| EUROPEAN COMMUNITY — Television broadcasting — Limitation on broadcasting time for teleshopping and TV advertising — Opportunity to participate in game by premium rate telephone call — Whether “teleshopping” or “television advertising” — Council Directive 89/552 EEC on TV broadcasting activities (as amended by Directive 97/36/EC; “Directive 89/552), arts 1(c), (f)
Kommunikationsbehörde Austria v Österreichischer C-195/06)
ECJ: President of Chamber Lenaerts, Judges Silva de Lapuerta, Juhász, Malenovský and von Danwitz: 18 October 2007
The offer by a TV broadcaster to viewers to participate in a prize game by immediately dialling a premium rate telephone could constitute “teleshopping” and “television advertising” within Directive 89/552.
The Fourth Chamber of the Court of Justice of the European Communities so held on a reference for a preliminary ruling by the Bundeskommunikationssenat, Austria.
During a quiz programme broadcast by the defendant in Austria, the presenter launched an offer inviting the public to take part in a prize game by dialling a premium-rate telephone number which was displayed on the screen. The telephone service provider received EUR 0.70 per call, a portion of which it passed on to the defendant. The game had three stages: (i) a single call was put through at random; (ii) a successful caller was asked questions by the presenter; (iii) unsuccessful callers participated in a weekly draw. In a proceeding in which the claimant communication authority maintained that the defendant had infringed Austrian rules implementing Directive 89/552, the Bundeskommunikationssenat sought a preliminary ruling from the European Court on the meaning of arts 1(c) and (f) of that Directive.
Art 18 of the Directive specifies maximum periods of time per day and per clock hour that may be devoted to teleshopping, defined in art 1(f) as “direct offers broadcast to the public with a view to the supply of goods or services … in return for payment” and TV advertising, defined in art 1(c) 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 … in return for payment”.
THE COURT, on grounds stated by it, ruled: on the proper construction of art 1 of Directive 89/552, a broadcast or part of a broadcast during which a TV broadcaster offered viewers the opportunity to participate in a prize game by means of immediately dialling a premium rate telephone number, and thus in return for payment, was covered by (i) the definition of “teleshopping” in art 1(f) if that broadcast or part of a broadcast represented a real offer of services having regard to the purpose of the broadcast of which the game formed part, the significance of the game within the broadcast in terms of time and of anticipated economic effects in relation to those expected in respect of that broadcast as a whole, and to the type of questions which the candidates were asked, and (ii) the definition of “television advertising” in art 1(c) if, on the basis of the purpose and content of that game and the circumstances in which the prizes to be won were presented, the game consisted of an announcement which sought to encourage viewers to buy the goods and services presented as prizes to be won or sought to promote the merits of the programmes of the broadcaster in question indirectly in the form of self-promotion.
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