Opinion of Advocate General Emiliou delivered on 19 March 2026

Uitspraak

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 19 Mars 2026 (¹)

Case C‑530/24

DK

v

Tipico Co. Ltd.

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

( Reference for a preliminary ruling – Freedom to provide services – Article 56 TFEU – Betting and gaming – Sports betting – Law of a Member State requiring a licence for the organisation of betting on sporting competitions and prohibiting unlicensed betting – Operator providing sports betting services via the internet from another Member State without the required licence – Civil claims brought by a consumer against that operator for restitution of the stakes he wagered or equivalent damages, based on a breach of the prohibition of unlicensed betting – Defence of the operator that it could not obtain a licence because of deficiencies in the licensing procedure – Possibility for the courts seised to impose the consequences provided in the applicable civil law )

I.      Introduction

1.        The present request for a preliminary ruling, submitted by the Bundesgerichtshof (Federal Court of Justice, Germany), belongs to a series of cases (²) concerning civil claims brought by German or Austrian consumers against Maltese online gaming operators. In essence, the consumers seek to recover – relying on the rules of unjust enrichment and/or tort – the stakes they placed with the operators, on the ground that the latter acted in breach of the local gambling regulations.

2.        In the present case, a German consumer brought such claims against a Maltese sports betting operator before the German civil courts. At the relevant time, German law required a licence for the lawful offering of bets on sports competitions in Germany. The operator in question acted without such a licence. Under German law, such unauthorised conduct renders the contracts concluded with its clients null and void and constitutes a tort, thereby giving rise to claims for restitution or compensation in favour of the affected consumers.

3.        In its defence, the operator contends, inter alia, that it was unable to obtain a licence owing to certain deficiencies in the licensing procedure. The referring court therefore asks whether, in such circumstances, the civil courts seised are obliged, under the principle of primacy of EU law, to leave the national licensing system unapplied in its entirety and, consequently, to reject the consumer’s claims. In the present Opinion, I will explain why that question calls for a nuanced response.

II.    Summary of the relevant German rules on sports betting

4.        The Staatsvertrag zum Glücksspielwesen (State Treaty on Gaming; ‘the GlüStV 2008’) entered into force on 1 January 2008 and established a uniform framework for the organisation, operation and intermediation of games of chance, including sports betting, in the German Länder.

5.        Pursuant to Paragraph 1, the GlüStV 2008 aimed, inter alia, to (i) prevent dependency on gambling; (ii) ‘channel’ the gaming instinct of the population in an organised and supervised manner, by means of a limited supply of games of chance, thus preventing a drift towards unauthorised games; and (iii) protect minors and players.

6.        To those ends, Paragraph 4(1) of the GlüStV 2008 provided that the organisation of games of chance (in a physical location) required the prior authorisation from the competent authority of the Land concerned. The offering of such games without that authorisation was prohibited. Furthermore, under Paragraph 4(4), the offering of games of chance on the internet was generally prohibited.

7.        In that initial version of the treaty, under Paragraph 10(2), the competent authorities of the Länder could grant an authorisation for the organisation of games of chance in physical locations only to legal entities under public law, or through private-law companies in which legal entities, under public law, have a direct or indirect controlling interest. Under Paragraph 10(5), other private operators were not eligible. In practice, one public operator (ODDSET) received such authorisation for sports betting (in physical locations) and thus held a public monopoly over that activity in Germany.

8.        However, both before and after the Court’s judgments in Stoß and Carmen Media, (³) the German courts ruled that that public monopoly was incompatible with, inter alia, the freedom to provide services under Article 56 TFEU. (⁴) The prohibition of online gambling was, it seems, with respect to sports betting, also questioned before those courts.

9.        Consequently, the Länder adopted the Glücksspieländerungsstaatsvertrag (The amending Treaty on Gaming; ‘the GlüStV 2012’). The GlüStV 2012 introduced two significant changes with respect to sports betting. First, it introduced a special licensing system, in new Paragraphs 4a to 4e and 10a, opening the possibility for private operators to operate on the German market. Specifically, under Paragraph 4a(1), a licence was required to organise or intermediate sports betting (with the prohibition of unauthorised gambling laid down in Paragraph 4(1) applying ‘by analogy’). Paragraph 10a then provided for the grant of up to 20 sports betting licences to eligible operators (including private ones) for an ‘experimental period’ of seven years (that is, until 30 June 2019). Secondly, by derogation to the general prohibition of online gambling laid down in Paragraph 4(4), it authorised online sports betting, inasmuch as those licences were to allow their holders to offer betting both in physical locations and on the internet, pursuant to Paragraph 10a(4).

10.      Paragraph 4b(1) of the GlüStV 2012 provided that licences were to be granted following a call for tenders and the conduct of a transparent, non-discriminatory procedure. A notice was to be published to that effect in the Official Journal of the European Union.

11.      Paragraphs 4a(4), 4b(2) and 4c(3) of the GlüStV 2012 set out the conditions for the grant of the licences. In particular, Paragraph 4a(4) required the tenderers to demonstrate their ‘superior reliability’ (including the lawful origin of the resources necessary for organising gaming), their ‘contributory capacity’ and the ‘transparency’ and ‘security’ of their games of chance (including the requirement that they put in place interfaces to monitor, in real time, all gambling operations). Paragraph 4b(5) enumerated the criteria for deciding between several tenderers eligible to obtain a licence.

12.      Pursuant to Paragraph 4c(2) and Paragraph 10a(4), the licences granted were required to specify certain ‘substantive and ancillary provisions’, binding on the licensee concerned. Paragraph 4(5) was to ‘apply by analogy’ in that regard. That last provision provided that ‘by way of derogation from [the prohibition of online gambling laid down in Paragraph 4(4)], the Länder … may authorise … the organisation and brokerage of sports betting on the internet where … the following conditions are met: 1. The exclusion of underage or barred players is ensured by means of identification and authentication. 2. The maximum stake per player may not, in principle, exceed an amount of EUR 1 000 per month. The authorisation may set a different amount for the purpose of achieving the objectives of Paragraph 1. … 3. Particular incitements to dependency involving rapid repetition are ruled out. … 5. Betting and lotteries are not offered through the same web domain, nor does the domain contain references or links to other forms of gaming.’

13.      Finally, as a transitional measure, Paragraph 29(1) of the GlüStV 2012 authorised ODDSET to continue offering sports betting for a period of up to one year following the grant of the first licence.

III. Facts, national proceedings and the questions referred

A.      Tipico and the contentious licensing procedure

14.      Tipico Co. Ltd. (‘Tipico’) is a company registered in Malta. Since 2005, it holds a gaming licence issued by the Maltese authorities intended to permit Tipico to provide online sports betting services from Malta to the whole of the European Union. It has been offering online sports betting in Germany through a German-language website with a German top-level domain.

15.      On 8 August 2012, the German authorities published a contract notice in the Official Journal of the European Union inviting candidates to submit tenders for the grant of 20 licences for the organisation of sports betting, in accordance with Paragraphs 4a to 4e and 10a of the GlüStV 2012.

16.      Tipico submitted an application for a licence. However, after the various stages of the licensing procedure were carried out, the company was not among the 20 tenderers informed by the awarding authority that they would be granted a licence.

17.      Subsequently, Tipico, together with other unsuccessful tenderers, brought proceedings before the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden, Germany), seeking review of the licensing procedure and a declaration that it is entitled to a licence.

18.      By order of 10 June 2015, upon application by one of the tenderers, the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) ordered, as an interim measure, the awarding authority not to grant the licences pending the judicial review of the procedure. The Hessischer Verwaltungsgerichtshof (Higher Administrative Court, Hesse, Germany) confirmed that measure by order of 16 October 2015.

19.      By decision on the merits of 15 April 2016, the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) held that the licensing procedure had been carried out in breach of Tipico’s rights to a transparent and non-discriminatory licensing procedure under Article 56 TFEU. (⁵) Specifically, (i) limiting the number of licences to 20, as provided by the GlüStV 2012, infringed the requirement of transparency, since the Länder were unable to explain that limitation; and (ii) the selection by the awarding authority of the 20 operators to receive licences, from among those fulfilling the licensing conditions, likewise lacked transparency. (⁶) Accordingly, the court declared that, as Tipico (among others) had satisfied all the licensing conditions laid down in Paragraphs 4a to 4c of the GlüStV 2012, the awarding authority was obliged to grant that operator a licence.

20.      The awarding authority appealed against that decision. By order of 11 October 2019, the Hessischer Verwaltungsgerichtshof (Higher Administrative Court, Hesse), acting upon the parties’ application, ordered a stay of the proceedings. It did so, first, on the ground that licences could be granted, under Paragraphs 4a to 4e and 10a of the GlüStV 2012, only until 30 June 2019 (see point 9 above) – and, thus, could no longer be granted under those provisions – and, secondly, because the Länder had, in any event, adopted, on 26 March 2019, new rules governing the grant of sports betting licences in the form of the Dritter Staatsvertrag zur Änderung des Staatsvertrages zum Glücksspielwesen (Third State Treaty amending the State Treaty on Gaming; ‘the GlüStV 2019’).

21.      The GlüStV 2019 entered into force on 1 January 2020. By that amendment, the Länder, first, extended the experimentation phase until 30 June 2021 and, secondly, abolished the limitation to 20 licences, thereby allowing the grant of licences to any operator satisfying the licensing conditions. Accordingly, on 9 October 2020, the awarding authority, following a new licensing procedure, granted a sports betting licence, inter alia, to Tipico. The Hessischer Verwaltungsgerichtshof (Higher Administrative Court, Hesse) then brought the proceedings concerning the initial licensing procedure to an end, considering that there was no longer any need to adjudicate on the matter.

B.      The proceedings brought by DK

22.      From 2013 onwards, DK, a consumer habitually residing in Germany, used Tipico’s online sports betting services. (⁷) In doing so, he accepted the company’s general terms and conditions on a number of occasions, thereby concluding a series of gambling contracts with that operator.

23.      DK brought proceedings before the Amtsgericht (Local Court, Germany) for the place of his domicile, seeking a declaration that Tipico is liable to refund the stakes he wagered and lost by betting on that operator’s website for the period between 2013 and 9 October 2020, amounting to EUR 3 719.26, together with interest and compensation for pre-trial legal costs.

24.      In support of his action, DK relied, primarily, on a claim for nullity of the gambling contracts and restitution of the stakes paid thereunder. He submitted that, under Paragraph 134 of the Bürgerliches Gesetzbuch (German Civil Code;‘the BGB’), (⁸) as a rule a contract which infringes a ‘statutory prohibition’ is null and void. The prohibition to offer of gambling services without a licence issued by the German authorities, under the provisions of the GlüStV 2012, constituted such a ‘statutory prohibition’. Since Tipico operated on the German market without such a licence at the material time, the contracts at issue infringed that ‘prohibition’. Those contracts being, accordingly, null and void ab initio, Tipico is obliged, under the BGB, and in particular the first sentence of Paragraph 812(1) thereof, to refund all the benefits received from DK.

25.      In the alternative, DK relied on a claim in tort under Paragraph 823(2) of the BGB, seeking damages corresponding to the stakes he had lost. Under that provision, any person who infringes a ‘protective provision’ (‘Schutzgesetz’) is liable to compensate the other party for the damage thereby caused. The licensing rules laid down by the GlüStV 2012 constitute such provisions, since they were intended, inter alia, to protect players in Germany against the risks associated with public gaming (see point 5 above). By operating without a licence, Tipico infringed those rules and thus committed a tort, giving rise to DK’s claim for compensation.

26.      The Amtsgericht (Local Court) dismissed DK’s claims. On appeal, the Landgericht (Regional Court, Germany) upheld that decision. First, it accepted Tipico’s argument that DK had no right to restitution under the first sentence of Paragraph 812(1) of the BGB, on the ground that the contracts at issue were, in fact, valid and enforceable. In its view, having regard to Article 56 TFEU and the primacy of EU law, civil courts could not declare those contracts null and void under Paragraph 134 of the BGB merely because Tipico did not hold a licence at the material time, since that situation was attributable to the deficiencies in the licensing procedure, recognised by the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden) (see point 19 above). Secondly, and for essentially the same reasons, the Landgericht (Regional Court) held that DK likewise had no right to compensation under Paragraph 823(2) of the BGB.

27.      DK thereupon lodged an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice). That court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does the freedom to provide services of a gaming and betting operator established in another Member State of the European Union preclude a sports betting contract governed by private law and concluded over the internet without the authorisation required under national law from being regarded as null and void where the operator has applied in Germany for authorisation to organise sports betting and the licensing procedure to which that application is subject has been conducted in breach of EU law?

(2)      Does the freedom to provide services of a gaming and betting operator established in another Member State of the European Union preclude the national prior authorisation scheme governing the organisation of online sports betting from being regarded as a rule conferring legal protection, with the possible consequence of liability for damages, where the operator has applied in Germany for authorisation to organise sports betting and the licensing procedure to which that application is subject has been conducted in breach of EU law?’

28.      Written observations have been submitted by DK, Tipico, the Belgian, Greek, Italian, Maltese and Portuguese Governments and the European Commission. Those interested parties, with the exception of the Italian Government, were represented at the hearing held on 24 September 2025.

IV.    Analysis

29.      As the order for reference explains, from the perspective of German law, the claims brought by DK against Tipico appear, in principle, to be well founded. In that regard, the referring court takes the provisional view that, by offering sports betting services in Germany at the material time without a licence (⁹) issued by the German authorities, Tipico infringed the prohibition of unauthorised gambling laid down in Paragraph 4(1) of the GlüStV 2012. (¹⁰) Furthermore, the referring court indicates that, under German private law, (¹¹) such an infringement, as a rule, (i) entails the nullity of the contracts concluded by the operator with its clients (pursuant to Paragraph 134 of the BGB), with the result that the operator may be required to refund the stakes paid thereunder (under the first sentence of Paragraph 812(1) of the BGB), and (ii) constitutes a tort, triggering the civil liability of that operator (under Paragraph 823(2) of the BGB).

30.      Nevertheless, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether EU law precludes those claims. More specifically, given that, on the one hand, both the licence requirement laid down by the GlüStV 2012 for sports betting and the civil-law consequences of an infringement thereof are, in themselves, compatible with the freedom to provide services enshrined in Article 56 TFEU (A and B), but, on the other hand, the licences had not been allocated in a transparent manner, contrary to the procedural requirements flowing from that provision (C), the issue is whether national courts are, by virtue of the principle of primacy of EU law, prevented from imposing such consequences on Tipico (D). I will examine those aspects in turn in the following sections.

A.      The compatibility with EU law of the licence requirement

31.      After the German courts found the German public monopoly on sports betting to be incompatible with Article 56 TFEU and called into question the prohibition of online betting (see point 8 above), legislative reform became necessary in order to bring the German regulatory framework into line with EU law. That finding did not, however, require the German authorities to deregulate the market altogether and to allow gambling operators established in other Member States to freely provide their services therein. (¹²) In fact, as the Belgian Government rightly observes, the Court has consistently taken the view that an unfettered freedom to provide gambling services within the internal market would be undesirable, in particular from the perspective of consumer protection.

32.      The Court has indeed repeatedly recognised that games of chance give rise to serious risks for consumers – and for public health more generally – relating, inter alia, to squandering and addiction. (¹³) It has also acknowledged that those risks are exacerbated in the context of online gambling, in view of ‘the particular ease and the permanence of access to games offered over the internet and the potentially high volume and frequency of such an international offer, in an environment which is moreover characterised by isolation of the player, anonymity and an absence of social control’. (¹⁴)

33.      In the light of those considerations, the Court has even accepted that ‘unlike the introduction of free … competition in a traditional market’, the presence of such competition in the ‘very specific market of games of chance … is liable to have detrimental effects, owing to the fact that [gambling] operators would be led to compete with each other in inventiveness to make what they offer more attractive than what their competitors offer, and thereby to increase consumers’ expenditure on gaming and the risks of their addiction’. (¹⁵)

34.      In the absence of (positive) harmonisation at EU level, and given that ‘the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States’, the national authorities remain entitled, as regards their national territory, to adopt the regulatory arrangements which they consider appropriate to protect consumers against those risks, provided that the principle of proportionality is respected. In particular, they may, as the German authorities did at the relevant time under Paragraphs 4a to 4e and 10a of the GlüStV 2012, make the provision of gambling services on the national market subject to the grant of a licence. (¹⁶)

35.      In my view, such a licensing system is an appropriate means of limiting the risks for consumers generated by gambling, as the referring court itself observes. First, by means of the licensing conditions, national authorities may ensure that only operators demonstrating their reliability and the security of their games of chance are authorised to offer bets to consumers (see point 11 above). Secondly, through specific requirements attached to the licence, those authorities may ensure that the betting offers of the licensed operators are designed in a ‘safer’ manner. (¹⁷) Thus, in the present case, those operators were required, inter alia, to introduce a compulsory monthly stake limit of, in principle, EUR 1 000 per player, to offer bets only on the outcome of sports events, to the exclusion of a multitude of ‘spot bets’ on numerous events occurring during such an event (¹⁸) (such as which team scores first or which player first commits a foul and so on), and not to provide links, on the same website, to unauthorised gaming (see point 12 above). All those requirements contribute to limiting the volume and frequency of gambling by consumers and, accordingly, the risks of squandering and addiction. Thirdly, such a system enables authorities to carry out prior control of compliance with those conditions and to ensure continuous monitoring of the licensed operators, so as to verify that those ‘ancillary requirements’ are in fact respected.

36.      In the present case, Tipico nevertheless objects to the fact that the number of available licences was limited (to 20) under the GlüStV 2012. It is true that the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden), when reviewing the contentious licensing procedure, found that aspect of the GlüStV 2012 to be incompatible with Article 56 TFEU (¹⁹) (see point 19 above). The referring court, however, does not appear to share those doubts. For my part, I consider that such a limitation is not, in itself, inconsistent with the consumer-protection objective pursued by the GlüStV 2012. Limiting the number of licences not only facilitates the monitoring of the licensed operators by the national authorities, but also reduces the risk of excessive competition between an unduly large number of licensees and the undesirable effects that may follow. (²⁰) It will be, of course, for the referring court to verify that assessment. In any event, even if that court were to take issue with that numerical limitation, that would not call into question the legitimacy of the licensing requirement as such.

37.      As regards the necessity of such a licence requirement, I will limit myself to observing that the German authorities were entitled, in accordance with Article 56 TFEU, to impose that requirement also on gambling operators which, like Tipico, hold a licence issued by another Member State, in this case the Republic of Malta.

38.      First, the Court has consistently held that, in view of the margin of discretion enjoyed by the Member States in the field of gambling, and in the absence of any EU harmonisation of licensing conditions, there is no obligation on a Member State to recognise gambling licences issued by other Member States. As a rule, such a licence is valid only within the territory of the issuing Member State. (²¹)

39.      Secondly, in so far as Tipico and the Maltese Government have relied on the protection already afforded to players by the Maltese regulatory framework and on the supervision exercised by the Maltese authorities, it should be recalled that, in the field of gambling, the necessity of a regulatory measure must be assessed solely by reference to the level of protection which the national authorities concerned seek to ensure. (²²) In the present case, although the Maltese Government stated at the hearing that, notwithstanding ‘some differences’, the levels of protection offered by the Maltese and German frameworks at the material time were ‘substantially equivalent’, that assertion is far from self-evident. In particular, that government was unable to verify whether Maltese gaming law, like the GlüStV 2012, provided for compulsory stake limits, referring to ‘several … limits that can be applied for by players’ and which appear, therefore, to be merely voluntary. Moreover, since the number of Maltese licences does not appear to be subject to any numerical restriction, allowing any operator licensed in Malta to provide services in Germany would be liable to generate precisely the kind of unwarranted competition described in point 33 above. Finally, as regards the supervision exercised by the Maltese authorities, the Court has consistently held that a Member State, such as Germany, is not required to ‘rely on checks done by the authorities of another Member State using regulatory systems which it itself does not control’. (²³)

B.      The compatibility with EU law of the civil-law consequences deriving from the failure to hold a licence

40.      The same way that Article 56 TFEU does not oppose the German authorities requiring a licence to offer sports betting services on German territory, it likewise does not preclude operators which did so without the licence required under the GlüStV 2012 from being subject to the civil-law consequences laid down in the BGB.

41.      As the referring court observes, those civil-law consequences are proportionate to the consumer-protection objective pursued under the GlüStV 2012. In particular, the nullity of the gambling contracts(²⁴) – which may entail an obligation to restitute the stakes received from players – contributes to dissuading gambling operators from circumventing the licensing system. Such consequences are therefore suitable for attaining that objective. (²⁵) They also appear necessary in that regard, since the administrative and criminal penalties applicable to unlicensed gambling may not, in themselves, have a sufficiently deterrent effect, especially as regards operators established abroad.

42.      Furthermore, contrary to what Tipico suggests, those civil-law consequences are commensurate with the seriousness of the infringement. As I shall explain in point 56 below, operating without a local licence amounts to providing services on a market without any right to do so. I also recall that the purpose of the licensing system is to ‘channel’ the gaming instinct of the population towards licensed offers, monitored by the national authorities and framed by requirements designed to limit the risks of squandering and addiction. By contrast, unlicensed gambling offers – by definition outside the control of those authorities and in respect of which compliance with those requirements cannot be verified – are liable to produce particularly serious harmful effects for society. (²⁶)

43.      That conclusion is not called into question by Tipico’s argument that the nullity of the gambling contracts and the restitution of stakes to players create ‘pernicious incentives’, in that players might be encouraged to use unlicensed gambling services in the knowledge that they could always recover their losses and, thus, play repeatedly, contrary to the objective of protecting players against squandering and addiction.

44.      In fact, gambling with illegal operators entails risks for players. In the event of winnings, if the operator refuses to pay, the player will be unable to enforce payment before the courts, since the underlying gambling contracts will be regarded as null and void. (²⁷) In the event of losses, players are not guaranteed to recover their stakes either. Although, as a rule, the annulment of a contract entails a right to restitution of the benefits which each party has received from the other, the referring court points out that, under German law (in particular Paragraph 814 and/or the second sentence of Paragraph 817 of the BGB), that right may, at the discretion of the court seised, be denied, where the player knowingly participated in illegal gambling. (²⁸) This state of affairs creates a desirable degree of uncertainty for both parties, consistent with the objective pursued by the GlüStV 2012. Indeed, it discourages operators from circumventing the licensing system, since they may be required to refund the stakes received, while also discouraging players from ‘gambling’ with the system themselves, since their right to restitution may be denied if they do. (²⁹)

C.      The deficiencies in the contentious licensing procedure

45.      While the German authorities could, in accordance with Article 56 TFEU, require gambling operators established in other Member States to obtain a local licence before providing services on the German market, and could attach civil-law consequences to the failure to do so, that provision nonetheless obliges those authorities to afford the operators concerned a genuine opportunity to obtain such a licence, on an equal footing with national operators. Accordingly, the licensing procedure had to comply with certain requirements flowing from Article 56 TFEU, read in conjunction with the general principles of equal treatment and non-discrimination on grounds of nationality, and with the resulting obligation of transparency. In particular, that procedure had to be based on objective, non-discriminatory criteria which were known in advance. (³⁰)

46.      In the present case, the German authorities did organise an open licensing procedure, and the criteria for the grant of the licences did not appear to discriminate, directly or indirectly, against operators established in other Member States either. However, in the context of the judicial review of that procedure, the competent administrative court, namely the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden), found that it lacked transparency on several counts (see point 19 above). That deficiency had already been brought to this Court’s attention in an earlier case, which gave rise to the judgment in Ince. (³¹) Although the Court left the matter open in that judgment, I consider that lack of transparency now established, as the referring court appears to endorse the findings of the administrative court in that regard. Furthermore, owing to the length of that judicial review and of the suspension of the contentious procedure ordered in that context, that procedure never came to fruition. It was only in 2020 that betting licences were granted to private operators, including Tipico, under a new licensing procedure (see point 21 above).

D.      The impact of those deficiencies on the main proceedings

47.      As indicated above, by its two questions, the referring court seeks to ascertain the consequences which those procedural deficiencies should have for the main proceedings. In that regard, it refers to the Court’s case-law, originating in the judgment in Placanica, according to which a Member State may not ‘apply a criminal [or administrative] penalty’ on an operator established in another Member State for failure to ‘complete an administrative formality’ (in the present case, the obtaining of a betting licence under the GlüStV 2012), where ‘such completion has been refused or rendered impossible by the Member State concerned, in infringement of EU law’ (³²) (which would be the case here, given the lack of transparency of the contentious licensing procedure). That case-law was subsequently reiterated in the judgment in Incewhich, it may be recalled, concerned the very same procedure. Against that background, German courts have already held that no criminal or administrative penalty could be imposed on gambling operators such as Tipico for offering unlicensed bets on the German market at the material time. The referring court nevertheless asks whether German courts are also precluded from imposing on such an operator the civil-law consequences provided in the BGB.

48.      For Tipico and the Maltese Government, the answer is plainly in the affirmative. In essence, those interested parties appear to read and generalise the case-law referred to in the previous point as meaning that, where a Member State has introduced a licensing system for certain services, but the licensing procedure is discriminatory and/or lacks transparency, the national authorities – administrative bodies and courts alike – are required, by virtue of the primacy of Article 56 TFEU, not to enforce that system at all. Instead, they must leave it unapplied, thereby in practice tolerating the free provision of services on the national territory, until the necessary corrective measures have been adopted, namely the grant of the licences under a new procedure that complies with EU law. On that view, just as no criminal or administrative penalty could be imposed on operators such as Tipico for offering unlicensed bets at a time when the German authorities had not put in place a licensing procedure that is compliant with EU law, no civil-law consequences could be inflicted on them on the same ground.

49.      Like the referring court, all the governments which have submitted observations and the Commission, I am not persuaded by such a radical approach. In my view, the rather maximalist reading of the Court’s case-law seemingly advocated by Tipico and the Maltese Government – according to which a licensing system compatible with Article 56 TFEU must be left entirely unapplied whenever difficulties arise, at the material time, in the grant of licences – should be rejected as excessive (1). A nuanced reading of that case-law should, instead, be adopted: the system may, in principle, be enforced, but administrative or criminal penalties and/or civil-law consequences should not be imposed on a gambling operator for an infringement thereof where, in the particular circumstances of the case, such a response would be disproportionate (2).

1.      The maximalist reading of the Court’s case-law on penalties should be rejected

50.      A couple of important reminders are, in my view, in order. First, and in general terms, Article 56 TFEU has direct effect and therefore confers on economic operators established in a Member State rights they may invoke before the authorities – administrative bodies and courts alike – of other Member States, including in judicial proceedings between private individuals, such as in the present case. (³³) Furthermore, those authorities are, pursuant to the principles of sincere cooperation and primacy, required to apply that provision and to ensure the effective protection of those rights in the cases before them. In particular, where those authorities are seised of procedures (either criminal, administrative or civil) against such an operator for breach of a national licensing system, and that operator contends, in its defence, that that system is incompatible with Article 56 TFEU, those authorities must examine that issue and, in so far as it is necessary to safeguard the rights concerned, disapply any conflicting provision of national law. (³⁴)

51.      Secondly, the case-law referred to in point 47 above is a derivative of the Court’s early judgments in Auer (³⁵) and in Rienks. (³⁶) In each of those cases, an EU citizen had obtained, in a first Member State, a diploma entitling him to practise veterinary medicine. In both cases that person subsequently established himself in another Member State and sought to pursue that activity there. The host Member State required, as a pre-condition for the exercise of that profession on its territory, registration with the National Order of Veterinarians (France). The person concerned applied for such a registration, but the Order refused to grant it on the ground that it did not recognise his foreign diploma. That veterinarian nevertheless began to provide services in the host Member State and was eventually prosecuted for unlawful practice. In his defence, he argued that enforcement of the registration requirement by means of criminal or administrative penalties was contrary to EU law.

52.      In that context, this Court observed that, under the secondary EU law on freedom of establishment and free movement of workers applicable at the time, (³⁷) Member States had the obligation to recognise the professional qualifications obtained by veterinarians in other Member States. EU law thus directly conferred on the person concerned a right to practise veterinary medicine in the host Member State, on the basis of such a diploma, which he could invoke before the authorities of that State. While the host Member State could still require him to register with the Order, that requirement could amount to no more than an ‘administrative formality’, since he was, under EU law, entitled to such registration. However, because that registration had been ‘refused in contravention of [EU] law’, no criminal or administrative penalty could be imposed on him for practising without being registered. Disregarding the registration requirement in such circumstances and thus excluding the application of penalties for its breach was plainly necessary in order to protect the right in question, which would otherwise have been rendered ‘wholly ineffective’. (³⁸)

53.      Many years later, the Court transposed that solution to the field of gambling in its judgment in Placanica. In that case, Italy had introduced a licensing requirement for the provision of betting services on its territory – a requirement which, as such, was compatible with Article 56 TFEU, for the reasons set out above – but the licences had not been awarded in a transparent and non-discriminatory manner. Certain operators had therefore been unlawfully excluded from that procedure. Referring to the judgment in Rienks, the Court held, as recalled in point 47 above, that ‘a Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of [EU] law’. (³⁹) The message thus appeared to be that, until a new licensing procedure had been put in place for the benefit of the unlawfully excluded operators, the Italian authorities could not enforce their licence requirement and, in particular, could not impose criminal penalties on the defendants for intermediating bets on behalf of such operators. (⁴⁰)

54.      With all due respect to the Court, I do not consider those situations to be genuinely analogous. Where national authorities have established a licensing requirement which, in itself, is compatible with Article 56 TFEU, gambling operators established in other Member States do not derive from that provision the same type of directly effective right as those enjoyed by the veterinarians in the cases that gave rise to the judgments in Auer and in Rienks (a). Requiring those authorities to leave that requirement unapplied and, thus, to tolerate its breach by economic operators, solely because the licensing procedure in force at the material time suffered from certain deficiencies, would go beyond what is necessary to protect the right which those operators derive from that provision (b). Such an interpretation would also, in my view, be disproportionate in that regard (c). That is so, in my view, even where, as in the present case, the licensing requirement had been introduced to replace a public monopoly that had been found to be incompatible with EU law (d).

(a)    The right that gambling operators derive from Article 56 TFEU in this situation

55.      In general terms, the rights which operators derive from Article 56 TFEU are the corollary of the obligations which that provision imposes on the Member States. Here, as explained in points 31 to 39 above, the Member States are under no obligation to permit operators established in another Member State to provide gambling services freely on their territory; they are entitled to subject such activities to a licensing requirement. Moreover, that provision does not impose on Member States any obligation to recognise gambling licences delivered by other Member States.

56.      It follows that Article 56 TFEU does not confer on gaming operators established (and, as the case may be, licensed) in one Member State any right to provide services in another Member State. Any such right derives, in fact, only  from the licence which the operator must obtain in the host State.

57.      Nor does Article 56 TFEU require Member States automatically to grant such licences to those operators. They may impose conditions for that purpose, provided that those conditions are proportionate and non-discriminatory, and may even limit the number of licences available. Accordingly, that article does not entitle those operators to a licence as such.

58.      That provision merely obliges Member States to ensure access to a non-discriminatory and transparent licensing procedure and confers on operators a corresponding right  in that regard. Plainly, for those operators, obtaining a local gambling licence cannot be characterised as a mere ‘administrative formality’.

(b)    Discarding the licence requirement would go beyond what is necessary to protect that right

59.      Where national authorities require a licence for providing gambling services, but it is not granted under a non-discriminatory and transparent licensing procedure, discarding the licensing requirement altogether in subsequent proceedings brought, whether by public authorities or by private individuals, against gambling operators providing unlicensed services would go beyond what is necessary to protect the given right conferred by EU law. (⁴¹)

60.      I recall in that regard that, in the field of gambling, a licensing requirement is, in itself, compatible with EU law. Where difficulties arise in granting licences, EU law does not require that gambling operators be immediately allowed to provide services freely on the market and escape any potential consequences under national law for doing so. Adequate and, indeed, sufficient protection of the right which those operators derive from Article 56 TFEU is ensured by the availability – which Member States must guarantee – of judicial remedies enabling those operators to challenge a defective licensing procedure, or the absence thereof, before a court or tribunal. (⁴²) That is, moreover, precisely the approach reflected in secondary EU law on public procurement and the award of concession contracts, which, although not applicable to the present case, constitutes a relevant point of reference. (⁴³) Thus, rather than entering the market without a licence, those operators should avail themselves of those remedies and await the outcome of such proceedings.

61.      In the context of such a challenge to a licensing procedure, or to the absence thereof, the competent courts are in a position to ensure adequate and sufficient protection of the right in question by disapplying any aspect of national law governing the grant of licences that is contrary to Article 56 TFEU (for example, a discriminatory licensing condition or a disproportionate limitation of the number of available licences), setting aside any decisions unlawfully adopted by the awarding authorities and by ordering those authorities to take the measures necessary to remedy the situation (such as organising a new procedure compliant with EU law or granting a licence to an operator that fulfils the conditions laid down in national law). (⁴⁴)

62.      The argument, echoed by Tipico, that such a challenge may take a long time and would, in any event, ensure protection of the right that gambling operators derive from Article 56 TFEU only ‘for the future’, without remedying the loss of business opportunities which such operators would allegedly suffer if they were not allowed to enter the market immediately, does not persuade me.

63.      In the first place, EU law requires that such challenges be dealt with as expeditiously as possible. (⁴⁵) Moreover, where a Member State infringes the right which operators derive from Article 56 TFEU by failing to establish, in due time, a non-discriminatory and transparent licensing procedure, those operators are entitled, under EU law – as DK, the Greek Government and the Commission have submitted – to seek compensation from that State for the damage thereby caused, including loss of business opportunities. (⁴⁶) Such harm may therefore be adequately remedied that way.

(c)    Discarding the licence requirement would be disproportionate

64.      Requiring the national authorities to leave the licensing system unapplied altogether and, in effect, to tolerate the free provision of services by gambling operators on the national territory until a licensing procedure that is compliant with EU law has been organised – or to validate retrospectively the conduct of an operator which entered the market when no such procedure existed – would likewise constitute a disproportionate means of protecting the right which those operators derive from Article 56 TFEU, having regard to the adverse effects which such an approach would have on other legitimate interests.

65.      First, such an interpretation of EU law would undermine not only the effectiveness  of national licensing regimes which are, in themselves, compatible with EU law, but also that of the rules, imposed by EU law itself, governing the judicial review of licensing procedures and the legal certainty which those rules are intended to ensure. As explained above, economic operators are expected to apply for a licence and, where appropriate, to seek judicial review of the conditions for its grant before entering the market. That review makes it possible to determine the legality of the procedure ex ante, thereby ensuring a degree of certainty for all stakeholders. (⁴⁷) By contrast, a maximalist reading of the Court’s case-law on penalties would encourage operators, on the basis of mere suspicions as to the legality of the licensing procedure, to disregard those rules and ‘gamble’ their way into the market, in the expectation that, if proceedings are subsequently brought against them, they will be able to escape any liability ex post by raising objections to the licensing procedure. Such conduct would, however, generate considerable uncertainty, in particular for consumers – who may no longer be able to discern which operators on the market are legitimate and which are not – or competitors – who may hold a licence and yet face unfair competition from operators which do not and which are therefore not subject to the constraints imposed by the licensing regime.

66.      Secondly, and more importantly, I recall that, as explained above, a licensing requirement is regarded as compatible with EU law in the field of gambling precisely because gambling entails serious and well-recognised risks for consumers, and more generally for public health. That requirement is intended to mitigate those risks.

67.      If, whenever deficiencies affected the grant of licences, national authorities were required to leave the licensing requirement unapplied altogether, any gambling operator established in another Member State would be free to provide services on the market of the Member State concerned, thereby exposing the population – even if only for a transitional period – to those risks. In a somewhat different context, the Court has appeared particularly concerned with avoiding such an outcome. (⁴⁸)

68.      Transposing that maximalist interpretation to other fields serves, if need be, to illustrate the risks which it entails. One may imagine, for example, that a Member State decides to liberalise the sale of medicinal cannabis on its territory, while subjecting that activity to a prior authorisation regime: only a limited number of operators, selected on the basis of stringent criteria, may sell that product, at designated locations, in regulated quantities, and so forth. If the procedure for awarding licences were to lack transparency, or if certain conditions therefor were found to be discriminatory or disproportionate, would it then follow that the national authorities could no longer enforce that authorisation regime and that all operators established in another Member State would be entitled to sell medicinal cannabis freely in the Member State concerned, until a procedure that is compliant with EU law had been put in place? It is difficult to imagine that the Court would consider such a radical solution as proportionate.

(d)    The fact that the licence requirement replaced a public monopoly deemed to be incompatible with EU law is irrelevant

69.      At this stage, I must address another aspect of the judgment in Ince which, although not mentioned by the referring court, was discussed at length by the interested parties before the Court.

70.      It must be borne in mind that the licensing system laid down in Paragraphs 4a to 4e and 10a of the GlüStV 2012 was intended to remedy the incompatibility, with Article 56 TFEU, of the public monopoly on the organisation and intermediation of sports betting provided for under the GlüStV 2008 (see points 8 and 9 above).

71.      Under that system, the (supposedly former) monopolist, ODDSET, like private operators, was required to obtain a licence in order to provide betting services. Nevertheless, by way of exception, Paragraph 29 of the GlüStV 2012 allowed that operator to maintain its gambling offer for a transitional period, intended to last for up to one year after the first licences would have been awarded.

72.      However, since no licences were in fact granted under the GlüStV 2012 owing to the failure of the contentious licensing procedure and ODDSET continued to offer betting services under that transitional regime, the Court held in the judgment in Ince that the monopoly on sports betting had ‘persisted in practice’ at the material time. The Court therefore considered that the adoption of the licensing system laid down in Paragraphs 4a to 4e and 10a of the GlüStV 2012 had not ‘remedied the incompatibility with Article 56 TFEU of [that] public monopoly’. On that ground also, the Court ruled that Article 56 TFEU ‘preclude[d]’ a Member State from ‘penalising’ the unlicensed organisation or intermediation of sporting bets on its territory. (⁴⁹)

73.      The interested parties debated at length, before the Court, whether that aspect of the reasoning in the judgment in Ince is transposable to the main proceedings. DK and the Commission take the view that it is not. The case which gave rise to that judgment concerned on-site gambling, (⁵⁰) which was indeed subject to a public monopoly under the GlüStV 2008 and in respect of which ODDSET continued to operate on the German market at the material time pursuant to Paragraph 29 of the GlüStV 2012. By contrast, the present case concerns online gambling, which was entirely prohibited under the GlüStV 2008 (see point 6 above). ODDSET was therefore not authorised to offer online betting under Paragraph 29 of the GlüStV 2012 and, in fact, did not do so at the material time. That is strongly contested by Tipico, which maintains that, in reality, ODDSET’s monopoly did extend, both in law and in practice, to the internet at that time. It is, of course, for the referring court to resolve that factual dispute. Nevertheless, I doubt that it should be necessary to do so.

74.      That is because that part of the Court’s reasoning in the judgment in Ince cannot, in my view, be read in a literal and maximalist way either. As explained above, a Member State is free, under Article 56 TFEU, to replace a monopoly found to be incompatible with EU law by a licensing regime. In my view, it may also legitimately allow the public operator which formally held that monopoly to maintain its offer for a transitional period, during which licences are to be granted to private operators, in order to ensure that a lawful and supervised gambling offer remain available to consumers during that period and, thus, avoid their turning to the uncontrolled offer of illegal operators. (⁵¹) If delays or difficulties arise when granting licences to private operators, EU law cannot be understood as requiring, once again, that the entire regime be left unapplied on the ground of the ‘persistence of the illegal monopoly’ and that all gambling operators are free to provide services on the market until licences are granted, for all the reasons set out in the two preceding sections.

2.      A nuanced reading of the Court’s case-law should be endorsed

75.      For the foregoing reasons, the maximalist reading of the Court’s case-law referred to in point 47 above should be rejected. The primacy of Article 56 TFEU does not require national authorities to leave unapplied a licensing requirement which is, in itself, compatible with that provision whenever an operator has been unable to obtain a licence in breach of the right to a non-discriminatory and transparent licensing procedure conferred by that provision. In such circumstances, the operator cannot begin providing services on the market without a licence as a form of ‘self-redress’. As a rule, national authorities must remain entitled to enforce that requirement and to impose the criminal, administrative or civil consequences provided for under national law in the event of an infringement. The operator concerned should, instead, challenge the defective licensing procedure or the absence thereof before the national courts and wait for the outcome of those judicial proceedings. The availability of such proceedings ensures sufficient protection of the right derived from Article 56 TFEU.

76.      That is why, in my view, a nuanced reading of the case-law in question should be adopted. According to that reading, while as a rule the licensing regime remains enforceable against operators providing services without a licence in the circumstances described in the preceding point, by way of exception and pursuant to the principle of proportionality, criminal or administrative penalties and civil-law consequences should not be imposed (in part or in full) where, in the individual circumstances, that would be disproportionate. (⁵²)

77.      In other words, even where an operator has acted unlawfully by infringing an enforceable licensing requirement, there may be particular circumstances in which such conduct should be excused and the operator concerned exempted (partly or fully) from liability by the competent courts, using – in accordance with the principle of sincere cooperation and the duty of consistent interpretation – the mechanisms available under their national administrative, criminal and/or civil law. (⁵³)

78.      The reasoning in the judgment in Placanicashould, in my view, be understood in that light. In the case which gave rise to that judgment, the intermediation of bets for foreign betting operators initially appeared to be lawful under the applicable Italian rules. That situation led to the creation and development of a network of intermediaries that had invested capital and established the necessary infrastructure. A subsequent amendment of those rules, however, clarified that that activity was, in fact, unlawful. Those intermediaries, which had already set up their operations and commenced their activity, suddenly found themselves exposed to criminal prosecution. The Court was understandably of the view that the retrospective imposition of criminal penalties in such circumstances would not have been proportionate – or fair. (⁵⁴)

79.      Comparable circumstances may perhaps arise in the present case. Tipico submits that, at various moments and in various official guidelines and statements, the German authorities indicated to online betting operators that, in view of the deficiencies in the contentious licensing procedure, they would tolerate the provision of services on the German market, provided that certain basic conditions were met (which are not described in detail in the submissions of the interested parties or the request for a preliminary ruling, but which Tipico claims to have satisfied), until a new procedure were organised.

80.      Tipico’s assertions are, however, disputed by DK. It is for the referring court to determine the matter. For my part, I would observe that, if authorised and reliable sources within the German authorities did provide online betting operators with precise, unconditional and consistent assurances that the licensing requirement laid down in the GlüStV 2012 would not be enforced against them, provided they complied with certain basic conditions, then it would be disproportionate – and unfair – to impose, retrospectively, criminal or administrative penalties or the civil-law consequences provided for under the BGB on operators that complied with those conditions – such as, it seems, Tipico – for having provided services without a licence on the German market at the material time.

81.      That conclusion is straightforward as regards criminal or administrative penalties. Operators should not be blamed and penalised for having acted in accordance with guidance issued by the public authorities. Moreover, as regards administrative penalties, the principle of the protection of legitimate expectations would apply: the public authorities would, in a sense, be bound by their own assurances. (⁵⁵) As for criminal penalties, if the operator acted on the market in accordance with such assurances, that would likewise justify exemption from liability under mechanisms such as the doctrine of ‘mistake’.

82.      The exclusion of the civil-law consequences normally provided in the BGB calls for some further explanation. Admittedly, as DK and the Italian Government submit, the consequences provided for under civil law for operating without a licence, such as the nullity of the contracts or civil liability, do not have the same impact as criminal or administrative penalties. The latter place the operator in a worse position than if it had not entered the market at all, whereas the nullity of contracts and restitution of stakes would, in principle, merely restore the status quo ante. Moreover, those civil-law consequences are the corollary of remedies afforded to consumers and thus contribute to the consumer-protection objective pursued by the licensing regime.

83.      Nevertheless, if the German authorities did provide online betting operators, including Tipico, with precise, unconditional and consistent assurances that the licensing requirement laid down in the GlüStV 2012 would not be enforced against them, so long as they complied with certain basic conditions, that factor cannot be ignored in civil proceedings such as in the present case. Those operators may have decided to enter or remain on the German market and to conclude contracts with consumers precisely because of those assurances. Absent those assurances, they might not have done so. Requiring such an operator, many years later, to repay the stakes obtained under those contracts – even if that were merely to restore the status quo ante – may not only be unfair, but could also have a considerable impact on its current activities. Such an obligation could potentially concern thousands of contracts concluded over several years. Hundreds of thousands of euro in profits may need to be paid back, amounting to very substantial sums long after they were earned and possibly spent or invested by the operator in good faith. If harm was suffered by the consumers in such circumstances, any liability could only be borne by the public authorities that gave the assurances in question. (⁵⁶)

84.      In those circumstances, and assuming that operators such as Tipico did receive the assurances referred to above from the German authorities, I consider that the German courts should, pursuant to the principle of sincere cooperation and the duty of consistent interpretation, make use of the mechanisms available under German private law to exempt those operators from those civil-law consequences. While it is for the referring court to assess the matter, it appears, on the basis of the information in the case file, that German law affords sufficient leeway in that respect.

85.      First, the referring court has indicated that, where a contract is concluded in breach of a ‘statutory provision’ – for example, by an operator providing services in breach of the licensing regime laid down in the GlüStV 2012 – nullity under Paragraph 134 of the BGB is not automatic and the German courts enjoy a certain margin of discretion. Under that provision, nullity is to be excluded where ‘provided by the law’. Those broad terms could potentially accommodate the situation in which EU law precludes nullity in the particular circumstances of the case. (⁵⁷)

86.      Secondly, as regards civil liability under Paragraph 823(2) of the BGB for breach of the licensing regime laid down in the GlüStV 2012, it appears that such a liability presupposes fault on the part of the alleged tortfeasor. (⁵⁸) Subject to confirmation by the referring court, it may be possible to interpret that provision to the effect that, in the circumstances such as those at issue in the present case, no fault can be imputed to the operator concerned for having infringed the contentious licensing regime.

V.      Conclusion

87.      In the light of all the foregoing considerations, I propose that the Court of Justice answer the questions referred by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:

Article 56 TFEU must be interpreted as meaning that:

–        Where a Member State requires a licence for the provision of certain services on its territory, and that requirement is, in itself, compatible with Article 56 TFEU, the national authorities, including the courts, are entitled to enforce that requirement against an operator which has provided services without the required licence. Those courts may, in particular, draw the consequences provided for in that respect under the applicable civil law. That remains so even where the operator concerned claims it was unable to obtain such a licence owing to deficiencies affecting the licensing procedure. In that regard, the protection of the right that that operator derives from Article 56 TFEU is sufficiently ensured by the possibility of challenging the licensing procedure or absence thereof before a court or tribunal.

–        By way of exception, those civil-law consequences should not be imposed for infringing the licence requirement where that would be disproportionate. That is the case where authorised and reliable sources within the national authorities provided the operator concerned with precise, unconditional and consistent assurances that that licensing requirement would not be enforced and that it could, accordingly, offer its services to consumers on the national market without a licence.