CELEX: 62006CJ0409
Articles 43 EC and 49 EC
Freedom of establishment
Freedom to provide services
Organisation of bets on sporting competitions subject to a public monopoly at Land level
Decision of the Bundesverfassungsgericht finding the legislation for such a monopoly incompatible with the German Basic Law, but maintaining the legislation in force during a transitional period designed to allow it to be brought into conformity with the Basic Law
Principle of the primacy of Union law
Admissibility of, and possible conditions for, a transitional period of that type where the national legislation concerned also infringes Articles 43 EC and 49 EC

The reference for a preliminary ruling concerns the interpretation of Articles 43 EC and 49 EC and the consequences attaching
to the principle of the primacy of Community law.
This reference has been submitted in the context of a dispute between Winner Wetten GmbH (‘WW’) and the Mayor of Bergheim,
concerning the decision of the latter prohibiting WW from pursuing its business of offering bets on sporting competitions.

National legal context

National legislation
Paragraph 12(1) of the German Basic Law (Grundgesetz) provides:
‘All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of
training. The practice of an occupation or profession may be regulated by or pursuant to a law.’
Paragraph 31 of the Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) provides:
‘(1)      Decisions of the Bundesverfassungsgericht shall bind constitutional powers of the federation and Länder and all courts and
authorities.
(2)      ... the decision of the Bundesverfassungsgericht shall have the force of law ... where the Bundesverfassungsgericht declares
that a law is compatible or incompatible with the Basic Law, or void. Where a law is declared compatible or incompatible with
the Basic Law or other provisions of federal law, or void, the operative part of the decision must be published in the
Bundesgesetzblatt
...’
According to Paragraph 35 of the Law on the Federal Constitutional Court:
‘The Bundesverfassungsgericht may decide in its decision who will implement the latter; it may also determine the manner in
which implementation shall take place.’
Paragraph 284 of the Criminal code (Strafgesetzbuch) provides:
‘(1)      Whosoever without the authorisation of a public authority publicly organises or operates a game of chance or makes equipment
for it available shall be liable to imprisonment of not more than two years or a fine.
...
(3)      Whosoever in cases under subparagraph (1) above acts
1.      on a commercial basis ...
...
shall be liable to imprisonment of between three months and five years.
...’
By the State treaty concerning lotteries in Germany (Staatsvertrag zum Lotteriewesen in Deutschland; ‘the LottStV’), which
entered into force on 1 July 2004, the Länder created a uniform framework for the organisation, operation and commercial brokering
of gambling, apart from casinos.
Paragraph 1 of the LottStV states:
‘The objectives of the State treaty are:
1.      to channel the natural propensity of the population for gambling in an ordered and supervised manner, and, in particular,
to prevent it being transferred to unauthorised games of chance;
2.      to prevent excessive incitements to gamble;
3.      to prevent the exploitation of the propensity to gamble for profit‑making private or commercial purposes;
4.      to ensure that games of chance take place in a regular manner and that their logic is comprehensible; and
5.      to ensure that a significant part of the receipts from games of chance is used to promote public objectives, or objectives
with a privileged tax status, within the meaning of the Tax Code.’
Paragraph 5(1) and (2) of the LottStV provide:
‘1.      The Länder are, within the framework of the objectives set out in Paragraph 1, legally obliged to ensure [the existence of]
a sufficient supply of games of chance.
2.      On the basis of the law, the Länder may themselves assume that task, or entrust it to legal persons under public law or to
private law companies in which legal persons under public law directly or indirectly hold a controlling shareholding.’
In the Land Nordrhein-Westfalen, implementation of the LottStV is by means of the Law on Bets on Sporting Competitions (Sportwettengesetz
Nordrhein‑Westfalen), of 3 May 1955 (the ‘SWG NRW’), of which Paragraph 1(1) provides:
‘The government of the Land may authorise companies taking bets on sporting competitions. Such companies must be legal persons
under public law or a private law company the majority of the shares of which belongs to legal persons under public law. ...’
One single authorisation of that type has been issued in the Land Nordrhein‑Westfalen, namely to Westdeutsche Lotterie & Co.
OHG.

The judgment of the Bundesverfassungsgericht of 28 March 2006
In a judgment of 28 March 2006, the Bundesverfassungsgericht held, concerning the legislation transposing the LottStV in the
Land of Bavaria, that the public monopoly on bets on sporting competitions existing in that Land infringed Paragraph 12(1)
of the Basic Law, guaranteeing freedom of occupation. That court held in particular that, by excluding private operators from
the activity of organising bets, without at the same time providing a regulatory framework capable of ensuring, in form and
in substance, both in law and in fact, the effective pursuit of the objective of reducing the passion for gambling and combating
addiction to it, that monopoly had a disproportionately adverse effect on the freedom of occupation thus guaranteed.
After emphasising that the legislature had many means at its disposal for remedying the unconstitutionality thus determined,
namely either the systematic organisation of the monopoly in order to attain the abovementioned objective, or the establishment
by law of arrangements for authorising the organisation of bets on a commercial basis by private companies, the Bundesverfassungsgericht
decided not to annul the legislation in question and to maintain its effects until 31 December 2007, stating that, by that
date, the legislature should have used its discretionary power by amending the rules held to be in breach of the Basic Law
so as to ensure their conformity with the latter.
The Bundesverfassungsgericht also held that the existing legal situation could, however, be provisionally maintained only
on the condition that, without delay, a minimum of consistency be established between the objective seeking to limit the passion
for gambling and combat addiction to it, and the effective exercise of the monopoly. In particular, it was prohibited, during
the transitional period instituted, to increase the number of bets available and to make publicity going beyond simple information
on the nature and method of operation of the bets on offer. The court further required that active information should immediately
be given on the dangers of betting.

The dispute in the main proceedings and the questions referred for a preliminary ruling
WW has commercial premises at Bergheim (Germany) where it carries on the business of brokering bets on sporting competitions
on behalf of Tipico Co. Ltd, a company established in Malta.
By order of 28 June 2005, the Mayor of Bergheim prohibited WW from carrying on that business, on pain of closure and sealing
of its commercial premises.
The administrative complaint against that order brought by WW was rejected by the Landrat (head of administrative services)
of the Rhein‑Erft‑Kreis by decision of 22 September 2005, on the ground that, by that activity, WW rendered itself, if not
an accomplice to the organisation of gambling, an activity punishable under Paragraph 284 of the criminal code, at least guilty
of an infringement of Paragraph 1 of the SWG NRW, which makes any organisation of bets on sporting competitions subject to
the obtaining of prior authorisation issued by the Land Nordrhein-Westfalen.
WW brought an action before the Verwaltungsgericht Köln (Administrative Court, Cologne) against that decision and against
the order of 28 June 2005, claiming that the public monopoly on bets on sporting competitions in force in the Land Nordrhein-Westfalen,
on which those measures were based, was contrary to the freedom to provide services guaranteed by Article 49 EC.
The Verwaltungsgericht Köln observes that neither WW nor Tipico Co. Ltd hold the authorisation required under Paragraph 1
of the SWG NRW in order to carry on the activity at issue in the main proceedings, and that, moreover, such authorisation
cannot be granted to them by reason of the existence of the monopoly instituted by the legislation in force in the Land Nordrhein-Westfalen.
In that regard, the Verwaltungsgericht Köln nevertheless considers that it follows from the judgment in Case C-243/01
Gambelli and Others
[2003] ECR I 13031 that a restrictive measure such as the said monopoly cannot, in the present case, be justified by reference
to the alleged objective of preventing the encouragement of excessive spending on gambling and combating addiction to the
latter, since it is undisputed that participation in bets in sporting competitions is encouraged by the national bodies authorised
to organise such bets and that, therefore, the said measure does not contribute to limiting betting activities in a consistent
and systematic manner.
It follows from the judgment of the Bundesverfassungsgericht of 28 March 2006, referred to above, delivered in respect of
the legislation of the Land of Bavaria, and from a similar order issued by the same court on 2 August 2006 in respect of the
comparable legislation of the Land Nordrhein-Westfalen, that the public monopoly on bets on sporting competitions existing
in that latter
Land
infringes Paragraph 12(1) of the Basic Law, on the ground that the legislative framework in force is not fit to ensure either
in law or in fact that the objective of reducing the passion for gambling and combating addiction to it is effectively pursued.
In that judgment, the Bundesverfassungsgericht also expressly emphasised that the requirements arising from the abovementioned
constitutional provision and those arising from the case-law of the Court of Justice, particularly the judgment in
Gambelli
, converged in that regard.
According to the Verwaltungsgericht Köln, it follows from all of the above that the monopoly existing in the Land Nordrhein-Westfalen
must be regarded as contrary both to Community law and to the Basic Law, as, moreover, has also been held by the Oberverwaltungsgericht
Nordrhein‑Westfalen (Higher Administrative Court, Nordrhein-Westfalen).
According to that latter court, the fact that Westdeutsche Lotterie & Co. OHG has attempted, since delivery of the judgment
of the Bundesverfassungsgericht of 28 March 2006, referred to above, to arrange its practice so as to satisfy the transitional
requirements laid down by that latter court, as described in paragraph 14 of this judgment, is not sufficient to put an end
to that infringement of Community law, an amendment of the legal framework in force being required for that purpose.
The Verwaltungsgericht Köln notes, however, that, notwithstanding the incompatibility between the legislation of the Land
Nordrhein‑Westfalen and Community law found by the Oberverwaltungsgericht Nordrhein-Westfalen, that latter court held that
the said legislation should benefit from the same transitional measures as those decided upon by the Bundesverfassungsgericht
in its abovementioned judgment of 28 March 2006, namely, as indicated in paragraphs 13 and 14 of this judgment, maintenance
of its effects until 31 December 2007.
According to the Oberverwaltungsgericht Nordrhein-Westfalen, the general principle of legal certainty and the need not to
create a legal void threatening essential public interests require that the said interests be provisionally given priority
over the interest which the offerors of private bets have in free access to the market, by providing, in derogation from the
principle of the primacy of Community law, for a transitional period during which the legislation concerned may remain applicable.
The Verwaltungsgericht Köln has doubts as to compatibility of the institution of such a transitional period with the requirements
arising from the principle of the primacy of Community law, which, as shown in the judgment in Case 106/77
Simmenthal
[1978] ECR 629, unconditionally requires that national legislation contrary to Articles 43 EC or 49 EC be immediately disapplied.
It is in those circumstances that the Verwaltungsgericht Köln decided to stay the proceedings and refer the following questions
to the Court for a preliminary ruling:
‘1.      Are Article 43 EC and Article 49 EC to be interpreted as meaning that national rules governing a State monopoly on sports
betting, which contain impermissible restrictions on the freedom of establishment and the freedom to provide services enshrined
in Article 43 EC and Article 49 EC, inasmuch as they do not serve to limit betting activities in a consistent and systematic
manner within the terms of the Court’s case-law (judgment in Case C‑243/01
Gambelli and Others
[2003] ECR 13031), may still continue to apply for a transitional period on an exceptional basis, notwithstanding the primacy
of directly applicable Community law?
2.      If Question 1 is to be answered in the affirmative: what conditions need to be met for the purpose of derogating from that
primacy and how is the transitional period to be determined?’

Admissibility of the questions referred
The Norwegian Government takes the view that the questions referred are hypothetical in nature. The order for reference shows
that, without itself examining the monopoly instituted in the Land Nordrhein-Westfalen in the light of Community law, the
referring court assumed the incompatibility of that monopoly with the rules of the EC Treaty and referred merely to the judgment
of the Bundesverfassungsgericht of 28 March 2006, referred to above. In the first place, the Bundesverfassungsgericht expressly
held that it did not have jurisdiction to rule on the compatibility of the monopoly at issue with Community law. Secondly,
the fact that the Bundesverfassungsgericht held that monopoly contrary to the Basic Law does not in any way prejudge its possible
incompatibility with Community law.
For their part, the German and Belgian Governments and the European Commission have argued that, rather than holding the monopoly
at issue in the main proceedings incompatible with Community law on the basis solely of the findings made by the Bundesverfassungericht
in its abovementioned judgment of 28 March 2006, the referring court should have examined whether such incompatibility endured,
taking account of the conditions, as described in paragraph 14 of this judgment, to which the Bundesverfassungsgericht, by
that decision, made the provisional maintenance of the effects of the legislation concerned subject.
The Belgian Government and the Commission consider that, failing such an examination, the relevance of the questions referred
for the resolution of the dispute in the main proceedings is not established. The German Government suggests that the Court
should reformulate the questions referred and reply to them that the monopoly thus temporarily reorganised complies with the
requirements laid down by the judgment in
Gambelli
, cited above.
Desirous of reacting to the objections thus formulated, the referring court sent a letter to the Court dated 11 May 2007,
explaining that, in order to determine the dispute in the main proceedings, it would have to have regard to the legal and
factual situation as it existed at the time of the decision at issue in the main proceedings, namely 22 September 2005, so
that any modifications which took place following the judgment of the Bundesverfassungsgericht of 28 March 2006, referred
to above, could not be taken into consideration in determining the dispute in the main proceedings.
Having regard to the content of that letter, the Court, acting on the basis of Article 104(5) of its Rules of Procedure, sent
a letter to the referring court on 16 July 2008, requesting it to indicate whether a reply to the questions referred remained
necessary for the resolution of the dispute in the main proceedings, having regard to the explanations given in the meantime
by the Bundesverfassungsgericht in an order of 22 November 2007. In that order, the Bundesverfassungsgericht held, concerning
the legislation at issue in the case which gave rise to its judgment of 28 March 2006, referred to above, that the maintenance
of the effects of that legislation decided upon by that judgment was not capable of making the incompatibility with the Basic
Law of administrative decisions adopted before that judgment disappear.
In its reply of 8 August 2008, the referring court stated that a reply to the questions referred remained necessary since,
contrary to what it had previously stated, it would have to have regard to the legal and factual situation existing on 31
December 2007 in order to rule on the legality of the decision at issue in the main proceedings. The case-law had developed
to the effect that the legality of a decision such as that at issue in the main proceedings must henceforward be assessed
at the date on which the court decision is given. With regard to the case at issue in the main proceedings, however, it is
the date of 31 December 2007 which must be taken into consideration, because new legislation, substantially different from
the previous legislation and without retrospective effect, came into force on 1 January 2008.
Findings of the Court
It should be noted, first, that it is not the function of the Court of Justice to rule on the interpretation of national provisions,
that being within the exclusive jurisdiction of the national courts. In addition, when hearing a reference for a preliminary
ruling from a national court, the Court of Justice must base its reasoning on the interpretation of national law as described
to it by that court (Case C‑115/08
ČEZ
[2009] ECR I-0000, paragraph 57 and case-law cited).
Secondly, it is settled case-law that, in proceedings under Article 267 TFEU, it is solely for the national court before which
the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the
light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver
judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by
the national court concern the interpretation of Union law, the Court of Justice is, in principle, bound to give a ruling
(see, in particular, Case C‑379/98
PreussenElektra
[2001] ECR I‑2099, paragraph 38, and Case C‑169/07
Hartlauer
[2009] ECR I‑1721, paragraph 24).
The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite clear
that the interpretation of Union law that is sought bears no relation to the actual facts of the main action or its purpose,
where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give
a useful answer to the questions submitted to it (
PreussenElektra
, paragraph 39, and
Hartlauer
, paragraph 25).
The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical
questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see, in particular, Case
C‑459/07
Elshani
[2009] ECR I‑2759, paragraph 42 and case-law cited).
In those various respects, it should, however, be noted, first, that, according to settled case-law, in the light of the division
of responsibilities between the national courts and the Court of Justice, the referring court cannot be required to make all
the findings of fact and of law required by its judicial function first before it may then bring the matter before the Court.
It is sufficient that both the subject-matter of the dispute in the main proceedings and the main issues raised for the Community
legal order may be understood from the reference for a preliminary ruling, in order to enable the Member States to submit
their observations in accordance with Article 23 of the Statute of the Court of Justice and to participate effectively in
the proceedings before the Court (Case C‑42/07
Liga Portuguesa de Futebol Profissional and Bwin International
[2009] ECR I‑0000, paragraph 41).
Secondly, it is apparent from the statements contained in the order for reference that the Oberverwaltungsgericht Nordrhein-Westfalen,
the court ruling on the appeals lodged against the decisions made by the referring court, has already held, first, that the
monopoly at issue in the main proceedings is incompatible with Union law and, second, that compliance with the temporary conditions
laid down by the Bundesverfassungsgericht in its judgment of 28 March 2006, and referred to in paragraph 14 of this judgment,
is not sufficient to put an end to such incompatibility.
Having regard to the whole of the above, it is not obvious that the interpretations which have been requested sought bear
no relation to the actual facts of the main action or its purpose, or that the problem raised is hypothetical. The questions
referred should therefore be regarded as admissible.

The identification of the relevant provisions of Union law
The Commission has expressed doubts as to the relevance of the reference which the first question makes to Article 43 EC,
that institution maintaining that only Article 49 EC is capable of being applied to a situation such as that at issue in the
main proceedings.
In that regard, it should be noted that, according to consistent case-law, activities which consist in allowing users to participate,
for remuneration, in gambling constitute ‘services’ within the meaning of Article 49 EC (see, in particular, Case C‑275/92
Schindler
[1994] ECR I‑1039, paragraph 25, and Case C‑67/98
Zenatti
[1999] ECR I‑7289, paragraph 24). The same applies to the activity of promoting and placing gambling, such an activity constituting
only specific steps in the organisation or operation of the gambling to which that activity relates (see, in particular,
Schindler
, paragraphs 22 and 23).
Services such as those at issue in the main proceedings may thus fall within the scope of Article 49 EC where, as in the case
in the main proceedings, at least one of the providers is established in a Member State other than that in which the service
is offered (see, in particular,
Zenatti
, paragraph 24), unless Article 43 EC applies.
As regards Article 43 EC, it should be recalled that that provision prohibits restrictions on freedom of establishment for
nationals of a Member State in the territory of another Member State, including restrictions on the setting-up of agencies,
branches or subsidiaries (
Gambelli
, paragraph 45).
The case-law shows in this respect that the concept of establishment is a very broad one, allowing a Community national to
participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to
profit therefrom, so contributing to economic and social interpenetration within the European Community in the sphere of activities
as self-employed persons (see, in particular, Case C‑55/94
Gebhard
[1995] ECR I‑4165, paragraph 25). Thus, the maintenance of a permanent presence in a Member State by an undertaking established
in another Member State may fall within the provisions of the Treaty on the freedom of establishment even if that presence
does not take the form of a branch or agency, but consists merely of an office managed by a person who is independent but
authorised to act on a permanent basis for that undertaking, as would be the case with an agency (see Case 205/84
Commission
v
Germany
[1986] ECR 3755, paragraph 21).
With regard to the area of games and bets, the Court of Justice held, in
Gambelli
, that Article 43 EC can apply to a situation in which an undertaking established in one Member State has, in another Member
State, a presence which takes the form of commercial agreements with operators or intermediaries, relating to the creation
of data transmission centres which make electronic means of communication available to users, collect and register intentions
to bet and forward them to the said undertaking. Where an undertaking pursues the activity of collecting bets through the
intermediary of such an organisation of agencies established in another Member State, any restrictions on the activities of
those agencies constitute obstacles to the freedom of establishment (
Gambelli
, cited above, paragraphs 14 and 46, and Joined Cases C‑338/04, C‑359/04 and C‑360/04
Placanica and Others
[2007] ECR I‑1891, paragraph 43).
In this case, the information contained in the order for reference concerning the relations between Tipico Co. Ltd and WW
neither confirms nor excludes the possibility that the latter should be regarded as a subsidiary, branch or agency within
the meaning of Article 43 EC.
In those circumstances, it should be remembered that, in proceedings under Article 267 TFEU, which is based on a clear separation
of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for
the national court (see, in particular, Case C‑326/00
IKA
[2003] ECR I‑1703, paragraph 27 and case-law cited).
Moreover, as indicated in paragraph 36 of this judgment, it is for the national court alone to assess both the need for a
preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court
of Justice in that regard.
It is thus for the referring court to determine, in the light of the circumstances of the case, whether the situation at issue
in the main proceedings falls under Article 43 EC or Article 49 EC.
In the light of the above, it is necessary to examine the questions referred having regard to both Article 43 EC and Article
49 EC.

Substance

The first question
It should be recalled at the outset that, according to settled case-law, in accordance with the principle of the precedence
of Union law, provisions of the Treaty and directly applicable measures of the institutions have the effect, in their relations
with the internal law of the Member States, merely by entering into force, of rendering automatically inapplicable any conflicting
provision of national law (see, in particular,
Simmenthal
, cited above, paragraph 17 and Case C‑213/89
Factortame and Others
[1990] ECR I‑2433, paragraph 18).
As the Court has emphasised, directly applicable rules of law of the Union which are an immediate source of rights and obligations
for all concerned, whether Member States or individuals who are parties to legal relationships under Union law, must deploy
their full effects, in a uniform manner in all Member States, as from their entry into force and throughout the duration of
their validity (see, to that effect,
Simmenthal
, paragraphs 14 and 15, and
Factortame
, paragraph 18).
It is also settled case-law that any national court, hearing a case within its jurisdiction, has, as an organ of a Member
State, the obligation pursuant to the principle of cooperation set out in Article 10 EC, fully to apply the directly applicable
law of the Union and to protect the rights which the latter confers upon individuals, disapplying any provision of national
law which may be to the contrary, whether the latter is prior to or subsequent to the rule of law of the Union (see to that
effect, in particular,
Simmenthal
, paragraphs 16 and 21, and
Factortame
, paragraph 19).
It follows from the above that any provision of a national legal system and any legislative, administrative or judicial practice
which might impair the effectiveness of Union law by withholding from the national court having jurisdiction to apply such
law the power to do everything necessary at the moment of its application to set aside national legislative provisions which
might prevent directly applicable Union rules from having full force and effect are incompatible with the requirements which
are the very essence of Union law (
Simmenthal
, paragraph 22, and
Factortame
, paragraph 20).
The Court has stated that that would be the case if, in the event of a conflict between a provision of Union law and a subsequent
national law, the solution of the conflict were to be reserved for an authority with a discretion of its own, other than the
court called upon to apply Union law, even if such an impediment to the full effectiveness of Union law were only temporary
(
Simmenthal
, paragraph 23).
It is to be noted, moreover, that, according to settled case-law, the principle of effective judicial protection is a general
principle of Union law stemming from the constitutional traditions common to the Member States, which has been enshrined in
Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on
4 November 1950, and which has also been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union,
and that, under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection
of an individual’s rights under Union law (Case C‑432/05
Unibet
[2007] ECR I‑2271, paragraphs 37 and 38 and case-law cited).
In the present case, it should be noted that, in holding, in its judgment of 28 March 2006 and its order of 2 August 2006,
that a monopoly such as that at issue in the main proceedings infringed the requirements of the Basic Law, the Bundesverfassungsgericht
did not rule on the compatibility of that monopoly with Community law, but, on the contrary, emphasised in that judgment that,
in the case at issue, it considered that it did not have jurisdiction to do so.
As for the fact that, once it had made that finding of incompatibility with the Basic Law, the Bundesverfassungsgericht decided,
in the conditions set out in paragraphs 13 and 14 of this judgment, to maintain on a temporary basis the effects of the internal
legislation concerning that monopoly, it follows from the case-law referred to in paragraphs 53 to 58 of this judgment that
such a circumstance cannot prevent a national court, which finds that that same legislation infringes directly effective provisions
of Union law such as Articles 43 EC and 49 EC, from deciding, in accordance with principle of the primacy of Union law, not
to apply that legislation in the context of the dispute before it (see, by analogy, Case C‑314/08
Filipiak
[2009] ECR I-0000, paragraph 84).
Rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of Union
law (see, to that effect, Case 11/70
Internationale Handelsgesellschaft
[1970] ECR 1125, paragraph 3).
It is clear from the order for reference and from the very wording of the first question referred that the referring court
is also asking whether, more generally, and thus independently of the existence of the decision of the Bundesverfassungsgericht
of 28 March 2006, the effect, arising from the principle of primacy, of ousting the national legislation held contrary to
Articles 43 EC and 49 EC may be suspended during the time necessary to bring that legislation into conformity with the said
treaty provisions. As is apparent from paragraph 26 of this judgment, that question is posed by the referring court particularly
in relation to the fact that, whilst holding that the case-law of the Court of Justice shows that the legislation at issue
in the main proceedings infringes Articles 43 EC and 49 EC, the Oberverwaltungsgericht Nordrhein-Westfalen held that such
suspension was justified in relation to that legislation, on the ground that imperatives concerning the protection of public
order and of citizens against the risks connected with gambling precluded the situation of a legal vacuum which would result
from the immediate ousting of the legislation.
All the Member States submitting observations have, in essence, maintained that recognition of a principle authorising, in
exceptional circumstances, the provisional maintenance of the effects of a national rule held contrary to a directly-applicable
rule of Union law is justified by analogy, having regard to the case-law developed by the Court of Justice on the basis of
the second paragraph of Article 231 EC, with the effect of provisionally maintaining the effects of measures of Community
law annulled by the Court under Article 230 EC or ruled invalid by it under Article 234 EC.
In that regard, it is true that, under the second paragraph of Article 231 EC, now the second paragraph of Article 264 TFEU,
which is also applicable, by analogy, in the context of a reference for a preliminary ruling on validity under Article 234
EC, now Article 267 TFEU, the Court of Justice has a discretion to indicate, in each particular case, which effects of a Union
measure which it annuls or declares invalid must be regarded as definitive (see, in particular, Case C‑333/07
Régie Networks
[2008] ECR I‑10807, paragraph 121 and case-law cited).
In the exercise of that power, the Court may decide, for example, to suspend the effects of the annulment or the finding of
invalidity of such a measure until the adoption of a new measure remedying the illegality found (see to that effect, in particular,
Joined Cases C‑402/05 P and C‑415/05 P
Kadi and Al Barakaat International Foundation
v
Council and Commission
[2008] ECR I‑6351, paragraphs 373 to 376, concerning an annulment, and
Régie Networks
, cited above, paragraph 126, concerning a finding of invalidity).
As the case-law shows, the maintenance of the effects of a Union measure which has been annulled or declared invalid, the
purpose of which is to prevent a legal vacuum from arising before a new measure replaces the measure thus annulled or declared
invalid (see, in particular, Case C‑157/02
Rieser Internationale Transporte
[2004] ECR I‑1477, paragraph 60), may be justified where overriding considerations of legal certainty involving all the interests,
public as well as private, are at stake (see, in particular,
Régie Networks
, paragraph 122 and case‑law cited) and during the period of time necessary in order allow such illegality to be remedied
(see to that effect, in particular,
Kadi and Al Barakaat International Foundation
v
Council and Commission
, paragraph 375, and
Régie Networks
, paragraph 126).
However, even assuming that considerations similar to those underlying that case-law, developed as regards acts of the Union,
were capable of leading, by analogy and by way of exception, to a provisional suspension of the ousting effect which a directly-applicable
rule of Union law has on national law that is contrary thereto, such a suspension, the conditions of which could be determined
solely by the Court of Justice, must be excluded from the outset in this case, having regard to the lack of overriding considerations
of legal certainty capable of justifying the suspension.
Indeed, the order for reference shows that, at this stage, the referring court, which alone has jurisdiction to assess the
facts of the dispute before it, has held that the restrictive legislation at issue in the main proceedings did not effectively
contribute to limiting betting activities in a consistent and systematic manner, so that it followed from the earlier case-law
of the Court that such legislation, which cannot be justified by an objective of preventing the encouragement of excessive
spending on gambling and combating addiction to the latter, infringes Articles 43 EC and 49 EC.
Having regard to all of the above, the answer to the first question referred must be that, by reason of the primacy of directly-applicable
Union law, national legislation concerning a public monopoly on bets on sporting competitions which, according to the findings
of a national court, comprises restrictions that are incompatible with the freedom of establishment and the freedom to provide
services, because those restrictions do not contribute to limiting betting activities in a consistent and systematic manner,
cannot continue to apply during a transitional period.

The second question
Having regard to the reply given to the first question, it is not necessary to examine the second question referred.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
By reason of the primacy of directly-applicable Union law, national legislation concerning a public monopoly on bets on sporting
competitions which, according to the findings of a national court, comprises restrictions that are incompatible with the freedom
of establishment and the freedom to provide services, because those restrictions do not contribute to limiting betting activities
in a consistent and systematic manner, cannot continue to apply during a transitional period.
[Signatures]
*
Language of the case: German.