Luxembourg, 19/10/2007 (Agence Europe) - In its ruling on 18 October, the European Court of Justice provided guidelines to enable it to be determined whether or not television programmes fall into the category of “teleshopping”, since programmes of this kind are subject to certain restrictions. The Court did not rule on the nature of the Austrian programme in question, noting that the benefits deriving from the programme, for viewers, the broadcaster and third parties, had to be identified.
The matter was referred to the Court of Justice by the Austrian Federal Communications Board (the “Bundeskommunikationssenat”) which was seeking to establish the legality of the programme “Quiz-Express”. This programme, broadcast by Austrian broadcaster Österrichischer Rundfunk or ÖRF, contained a section which offered the public the opportunity to take part in a game for which a prize could be won (“Gewinnspiel” in German), by dialling a special rate telephone number (€0.70 per call). Under the terms of Article 13 paragraph 2 of the ÖRF-Gesetz (Austrian Federal law on broadcasting), however, ÖRF is not authorised to broadcast teleshopping programmes. The Austrian communications regulator, Kommunikationsbehörde Austria or KommAustria, believes that the programme could be described as a teleshopping programme, but the Bundeskommunikationssenat, following the complaint lodged by KommAustria, is not so sure, and referred two questions to the Court for a preliminary ruling.
The ruling is in line with the advocate general's opinion (see EUROPE 9434), in that the Court does not believe that it has sufficient information to be able to decide on the “Quiz-Express” case. The Court does, however, provide guidelines to help the Bundeskommunikationssenat in its assessment. First of all, it is up to the Austrian court to decide whether, in this instance, participants are provided with the real offer of services, or whether participation in “Quiz-Express” is only a bit of fun within the programme. This will depend on the amount of time devoted to the game and the amount of income generated by it compared with other sources of income. According to the ruling, the Bundeskommunikationssenat must determine whether “Quiz-Express” is advertising, either for the goods offered as prizes or for the ÖRF (for example by asking questions which require knowledge of the channel's other programmes). (C.D.)