Luxemburg, 29/05/2007 (Agence Europe) - On 24 May, Advocate General Dámaso Ruiz-Jarabo Colomer presented his conclusions in case C-195/06, that the Court of Justice is not competent to answer the questions put to it by the Bundeskommunikationssenat (the Austrian Federal High Communications Council). However, in the event that the judges at the Court decide not to follow this interpretation (which they are perfectly at liberty to do), he also gave some guidelines and criteria which would allow the Bundeskommunikationssenat to determine whether the phone-in broadcast by the Austrian broadcasting service, the Österreichischer Rundfunk, or ÖRF, was infringing the rules banning teleshopping programmes on that channel.
During the programme “Quiz Express”, broadcast by ÖRF on 1 April 2005, with an on-screen telephone number providing access at special rates, the presenter asked the public to take part in a game to win a prize (“Gewinnspiel” in German) by dialling the said number. The company providing the telephone service received €0.70 per call and paid part of this sum to ÖRF. The question here is whether or not this constitutes “teleshopping”, since, under the terms of Article 13, paragraph 2 of the ÖRF- Gesetz (the federal broadcasting law in Austria), ÖRF is not allowed to broadcast this kind of programme.
The Austrian communications regulator (“Kommunikationsbehörde Austria” or “KommAustria”) believes the programme to be “teleshopping”, but the Bundeskommunikationssenat, in the face of the appeal lodged by this latter, is not certain, and asked two preliminary questions with a view to deciding what was “television advertising” and what was “teleshopping”.
The Advocate General expresses, firstly, the opinion that the Court should declare that it is not competent to respond to the questions, given that the Bundeskommunikationssenat does not have the authority of a court which can refer a question. However, since it is still possible for the Court judges not to accept this opinion, he provides a number of criteria which the Bundeskommunikationssenat should apply to its investigation: a) the main purpose of the programme, b) the economic weight of the game, c) the time given to it, and d) the number of viewers who phone in. If it were found that the programme was not teleshopping, Mr Colomer considers that neither is it “television advertising”. Judgment will be passed in the coming weeks. (cd)