(Principle of judicial protection National legislation not providing for a self-standing action to challenge the compatibility of a national provision with Community law Procedural autonomy Principles of equivalence and effectiveness Interim protection)
In Case C-432/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Högsta domstolen (Sweden), made by decision of 24 November 2005, received at the Court on 5 December 2005, in the proceedings
Unibet (London) Ltd,
Unibet (International) Ltd
composed of V. Skouris, President, C.W.A. Timmermans, A. Rosas, K. Lenaerts (Rapporteur), R. Schintgen, P. Kūris and E. Juhász, Presidents of Chambers, J. Makarczyk, G. Arestis, U. Lõhmus, E. Levits, A. à Caoimh and L. Bay Larsen, Judges,
Advocate General: E. Sharpston,
Registrar: J. Swedenborg, Administrator,
having regard to the written procedure and further to the hearing on 3 October 2006,
after considering the observations submitted on behalf of:
Unibet (London) Ltd and Unibet (International) Ltd, by H. Bergman and O. Wiklund, advokater,
the Swedish Government, by K. Wistrand, acting as Agent,
the Belgian Government, by A. Hubert, S. Verhulst and P. Vlaemminck, advocaten,
the Czech Government, by T. Boček, acting as Agent,
the German Government, by M. Lumma and A. Dittrich, acting as Agents,
the Greek Government, by A. Samoni-Rantou and K. Boskovits, acting as Agents,
the Italian Government, by I.M. Braguglia, acting as Agent, and F. Sclafani, avvocato dello Stato,
the Netherlands Government, by H.G. Sevenster and C. ten Dam, acting as Agents,
the Austrian Government, by H. Dossi, acting as Agent,
the Portuguese Government, by L. Fernandes and J. de Oliveira, acting as Agents,
the Finnish Government, by E. Bygglin, acting as Agent,
the United Kingdom Government, by C. White and, subsequently, by Z. Bryanston-Cross, acting as Agents, and T. Ward, Barrister,
the Commission of the European Communities, by E. Traversa and K. Simonsson, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 30 November 2006,
gives the following
National legal background
Rules of procedure
The Law on Lotteries
The dispute in the main proceedings and the questions referred for a preliminary ruling
'(1) Is the requirement of Community law that national procedural rules must provide effective protection of an individual's rights under Community law to be interpreted as meaning that an action for a declaration that certain national substantive provisions conflict with Article 49 EC must be permitted to be brought in a case where the compatibility of the substantive provisions with that article may otherwise be examined only as a preliminary issue in, for example, an action for damages, proceedings concerning infringement of the national substantive provisions or judicial review proceedings?
(2) Does the requirement of effective legal protection under Community law mean that the national legal order must provide interim protection, through which national rules which prevent the exercise of an alleged right based on Community law may be disapplied in relation to an individual so that he is able to exercise that right until the question of the existence of the right has been finally settled by a national court?
(3) If the answer to Question 2 is in the affirmative:
Does it follow from Community law that, where the compatibility of national provisions with Community law is being challenged, in its substantive examination of an application for interim protection of rights under Community law a national court must apply national provisions governing the conditions for interim protection, or in such a situation must the national court apply Community law criteria for interim protection?
(4) If the answer to Question 3 is that Community law criteria must be applied, what are those criteria?'
The questions referred for a preliminary ruling
On those grounds, the Court (Grand Chamber) hereby rules:
1. The principle of effective judicial protection of an individual's rights under Community law must be interpreted as meaning that it does not require the national legal order of a Member State to provide for a free-standing action for an examination of whether national provisions are compatible with Article 49 EC, provided that other effective legal remedies, which are no less favourable than those governing similar domestic actions, make it possible for such a question of compatibility to be determined as a preliminary issue, which is a task that falls to the national court.
2. The principle of effective judicial protection of an individual's rights under Community law must be interpreted as requiring it to be possible in the legal order of a Member State for interim relief to be granted until the competent court has given a ruling on whether national provisions are compatible with Community law, where the grant of such relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights.
3. The principle of effective judicial protection of an individual's rights under Community law must be interpreted as meaning that, where the compatibility of national provisions with Community law is being challenged, the grant of any interim relief to suspend the application of such provisions until the competent court has given a ruling on whether those provisions are compatible with Community law is governed by the criteria laid down by the national law applicable before that court, provided that those criteria are no less favourable than those applying to similar domestic actions and do not render practically impossible or excessively difficult the interim judicial protection of those rights.
* Language of the case: Swedish.