Court of Breda: Ruling

Translation from Dutch

BREDA Administrative law section
Three-Judge Division
in the matter between

1. Course of the Action
On behalf of the plaintiffs appeal was filed against the defendants‘ decision of 16 July 2003 („the contested decision“) upholding their refusal to grant the plaintiff…. a licence to organise a casino. A defence was filed on the defendants‘ behalf.

The appeal was considered at the hearing of 29 September 2004. The plaintiffs were represented by their attorney-in-fact, accompanied by …… . For the defendants appeared attorney-in-fact ….., assisted by ….. , employed at the Ministry of Justice.

The Court then reached the conclusion that the investigation had not been complete and by virtue of Article 8:68 of the General Administrative Law Act („Awb“) decided on 21 December 2004 to reopen the investigation. By letter of 21 December 2004 the Court submitted ten questions to the defendants, which were answered by the defendants‘ attorney-in-fact by letter of 4 February 2005. By letter of 31 March 2005 the plaintiffs‘ attorney-in-fact responded to the defendants‘ answers.

After having obtained the parties‘ permission the Court directed by virtue of Article 8:57 of the Awb that no renewed investigation would be conducted at the hearing and on 21 October 2005 closed the investigation.

2. The Appraisal

2.1 Based on the procedural documents and the hearing the Court assumes the following
facts and circumstances.

The private company …… B.V. (hereinafter „….. B.V.„) intends opening a casino in the De Zeeland building in Bergen op Zoom. Its parent, …… S.A. (hereinafter „….. S.A.„) operates several casinos outside the Netherlands.

On 22 February 2003 an application was filed on …… B.V.‘s behalf with the defendants for a licence to operate a casino in Bergen op Zoom.

By primary decision of 1 April 2003 the defendants dismissed this application, referring to the provisions contained in Article 27h.1 of the Dutch Betting and Gaming Act („Wok“).

On behalf of the defendants an objection was filed to said refusal on 13 May 2003, which was later supplemented by letter of 14 May 2003.

In the contested decision the defendants declared the objections baseless. Referring to case law of the Court of Justice of the European Community („ECJ“) the defendants argued that the Dutch licensing system on casinos could stand the so-called rule of reason test of the ECJ.

2.2 The plaintiffs argued that Article 27h.1 of the Wok prevails over European (competition) law and should be declared non-binding by the Court, and that no acceptable grounds have been given for the contested decision, which shows arbitrariness and unwillingness to adjust the law. The plaintiffs argued that the defendants‘ goals have not been achieved and that for that reason the so-called mandatory criteria of public interest no longer justify a legal monopoly. In this context the plaintiffs refer to the advertising statements of monopolist Holland Casino (hereinafter: „HC“) and the size of the available annual marketing budgets. The frequent appearance of HC in the media is aimed at increasing the number of casino visits. The plaintiffs identify HC with the State in this respect. In their opinion it is impossible to maintain that the advertising activities are directed at protecting consumers and preventing gambling addiction. It was further argued that with the Wok’s current licensing system the State withdraws major sums of money from the market. It is the plaintiffs‘ opinion that the objectives formulated by the State could also be attained by granting licences to several entrepreneurs and making those licences conditional on the necessary regulations. In this context they refer to the licensing system for gaming arcades, which are not subject to a monopoly. The plaintiffs finally referred to the judgment of the ECJ of 6 November 2003 in Gambelli. In the plaintiffs‘ opinion this ruling makes clear that the Dutch licensing system on casinos cannot be upheld. The plaintiffs feel they are backed up by the opinion op Prof. ……, which was also submitted at the hearing.

2.3 Article 27h.1 of the Wok reads as follows:
„Our Ministers of Justice and of Economic Affairs may grant to one legal entity that is fully competent for a period to be determined by them a licence to organise casinos.“
The second paragraph of this Article stipulates that the proceeds of the casinos minus the prices and costs will go to the Treasury.

Article 49, first sentence, of the Treaty establishing the European Community (EC Treaty) reads as follows:

„Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.“

2.4 With regard to the question whether ….. S.A.‘s appeal can be declared admissible, the Court reasons as follows:

It has been established that the application to obtain a licence was filed by ….. B.V. It has also been established that …… B.V. alone has filed a notice of objection to the primary decision. In the contested decision addressed to the plaintiffs‘ attorney-in-fact the defendants report that a decision has been taken on the objections filed on behalf of ….. S.A., but it is clear that the defendants intended taking a decision on the objections filed on behalf of … B.V. The plaintiffs‘ attorney-in-fact has understood this decision as such and the Court assumes the same.

Unlike the defendants apparently think, the Court holds the view that …… B.V.‘s interests cannot be identified with those of …… S.A. such that …… B.V.‘s notice of objection can be regarded as having been filed also on …… S.A.‘s behalf. The question apart whether …… S.A., considered in relation to the primary decision, could be regarded as an interested party as defined in Article 1:2 of the AWB, the notice of the objection’s wording makes it very clear that it was filed on behalf of …… B.V. alone.

For that reason …… S.A. did not file a notice of objection to the primary decision prior to the appeal filed now, which in the Court’s opinion can be attributed reasonably to …… S.A. Under Article 6:15 of the Awb no appeal may be filed in such a case with the court against the contested
decision. …… S.A.’s appeal will therefore be declared inadmissible.

Where used below, the term „plaintiff“ shall be understood to mean ….. B.V.

2.5 As this is an action between the defendants and a company located in the Netherlands, the situation arises in which all elements of the action are situated within one and the same member state. As the ECJ in its ruling of 11 September 2003 (case C-6/01, Anomar, paragraph 39) reasoned, Article 27h.1 of the Wok – when applied to the case in hand – can generally come under the provisions on fundamental freedoms contained in the EC Treaty only to the extent that this Article applies to situations that display a connection to intra-Community traffic. Article 49 of the EC Treaty relates to said intra-Community, border-crossing traffic. The Court, however, will evaluate Article 27h.1 of the Wok against this provision, because the Court holds the view that a company established in the Netherlands has the same rights as a subject of another member state in the same situation could derive from Community law.

2.6 Pursuant to Article 27h.1 of the Wok the Defendants may grant to just one legal entity that is fully competent a licence to organize casinos for a period to be determined by them. As evidenced by the 1996 Casino Games Decree a licence has been granted for an indefinite period of time to Nationale Stichting tot Exploitatie van Casinospelen in Nederland, acting under the name „Holland Casino“.

It is not in dispute between the parties – and the Court agrees – that the exploitation of a casino is a service as referred to in Article 49 of the EC Treaty and that the monopoly system – as laid down in Article 27h.1 of the Wok – constitutes a restriction on the freedom to provide services as defined in Article 49 of the EC Treaty.

Referring to the ECJ‘s judgment in Läärä (case C-124/97, 21 September 1999, paragraph 28) the Court holds the view that the Dutch monopoly system on casino’s does not constitute discrimination based on nationality and that this system affects entrepreneurs established in the Netherlands and in another member state alike that wish to organize a casino in the Netherlands.

2.7 According to established case law of the ECJ, a restriction as laid down in Article 27h.1 of the Wok can be justified by urgent reasons of public interest. The Explanatory Memorandum on the Wok argues that Article 27h envisages to regulate and control games of chance to prevent illegality and criminality and to protect consumers against gambling addiction. It is not disputed between the parties – and the Court agrees – that these are urgent reasons of public interest.

In Anomar, referred to earlier, the ECJ, in line with previous rulings, set out that the level of protection that a member state wishes to guarantee on its territory with regard to games of chance or betting comes under the freedom of judgment reserved to the national authorities. In other words, a member state has the power to determine its own level of protection in gambling and betting games and this power has a discretionary character.

The answers given on the defendants‘ behalf to the written questions asked by the Court remark that in the light of the objectives formulated and given the special risk attached to the organization of casinos, a (government) monopoly has been chosen for this category of games of chance. This enables, so the defendants hold, the government to interfere directly in business operations if undesirable developments occur and the monopoly further enables the government to prevent gambling addiction in casinos as much as possible.

In several rulings the ECJ has advocated similar monopolies. In Anomar, referred to earlier, a similar situation occurred, as in Läärä, also mentioned earlier and in Zenatti (Case C-67/98, 21 October 1999). In Läärä the ECJ reasoned in this respect (paragraph 37) that a restricted licence in the context of an exclusive right, which has the advantage that compulsive gambling and its exploitation is steered in a manageable direction, that the risks of exploitation with deceitful and criminal intent are avoided and that the proceeds are used for public purposes and the realization of those purposes. In Läärä the ECJ held that the statutory regulation that awards the exclusive rights to a single licensee, thus restricting the freedom to provide services, was not disproportionate to the objectives sought to attain by the regulation.

The plaintiff argued against the legal monopoly, stating that the formulated objectives could be realized by granting licences to several entrepreneurs while attaching the necessary regulations to said licences. In this context reference was made to the licensing system on gaming arcades.

In the Court’s opinion, however, this does not yet make the restriction imposed by the monopoly unsuitable to realize the objectives. In this context the Court refers to paragraphs 39 to 41 inclusive of the Läärä judgment. The question whether the objectives could be realized equally by means of a non-exclusive licensing system containing the necessary regulations for interested entrepreneurs, instead of a system that features just one licence, is a question that comes within the freedom of judgment of the member states, on the proviso that the choice made by them may not be disproportionate to the objective envisaged. In the Court’s view this also applies to the choice to apply a non-exclusive licensing system for gaming arcades and not for casinos. The plaintiff’s ground for appeal in this respect is therefore invalid, in the Court’s view.

HC‘s activities are controlled by the state and the net proceeds from the casinos are paid to the state. The amounts thus received by the state for public objectives might be acquired otherwise, for instance by taxation on the different entrepreneurs who would be allowed to provide the services concerned in a non-exclusive system. The obligation imposed on HC to pay the proceeds from its business, could in the Court’s view definitely be an effective means to set strict limits on the profits arising from those services, with an eye to the risks of fraud and other criminal acts.

As the defendants have explained, it is relevant that the monopoly enables the state to directly interfere in HC‘s business operations if undesirable developments occur. The government has to deal with one licensee and the documents show that the government has the tools to exercise the supervision of HC drastically – also in a preventive sense. The Court understands the defendants‘ standpoint such that in a system with several licensees the tools available at that point are increasingly inadequate to effectively implement the policy objectives. The Court adopts the defendants’ viewpoint on this.

2.8 In the judgment of 6 November 2003 (Case C-243/01, Gambelli) the ECJ imposed a major restriction on the member states‘ discretionary powers: although the member states are free to define their objectives on the restriction of the games of chance, the measures they take in this respect should be directed consequently at those objectives, to meet the suitability criterion.

In paragraph 67 of Gambelli the ECJ formulated this as follows:

„First of all, whilst in Schindler, Läärä and Zenatti the Court accepted that restrictions on gaming activities may be justified by imperative requirements in the general interest, such as consumer protection and the prevention of both fraud and incitement to squander on gaming, restrictions based on such grounds and on the need to preserve public order must also be suitable for achieving those objectives, inasmuch as they must serve to limit betting activities in a consistent and systematic manner.“

In this judgment the ECJ gave several clear instructions to the national court to assess whether the measures are justified. Justification based on the public interest requires the measures to be applied without discrimination, to make them suitable to attain the objective sought and they may not go any farther than is necessary for that purpose. Those criteria were the central focus already in previous rulings of the ECJ. The suitability criterion – as mentioned by the ECJ in paragraph 66 of the ruling – is further specified in that the betting activities should be restricted coherently and systematically. In paragraphs 68 et seq. of the judgment the ECJ set out which concrete aspects of the Gambelli case are relevant to be assessed in the light of the specification. The Court understands paragraph 67 of Gambelli – as reasoned above – to mean that it contains a further tightening of the line followed by the ECJ in its earlier rulings referred to in that paragraph.

As the Court already established in paragraph 2.7 it deems the statutory restriction created by the monopoly not unsuitable in itself to attain the formulated objectives.

2.9 The specification set out in Gambelli, however, compels the Court to examine whether the Dutch policy on casinos fulfils the criteria. In the context of the appraisal by the Court the facts and circumstances at the time when the contested decision was taken should be examined.

It has been established that in the past ten years the number of HC‘s locations has grown to 12. The report commissioned by the defendants: „Een spel zonder grenzen: de Nederlandse casinomarkt“ (Game without frontiers: the Dutch casino market) of 25 October 2002 leads the Court to conclude that if the supply remains the same it is expected that in 2003 1.5 million people approx. will visit the casino and based on the visitor frequency measures the number of visits to the casino will rise from 6 to 8.5 million in 2003. In the event of an offer covering the entire Netherlands – which should be understood to mean the situation in which all people of age resident in the Netherlands would live within a radius of 30 km of a HC casino – the number of visitors would increase by an estimated 76,000 only, but the average visitor’s frequency would increase substantially because of the shorter distance.

It is clear that over the past years the legal casino market in the Netherlands has gone through a significant expansion. This trend is expected to continue as the Minster of Justice as announced his intention to agree to another expansion of the number of casinos.

2.10 Both with regard to the suitability criterion and the proportionality criterion the ECJ in Gambelli considered it relevant that on the one hand the Italian State invoked public order to justify the restrictions on games of chance yet on the other hand encouraged consumers to participate in those games of chance. In paragraph 69 the ECJ went on to say that if the authorities of a member state incite and encourage consumers to participate in lotteries, games of chance and betting to the financial benefit of the public purse, the authorities of that State cannot invoke public order concerns relating to the need to reduce opportunities for betting in order to justify measures such as those at issue in the main proceedings.

In answering the questions asked by the Dutch parliament further to Gambelli (TK 2003-2004, appendix to the Acts, no. 573) the Minister of Justice in particular discussed the significance of paragraph 69 of this judgment. He answered that the situation described herein does not occur in the Netherlands and that the Dutch gaming and betting policy is based on a restrictive principle that deliberately excludes commerce and optimization of revenue. In answering the questions asked by the Court on 4 February 2005 the defendants stated that the Dutch situation is entirely different than the one described in paragraph 69 of Gambelli.

The Court agrees with the defendants to the extent that they mean to say that the situation referred to in Gambelli is not identical to the Dutch one. The Court, however, holds the view that the situation described is not so different from the Dutch one than the defendants claim.

First, it has been established that the proceeds from HC‘s casinos, minus prices and costs, goes to the treasury. Although no data have been submitted on this point, the Court considers it plausible that the expansion of the legal casino market over the past years, both in terms of locations and in terms of visitor numbers and visits, has also shown a significant increase in turnover and the net proceeds to be paid to the treasury. It has further been established that in successive years HC could spend substantial marketing budgets and applied these towards an intensive advertising campaign in the media, among other things. The intensity of the campaign is not at issue as the defendants, too, in answering the Court’s question 7 on HC‘s sponsoring of the first division admit that this „led to a too strong presence of HC in society and in the media“. From this the Court understands that the defendants recognize that sight was lost of the required consistence.

No information is available either on the direct effects of HC‘s advertising activities but again the Court finds it plausible that the increased consumer interest in visiting legal casinos has been caused increasingly by HC‘s massive marketing strategy.

In answering the Court’s questions the defendants argued that „…the assessment to be made should consider measures (or policy acts) by the government itself, not facts and acts that are for the account and expense of the licensees alone, like their marketing budget or their annual report.“

The Court deems this statement contrary to the viewpoint expanded on by the defendants once and again, which implies that the legal monopoly has been chosen precisely to provide optimal tools to effectively implement the supervision of HC‘s activities. If the parties agree that HC‘s presence in the society and in the media was strong – too strong, according to the defendants – as the result of an intensive advertising campaign, it should be established at the same time in the light of the above that the defendants let this happen. The defendants can be addressed directly about this attitude. Although in the Court’s opinion the State and HC, two autonomous entities, cannot be identified with each other – as the plaintiff claimed -, the possibilities submitted by the defendants of exercising supervision and direct influence on HC‘s functioning offer sufficient basis to partly attribute HC‘s activities, in particular HC‘s (too) strong presence in society and the media to the defendants.

Against the background of paragraph 69 of Gambelli the Court establishes that the government approved or at any rate tolerated that consumers were incited and encouraged through an intensive advertising campaign to participate in casino games. Moreover, the fact is that the treasury benefited. In the Court’s opinion, however, this is where the comparison with the situation described in paragraph 69 of Gambelli ends. The ECJ after all describes a situation in which consumers are incited and encouraged to take part in games of chance in order for the treasure to benefit financially. The Court understands this to mean that reference is made to a situation in which this would be the sole, at any rate, most important (true) objective. In the Dutch situation the increasing revenue for the treasury is a side-effect. Perhaps not an unimportant one, but based on the available information it cannot be established that – as the plaintiffs suggested – this aspect is to the defendants the main reason to uphold HC‘s legal monopoly. If this were the case, Article 27h.1 of the Wok should for that reason alone be held in violation of the EC Treaty in the light of Gambelli.

2.11 This does not imply, however, that the legal monopoly system satisfies the criteria of consistence and systematic structure. In the above it has been established that the objectives formulated by the government could be regarded as urgent reasons of public interest that could justify the restriction contained in the Wok. It has further been established that in the past decade the number of HC´s locations has increased to 12, that an expansion of the number of locations is imminent and that the numbers of visitors and visits to HC‘s locations – partly due to an intensive advertising campaign – have increased significantly and are expected to increase even further.

The objectives and sub-objectives are, as mentioned earlier: to regulate and manage games of chance with the focus on preventing gambling addiction, protecting consumers and fighting illegality and criminality.

At first sight the growth figures and the expected progression appear to justify the conclusion that the defendants‘ policy on casino games is counterproductive. The defendants, however, have explained that the growth observed precisely serves to realize the objective and sub-objectives. The defendants, however, have submitted insufficient conclusive facts to substantiate their viewpoint. If the defendants want to make reliable statements about the positive effects of their policy on said objective and sub-objectives and thus about the answer to the question whether the coherence and systematic structure as referred to in paragraph 67 of Gambelli apply, it is in the Court’s view important to regularly study the effect of the defendants‘ policy decisions – both actively and passively – on (for instance) marketing or the expansion of the number of legal casinos on that objective and sub-objectives. The Court’s questions at the hearing in that respect could not be answered or inadequately by the defendants‘ attorneys-in-fact. This led the Court to reopen the investigation after the hearing and to submit several questions to the defendants in writing.

In answering the questions submitted to the defendants by the Court, reference is made to a letter dated 21 October 2004 from the Minister of Justice to Stichting de Nationale Sporttotalisator. In this letter the Minister replies to the interim judgment dated 2 June 2004 of the Court of Arnhem in the case between De Lotto and Ladbrokes. Moreover, the defendants refer to several annexes that have been enclosed with the answers.

With regard to the determination of the policy’s effects the Court has established that at the time of the contested decision many points were not clear and that this lack of clarity has been resolved only to a limited extent in the answers given by the defendants – as will be shown below.

Question 2 of the questions submitted by the Court enquires specifically after periodical studies, the dates on which such studies were performed and their outcome. In the answer several examples are given without – according to the defendants – listing an exhaustive overview. For instance, mention is made of the activities of the Unusual Transactions Disclosure Office. However, the results are not mentioned and whether and to what extent this is to be attributed to the restrictive policy conducted by the defendants. It is further reported that studies are performed regularly to monitor the sub-objective „prevention of gambling addiction“. A study from 2001 is mentioned, but again not the outcome, considered in relation to the policy. Further to the opening of the twelfth casino in Enschede in 2002 a „zero“ measurement and a follow-up „first“ effect measurement was performed, the defendants stated. No insight is provided, however, into the result of the effect measurement performed in 2004. Reference is further made to a letter from the Minister of Justice dated 6 September 2004 to the chair of the Lower House (TK 2003/2004, 24 5557, no. 44), which has been included in the procedural documents. In this letter the Minister stated that there is no fully documented and updated picture of gambling addiction in the Netherlands and announced a study to that effect. In the answers to its questions the Court is informed that this study is expected to be completed by mid-2005. However, the Court has not been notified of the outcome of the study, if available.

Question 3 of the Court concerned the expansion of the number of HC‘s locations. The Court asked to set out how such expansion should be viewed in the light of the objectives, in particular because at the hearing it had been argued that expansion of the legal casino offer was expected to have little effect on the illegal offer. The defendants replied that the extent to which the illegal offer is pushed back depends on where the legal offer is expanded. Particular reference is made to the so-called white spots and the substitution effect that will take place in those spots due to the establishment of a HC casino in combination with the severe action against the illegal casino offer. Even if the Court were to consider it plausible that said substitution effect would occur, the question remains what the policy’s effect is or was. It is, after all, not clear what the extent is or was of the illegal casino offer in the white spots where a HC location will be or has been established and which factors determined the scope of this illegal offer. For instance, in the Court’s opinion it is certainly not inconceivable that HC´s year-long (too) strong presence in society and in the media has fed the need of residents of an area that was or is regarded as a white spot to participate in casino games. It is not inconceivable either that this need is satisfied in part by the illegal casino offer, and that consequently a combination of severe action and the opening of a HC location could (and can) solve the problem of the illegality and the need for participation in casino games that has meanwhile grown in many people could (and can) be satisfied legally. If applicable, such causality and chronology would shed a different light on the coherence and systematic structure of the defendants´ policy than the defendants now make appear.

In answer to question 4, about the statement that the growth of the number of legal casinos and accompanying growth of the number of participants in casino games would also lead to an increase in the number of incidents of gambling addiction, the defendants replied that they do not expect major drawbacks in this respect. It is further announced that the Minister of Justice intends measuring the effects of the expansion on gambling addiction, in which the announced study of gambling addiction will be used as a zero measurement. The defendants added that the objective of the gaming and betting policy could be endangered precisely if different providers were admitted to the casino market or if HC were permitted to strongly expand its casino offer. The Court established that this answer is based on assumptions entirely, which are not supported by facts.

About the advertising policy the defendants in their answer to question 6 remark that in the past years the advertising policy seems to have become imbalanced. The Court has been told that by letter of 23 June 2004 the holders of a gaming and betting licence was asked to limit their advertising statements considerably and to implement this restrictive policy by means of a code of conduct and advertising standards of and for all providers of games of chance. They were asked to have that code ready by 31 March 2005 at the latest. If necessary, the powers of designation will be exercised. On this point the policy, so the defendants claimed, is characterised by a clear tightening. The Court concludes that said date of 31 March 2005 has meanwhile expired. No evidence has been presented that a code of conduct and advertising standards have been drawn up, nor that this code implies a tightening of the policy previously conducted.

Another example of this tightening, the defendants claim in answering question 7 lies in the fact that HC decided, in part at the Minister of Justice’s request, not to exercise the option to renew the three-year sponsoring contract with Eredivisie N.V. [Dutch Premier League] when the football season 2004/2005 ends. In the Court’s opinion this does not mean that the marketing budget that thus becomes available will not be used for other advertising purposes. If it were to be assumed, however, that the termination of this contract will lead to a decreased presence of HC in society and the media, the question also arises whether, to what extent and in what term the effects will decrease – in particular encouragement of the demand – that were envisaged and materialised in the period in which HC did have a strong presence in society and in the media.

With regard to HC‘s participation in foreign companies the Ministry of Justice, so the Defendants said, is working on a policy line on the ancillary activities of all holders of gaming and betting licences. The defendants add that it looks like (substantial) financial participations will no longer be allowed in the future. The question then is to what extent a smaller financial participation could contribute to coherence and a systematic structure.

2.12 Having regard to the above the Court reaches the following conclusion.

The contested decision is based on the consideration that the legal monopoly on the organisation of casinos is justified by the objective and sub-objectives on which it is based. The defendants failed to recognise that Gambelli requires these and other restrictive government measures to satisfy the criterion of suitability to attain the objective envisaged, more in particular the criteria of coherence and systematic structure. For this lack of substantiation alone the appeal will be declared invalid and the contested decision cannot be upheld.

The Court then has to answer the question whether the legal consequences of the contested decision to be set aside can remain in effect. It is the Court’s view that they cannot. Pursuant to Gambelli the government’s actions on the regulation of casinos in order to prevent illegality and criminality and to protect consumers against gambling addiction should be coherent and systematic. Because this concerns the justification of an exemption from the principle of the freedom to provide services in the EC this coherence and systematic structure should be explicit. The Court could not establish that based on the results of a study of the effects of said government actions, both when the contested decision was taken and when this judgment is being given, the coherence and systematic structure as referred to in paragraph 67 of Gambelli are apparent. Under these circumstances the power to uphold the legal consequences of the contested decision to be set aside cannot be used.

The defendants will be instructed to again decide on … B.V.‘s objections, taking account of this judgment. In their decision the defendants should answer the question whether the government actions on the regulation of casinos are coherent and systematic, and evidence of such coherence and systematic structure should be provided. In the event that the coherence and systematic structure cannot be demonstrated, the Court holds the view that the justification of the restriction of Article 49 of the EC Treaty contained in Article 27h.1 of the Wok is absent and that said provision should remain inapplicable because it is in violation of Article 49 of the EC Treaty.

2.13 As the appeal is declared valid, the court fee should be reimbursed to the plaintiff. The Court will also order the defendants to pay the plaintiff’s procedural costs, which based on the Procedural Costs Administrative Law Decree are set at the amount specified below.

3. Ruling

The Court:

declares … S.A.‘s appeal inadmissible;

declares … B.V.‘s appeal valid and sets aside the contested decision;

instructs the defendants to take a new decision on …… B.V.‘s notice of objection, taking account of this judgment;

orders the Kingdom of the Netherlands to pay to ….. B.V. the court fee in the amount of EUR 232 that the latter has paid;

orders the defendants to pay the procedural costs of ….. B.V. up to an amount of EUR 805 to be paid by the Kingdom of the Netherlands.

This judgment was given by W.C.J. Bakx, H.W.M. Pulskens and A.G.J.M. de Weert, justices, and delivered in public by W.C.J. Bakx, chair, in the presence of M.A.M. de Baar, registrar, at the hearing of

The parties to this action and other interested parties may file appeal with the Administrative Law Division of the Council of State, PO Box 200019, 2500 EA The Hague. The term for filing appeal is six weeks and will commence on the day following the dispatch of this judgment.