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pedlars and hucksters of all kinds, who would once have extolled their goods in the markets and fairs of old, has been replaced by advertising campaigns which reach millions of consumers.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.’