Opinion of Advocate General Emiliou delivered on 4 September 2025
Opinion of Advocate General Emiliou delivered on 4 September 2025
Data
- Case date
- 4 september 2025
Uitspraak
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 4 September 2025 (1)
Case C‑440/23
FB
v
European Lotto and Betting Ltd,
Deutsche Lotto Und Sportwetten Ltd
(Request for a preliminary ruling from the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta))
( Reference for a preliminary ruling – Freedom to provide services – Article 56 TFEU – Gambling – Gambling operators established and licensed in Member State A, offering online games of chance in Member State B – Prohibition of online games of chance in the national law of Member State B – Civil claim brought in Member State A for rescission of the gambling contract and restitution of the stakes wagered on ground of illegality of that contract under the law of Member State B – Defence alleging incompatibility of that law with Article 56 TFEU – Jurisdiction of the courts of Member State A to review the compatibility with EU law of the law of Member State B – Defence alleging abuse of EU law )
I. Introduction
1. The present request for a preliminary ruling, made by the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta), relates to a claim brought, before that court, by the assignee of a consumer, habitually resident in Germany, against two companies established in Malta. The claimant seeks to recover the stakes that that consumer had wagered (and lost) when participating in games of chance offered by those companies. To that end, he alleges that, because those games had been offered in Germany, in breach of the German rules on gambling, the underlying gambling contract was illegal and, thus, null and void. Accordingly, those companies should refund those stakes.
2. The defendant companies raise two defences against that claim for restitution. First, the gambling contract at issue is legal and, thus, valid. Indeed, the German rules on gambling should not be applied in the main proceedings as they are contrary to the freedom to provide services laid down in Article 56 TFEU. Secondly, such a claim constitutes, in any case, an abuse of EU law.
3. The questions raised by the referring court revolve around those two pleas. However, as requested by the Court, I will confine this Opinion to analysing (i) the admissibility of the questions related to the first defence and, in that context, the delicate issue of whether, and to what extent, the courts of a Member State (here, the Republic of Malta) have jurisdiction to review the compatibility with EU law of the rules of another Member State (here, the Federal Republic of Germany) and (ii) the second defence.
II. Legal framework
A. European Union law
4. Article 6 of Regulation (EC) No 593/2008 (2) (‘the Rome I Regulation’), entitled ‘consumer contract’, provides:
‘1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:
…
(b) by any means, directs such activities to that country or to several countries including that country,
and the contract falls within the scope of such activities.
2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.’
B. German law
5. At the material time, Paragraph 4 of the Staatsvertrag zum Glücksspielwesen in Deutschland (State treaty on gambling in Germany) of 15 December 2011 (‘the German Law on Gambling’) stated:
‘(1) Public games of chance may only be organised or brokered with the permission of the competent authority of the respective country. Organising games of chance without such permission (unlicensed gambling) and participating in payments in connection with unlicensed gambling are prohibited.
…
(4) The organisation of public games of chance on the internet is prohibited.
(5) By way of derogation from [subparagraph 4], the [Länder] may, in order to better achieve the objectives of [Paragraph 1], permit the self-distribution and brokerage of lotteries as well as the organisation and brokerage of sports betting on the internet …’
6. Paragraph 134 of the Bürgerliches Gesetzbuch (‘the German Civil Code’) specifies that ‘a legal transaction that infringes a statutory prohibition is void, unless the law provides otherwise’.
7. Paragraph 812 of the German Civil Code states that ‘whoever obtains something without legal cause by the performance of another or in any other way at his [or her] expense is obliged to surrender it to him [or her]’. (3)
III. Facts, national proceedings and the questions referred
8. It is apparent from the order of reference and the reply of the referring court to a request for clarification sent by the Court of Justice that European Lotto and Betting Ltd and Deutsche Lotto Und Sportwetten Ltd (together, ‘the defendant companies’) offer online ‘secondary lotteries’ (a form of betting on the draws of lotteries organised by lottery providers) and online slot machines from their registered office in Malta. Those companies direct their activity to, inter alia, Germany through the website Lottoland.com. At the material time, the defendant companies held a gaming licence issued by the Maltese Gaming Authority (MGA), under Maltese law. However, they did not hold a gaming licence in Germany, required under the German Law on Gambling. (4)
9. Between 5 June 2019 and 12 July 2021, a consumer habitually resident in Erfurt (Germany) (‘the player’) participated in ‘secondary lotteries’ and played online slot machines on the defendant companies’ website. To that end, he agreed with their general terms and conditions, effectively concluding a gambling contract with (one of) those companies. (5) He wagered (and lost) a considerable amount of money that way.
10. Subsequently, the player brought a claim for restitution of the stakes he wagered in those games of chance against the defendant companies before the Landesgericht Erfurt (Regional Court, Erfurt, Germany).
11. By a contract concluded on 21 November 2022, while those proceedings were still pending, the player assigned that claim to FB. The former subsequently withdrew his claim.
12. On 21 January 2023, FB brought the assigned claim for restitution against the defendant companies before the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court). There, FB alleged that those companies offered games of chance in Germany illegally, as they did not hold a licence from the German authorities to that effect, as required under the German Law on Gambling. Thus, the gambling contract concluded by the player was illegal and, as such, null and void under Paragraph 134 of the German Civil Code. Accordingly, those companies were required, under Paragraph 812 of that code (unjust enrichment) to refund the stakes that the player wagered.
13. The defendant companies contended that FB’s claim should be rejected on the merits. They raised two defences in that respect. First, as companies established in Malta and operating under a valid Maltese gaming licence, they provided their service in Germany legally under the freedom to provide services laid down in Article 56 TFEU. The provisions of the German Law on Gambling imposed an unjustified restriction to that freedom and, thus, should not be applied in the main proceedings. Therefore, the gambling contract at issue should be regarded as legal, valid and enforceable. Secondly, such a claim for restitution constitutes an abuse of EU law, as the player willingly sought and participated in the games of chance in question in full knowledge of the fact that they were offered by operators established in Malta and unlicensed in Germany.
14. It is in those circumstances that the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is [Article] 56 TFEU to be interpreted to the effect that the infringement of the freedom of services by a general prohibition of online slots in the [M]ember [S]tate of the consumer ([S]tate of destination) [vis-à-vis] online casino operators that are licensed and regulated in their [S]tate of origin (Malta) cannot be justified by compelling reasons of the common good,
– if the [M]ember [S]tate of destination is at the same time permitting similar land-based gaming ubiquitously with licensed slots in arcades and restaurants for private operators, more intense gaming in land-based casinos, licensed national [l]ottery operations by [S]tate lotteries in more than [20 000] agents shops [aimed at] the public, and
– allowing licensed online gaming operations for private sports betting and horse betting operators and for private online lottery brokers selling the products of the [State-owned] lotteries and other licensed lotteries,
while that same [M]ember [S]tate – contrary to the … judgments [of the Court of Justice in] Deutsche Parkinson (C‑148/15, [paragraph] 35), [in] Markus Stoß (C‑316/07) and [in] Lindman (C‑42/02) – did apparently not provide scientific evidence showing that there are specific dangers in these games that significantly contribute to achieving the goals pursued by its regulation, in particular the prevention of problematic gaming, and that in view of these dangers restricting the prohibition to online slots – in contrast to all the gaming offers that are allowed for online and land-based slots – can be considered suitable, mandatory and proportionate to [achieve] the regulatory goals[?]
(2) Is Article 56 TFEU to be interpreted as precluding the application of a total ban on online casino gambling contained in Paragraph 4(1) and (4) of [the German Law on Gambling] if [that law], according to its [Paragraph] 1, does not aim at a total ban [on] gambling, but at … “steering the natural gambling instinct of the population into orderly and supervised channels as well as counteracting the development and spread of unauthorised gambling in black markets” and a considerable demand from players for online slots exists?
(3) Is Article 56 TFEU to be interpreted in such a way that a general ban [on] online casino offers cannot be applied if
– governments in all federal states of this [M]ember [S]tate have already agreed that the dangers of such online gambling offers can be combated more effectively via a system of prior official approval than by a total ban and
– have drafted and agreed on a future regulatory framework by a corresponding [S]tate treaty that replaces the total ban [with] a system of prior approval,
– and in anticipation of this future regulation, decide to accept corresponding gambling offers without a German permit subject to compliance with certain requirements until German licenses are issued,
although according to … Winner Wetten [(C‑409/06)] Union law may not be temporarily suspended[?]
(4) Is Article 56 TFEU to be interpreted to the effect that a [M]ember [S]tate (of destination) cannot justify a national regulation with compelling reasons of the common good, if
– that regulation prohibits consumers to place licensed cross-border bets in another [M]ember [S]tate (of origin) on licensed [l]otteries in the [M]ember [S]tate of destination that are permitted and regulated there and
– if the lotteries are licensed in the [M]ember [S]tate of destination and the regulation aims to protect players and minors
– and if the regulation of the licensed betting on lotteries in the [M]ember [S]tate of origin also aims to protect players and minors and provides the same level of protection as the regulation of lotteries in the [S]tate of destination?
(5) Is Article 56 TFEU to be interpreted to the effect that this rule precludes the recovery of stakes lost in the course of participation in (secondary) lotteries based on the asserted illegality of transactions because of the lack of a licence in the [M]ember [S]tate of the consumer, if
– such a licence for private (secondary) lotteries is excluded in the law,
– and that exclusion is justified by the national courts with an asserted difference between a tip placed with a [S]tate operator on the outcome of a lottery organised by a [S]tate and a bet with a private organiser on the outcome of a [S]tate lottery?
(6) Is Article 56 TFEU to be interpreted to the effect that it precludes the recovery of stakes lost in the course of participation in (secondary) lotteries based on the asserted illegality of transactions because of the lack of a licence in the [M]ember [S]tate of the consumer if
– there is an exclusion of such a licence for private (secondary) lotteries in the law
– and if that exclusion in favour of state lottery organisers is justified by the national courts with an asserted difference between a tip placed with a [S]tate operator on the outcome of a lottery organised by a [S]tate and a bet with a private organiser on the outcome of [the] same [S]tate lottery?
(7) Is Article 56 TFEU and the prohibition [on] abuse of rights (… Niels Kratzer [C‑423/15)]) to be interpreted as precluding the claim for reimbursement of lost stakes based on the lack of a German permit and unjust enrichment where the organiser is licensed and supervised by the authorities in another Member State and the player’s claim assets and claims to payment are secured by the law of the Member State in which the organiser is established?’
15. The present request for a preliminary ruling, dated 11 July 2023, was lodged on 14 July 2023. Written observations have been submitted by FB, the defendant companies, the Maltese, Czech, German, Belgian and Italian Governments and the European Commission. The same interested parties, save for the Czech and Italian Governments, were represented at the hearing that took place on 9 April 2025.
IV. Analysis
16. The present case is one of a series of cases concerning games of chance offered online by companies established in Malta. Usually, the websites they operate are not only accessible from, but also directed (through the names of those websites, languages used thereon, advertising, and so on) to other Member States (including, here, Germany). Typically, those companies provide their services on the basis of gaming licences issued by the Maltese authorities, under Maltese law (which purport to cover the offering of games of chance not only in Malta, but also from Malta). However, they are not licensed by the authorities of the target Member States to offer such games on their territory, as required under the rules on gambling of those States (or offer games which are entirely prohibited in the State in question, such as the online slot machines and the ‘secondary lotteries’ (6) at issue in the main proceedings).
17. A significant number of consumers in those target Member States participate in such online games of chance. Many of them lose considerable amounts of money. In recent years, such players have sought to recover their losses by bringing (or hiring specialised litigators to bring on their behalf) civil proceedings before their ‘local’ courts against Maltese gambling companies. Typically, the claim is that (i) the consumer wagered and lost stakes in games of chance under a gambling contract concluded with one of those companies; (ii) because the company in question was not licensed by the authorities of the target Member State, that contract was, in fact, illegal and, thus, null and void under the ‘local’ contract law; (iii) accordingly, the company in question is required to refund those stakes under the ‘local’ law of unjust enrichment. Apparently, thousands of such claims have been handled or are currently pending in Austria and Germany. (7) It also appears that, so far, in the majority of cases, those courts have upheld such claims. (8)
18. Unsurprisingly, Maltese gambling companies dispute those claims for restitution. It appears that, often, they refuse to comply with judgments issued against them, considering those judgments to be manifestly incorrect. They found support in the Maltese legislature in that regard. Taking the view (i) that the target Member States, by imposing their ‘local’ gambling rules on Maltese gambling companies, unjustifiably restrict those companies’ freedom to provide services under Article 56 TFEU and (ii) that such claims could have a dire impact on the Maltese gambling industry, that legislature adopted, on 12 June 2023, a piece of legislation, ‘Bill 55’, which added a new Article 56A to the Maltese Gaming Act. That article states, in essence, that players’ claims that question the legality of the games offered by Maltese companies are inadmissible before the Maltese courts, and that any foreign judgment upholding such a claim will not be recognised or enforced in Malta as a matter of public policy.
19. Within that particular context, the present case is sensitive, since it concerns a claim for restitution brought not by the player before his ‘local’ (in casu, German) court, but by a lawyer who bought and was assigned that claim before a Maltese court. That court is called upon, by way of defences raised by the defendant companies, to review (i) the compatibility of the German Law on Gambling with the freedom to provide services laid down in Article 56 TFEU and (ii) the abusive nature of such claims for restitution. (9)
20. Questions 1 to 6 focus on the first defence. At the request of this Court, I will address, in Section A below, not the substance, but only the admissibility of those questions, which is contested by several of the governments that submitted observations. Question 7 concerns the second defence raised by the defendant companies, pursuant to which a claim for restitution such as the one at issue constitutes an abuse of EU law. I will examine it in Section B below.
A. Admissibility of questions 1 to 6
21. The Maltese (somewhat surprisingly), German and Italian Governments contest the admissibility of questions 1 to 6, in the light of the seminal judgments of the Court in Foglia I (10) and in Foglia II. (11)
22. It is worth recalling that the case that led to those judgments concerned a contractual dispute between two Italian nationals, brought before an Italian court, in which the issue of the compatibility of a French tax with Article 95 EEC (now Article 110 TFEU) was raised incidentally. That Italian court referred several questions to the Court for a preliminary ruling designed to help it assess that compatibility. In that context, the Court took the view that it ‘must display special vigilance’, with respect to the admissibility (12) of ‘question[s] … referred to it with a view to permitting the national court to decide whether the legislation of another Member State is in accordance with [EU] law’. (13) Furthermore, in the light of the circumstances of the case (namely the fact that the parties in the main proceedings seemed to agree that the French tax was incompatible with EU law and did not challenge it before the French courts), it refused to provide an answer to the questions referred, on the ground that that case was a ‘procedural devic[e] arranged by the parties’ in order to obtain a review of French law by an Italian court and, in that context, ‘to induce the Court to give its views on certain problems of [EU] law which do not correspond to an objective requirement inherent in the resolution of a [genuine] dispute’. (14)
23. In the present case, the objections brought by the Maltese, German and Italian Governments concern, more specifically, the fact (1) that the order for reference allegedly does not contain sufficient information for the Court to ascertain that an answer on its part with respect to the compatibility with Article 56 TFEU of rules, such as the ones laid down in the German Law on Gambling would be ‘necessary’ to enable the referring court to give judgment, within the meaning of Article 267 TFEU; (2) that, in any case, such an answer could never be ‘necessary’ because the courts of a Member State allegedly have no jurisdiction to review the compatibility with EU law of the law of another Member State; and (3) that, even if such jurisdiction existed, the dispute in the main proceedings is, like the one that led to the judgments in Foglia I and in Foglia II, allegedly not ‘genuine’. I will address those objections in turn in the following sections.
1. Is the information provided sufficient?
24. The objection concerning the alleged insufficiency of the information provided by the referring court, brought by the German Government alone, is twofold.
25. On the one hand, that government submits that the order for reference does not specify whether FB actually has a right of action before the referring court. First, there is no indication, in that order, that the claim for restitution at issue was legally assigned to FB. On the contrary, it appears that the general terms and conditions that applied to the underlying gambling contract prohibited players from assigning their rights under that contract. Secondly, Article 56A of the Maltese Gaming Act makes such a claim for restitution inadmissible before the Maltese courts. (15) If FB’s claim ought to be dismissed outright on the ground that he does not have such a right of action, there would be no need to enter into the merits of that claim, thus, rendering the questions referred hypothetical.
26. In that respect, I observe that, upon request for clarification sent by the Court of Justice, the referring court dismissed those concerns, and there is nothing in the information available to the Court to suggest that FB’s claim is manifestly inadmissible. First, with respect to the general terms and conditions in question, the referring court, implicitly, did not see them as an issue, and it does not fall within the Court’s jurisdiction, under Article 267 TFEU, to investigate the potential effect of such contractual terms. (16) Secondly, with respect to Article 56A of the Maltese Gaming Act, the referring court has explained that FB’s claim was introduced (on 21 January 2023) before the entry into force of that provision (on 12 June 2023), that the latter does not have retroactive effect and, thus, that it has no impact on the admissibility of that claim. (17)
27. On the other hand, the German Government submits that the order for reference does not contain any explanation as to why German law is applicable to the dispute in the main proceedings. It is obvious that if the referring court did not, in fact, have to determine that dispute under German law, an answer to questions 1 to 6 would be ‘unnecessary’ in that regard. (18)
28. While the referring court could have expanded more on the matter in the order for reference, it seems to me that, in the light of (i) the facts set out in that order and (ii) the relevant EU instrument governing the matter, that objection does not withstand scrutiny.
29. I recall that FB’s claim concerns the alleged invalidity of the gambling contract at issue (on the ground of its alleged illegal subject matter), which should entail, on the part of the defendant companies, an obligation to refund the stakes wagered by the player. In essence, it relates to civil and commercial matters, more specifically contractual ones. The law governing that claim is to be determined in the light of the unified rules laid down in the Rome I Regulation. In accordance with that instrument, there is no doubt that the various issues raised by that claim have to be decided by the referring court under German law.
30. First, whether a given contract is invalid when it has an illegal subject matter and whether that invalidity entails, for each party, a right to restitution of the benefits which each party has received from the other are issues for the law governing the contract in question under Article 10(1) and Article 12(1)(e) of the Rome I Regulation, and the gambling contract at issue is governed by German law, pursuant to Article 6(1) of that regulation. (19) The fact that, as the German Government underlined before the Court, the general terms and conditions applicable to that contract referred to Maltese law does not alter that conclusion. (20)
31. Secondly, it seems clear to me that, to determine whether the gambling contract at issue did indeed have an illegal subject matter, regard shall be had to the prohibitions laid down in the law of the country in which that contract had to be performed. In this case, that was Germany. Even if the defendant companies provided their gambling services from Malta, those services were received by the player in Germany, from where he participated in the games of chance in question and wagered the stakes at issue. (21) Evidently, the German Law on Gambling must be taken into account by the referring court to rule on the dispute.
32. Besides, that conclusion would have been the same, in my view, if the gambling contract at issue had been governed by Maltese law. (22) Indeed, Article 9(3) of the Rome I Regulation allows the court seised of a contractual dispute to give effect to the ‘overriding mandatory provisions (23) of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful’, irrespective of the law governing the contract. Rules such as the one laid down in the German Law on Gambling, which pursue public policy objectives deemed essential by the national legislature (see point 70 below) and which, in view of safeguarding those objectives, regulate any gambling transaction taking place (or deemed to take place) on the national territory, readily qualify as ‘overriding mandatory provisions’. Furthermore, while the Member State courts seised have, in principle, some discretion when it comes to ‘giv[ing] effect’ to such ‘overriding mandatory provisions’, (24) it seems to me that, in a scenario where the illegality of a given contract is invoked on the ground that it is in breach of such ‘provisions’ of another Member State (like here), those courts should, as a rule, do so. Giving effect to those ‘provisions’ is a tangible proof of sincere cooperation between Member States, which is justified given the ‘special relationship’ uniting them.
2. Whether the courts of a Member State have jurisdiction to review the compatibility of the law of another Member State with EU law
33. In the present case, it is clear (and undisputed) that the referring court, a Maltese court, is competent to hear and determine FB’s claim under the EU instrument governing the jurisdiction of the courts of the Member States in such civil and commercial matters, namely Regulation (EU) No 1215/2012 (25) (‘the Brussels I bis Regulation’), specifically Article 4(1). (26) Nevertheless, as explained in the previous section, pursuant to the Rome I Regulation, that court must do so under German law. This is, in fact, a fairly common situation in the area of freedom, security and justice (AFSJ).
34. With respect to the merits of FB’s claim, it is equally clear that, were the referring court to apply the prohibition of online games of chance laid down in the German Law on Gambling to the case, that court should consider the gambling contract at issue illegal and, thus, null and void, as FB alleges (which may give rise to a right to restitution of the stakes wagered by the player). (27)
35. However, I recall that the defendant companies submit, by way of a defence, that that prohibition (to the extent that it is applied to gambling operators such as them, who are established and licensed in other Member States) is contrary to Article 56 TFEU. Therefore, the referring court should (i) not apply the relevant provisions of the German Law on Gambling, (ii) consider, as the logical consequence, that the contract at issue is legal and valid and (iii) reject FB’s claim.
36. The compatibility issue, thus, is raised before the referring court as a preliminary question (within the meaning of private international law). Indeed, since FB’s claim presupposes that the prohibition laid down in the German Law on Gambling is enforceable, that court should, in all logic, address that issue first in order, then, to resolve accordingly the main issues of whether the gambling contract is valid or not and, thus, whether FB may be entitled to restitution of the stakes wagered. That is the reason for questions 1 to 6.
37. Nevertheless, the Italian Government takes the view that the courts of a Member State do not have jurisdiction to review the compatibility with EU law of the law of another Member State, even as a preliminary question (within the meaning of private international law) in a civil or commercial dispute between individuals. Only the courts of the Member State whose legislation is in question could do so. Accordingly, the referring court, a Maltese court, would be bound to regard the German Law on Gambling as compatible with EU law (until the German courts have ruled otherwise).
38. Naturally, if that were the case, questions 1 to 6 would be purely hypothetical. That jurisdiction issue, thus, must be addressed by the Court in the present case. Besides, the Court’s case-law is not entirely clear on that point. In the judgments in Foglia I and in Foglia II, the Court seemed sceptical about the idea that the courts of a Member State could review the compatibility of the law of another Member State with EU law. Nevertheless, while the Court stated that it would exercise ‘special vigilance’ with respect to the admissibility of preliminary references submitted for that purpose, it did not expressly deny national courts jurisdiction to carry out such a review. In fact, in several cases both before and after those two judgments, the Court implicitly admitted that the courts of the Member States have such jurisdiction, since it accepted such references. (28) In its judgment in Eau de Cologne & Parfümerie-Fabrik 4711, (29) the Court even stated that a court of a Member State may refer questions ‘intended to permit [it] to determine … whether the provisions of a Member State other than that of the court requesting the ruling are compatible with [EU] law’. Nevertheless, the Court never expressly addressed the underlying jurisdiction issue.
39. The present case offers the Court an ideal opportunity to clarify that the courts of the Member States not only have jurisdiction to, but also must, review the compatibility with EU law of the law of other Member States when that issue arises as a preliminary question (within the meaning of private international law) in a civil or commercial dispute pending before them (a). However, those courts must show restraint when exercising that jurisdiction (b).
(a) The courts of the Member States have jurisdiction to review the compatibility of the law of another Member State with EU law
40. In my view, such jurisdiction of Member State courts is supported by the general principles of EU substantive law (1) and EU private international law (2), and neither customary public international law (3), nor concerns about the rights of defence of the Member State whose law is applicable to the dispute (4), nor the practicality of that jurisdiction (5) call it into question.
(1) The general principles of substantive EU law
41. In its seminal judgment in van Gend & Loos, (30) the Court established the general principle that provisions of EU law which are sufficiently clear, precise and unconditional produce direct effect and, as such, ‘creat[e] … rights’ that individuals may invoke before the courts of the Member States, even in disputes between individuals. The Member State courts before which such a dispute has been brought have a duty to rule in accordance with those provisions. Furthermore, should a party raise argument that some national rule, in principle applicable to the dispute, is in fact incompatible with such a directly effective provision of EU law, it has been settled case-law, since the judgment in Simmenthal, (31) that, under the principle of the primacy of EU law, those courts not only have jurisdiction to, but also must, review that compatibility and, where the conflict is established, not apply that national rule in the proceedings before them. Both principles seek to ensure the safeguard of individuals’ rights under EU law and its uniform application in the Member States.
42. From the point of view of those principles and their underlying rationale, I see no reason to single out the situation at issue in the present case, where the court of a Member State is called upon to determine a civil and commercial dispute under the law of another Member State. Individuals should also be able to assert, in such a scenario, before those courts, the rights they derive from the direct effect of EU law. (32) It follows that, in the event of an alleged conflict between the rules of another Member State and directly effective provisions of EU law, the court seised has jurisdiction to, and must, where necessary for the outcome of the case, address that issue and, if there is a finding of incompatibility, not apply the rules in question. Otherwise, those rights could be denied in the proceedings at issue.
43. For instance, in the present case, there is no denying that Article 56 TFEU, invoked by the defendant companies before the referring court, produces direct effect, even in disputes between individuals. (33) Should the referring court review the compatibility of the German Law on Gambling with Article 56 TFEU and find a conflict between those provisions, that court could protect the rights that the defendant companies derive from the Treaty by (i) not applying that law, (ii) ruling accordingly that the gambling contract at issue is valid and (iii) rejecting FB’s claim as unfounded. (34) By contrast, if that court had no such power (and obligation) of review, the defendant companies would be entirely deprived of their main defence against FB’s claim. Indeed, since that court also could not, in the current state of EU law, raise an interlocutory question on the validity of the German Law on Gambling with the German courts, it would be bound to consider that law to be compatible with EU law and rule accordingly. That claim, thus, could succeed in spite of potential rights under EU law. (35)
44. An opposite solution would also undermine the uniform application of EU law. If the compatibility of a Member State’s national rules with EU law could be reviewed only by the courts of that State, it would mean, in practice, that the application of that law would entirely vary depending on whether the same civil and commercial dispute is brought before the courts of the Member State in question or in another Member State.
(2) The general principles of EU private international law
45. With respect to EU private international law, I would recall that, pursuant to the principles governing conflicts of jurisdiction in civil and commercial matters under the Brussels I bis Regulation, where the courts of a Member State are competent, under that regulation, to hear and determine a dispute (as the referring court is here), those courts are also competent to rule on any preliminary question (within the meaning of private international law) (36) that may be raised in the context of that dispute. (37) Furthermore, they are bound to exercise that jurisdiction. They cannot refuse to adjudicate upon the dispute, or certain relevant aspects of it. (38) Both principles seek to ensure the good administration of justice and legal certainty for the parties.
46. In the light of those principles, I see no reason to treat a preliminary question (within the meaning of private international law) concerning the compatibility with EU law of the rules of another Member State differently. The Member State courts that are competent, under the Brussels I bis Regulation, to hear and determine a dispute in which such a question is raised, also have, under that instrument, jurisdiction to rule on that preliminary question, and must do so when necessary for the outcome of the case.
47. From the point of view of conflict of laws, the result is the same. Indeed, when a Member State court is called upon, under the rules of the Rome I Regulation, to ‘apply’ the law of another Member State to a dispute, several mechanisms enshrined in that regulation also allow, and even oblige, that court to review, where relevant, the compatibility of that national law with EU law and, in the event of conflict, discard national law.
48. First, such a power (and obligation) of the court seised could be regarded as inherent to the task of ‘applying’ the designated law to the dispute. Indeed, where the rules of that regulation designate a given foreign law as ‘applicable’, they refer to the foreign legal order as a whole. The court seised must reach, in the light of the various rules composing that legal order and their hierarchy, a decision in the dispute that reflects, as much as possible, one that a judge of the State concerned would have reached. (39) This is essential in the interests of the objectives of legal certainty and international harmony of decisions pursued by the Rome I Regulation. (40)
49. Clearly, where the law of a Member State is designated by the Rome I Regulation as applicable to a dispute, EU law is an integral part of the legal order in question and is at the peak of its hierarchy. A judge of that State, if he or she were called upon to rule on the same dispute, would be bound (as explained in point 41 above) to review and not apply a conflicting national rule. Thus, the court seised must do the same. (41)
50. Secondly, the court seised may review the compatibility of the rules of another Member State with EU law and, in the event of conflict, disapply them under the public policy clause laid down in Article 21 of the Rome I Regulation.
51. Indeed, that provision allows the court seised not to apply the designated law where the application of that law would be ‘manifestly incompatible with the public policy (ordre public) of the forum’. Clearly, just like EU law is part of the legal order of the Member State whose law is designated as applicable to the case (here, the Federal Republic of Germany), it is also an integral part of the legal order of the forum hearing that case (here, the Maltese legal order). Thus, a ‘manifest incompatibility’ with EU law (or, at least, with certain provisions regarded as essential in the EU legal order) justifies disapplying the conflicting national rules under that clause. (42)
52. Finally, when the rules of a Member State are invoked before the referring court of another Member State, as ‘overriding mandatory provisions’ under Article 9(3) of the Rome I Regulation, that court has full discretion, under that provision, to review the compatibility of those rules with EU law and, in case of incompatibility, refuse to ‘give effect’ to them.
(3) Customary public international law
53. Contrary to what is sometimes claimed in academic literature, I take the view that the jurisdiction (and obligation) of the courts of a Member State to review the compatibility of the law of another Member State with EU law, when that issue arises as a preliminary question (within the meaning of private international law) in a civil and commercial dispute does not infringe customary public international law. In particular, there is no illegitimate interference with the competence of the courts of the second Member State. (43)
54. It is understood that the courts of a Member State cannot, in accordance with the principle of non-interference, issue a decision the aim of which is to annul the law of another Member State on the ground of incompatibility with EU law, or issue an erga omnes declaration in that regard. The reason for this is obvious: the courts of a State cannot possibly invalidate acts originating from an organ of another State (here, the legislature). The courts of the State to which the organ belongs have exclusive substantive jurisdiction in that regard under public international law. (44) Accordingly, here, the Maltese courts could not validly issue a decision declaring, with erga omnes effect, the German Law on Gambling incompatible with EU law. Only the German courts could do so.
55. However, when the courts of a Member State review the compatibility of the law of another Member State with EU law, as a preliminary question (within the meaning of private international law), in a civil and commercial dispute, they merely carry out such a review and, in the event of incompatibility, disapply the conflicting rules in the dispute in question, for the sole purpose of issuing a decision on the merits of the claim at issue. Such a decision establishes the private rights of the parties and, as such, has inter partes effects only. It is not intended to affect the validity of the law of the other Member State. The exclusive competence of the courts of that State is respected. (45)
56. For the sake of completeness, I would recall that the Member States consented, when joining the European Union and choosing to participate in the AFSJ, to comply with EU law. They also consented to civil and commercial disputes governed by 'their’ rules (pursuant to the Rome I Regulation) being adjudicated upon by the courts of other Member States (under the Brussels I bis Regulation). In the light of the explanations given in the previous two sections, this means that the Member States also consented, implicitly, that the compatibility of ‘their’ rules be reviewed by those other courts as a preliminary question (within the meaning of private international law) in such a dispute.
(4) The rights of defence of the Member State concerned
57. In its judgment in Foglia II, the Court seemed concerned that, were the courts of a Member State to review the compatibility of the law of another Member State with EU law, in the context of a dispute between private individuals, the rights of defence of the second Member State could not be adequately guaranteed, because it would not be represented before the courts of the first Member State. (46) Several of the governments that submitted observations before the Court in the present case insisted on that aspect. In particular, they observed that, in accordance with the Court’s case-law, where an individual alleges that a piece of national law restricts the freedom to provide services under Article 56 TFEU, it is for the Member State concerned to establish that that national law is objectively justified and proportionate. (47) However, in a scenario such as in the present case, it would be deprived of the possibility to do so.
58. From the outset, I wish to emphasise that that case-law concerns the burden of proof in proceedings against a Member State for infringement of EU free-movement law (be it infringement proceedings or actions before national courts). By contrast, where such an issue is raised incidentally in proceedings between individuals, the burden of proof is a procedural matter left to the lex fori. (48)
59. With that clarification, I do not think there is genuinely an issue with the rights of defence of the Member State concerned. (49)
60. First, it is rather common for a State not to be represented in proceedings between individuals in which a question of validity of the national law is raised incidentally. It appears that, here, the German Government would not have been represented either if the proceedings had been pending before one of its national courts. This is justified by the fact that, as I recall, the decision to be issued has inter partes effects only and, thus, will not bind the authorities of that Member State.
61. Secondly, besides the fact that a possibility of intervention on the part of the Member State concerned before the courts seised may exist under the procedural law applied by those courts, (50) an adequate and sufficient safeguard for the protection of the interests of that State is offered by the preliminary ruling procedure, under Article 267 TFEU.
62. In that respect, I take the view that, where the courts of a Member State are seised of a civil or commercial dispute, to be determined in the light of the law of another Member State, and a party contests the compatibility of the applicable national law with EU law, it is proper, for those courts, to make a reference for a preliminary ruling under Article 267 TFEU. When such a reference is made, the Member State concerned has a right to present written and oral submissions, even if it is not a party to the main proceedings. The fact that that State does not enjoy, under that procedure, the wider defence possibilities available to it in adversarial proceedings under Article 258 TFEU is, in my view, irrelevant. Indeed, as the Court has recognised repeatedly, the two procedures are inherently different. (51)
(5) The practicality of such a jurisdiction
63. The interested parties who were represented at the hearing also discussed, at the request of the bench, whether, from a practical point of view, the courts of a Member State are equipped to review the compatibility of the rules of another Member State with EU law. Beyond the linguistic and cultural differences, it may be difficult for those courts to establish, with certainty, the content of those rules. Incompatibility with EU law could be assumed based on flawed knowledge of those rules.
64. It is easy to see where those doubts come from. Foreign law is traditionally considered, in the procedural rules of the courts of the Member States, as different from their ‘own’ law. In that regard, the adage ‘iura novit curia’ does not apply. Those courts are not presumed to know the laws of other States. Thus, traditionally, they would require the parties who invoke foreign law to prove the content of that law, as a matter of fact. However, those parties often fail to do so objectively, or even conclusively. Instead, they tend to present foreign law in a partial way, using affidavits produced by experts hired and paid by them. (52) Those difficulties are present, to some degree, in the case in the main proceedings. (53)
65. Nevertheless, those concerns may be alleviated.
66. In my view, the issue of how the content of the applicable law must be established is, inherently, a matter for the procedural rules of each Member State. Nevertheless, such procedural rules cannot deprive of their effet utile the conflict of laws rules laid down in the Rome I Regulation. For foreign law to be faithfully ‘applied’, as required under the Rome I rules, and the objectives of legal certainty and international harmony of decisions pursued by that regulation be achieved, foreign law should be established properly. That implies, in my view, a degree of duty of care on the part of the court seised, especially where the compatibility of that foreign law with EU law is called into question.
67. In that regard, I would observe that access by the courts of a Member State to the laws of other Member States is becoming increasingly easier within the AFSJ. More and more statutes and decisions are easily accessible online (thanks, notably, to the e-justice portal and the European case-law identifier (ECLI) system). Moreover, various cooperation mechanisms allow those courts to obtain, from the authorities of the Member State whose law is applicable to the dispute, clarifications on the content of that law, in particular (i) the European Convention on Information on Foreign Law, concluded in London on 7 June 1968, and (ii) the European Judicial Network in civil and commercial matters. (54) In fact, I take the view that, pursuant to the principle of sincere cooperation, those courts must use those mechanisms in case of doubt about the content of that law (and the authorities of the Member State concerned must duly help them in that regard).
(b) The courts of the Member States must show restraint when exercising the jurisdiction in question
68. While the courts of the Member States have jurisdiction to review the compatibility with EU law of the law of other Member States as a preliminary question (within the meaning of private international law), considerations of legitimacy (1) and mutual trust (2) warrant that those courts show some restraint in that regard.
(1) The concerns related to the lack of legitimacy
69. As the Commission observes, reviewing the compatibility of the law of another Member State with EU law is not always the same exercise. Sometimes, EU law has harmonised or unified a given field, with no discretion left to the Member States. Incompatibility, in this instance, can be established by the mere fact that a given national rule falls within the scope of the EU law instrument in question and that that instrument does not contain or allow such a rule. (55) Sometimes, EU law leaves some margin of discretion to national authorities to legislate, but the limits of that margin depend entirely on common standards laid down under EU law (such as whether a certain procedural time limit leaves a sufficient margin for a party to defend itself effectively, pursuant to Article 47 of the Charter). (56)
70. By contrast, in other fields, EU law recognises a significant margin of discretion to national authorities. That is the case, typically, where EU law provides merely for negative harmonisation. For instance, here, it is not disputed that the German Law on Gambling restricts freedom to provide services under Article 56 TFEU. However, such national legislation is permissible if it is (i) justified by an overriding reason in the public interest (which is also clearly the case here, as that law seeks to prevent fraud, addiction to games of chance, and so on) and (ii) is proportionate to the objective pursued (which is the real crux of the compatibility issue).
71. Furthermore, as the Czech, Belgian and Italian Governments have observed, the Court has always recognised that ‘legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States’. Thus, as a rule, every Member State has a broad discretion to regulate the field in accordance with its own, inter alia, historical, cultural, economic and socio-political characteristics. The proportionality of the measures adopted should be reviewed in the light of those characteristics. (57)
72. In that regard, there is merit in the argument, put forward by the Italian Government, that the courts of the Member State concerned are best suited to carrying out such a review. As an integral part of the national legal order, and with the most comprehensive knowledge of the situation in that Member State, they may best comprehend the evaluation of competing interests made by the legislature. (58) By contrast, the courts of another Member State are not the best placed to do so. In fact, it could easily be said that they lack legitimacy to review such sovereign choices of another State.(59)
73. In the present case, the legitimacy objection becomes even more valid when one considers the glaring divergence of approach (and interests) of the two Member States concerned: on the one hand, the Republic of Malta, as the State where providers of online gambling services are established and which has adopted favourable legislation to that industry; on the other hand, the Federal Republic of Germany, as the unwilling recipient of those online services. Furthermore, the peculiar context into which the present case presents itself, recalled in points 16 to 18 above, cannot be ignored. In the light of those factors, the idea that a Maltese court would review the proportionality of the German Law on Gambling would sound incongruous to many.
74. Nevertheless, I take the view that those concerns may be alleviated if Member State courts in the position of the referring court show some restraint when carrying out such a review. They should give due weight to the margin of discretion enjoyed by the foreign legislature and, in the light of their limited understanding of the context and limited legitimacy, disapply the law of another Member State only in the event of manifest incompatibility with EU law (for instance, where the case-law of the Court is settled, comprehensive and clear as to what Member States can and cannot do in certain areas). Of course, the more obvious the disproportionate nature of the rules at issue, the less the foreign court can be criticised for illegitimate activism. (60) To that end, and as explained above, it is proper for those courts to make a reference to the Court under Article 267 TFEU, so that they do not reach such a drastic conclusion alone, and the Member State concerned may be duly heard.
(2) Mutual trust
75. In my view, considerations of mutual trust support that approach. In that respect, I recall that the principle of mutual trust, which is of fundamental importance in EU law, requires, particularly with regard to the AFSJ, each of the Member States, save in exceptional circumstances, to consider all the other Member States to be compliant with EU law. (61)
76. Accordingly, when called upon to apply the law of another Member State, in a civil and commercial dispute, under the Rome I Regulation, the courts of a Member State are required to presume that that law is compatible with EU law. While that presumption is not irrebuttable, (62) it ought to be a strong one, otherwise mutual trust would be called into question. Thus, the law of another Member State should be reviewed only in the event of clear evidence of incompatibility with EU law, (63) and be disapplied only where, upon review, there is a manifest conflict with the latter.
77. I wish to make one last remark on this matter. As the Belgian Government observes, where the courts of the Member State which enacted the disputed national rules have already issued decisions on their compatibility with EU law, (64) the principle of mutual trust requires the courts of another Member State, seised of that issue incidentally, to give due consideration to the reasons underlying such decisions, within the framework of their own examination of the matter. (65) In the present case, the fact that the German courts have (as it appears) already ruled that the German Law on Gambling is compatible with Article 56 TFEU cannot, thus, be ignored by the referring court. It could only decide otherwise after careful consideration of the German courts reasoning.
3. The alleged ‘contrived’ nature of the dispute
78. The last objection to be examined concerns the alleged ‘contrived’ nature of the dispute in the main proceedings. In the Italian Government’s view, that dispute may be a ‘procedural device arranged by the parties’ to question the compatibility of the German Law on Gambling with EU law.
79. Some words of caution to the Court in that respect are called for.
80. I can understand the Court’s reluctance, in the case giving rise to the judgments in Foglia I and in Foglia II, to help an Italian court review the compatibility with EU law of a French tax law. Besides the objections discussed in the previous sections, one important aspect must be highlighted in that context. I have repeatedly indicated that, in a dispute between individuals, the decisions of the Member State courts have only inter partes effects, which contributes to such review of the law of another Member State to be considered permissible. By contrast, the preliminary rulings delivered by the Court have erga omnes effects, since they interpret authoritatively the relevant provisions of EU law the way they were always meant to be understood. While such a preliminary ruling cannot declare a given piece of national law incompatible with EU law, the elements of interpretation of EU law provided by the Court may be so specific that, in actual fact, the result could be the same. Such a preliminary ruling could eventually have a significantly more serious impact on the national law under review.
81. In the light of that fact, on the one hand, the Court should indeed be particularly ‘vigilant’ that an answer from its part is ‘necessary’ for the referring court to determine the dispute pending before it, within the meaning of Article 267 TFEU. Given the sensitive nature of the topic, a national court should review the compatibility of the law of another Member State with EU law not merely for the sake of completeness, but where it is indispensable to do so. The Court should not assist that court, and give an erga omnes interpretation of EU law, where that is manifestly not the case. (66)
82. Where it appears that, inevitably, the national court must perform such a review to determine the dispute before it (which seems to be the case here) and that the related questions referred by that court for a preliminary ruling are, thus, ‘necessary’ in that regard, then the Court should reply to them. As indicated in the previous section, it is, in fact, proper for the national court to make a preliminary reference in that particular context. The Court must play its part. It cannot leave that court alone to interpret EU law. That is, in my view, the correct approach in the present case.
83. Nevertheless, the Court should take into account, in the manner in which it replies, the sensitive nature of the situation and the limits of the jurisdiction of the referring court, as explained in points 70 to 74 above. Rather than carrying out a comprehensive review of all the details of the national law at issue, it should, in my view, limit itself to providing elements of interpretation sufficient for the national court to assess whether the national law under consideration is manifestly incompatible with EU law. Typically, in the main proceedings, that would mean explaining whether, in the light of the relevant case-law, rules such as the ones laid down in the German Law on Gambling seem generally acceptable or, on the contrary, manifestly disproportionate.
84. On the other hand, I do not think the Court should engage in a review of the ‘genuineness’ of the underlying dispute. I recall that the judgments in Foglia I and in Foglia II have been particularly criticised in that respect. (67) In fact, that approach was never followed by the Court in other cases involving disputes between individuals with national law being indirectly questioned, even where the ‘contrived’ nature of the dispute was rather obvious. (68)
85. I will not repeat all the arguments presented against such a review in academic commentaries. I will simply recall that whether the dispute in the main proceedings is ‘genuine’, or whether it is a ‘test case’ brought by the Maltese gambling industry, should, arguably, not matter for the jurisdiction of the Court. What should matter is whether a national court is called upon to determine the case and whether an answer to the questions referred for a preliminary ruling would assist that court in doing so. By contrast, it is not for the Court, under Article 267 TFEU, to review the underlying intentions of the parties when bringing a lawsuit. Even if it could do so, a lack of ‘genuineness’ would be extremely difficult (if not impossible) to establish.
86. Here, for instance, while the circumstances of the case may raise suspicions in that regard, none of the information present in the file is sufficient to establish, with certainty, the ‘contrived’ nature of the dispute.
87. First, one could speculate about the assignment of the player’s claim. FB is a German lawyer, but the defendant companies suggested at the hearing that he is registered with the Maltese bar. He claims that enforcement of such a consumer claim is part of his ‘business model’ and that he bought claims from ‘many players’ but, when asked by the bench to confirm how many, he said ‘less than 10’ (which arguably could mean only the one at issue). FB was also at pains to explain why he bought a claim that he knew would be hard to recover, as Maltese companies refuse such claims, and the Republic of Malta adopted Bill 55. Nevertheless, it would be impossible to know for certain the motives behind his decision.
88. Secondly, one could also wonder, like the Italian Government did, why proceedings have been brought in Malta, given the divergence of interests between that Member State and the Federal Republic of Germany in the situation at issue. Nevertheless, as the Commission maintains, there is nothing inherently wrong with that. As I have indicated, the Maltese courts have general jurisdiction to hear the dispute, under Article 4 of the Brussels I bis Regulation. Furthermore, while players can start proceedings against Maltese gambling companies before their ‘home’ Member State (here, the Federal Republic of Germany) under the consumer protection rules laid down in that regulation, especially Article 18(1), (69) FB could not have availed himself of those rules because he is not a consumer. (70)
89. Finally, the fact that both parties agreed to the referring court submitting the present reference for a preliminary ruling, as the Italian Government observes, is also hardly conclusive evidence of collusion. Furthermore – and not that the contrary would be an indication by itself – I observe that the parties disagree as to the answer to be provided by the Court.
B. Do the players’ claims for restitution constitute abuse of EU law? (question 7)
90. The seventh question asked by the referring court concerns the second defence raised by the defendant companies. By that question, that court asks, in essence, whether, where a consumer participated, from the Member State in which he or she is habitually resident, in the online games of chance offered in that State – without a licence granted by the authorities of that State – by a gambling operator established in another Member State, the principle of prohibition of abuse of EU law precludes that consumer from bringing a civil claim against that operator for restitution of the stakes he or she wagered, on the ground of nullity of the underlying gambling contract under the applicable contract law. (71)
91. The answer to that question is, in my view, straightforward.
92. On the one hand, should it follow from the answer of the Court to questions 1 to 6 that the German Law on Gambling is (manifestly) incompatible with Article 56 TFEU, then such a player’s claim for restitution should be rejected as unfounded. Indeed, that law should not be applied, and the gambling contract concluded between the player and the gambling company could not, accordingly, be regarded as illegal and, thus, null and void under the applicable contract law (in casu, German law).
93. On the other hand, if the rules laid down in the German Law on Gambling were found to be compatible with Article 56 TFEU, then EU law would not preclude whatever consequences are provided for by national law for offering (or participating in) games of chance which are prohibited under those rules. Accordingly, the underlying gambling contract could be considered as illegal and, thus, null and void under the applicable contract law. I would emphasise that, contrary to what the defendant companies submit, that ‘sanction’ (so to speak) would not be a separate restriction on freedom to provide services, requiring a separate assessment of its legality, but the necessary and logical consequence arising from the illegality of the contract. Whether, and to what extent, the rescission of the contract entails a right to restitution of the benefits which each party has received from the other would also, be a question left solely to the law governing the gambling contracts in question. (72)
94. By contrast, the general principle of prohibition of abuse of EU law is irrelevant in that context. I recall that that principle precludes EU law being relied on for abusive ends. (73) However, the players’ claims for restitution are not based on any provisions of EU law, but entirely on national law (namely, here, the German Law on Gambling and the German Civil Code). (74)
95. The rather creative line of argument advanced by the defendant companies and the Maltese Government to convince the Court of the contrary does not withstand scrutiny. Clearly, as those interested persons submit, the situation falls within the scope of Article 56 TFEU because of its cross-border nature. Nevertheless, contrary to what those interested persons state, the players bringing such claims for restitution are not abusing the right they derive from that provision to receive services from Malta, on the ground that that freedom allowed them to conclude the gambling contracts at issue in the first place. First, they did not depend on that freedom to conclude the contracts at issue. The mere existence of the internet allowed them to do so. Secondly, by seeking the rescission of those contracts, they are not relying on that freedom either, but on national rules restricting it. By contrast, the defendant companies’ first defence is based on Article 56 TFEU. In fact, they are the ones relying on the freedom enshrined in that provision.
96. Therefore, whether a player is entitled to restitution of the stakes he or she wagered, or whether such restitution should be limited or denied, as the defendant companies and the Maltese Government submit, on the ground that the claim is a show of bad faith, or that the player committed him- or herself an offence by choosing to participate in the games of chance in question (following a principle such as nemo auditur propriam turpitudinem allegans of Latin law or the ‘estoppel’ of common law), is, as stated before, an issue to be decided solely on the basis of the national law governing the gambling contract at issue (that is to say, German law).
97. In fact, as the German Government has clarified during the hearing, it appears that there is, in German law, a provision covering that issue, namely Paragraph 817 of the German Civil Code. That government also explained that that provision was examined by the German courts, when ruling on players’ claims for restitution. It seems that the majority of courts refused to apply that provision on the ground that, while participating in illegal games of chance is also prohibited under German law, (75) the players did not commit a crime, because they did not know, when they participated in the games of chance at issue, that those games were illegal in Germany (since they were misled by the provider into believing the contrary). (76) Before the Court, the defendant companies denied that they were guilty of misleading the players and questioned whether, in any case, knowledge of illegality should really be a requirement for Paragraph 817 of the German Civil Code to apply. It is, of course, not for the Court, but for the referring court, to settle such issues of facts and interpretation of German law.
98. In the light of the foregoing, the answer to the seventh question should be that where a consumer participated, from the Member State in which he or she is habitually resident, in the online games of chance offered in that State – without a licence granted by the authorities of that State – by a gambling operator established in another Member State, the principle of prohibition of abuse of EU law does not preclude that consumer from bringing a civil claim against that operator for restitution of the stakes he or she wagered on the ground of nullity of the underlying gambling contract under the applicable contract law.
V. Conclusion
99. In the light of all the foregoing considerations, I propose that the Court of Justice:
– declares the questions referred by the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta) as admissible;
– answer the seventh question referred as follows:
Where a consumer participated, from the Member State in which he or she is habitually resident, in the online games of chance offered in that State – without a licence granted by the authorities of that State – by a gambling operator established in another Member State, the principle of prohibition of abuse of EU law does not preclude that consumer from bringing a civil claim against that operator for restitution of the stakes he or she wagered on the ground of nullity of the underlying gambling contract under the applicable contract law.