, when they carry out their judicial duties
         in the proper sense, including, by way of an exception, those bodies which, while not belonging to that structure, have the
         final word in the national legal order, provided that they satisfy the requirements laid down in case-law, in particular,
         the requirements of independence and the adversarial nature of the proceedings.
      
      29.   In accordance with that stricter interpretation, I consider that the Bundeskommunikationssenat should not be included in the
         definition because it is not part of the Austrian judicial structure.
      
      30.   It is certainly true that the Bundeskommunikationssenat falls within the category of ‘collegiate authorities with a judicial
         component’, (18) which are referred to in Article 133(4) of the Austrian Constitution (19) and which I myself acknowledged had the status of a court or tribunal in a previous case. (20)
      
      31.   Although the attribution of judicial status by national law may be indicative, it cannot be decisive. (21) However, bearing in mind that, as I argued in my Opinion in De Coster, the concept must be defined in the light of Community law, according to its own structural requirements, a more rigorous
         approach to the analysis of the Bundeskommunikationssenat is needed, in order to determine whether it really does satisfy
         the requirements for initiating the preliminary-ruling dialogue.
      
      32.   That more careful assessment reveals that, unlike the other authorities referred to in Article 133 of the Austrian Constitution,
         such as the Oberster Patent-und Markesenat in the Häupl case, whose decisions cannot be challenged by administrative or judicial action, the decisions of the Bundeskommunikationssenat
         may be reviewed by the Verwaltungsgerichtshof.
      
      33.   There are historical reasons for that particular circumstance. Before the KOG was adopted, broadcasting in Austria was regulated
         by the Privatrundfunkbehörde (Private Broadcasting Authority) in accordance with the Regionalradio-Gesetz (Law on regional
         broadcasting). The Privatrundfunkbehörde was established as a collegiate authority within the meaning of Paragraph 133(4)
         of the Constitution and its decisions could not be appealed before the Verwaltungsgerichtshof. However, in a judgment dated
         29 June 2000, (22) the Verfassungsgerichtshof (Constitutional Court) held that the Privatrundfunkbehörde was unconstitutional because, in the
         light of Paragraph 133(4) of the Constitution, its immunity from judicial review and its creation as an administrative authority
         of last instance were unlawful. In accordance with case-law, (23) the Constitutional Court upheld a strict interpretation of the right to establish collegiate authorities since that right
         amounts to a special derogation from the general principle that all administrative acts are subject to judicial review, wherefore
         the right must be justified on a case-by-case basis, a requirement which was not satisfied in the case of the Privatrundfunkbehörde.
         In order to comply with that judgment, Paragraph 13 of the Regionalradio-Gesetz was amended to provide for appeals to be brought
         before the Verwaltungsgerichtshof, but the remainder of the provisions were retained. When the Constitutional Court was once
         again called upon to intervene, it held that the defect existed still, because the fact that the Privatrundfunkbehörde was
         able to act administratively as the sole authority was incompatible with constitutional principles. (24) Faced with the need to take action, the legislature set up the Bundeskommunikationssenat, an administrative review body,
         and left the way open for a judicial remedy to be sought before the Verwaltungsgerichtshof, a situation which the Constitutional
         Court finally approved. (25)
      
      34.   However, that decisions of the Bundeskommunikationssenat are subject to review by an administrative court alters the situation
         and means that the Bundeskommunikationssenat cannot be classified as a court or tribunal within the meaning of Article 234 EC.
         
      
      35.   The risk of difficulties arising as a result of the intervention of an administrative authority in a dialogue between courts,
         which I described in points 75 to 79 of my Opinion in De Coster, is obvious. However elevated the technical and legal level of the administrative authority concerned may be, when reviewing
         the administrative decision handed down after the Court of Justice has answered the questions referred for a preliminary ruling,
         the Verwaltungsgerichtshof may consider that it was incorrect to make the reference or take the view that it ought to have
         been approached differently. If it should reach the conclusion that the dispute does not concern the interpretation or the
         application of provisions of Community law, the reference for a preliminary ruling and the effort invested in its resolution
         would have been pointless and the fact that its judgments were not taken into account would undermine the legitimacy of the
         Court of Justice. If it should be convinced that the questions ought to have been formulated differently it would be bound
         by the question actually asked and the judgment given, it being likely that, for reasons of procedural economy, the Verwaltungsgerichtshof
         would not be inclined to make another reference for a preliminary ruling, contenting itself with consultation envisaged in
         the administrative sphere and a reply vitiated from the outset, whereby the achievement of a ‘genuine dialogue between courts’
         would be disrupted.
      
      36.   To my mind, the intervention of an administrative body in the system of judicial cooperation under Article 234 EC is always
         a serious matter, since the participation of such a body, even if well-intentioned, obscures the procedure. In my Opinion
         in De Coster (footnotes 36 and 98), I explained that the wording of the question may determine the Court’s reply, so it is important that
         the bodies taking part in the preliminary-ruling procedure should continue to be of a genuinely judicial nature. If the question
         were to be referred by an administrative body, any subsequent judicial remedy would be affected from the outset by the way
         in which or the time at which it was made, with the result that the real judicial body would be dispossessed of the power
         to make use of the preliminary-ruling procedure, for even though it could in theory make another reference, that would cause
         the parties an additional delay, which would be intolerable where the administration of justice was already slow.
      
      37.   Those considerations explain why it is appropriate to allow non-judicial bodies to take part in the dialogue only where their
         decisions are not subject to subsequent review by a court, providing the last word under national law, a context offering
         access to the preliminary-ruling procedure in order to ward off the danger of leaving patches of Community law outside the
         scope of the unifying intervention of the Court of Justice.
      
      38.   Recent developments in case-law (26) have shown a more marked commitment to identifying the features which define the concept of a court or tribunal, especially
         independence, allowing a glimpse of a situation close to that to in De Coster. Thus, in Schmid, (27) the Court held that it lacked jurisdiction to answer the questions referred by the Berufungssenat V der Finanzlandesdirektion
         (Fifth Appeal Chamber of the Regional Finance Authority) for Vienna, Lower Austria and Burgenland, while, in Syfait and others, (28) the Court gave a similar ruling in a reference made by the Epitropi Antagonismou (Greek Competition Commission).
      
      39.   That trend is abundantly clear if regard is had to the fact that, in the past, the Court did deal with questions referred
         for a preliminary ruling by bodies similar to the ones mentioned, such as the Spanish economic and administrative courts (29) and the Spanish Tribunal de Defensa de la Competencia (Competition Court). (30)
      
      40.   My position has not altered since my Opinion in De Coster, which is why, not only for the sake of consistency but also with total conviction, I maintain that the Bundeskommunikationssenat
         does not qualify as a court or tribunal for the purposes of Article 234 EC and I propose that the Court should declare that
         it lacks jurisdiction to give it an answer.
      
      41.   I cherish the hope that the judges whom I address will be persuaded of the virtues of the proposal set out in De Coster, but, in case they do not follow my recommendation, I shall now go on to analyse, in the alternative, the substance of the
         present reference for a preliminary ruling, with the intention of fulfilling my duty, acting with complete impartiality and
         independence, to make in open court reasoned submissions on the questions referred (second paragraph of Article 222 EC).
      
      VI –  Subsidiary analysis of the questions referred for a preliminary ruling
      A –    The questions referred
      42.   The Bundeskommunikationssenat has asked the Court to define the Community law terms ‘teleshopping’ and ‘television advertising’
         for the purpose of classifying the mini-spot inserted in the ‘Quiz Express’ programme. If it were to be held to fall within
         the definition of teleshopping, the mini-spot would be prohibited in Austria since, in reliance on Article 3(1) of Directive
         89/552, Paragraph 13(2) of the ORF-Gesetz prohibits that form of commercial television, with the result that KommAustria’s
         position would be correct. If, on the other hand, it were to be classed as self-promotion, other criteria would need to be
         taken into account in the assessment since advertising is permitted provided that it is readily recognisable as such and is
         clearly separated from other parts of the programme by optical and/or acoustic means (Paragraph 13(3) of the ORF-Gesetz).
         
      
      43.   However, the referring administrative authority has not formulated its uncertainties in the abstract but rather in relation
         to a type of broadcast which it were useful to define, because Article 1(c) and (f) of the Television without Frontiers Directive
         links both advertising and teleshopping to the supply of goods and services. It is, therefore, appropriate to ascertain whether
         the disputed broadcast entails a supply of services (it clearly does not display the specific features of a supply of goods);
         for which reason it is necessary, first, to determine whether it possesses the features of a game of chance and, if it does,
         to establish its true scope with a view to defining it as teleshopping or advertising, as the case may be.
      
      44.   None the less, before I continue, it is necessary to rule out another possibility underlying the questions submitted by the
         Bundeskommunikationssenat, namely: that the mini-spot is neither advertising nor teleshopping but simply a broadcast falling
         within the definition of ‘television broadcasting’ laid down in Article 1(a) of the Television without Frontiers Directive.
      
      B –    The ‘Gewinnspiel’ in question is not a television quiz show
      45.   In that regard, the pertinent observations submitted by the Italian Government in the written stage of these preliminary-ruling
         proceedings are most enlightening. Unlike a quiz show which takes place on set, where the faces of the main participants –
         the presenter and the contestants – are visible and the audience (both the invited studio audience and those watching at home)
         is assigned a passive role, the Gewinnspiel run by ÖRF is a game where the player, who was merely a viewer a few moments before, appears on the other end of the telephone
         line, while the other viewers entertain the hope that they will become participants in the game and receive a prize.
      
      46.   That format demonstrates that whereas in a traditional-style quiz programme television is used as a medium to broadcast a
         game which takes place on set with the intention of entertaining the public, the aim of the mini-spot broadcast by the ÖRF
         is to attract viewers with the lure of a prize, either in the first instance if they are lucky enough to have their call selected
         and they guess the right answer, or at a second opportunity by taking part in a weekly draw.
      
      47.   However, to take part it is necessary to pay a sum of money from which the television channel benefits, for the greater the
         number of telephone calls the greater the profits which accrue to it; for that reason, in principle and subject to a more
         detailed examination below, the aim of the disputed game is to raise direct finance for the ÖRF. Thus the issue of payment
         arises, which is referred to in Article 1(c) and (f) of Directive 89/552.
      
      48.   Lastly, by broadcasting the entertainment spot in issue, the ÖRF does not carry out a ‘television broadcasting’ activity under
         Article 1(a) of the Television without Frontiers Directive; in other words, rather than transmitting a programme intended
         for reception by the public, the ÖRF uses television for an additional, if important, function, which is to obtain money.
      
      49.   That being the case, it is necessary to ascertain, as I have already stated, whether that additional function involves the
         supply of a service in return for payment, an investigation which calls for clarification of the nature of the disputed broadcast.
      
      C –    A game of chance
      50.   In paragraphs 92 to 97 of my Opinion in Placanica and Others, (31) I examined the relationship between chance, gaming and the law. That link justifies Community legislation aimed at protecting
         individuals from the risks which a passion for gambling poses to their property and health (32) while also guarding the commercial interests of the undertakings and centres where that type of entertainment is conducted,
         thereby guaranteeing, in short, freedom of establishment and freedom to provide services. (33)
      
      51.   European Community law does not contain a detailed definition of games of chance, although the case-law cited analyses their
         effects on the foundations of the single market while stopping short of providing a definition. It does, however, accept that,
         in a legal sense, the concept encompasses placing a bet of a financial nature the outcome of which is dependent on chance. (34)
      
      52.   Following on from that admittedly vague starting-point, it is appropriate to consider countless kinds of games of chance for,
         when it comes to enjoyment and competition, the fertility of the human mind knows no bounds. (35) However, I have identified three criteria for delimiting the concept: financial payment, uncertainty and the desire to win.
         (36)
      
      53.   The uncertainty of the result is inherent in a game of chance, since chance is present at all stages, adding the spice which
         gives the game its entrancing flavour, and the dream of winning a prize that is bigger than the original stake is the bait
         which appeals to the player’s greed. Moreover, the financial element enables the law to contain this social phenomenon: in
         order for the law to intervene in a particular field, it is essential that the field in question should have an effect on
         persons’ property. (37) A game without any stake and without implications for a player’s capital affects the player’s private sphere alone and does
         not call for the protection of the law.
      
      54.   Chance undoubtedly plays a part in the spot inserted in the ‘Quiz Express’ programme. The luck of the participants is evident
         on two occasions: the selection of one telephone call out of those received, the happy caller being put through to speak to
         the presenter of the programme, and in the weekly draw which allows the other contestants the hope of winning a prize. The
         viewer’s ability, knowledge or even mental agility, plays a secondary role in the desire to win.
      
      55.   In short, when viewers dial the telephone number they want to win the prize, whether at the first opportunity mentioned above
         or at the second, in the draw.
      
      56.   On the first occasion, viewers agree to pay a sum (EUR 0.70) which, although small, is significantly higher than the cost
         of an ordinary call in Austria, agreeing to do so in the hope of winning a prize of between EUR 200 and 330, which more than
         compensates for the amount they have paid out.
      
      57.   Therefore, the specific features of the game played on the programme ‘Quiz Express’ constitute grounds for calling it a game
         of chance.
      
      D –    A supply of services
      58.   That point having been established, it is straightforward enough to conclude that the ÖRF provides a service in return for
         payment.
      
      59.   The Court has not hesitated to classify the organisation of lotteries (Schindler), (38) the use of slot machines in return for payment (Läärä and Others), (39) and all games of chance or gambling (Anomar and Others) (40) as services within the meaning of Article 50 EC. (41)
      
      60.   It is of course true that the Court applied that classification when considering games of chance in their entirety as a principal
         activity in their own right, in the context of national measures restricting their organisation, and went on to justify such
         measures in the light of general interest objectives such as the protection of social order and the combating of crime and
         fraud. (42)
      
      61.   The judgments cited do not concern a situation in which the conduct of the game forms part of a wider context, as occurred
         in the facts giving rise to the main proceedings and in the facts in issue in Familiapress, (43) which unfolded against a similar background where a German weekly magazine ‘Laura’, distributed in Austria, published crosswords
         and puzzles for readers to solve and awarded cash prizes by drawing lots among the readers who sent in the correct answers.
         Both the ÖRF and the Portuguese Government are correct when they argue that, in accordance with that judgment, small-scale
         draws of such a kind do not constitute an economic activity in their own right but merely form one aspect of the editorial
         content of a magazine (paragraph 23), so that it is not appropriate to classify that type of draw as a supply of services
         under Article 50 EC. However, the Commission rightly points out that that finding was intended to set that case apart from
         the decision in Schindler, given in the context of the review of the proportionality of national measures restrictive of large-scale games of chance,
         like lotteries.
      
      62.   To summarise, there is nothing in Community case-law which would prevent the mini-spot broadcast by the ÖRF from being classified
         as a game of chance and, consequently, as a service. 
      
      63.   Before continuing, it is important to counter an argument which ÖRF put forward in its written observations (paragraph 4)
         and to point out that the fact that the programme ‘Quiz Express’ can be received only in Austria is immaterial, since its
         only bearing is on the application of Article 49 EC and it may not be relied on to deny that the programme has a particular
         inherent character. It is to be borne in mind that the Television without Frontiers Directive uses the term ‘supply of services’
         to define an activity and not to guarantee its free movement. To put it another way, a service does not cease to be a service
         because it does not cross national borders, as may be inferred from paragraph 27 of the judgment in Läärä and Others. (44)
      
      E –    Teleshopping versus advertising
      64.   That brings me to the Gordian knot of the present reference for a preliminary ruling, which lies in determining whether the
         prize game included in the programme ‘Quiz Express’ and, by extension, the programme itself possesses the characteristics
         typical of a teleshopping broadcast.
      
      65.   Article 1(f) of the Television without Frontiers Directive refers to four elements: (1) the broadcast of (2) direct offers
         to the public (3) with a view to the supply of goods or services (4) in return for payment.
      
      66.   The first and the last two elements do not give rise to any uncertainty in the present case. No one disputes that ‘Quiz Express’
         is a television broadcast which invites viewers to participate in a game in return for consideration: callers make a payment
         (received by the ÖRF) to take part in and enjoy that service, which consists of competing for a prize in one of the two stages
         of the game.
      
      67.   The invitation falls within the concept of ‘direct offers to the public’, an aspect which also helps to distinguish teleshopping
         from advertising, designed to promote the supply of goods or services rather than effect it.
      
      1.      Direct offers
      68.   In RTI and Others, (45) the Court provided a detailed definition of this concept with a view to interpreting the previous version of Directive 89/552
         before the concept of teleshopping was introduced into its provisions; however, that concept underlay Article 18(3) which,
         in regulating the maximum duration of other ‘forms of advertisements’, provided that ‘direct offers to the public for the
         sale, purchase or rental of products or for the provision of services shall not exceed one hour per day’.
      
      69.   Paragraph 31 of the judgment in RTI and Others describes direct offers to the public as ‘broadcasts presenting products which may be ordered directly by telephone, mail
         or videotext and which are delivered to viewers at home’. Usually, the presenter broadcasts details of goods and services
         on offer, praises their qualities and benefits, announces the price and forms of payment, while at the same time the phone
         numbers, website address and other information which may be useful for making an order are displayed on the screen. The contract
         is governed by the rules established for distance selling (46) in Directive 97/7/EC. (47)
      
      70.   By contrast, advertising presents an indirect offer because, although its aim, like that of teleshopping, is to persuade viewers to purchase the goods or services promoted
         by describing to them the features of those goods or services, the final stage of the transaction remains on the fringes of
         its immediate objectives and is deferred until a later time when the consumer contacts the appropriate distribution channel
         to complete the purchase.
      
      71.   Teleshopping goes a step further than advertising since, rather than simply publicising, it also promotes and sells.
      72.   Those reflections support the view that the ‘Quiz Express’ programme invites viewers to participate in a game of chance by
         providing them with the information essential in order to make contact with the operator and appear on air, or, if they are
         unsuccessful in that regard, to enter the weekly draw, paying consideration, at least indirectly, (48) by using the special premium rate telephone number.
      
      73.   The programme presenter urges the viewers to make a note of the number displayed on the screen so that they may take part
         in the broadcast. The commercial demonstration focuses on drawing attention to the prizes on offer. Acceptance of the invitation
         takes place when a user dials the number and the ÖRF operator answers, which is also the moment when the payment process is
         instigated through the inclusion of the cost of the call in the telephone bill of the customer who, at the same time, chooses
         to play the game on air or, as the case may be, qualifies to take part in the draw with the other unsuccessful callers.
      
      74.   Thus, in accordance with the wording of Article 1(f) of the Television without Frontiers Directive, the disputed broadcast
         makes a direct offer to the public to acquire a service in return for payment, while at the same time satisfying all the conditions
         required to conclude a distance contract. (49)
      
      75.   Nothing therefore prevents the programme in question from being classified, in the abstract, as a form of teleshopping.
      2.      The particular significance of the game in the programme ‘Quiz Express’
      76.   The classification ‘teleshopping’ is not, however, triggered automatically. Taking the definitions of teleshopping and advertising
         set out in Article 1 of the Television without Frontiers Directive in conjunction with Chapter IV of that directive, it is
         clear that such spots must be kept separate and be identifiable (Article 10), with the result that they may be inserted only
         between programmes or, exceptionally, during programmes, provided that the integrity and value of the programme, taking into
         account natural breaks, autonomous parts and intervals, are not prejudiced.
      
      77.   On the face of it, the legislature did not envisage the inclusion of teleshopping and advertising in programmes, as in the circumstances of
         the case in the main proceedings, and the failure to enact provisions in that regard explains the referring authority’s doubts
         as to the exact classification of that programme.
      
      78.   For the purpose of classifying a broadcast as teleshopping, it is important to consider the quantity and the quality of teleshopping
         in that broadcast. At this point, it is appropriate to refer again to the approach adopted in Familiapress, that is the prominence of the spot in question within the programme. If the spot is merely secondary, just one more element
         of the programme aimed at achieving the objective of the programme, it is subsumed into the overall content of the programme
         itself; if the activity is more prominent and becomes the programme’s leitmotif, its particular character is passed on to the rest of the programme, thereby transforming the whole programme into a teleshopping
         broadcast. Needless to say, there are intermediate states between those two extremes.
      
      79.   Essentially, it is not for the Court to embark on a mission to solve the mystery of the nature of the disputed game, especially
         when, as is the case here, the Court does not have at its disposal all the factual information required to approach the mission
         with any guarantee of success. However, what the Court can do is provide the national court with a number of guidelines, albeit
         with the prudence which the United Kingdom’s representative advocated at the hearing.
      
      80.   The first assessment criterion is the aim of the programme of which the mini-quiz forms a part. It is clear that the assessment
         will vary according to whether the game takes place during, and forms part of, a magazine programme or a variety show, the
         overall purpose of which is to entertain, (50) or whether it takes place during a completely different type of broadcast with which it has no connection, such as, for example,
         a news programme or a religious broadcast. (51) That assessment excludes from the definition of teleshopping cases where viewers’ participation, despite being in return
         for payment and in the hope of receiving a prize, is included in the editorial content of the programme with a view to furthering
         the development of the programme, as occurs in reality shows like ‘Big Brother’, ‘Fame Academy’ or ‘Strictly Come Dancing’.
         
      
      81.   In that connection, the financial significance of the game within the television programme as a whole also provides useful
         evidence, both direct and indirect. As regards direct evidence, the revenue generated by calls to the premium-rate telephone
         number as a proportion of the profits made by the programme as a whole, including advertising, offers an important evaluation
         criterion.
      
      82.   Similarly, however, in the case of indirect evidence, account must be taken not only of the time devoted to the presentation
         of the game and to beguiling viewers into participating by dialling the number which appears on the screen but also of the
         time dedicated to the drawing of the lots to find the happy person who will answer questions live, in other words, to the
         effort invested in selling the product. Articles 18 and 18a of the Television without Frontiers Directive, which govern the
         duration of advertising and teleshopping spots, supply a useful method in that regard.
      
      83.   When it comes to calculating the financial significance of the game, the nature of the questions usually asked is relevant,
         for the easier those questions are the greater the number of prospective contestants, which increases the amount of revenue
         so obtained.
      
      84.   In the light of those factors, any astute person can easily discern whether the aim is to organise entertainment or simply
         to raise funds for the broadcaster by selling a service.
      
      85.   Finally, the true nature of the programme may also be deduced from the number of viewers who dial the telephone number because
         they wish to take part in the game.
      
      86.   In light of the foregoing considerations, I propose that the Court’s reply to the first question should be that, on a proper
         construction of Article 1(f) of Directive 89/552, broadcasts or parts of broadcasts in which the broadcaster invites viewers
         to participate in a prize game by directly dialling premium-rate telephone numbers, and therefore for valuable consideration,
         must be regarded as a type of teleshopping if the main objective is to sell the right to participate in the game. On that
         basis, the national court must take into account the criteria set out in paragraphs 77 to 82 of this Opinion, namely: (a) the
         principal aim of the broadcast; (b) the financial significance of the game; (c) the time devoted to the game, and (d) the
         number of viewers who call.
      
      F –    Absence, in any event, of any intention to advertise
      87.   If the reply to the first question were to be negative, the referring court asks whether, in the alternative, the facts of
         the case come within the definition of advertising, in the form of self-promotion, that is to say, an activity carried out
         by a television broadcaster with the intention of promoting its own products, services, programmes or channels (Recital 39
         in the preamble to Directive 97/36).
      
      88.   There is a noticeable difference – not touched on in the written observations – between this question and the first in terms
         of their material scope, in that this question relates not to the broadcast or part of the broadcast but rather to the announcement
         itself, since a non-advertising broadcast may include such announcements. (52) That distinction is decisive when it comes to answering the second question.
      
      89.   If it were to be concluded that ‘Quiz Express’ is not a type of teleshopping spot, it would have to be regarded as being an
         entertainment programme. (53) In that context, the announcements giving details of the telephone number and of how to take part in the game are not intended
         to advertise the game but rather to provide the information essential to participation and therefore indispensable to the
         programme; by definition, such information is useful to viewers only in the context of the programme itself. In other words,
         the announcement of the telephone numbers has the status of information essential to the broadcast, and it is intended to
         further the progress of the programme rather than to promote an additional service. 
      
      90.   To summarise, the announcement displayed on the screen during ‘Quiz Express’, indicating the telephone number to dial in order
         to take part in a game of chance, does not conceal an intention to advertise, with the result that it is not covered by Article
         1(c) of the Television without Frontiers Directive.
      
      VII –  Conclusion
      91.   In accordance with the foregoing considerations, I suggest that the Court of Justice should:
      (1)      declare that it lacks jurisdiction to answer the questions referred for a preliminary ruling by the Bundeskommunikationssenat,
         Austria, the latter not being a court or tribunal within the meaning of Article 234 EC;
      
      (2)      alternatively, if it finds the reference for a preliminary ruling admissible, declare that:
      ‘(a)      on a proper construction of Article 1(f) of Council Directive 89/552 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, broadcasts or parts of broadcasts
         in which the broadcaster invites viewers to participate in a prize game by directly dialling premium-rate telephone numbers,
         and therefore for valuable consideration, must be regarded as a type of teleshopping if the main objective is to sell the
         right to participate in the game. On that basis, the national court must take into account, inter alia, the following criteria:
         (a) the principal aim of the broadcast; (b) the financial significance of the game; (c) the time devoted to the game; and
         (d) the number of viewers who call;
      
      (b)      the purpose of the announcement displayed on the screen during a programme, indicating the numbers of a premium-rate telephone
         service which viewers must dial in order to take part in a prize game organised by the broadcaster during the programme, is
         not to advertise but merely to supply information, with the result that that announcement is not covered by Article 1(c) of
         Directive 89/552.’
      
      1 –	Original language: Spanish.
      
      2 –	Beigbeder, F., in 99 francs, Grasset, Paris, 2000, complains that, for lovers of literature, advertising is one of the greatest catastrophes of the last
         two millennia.
      
      3 –	In Au Bonheur des Dames (The Ladies’ Delight), translated by Robin Buss, Penguin Classics, London, 2003, p. 383, Emile Zola echoes that view: ‘The crowd had been growing
         since morning. No shop had ever stirred the town with such a burst of publicity. Now, Au Bonheur was spending nearly six hundred thousand francs every year on posters, newspaper advertisements and announcements of every
         sort; the number of catalogues sent out had reached four hundred thousand and more than a hundred thousand francs’ worth of
         materials were cut up for samples. Newspapers, walls and the ears of the public were comprehensively invaded, as if by a monstrous
         brass trumpet constantly blowing the news of great sales to the four corners of the earth’.
      
      4 –	For example, the new operating system from the American firm Microsoft has been promoted in 39 000 outlets across 45 countries
         at a cost of 500 million dollars (www.zdnet.fr/actualites/informatique).
      
      5 –	OJ 1989 L 298, p. 23.
      
      6 –	OJ 1997 L 202, p. 60.
      
      7 –	Those subscribers may receive from the supplier of the telecommunications service a percentage of the amount invoiced for
         the call.
      
      8 –	In the wording laid down in Directive 97/36.
      
      9 –	Also inserted by Directive 97/36.
      
      10 –	BGBl. No 32 of 2001.
      
      11 –	That court, which has its seat in Vienna, judicially reviews the public administration. It hears appeals which are classed
         as extraordinary because they assess the legality of administrative acts without taking the facts into consideration. It fulfils
         the role of an administrative court of cassation which is restricted to ensuring the application of legislation by laying
         down a correct interpretation. It has jurisdiction to set aside administrative acts on the grounds that they infringe substantive
         or procedural law or that they are ultra vires or an abuse of power but it does not have jurisdiction to assess the facts.
      
      12 –	BGBl. No 51 of 1991.
      
      13 –	BGBl. No 83 of 2001, in the version contained in BGBl. No 159 of 2005.
      
      14 –	The Bundeskommunikationssenat states in the order for reference (paragraph 41) that the ÖRF has not provided any figures
         relating to the sum accruing to it but the Bundeskommunikationssenat assumes that the ÖRF made a significant profit under
         its agreement with the telephone company.
      
      15 –	See, for example, the judgments in Case 61/65 Vaassen-Göbbels [1966] ECR 377; Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23; and Case C-416/96 Nour Eddline El-Yassini [1999] ECR I-1209, paragraph 17.
      
      16 –      The Austrian Constitution guarantees the independence of non-judicial members by providing in Paragraph 20(2) that, ‘Where
         a collegiate authority including at least one member of the judiciary is established by federal law or by the law of a Land to decide matters at last instance and it is provided by law that its decisions may not be set aside or varied by administrative
         action, the other members of the authority shall also not be bound by any directions in the performance of their duties’.
      
      17 –	Case C-17/00 [2001] ECR I-9445.
      
      18 –	Weisungsfreie Kollegianbehörde mit richterlichem Einschlag’, in German.
      
      19 –	That provision excludes from the jurisdiction of the Verwaltungsgerichtshof ‘matters in which the decision at last instance
         falls to a collegiate authority where, under federal law or the law of a Land governing the creation of that authority, its members must include at least a senior judge; the other members are not bound
         in the performance of their duties by any directions; the decisions of the authority may not be set aside or varied in administrative
         proceedings; and, regardless of whether the foregoing conditions are met, the appeal has not been expressly ruled admissible
         before the Verwaltungsgerichtshof.’
      
      20 –	The Opinion in Case C-246/05 Häupl, with regard to the Oberster Patent-und Markesenat (Higher Patent and Trade Mark Authority).
      
      21 –	The wide range of collegiate authorities in Austria and the diversity of the rules which govern them make it advisable
         to eschew any automatic conclusions. The Court has agreed to hear references for preliminary rulings submitted by a number
         of such authorities. For example, in the judgment in Case C-44/96 Mannesmann Anlagebau Austria and others [1998] ECR I‑73, the Court admitted questions from the Bundesvergabeamt, a body which hears disputes relating to public contracts,
         without analysing whether that body was a court or tribunal; in Case C-103/97 Köllensperger and Atzwanger [1999] ECR I-551, the Court ruled that the Tiroler Landesvergabeamt (Procurement Office of the Land of Tyrol) was a court or tribunal; and similarly, in Case C-92/00 HI [2002] ECR I-5553, the Court ruled that the Vergabekontrollsenat (Public-Procurement Review Chamber) of the Vienna Region
         was a court or tribunal.
      
      22 –	 G175/95, VfSlg. 15.886.
      
      23 –	Judgment of 24 February 1999 (B1625/98-32, VfSlg. 15.427).
      
      24 –	Judgment of 13 June 2001 (G141/00, VfSlg. 16.189).
      
      25 –	Judgment of 25 September 2002 (B110/02 e.al., VfSlg. 16.625).
      
      26 –	As I pointed out in the Opinion in Case C-259/04 Emanuel [2006] ECR I-3089, point 26.
      
      27 –	Case C-516/99 [2002] ECR I-4573.
      
      28 –	Case C-53/03 [2005] ECR I-4609.
      
      29 –	Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577.
      
      30 –	Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785.
      
      31 –	Joined Cases C-338/04, C-359/04 and C-360/04 [2007] ECR I-00000.
      
      32 –	In the Opinion in Case C-374/05 Gintec [2007] ECR I-00000, I drew attention to the risks to public health caused by using devices such as games of chance in advertisements
         for medicines (paragraph 72). 
      
      33 –	In the judgment in Case C-243/01 Gambelli and Others [2003] ECR I-13031, the Court held that national legislation – in that case Italian – which prohibits on pain of criminal
         penalties the pursuit of activities in the gaming sector without a licence or police authorisation from the Member State concerned
         constitutes a restriction on  both those freedoms (paragraph 59 and operative part). That finding was upheld in the judgment
         in Placanica and others (paragraph  71 and operative part). 
      
      34 –	Article 1(5)(d) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects
         of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)
         (OJ 2000 L 178, p. 1) excludes from the scope of that directive ‘gambling activities which involve wagering a stake with monetary
         value in games of chance, including lotteries and betting transactions’.
      
      35 –	In Homo ludens, Alianza, Madrid, 1990, Huizinga, J. argues that human culture first emerged in play and developed there. The author states
         that when realisation dawned that the name homo sapiens did not suit the species as well as had first been thought, because, ultimately, human beings are not as wise as people believed
         with such naïve optimism in the 18th century, humans were given the name homo faber instead. However, in the author’s opinion, that description is even less appropriate because it may be applied to many animals. The
         author therefore proposes the name homo ludens since, although there are also animals which play, the function of the game is as essential as that of making things, while
         human behaviour as a whole is nothing more than a game.
      
      36 –	In the judgment in Case C-275/92 Schindler [1994] ECR I-1039, the Court described lottery services as those provided by the operator of the lottery to enable purchasers
         of tickets to participate in a game of chance with the hope of winning, by arranging for that purpose for the stakes to be
         collected, the draws to be organized and the prizes or winnings to be ascertained and paid out. The Court held that the price
         of the lottery ticket constitutes the remuneration (paragraphs 27 and 28).
      
      37 –	That view underlies points 95 to 98 of my Opinion in Placanica and others.
      
      38 –	Judgment in Schindler, paragraphs 19, 25 and 34.
      
      39 –	Judgment in Case C-124/97 Läärä and others [1999] ECR I-6067, paragraphs 18 and 27.
      
      40 –	Judgment in Case C-6/01 Anomar and others [2003] ECR I-8621, paragraphs 48 and 52.
      
      41 –	For a more detailed quotation, please refer to point 97 of my Opinion in Placanica and others.
      
      42 –	A number of those objectives are set out in paragraphs 14 and 15 of the judgment in Case C‑67/98 Zenatti [1999] ECR I‑7289.
      
      43 –	Case C-368/95 [1997] ECR I-3689.
      
      44 –	The judgment states: ‘Second, as the Court held in Schindler in relation to the organisation of lotteries, the provisions of the Treaty relating to freedom to provide services apply
         to activities which enable users, in return for payment, to participate in gaming. Consequently, such activities fall within
         the scope of Article 59 of the Treaty [now, after amendment, Article 49 EC], since at least one of the service providers is
         established in a Member State other than that in which the service is offered.’
      
      45 –	Joined Cases C-320/94, C-328/94, C-329/94, C-337/94, C-338/94 and C‑339/94 [1996] ECR I‑6471.
      
      46 –	Retterer, S.,  Le télé-achat: une vente aux apparences publicitaires protégée des réglementations nationales, ‘Droit de la consommation’, Juris-Classeur, hors série, December 2000, p. 306.
      
      47 –	Directive of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance
         contracts (OJ 1997 L 144, p. 19).
      
      48 –	It is not clear whether the cost of the call is stated.
      
      49 –	Article 2(1) of Directive 97/7 defines a distance contract as ‘any contract concerning goods or services concluded between
         a supplier and a consumer under an organized distance sales or service-provision scheme run by the supplier, who, for the
         purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment
         at which the contract is concluded’.
      
      50 –	A short time spent channel-hopping provides ample opportunity to see sports and variety programmes where viewers are invited
         to take part in games and win prizes but where the essential nature of the programme is not affected.
      
      51 –	That approach is based on Article 11(5) of the Television without Frontiers Directive which prohibits the insertion of
         advertising in religious programmes, and in news and current affairs programmes, documentaries and children’s programmes,
         when their duration is less than 30 minutes.
      
      52 –	The Commission raised that possibility in points 21 and 41 of the Commission interpretative communication on certain aspects of the provisions on televised advertising in the ‘Television without
            frontiers’ Directive (OJ 2004 C 102, p. 2), when it referred to mini-spots and split screens on which editorial and advertising content appear
         simultaneously.
      
      53 –	In points 41 to 44 of this Opinion I drew attention to the difficulties involved in classifying the Gewinnspiel in the main proceedings as a television quiz show.