The Court refused to open main proceedings on the grounds that the current legal situation was not compatible with Community law and therefore the provision of Art. 284 German Criminal Code could not be invoked due to the primacy of Community law. With regard to the transitional period ruled by the Federal Constitutional Court (Bundesverfassungsgericht), the Court pointed out:
The decision of the Federal Constitutional Court of 28 March 2006 does not change anything in this respect, since transitional periods leaving national provisions in violation of Community Law applicable are not provided for, neither by Community Law nor by the jurisprudence of the European Court of Justice.
According to the decision of the Federal Constitutional Court the requirements set up by (German) Constitutional Law and those set up by the European Court of Justice had to be regarded as concurrent. The existing state monopoly for sports betting was not consequently aimed at limiting betting fervour and fighting betting addiction, but rather fiscal interests were prevailing. These valuations were determining whether the state monopoly was compatible with the requirements set up by Community law. Therefore the accused was not subject to criminal prosecution.