Kommunikationsbehörde Austria (KommAustria) v Österreichischer Rundfunk (ORF).
Date: 2007-10-18
19. According to settled case-law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C‑53/03 Syfait and Others [2005] ECR I-4609, paragraph 29, and the case-law cited, and Case C-246/05 Häupl  [2007] ECR I-0000, paragraph 16).
20. In that regard, it must be pointed out, first, that it is indisputably clear from the provisions of Paragraphs 11, 11a and 12 of the KOG that the Bundeskommunikationssenat meets the criteria relating to whether it is established by law, whether it is permanent and its jurisdiction is compulsory, whether its procedure is inter partes and whether it applies rules of law.
21. Secondly, it must be stated that the provisions of Paragraph 12 of the KOG, read in conjunction with those of Article 20(2) of the Bundesverfassungsgesetz ensure the independence of the Bundeskommunikationssenat.
24. It must be borne in mind that it follows from the need for uniform application of Community law and from the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, Case 327/82 Ekro  [1984] ECR 107, paragraph 11; Case C-287/98 Linster  [2000] ECR I-6917, paragraph 43; Case C-170/03 Feron  [2005] ECR I-2299, paragraph 26; and Case C-316/05 Nokia  [2006] ECR I-12083, paragraph 21).
25. The purport which the Community legislature sought to give to the definitions of ‘television advertising’ and ‘teleshopping’ within the meaning of Article 1 of Directive 89/552 must thus be examined in the light of the context of that provision and the objective pursued by the legislation in question.
26. As is apparent from the 27th recital in the preamble to Directive 89/552, the Community legislature intended to ensure that the interests of consumers as television viewers were fully and properly protected, by making the different forms of promotion such as television advertising, teleshopping and sponsorship subject to a certain number of minimum rules and standards.
27. From that point of view, the provisions of Chapter IV of Directive 89/552, which define those rules and standards, express the intention of the Community legislature, as pointed out by Advocate General Ruiz-Jarabo Colomer at point 76 of his Opinion, to keep those promotional activities separate from those covered by the other parts of the programmes broadcast, to make them unambiguously identifiable to television viewers and to restrict the transmission time thereof. Thus the protection of consumers, as viewers, from excessive advertising is an essential aspect of the objective of Directive 89/552 (see to that effect, Case C-245/01 RTL Television  [2003] ECR I-12489, paragraph 64).
32. Furthermore, an activity which enables users, in return for payment, to participate in a prize game may constitute a supply of services (see, to that effect, in respect of the organisation of lotteries, Case 275/92 Schindler  [1994] ECR I-1039, paragraph 25; in respect of the making available of slot machines, Case C-124/97 Läärä and Others  [1999] ECR I-6067, paragraph 27; and in respect of the operation of games of chance or gambling, Case C-6/01 Anomar and Others  [2003] ECR I‑8621, paragraph 56).
37. It is important to add that a game, such as that at issue in the main proceedings, can constitute ‘teleshopping’ within the meaning of Article 1(f) of Directive 89/552 only if that game constituted an actual economic activity in its own right involving the supply of services and was not restricted to a mere offer of entertainment within the broadcast (see, by analogy, in respect of a prize game inserted in a publication, Case C-368/95 Familiapress  [1997] ECR I-3689, paragraph 23).