Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim.
Date: 2010-09-08
35. 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).
36. 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).
37. 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).
38. 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).
39. 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).
43. 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).
44. 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.
46. 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).
47. 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).
49. 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).
53. 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).
54. 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).
55. 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).
56. 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).
57. 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).
58. 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).
60. 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).
61. 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).
64. 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).
65. 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).
66. 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).
67. 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.
69. 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