The Impact of Community Law on Administrative Court Procedures
Despite the court’s reference to the significance of Community law, many German authorities and courts still ignore the relevant Community law provisions. The Administrative Court of Halle for example, completely mistaking the legal situation, ruled that Community law was not directly applicable, but would first have to be implemented in national law (which is only true for EC directives, but surely not for the basic freedoms granted by the EC Treaty). Other administrative courts are of the opinion that the state betting monopoly is now suddenly in conformity with Community law thanks to the requirements set forth by the Federal Constitutional Court (so for example the Administrative Court of Gelsenkirchen). Nonetheless, the court then neither examines the actual implementation (which is crucial for an examination under Community law) nor does it examine the further requirements set forth by Community law (non-discrimination of operators or bookmakers from other EU Member States, violation of rules of competition of the EC Treaty by the cartelising of the German state operators in the so called Deutscher Lotto- und Toto-Block etc.).
In part the administrative courts’ attitude abuts on perversion of justice, for example in case a court establishes a violation of Community law, but at the same time denies the consequence resulting from this violation, that is the inapplicability of the relevant national provision in violation of Community law, in a legally absolutely untenable way. The decision of the Administrative Court of Appeal (Oberverwaltungsgericht) of North-Rhine Westphalia (decision of 28 June 2006, case-no. 4 B 961/06) is an extreme example thereof. The Administrative Court of Appeal cites the ECJ’s Gambelli decision and rightly declares, that the current legal situation is in violation of the freedom of establishment guarantee and the freedom to provide services guarantee. Then it refers to a decision of the ECJ of 1978 stating the Member States’ obligation not to apply national provisions in violation of Community law, which has meanwhile become established practice of the court. The court’s 4th senate does not like this result, however. He believes to have discovered an “unacceptable loophole in the law”. Referring to an alleged “principle of legal certainty” the Administrative Court of Appeal believes to have the right to suspend the primacy of basic freedoms (which is clearly contrary to the established practice of the ECJ as the only competent court for the interpretation of Community law).
The Administrative Court of Appeal’s incomprehensive turnaround comes even more surprising as it had the opinion of the ECJ’s Advocate General in the joined cases of Placanica et al. at hand. This opinion clearly shows that a “legal loophole” simply does not exist. Instead an efficient control in the county of origin is sufficient, according to the Advocate General. A further control in the receiving state is not necessary. The alleged threat to “important public interests” invoked by the Administrative Court of Appeal is therefore only pleaded as an excuse. The court believes to be able to cancel the established practice of the ECJ for more than 40 years (see for fundamentals: ECJ, case-no. 6/64 (Costa v Enel) and ECJ, case-no. 103/88 (Fratelli Constanzo)). The German Federal Constitutional Court has repeatedly and unconditionally recognised the primacy of Community law with regard to German law (see for fundamentals: Federal Constitutional Court, BVerfG 31, 145, 173 et seq.). According to the established practice, a legal situation in conformity to Community law has to be established immediately. Community law does not provide for transitional periods with regard to the basic freedoms.
The decision of the Administrative Court of Appeal becomes a scandal in view of the numerous motions for partiality that had already been filed against the 4th senate of the Court of Appeal and the court’s widespread press release, in which he declared the decision to be “final and unappealable” and at the same time authoritative for all of the other more than 200 parallel cases. Many public authorities used the remarks of the press release to announce the immediate execution of the prohibition orders already issued and not to wait for further court decisions, even if an application for protection under Art. 80 par. 5 Code of Administrative Procedure (VwGO) had been filed. This way, effective legal protection as guaranteed by the Constitution is abolished, which really should not be a court’s mission. Apart form that, governmental liability claims for damages in hundreds of cases are “produced” as this behaviour knowingly and evidently violates Community law (which is even assumed by the Administrative Court of Appeal). The state of North Rhine-Westphalia will presumably be charged with claims reaching millions of Euros as another fundamental decision of the ECJ is expected by the end of the year (joined cases Placanica et al.). Due to the contempt of Community law, Germany has bad cards in the infringement procedure with regard to the foreclosure of the sports betting market, started by the European Commission at the beginning of April 2006 with a formal letter of notice.