The claimant seeks the declaration of unlawfulness of an administrative order prohibiting it from placing bets on sporting competitions with a private betting provider.

At its former permanent establishment at H. ... in M., the claimant placed bets on sporting competitions with I. Ltd. which has its registered office in Gibraltar and, like the claimant, had not been granted a domestic authorisation. By means of an immediately executable administrative order dated 18 April 2006, the defendant ordered the claimant to cease this activity and required it to discontinue its business as of 30 April 2006. At the same time, it threatened to apply direct enforcement. The defendant based the prohibition on section 14 of the Act on the Organisation and Competences of Public Order Authorities in the Federal State of North Rhine-Westphalia (OBG NW, Ordnungsbehördengesetz) in conjunction with section 284 of the German Criminal Code (StGB, Strafgesetzbuch) and held that the required authorisation could not be granted due to the public monopoly on bets on sporting competitions. In order to avert enforcement measures, the claimant discontinued the taking of bets on 6 July 2006 and closed the permanent establishment on 12 July 2006. The regional government D... rejected the claimant's objection against the administrative order by objection notice dated 11 December 2006. The Düsseldorf Administrative Court (Verwaltungsgericht) dismissed the initiated action for annulment by judgment of 6 November 2007. An action for compensation and damages was also dismissed by the Mönchengladbach Regional Court (Landgericht) by judgment of 4 December 2007. The court held that, in accordance with the jurisprudence of the Federal Constitutional Court, the public order authorities were entitled to continuously apply the monopoly regulation for a transitional period up until 31 December 2007, despite its unconstitutionality and failure to comply with EU law. The appeal proceedings on points of fact and law at the Düsseldorf Higher Regional Court (Oberlandesgericht) were suspended due to the present proceedings.

In the course of the proceedings on points of fact and law at the Higher Administrative Court (Oberverwaltungsgericht), the claimant vacated its business premises on 27 August 2010, after terminating the tenancy as of 30 September 2010. It subsequently changed its action analogously to an application to declare that the administrative act was unlawful during the period from 18 April 2006 to 27 August 2010.

The Higher Administrative Court granted the appeal and found that the administrative order of 18 April 2006 in the form of the objection notice dated 11 December 2006 was unlawful during the entire period at issue in the proceedings. The challenged order had become ultimately moot upon the permanent abandonment of the business premises on 27 August 2010. The legitimate interest of the claimant in declaring the order unlawful resulted from the interest in establishing a legal precedent with respect to the pending state liability action. At the time of the settlement and during the previous period since the coming into force of the State Treaty on Games of Chance, old version (GlüStV a.F., Staatsvertrag zum Glücksspielwesen in Deutschland alte Fassung - Glücksspielstaatsvertrag alte Fassung), of 31 July 2007 (Law and Ordinance Gazette of the Federal State of North Rhine-Westphalia (GV NRW, Gesetz- und Verordnungsblatt Nordrhein-Westfalen) p. 454) and its implementation in North Rhine-Westphalia as of 1 January 2008 (Act of the Federal State of North Rhine-Westphalia on the State Treaty on Games of Chance (Gesetz des Landes Nordrhein-Westfalen zum Staatsvertrag zum Glücksspielwesen in Deutschland) of 30 October 2007; GV NRW p. 445), the prohibition of the placement of bets on sporting competitions had been subject to incorrect exercise of discretion. The defendant had rightly assumed that the requirements of the authorisation to issue prohibitions granted pursuant to section 9 (1) third sentence no. 3 GlüStV had been fulfilled due to the lack of the required authorisation pursuant to section 4 (1) GlüStV. The defendant had none-the-less incorrectly exercised its discretionary power to prohibit the unauthorised placing of bets. It had wrongly assumed that the authorisation required for the placing of bets could not be granted due to the monopoly on bets on sporting competitions alone. The monopoly regulation in section 10 (2) and (5) GlüStV was inapplicable because it violated the freedom of establishment and freedom to provide services under EU law. The objectives of fighting addiction and protecting minors and players pursued by the regulation were legitimate under EU law. It was none-the-less disproportionate because of its inconsistency and therefore not suitable to guarantee the achievement of these objectives. This already resulted from the illicit advertising practice which incited and encouraged participation in betting. Irrespective thereof, the gaming policy running contrary to the objectives of the monopoly in the sector of commercial automated games also contributed to the inconsistency. This sector was the most economically relevant gaming sector and posed the highest potential risk for addiction. None-the-less, an expansionary policy running contrary to the objectives of fighting addiction and protecting minors and players was pursued since the 5th amendment of the Gaming Ordinance. Constitutional law did not conflict with the cross-competence and transnational perspective required by EU law. The misuse of discretion with respect to the challenged prohibition order was neither irrelevant nor could it be remedied. The obligation to seek authorisation under gaming legislation was effective and applicable. However, the latter would justify a complete prohibition only if there was no possibility to grant authorisation. The settlement of the prohibition order and the the prohibition to replace discretionary considerations in the court proceedings pursuant to section 114, second sentence VwGO precluded the remedy of the misuse of discretion.

During the period running up to 31 December 2007, the prohibition order had also been unlawful. The monopoly on bets on sporting competitions had already infringed the freedom of establishment and freedom to provide services under the previous legal situation existing under the State Treaty on Lotteries (LoStV, Lotteriestaatsvertrag) .

10 The appeal on points of law is admissible, but unfounded pursuant to section 137 (1) VwGO, since the challenged judgment is not based on a violation of the law that is subject to an appeal on points of law. It rightly held that the action for a declaratory judgment after settlement of the administrative act (Fortsetzungsfeststellungsklage) was admissible and correctly justified the unlawfulness of the prohibition order without reversible error with the fact that the latter was to a large extent based on the public monopoly on bets on sporting competitions, although the monopoly violated EU law and was therefore inapplicable, because it did already not meet the requirement of consistency under EU law due to the advertising practice of the holders of the monopoly, which systematically incited participation in gaming. However, where the appeal judgment confirms an inconsistency not only due to the structuring of the monopoly sector, but irrespective thereof also due to a gaming policy running contrary to the objective of fighting addiction in the sector of commercial automated games, the requirement of consistency is in part applied incorrectly. However, the judgment is not based on this error, because it is, independent thereof, autonomously supported by the main argument above.

11 1. The claimant's action for a declaratory judgment after settlement of the administrative act is admissible pursuant to section 113 (1) fourth sentence VwGO.

12 a) The action is formally admissible, as the challenged prohibition order was continuously moot since its issuance and became permanently moot only once the claimant vacated the permanent establishment on 27 August 2010.

13 A prohibition issued under gaming legislation becomes moot from day to day for the respectively elapsed time and therefore continuously, if it does not presently continue to produce any negative legal effects for the person concerned (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 11 July 2011 - 8 C 11.10 - (...) para. 15 and of 16 May 2013 - 8 C 14.12 - (...) para. 18; decision of 5 January 2012 - 8 B 62.11 - (...)). Because it requires a specific behaviour, the prohibition becomes irrelevant upon expiration of time, as it can neither be retroactively observed nor enforced. However, the prohibition continues to produce legal effects for the elapsed period if it forms the legal basis for an administrative enforcement yet to be rescinded. This is, however, presently not the case.

14 The final settlement of the prohibition not only for the past but also for the future occurred upon the permanent abandonment of the business premises of the claimant on 27 August 2010. Contrary to the opinion of the defendant, this settlement did not already occur at an earlier date. Pursuant to the interpretation of the challenged prohibition by the Higher Administrative Court, which is without reversible error, the order constituted a prohibition which was linked to the business premises. It only becomes finally moot after the permanent establishment has been permanently abandoned (BVerwG, judgment of 15 November 1990 - 3 C 49.87 - (...) para. 22). Pursuant to the facts established by the Higher Administrative Court, this occurred after termination of the claimant's lease upon vacating the betting shop and not previously upon its subletting, because the claimant had thereby reserved a contractual right of access.

15 These findings are binding with respect to the assessment by the Court deciding on appeals on points of law pursuant to section 137 (2) VwGO, because they were not challenged with effective procedural complaints. (...)

16 b) Furthermore, the Court of Appeal correctly confirmed a legitimate interest of the claimant in the declaration of unlawfulness of the prohibition order.

24 2. The assumption of the Higher Administrative Court that the challenged prohibition order was unlawful at the time of its settlement and during the entire previous period since its issuance, stands up to judicial review.

25 The legal situation during the period from the issuance of the challenged order up to its final settlement on 27 August 2010 is relevant for the substantive review. During the period in which it has effect, the prohibition rendered under gaming legislation, being an administrative act with permanent effect, must be assessed on the basis of the legal situation existing at the time. (...)

26 The Court of Appeal confirmed without reversible error that the requirements of a prohibition pursuant to section 9 (1) third sentence GlüStV where fulfilled for the period since the coming into force of the State Treaty on Games of Chance on 1 January 2008. Neither the claimant nor the betting company with which it placed bets on sporting competitions had been granted the required authorisation pursuant to section 4 (1) GlüStV. In the absence of harmonisation under EU law, the defendant was not obliged to acknowledge the concession granted to the betting company in another EU country as constituting such an authorisation (Court of Justice of the European Union (CJEU, hereinafter Court of Justice), judgment of 8 September 2010 - C-316/07 et al., Markus Stoß et al. - (...) para. 112). The discretion granted thereby with respect to the prohibition was incorrectly exercised by the defendant pursuant to section 40 of the Administrative Procedure Act for the Federal State of North Rhine-Westphalia (VwVfG NW, Verwaltungsverfahrensgesetz für das Land Nordrhein-Westfalen) (a). Also, an exercise of discretion was not entirely superfluous just because the defendant's scope of discretion had allegedly been reduced to zero (auf Null reduziert) and it would as a result have been obliged to issue a prohibition (b). The defendant did also not retroactively remedy the deficits of its discretionary considerations (c). The same applies with respect to the time preceding the coming into force of the State Treaty on Games of Chance. In this respect, the question of whether the claimant's activity posed a threat to public security within the meaning of section 14 OBG NW can remain open, because it fulfilled the constituent elements of section 284 (1) in conjunction with section 27 StGB In any event, the discretionary decision for the issuance of the prohibition pursuant to section 14 OBW NW was incorrect, as was its upholding under the State Treaty on Games of Chance (d).

27 a) In the challenged order, the defendant mainly based its discretionary decision on the grounds that an authorisation could neither be granted to the claimant nor to the private betting company with which it placed bets on sporting competitions due to the public monopoly on bets on sporting competitions (see section 5 (2) and (4) LoStV, section 10 (2) and (5) GlüStV). The Court of Appeal rightly considered this exercise of discretion to be unlawful. The defendant was not entitled to apply the monopoly regulation, because it disproportionately restricted the freedom of establishment and freedom to provide services under EU law. As the Higher Administrative Court sets out, it already followed from the systematic infringements of the limits of permitted advertising by the holders of the monopoly that the public monopoly on bets on sporting competitions was not in accordance with the requirement of consistency under EU law.

28 aa) The personal scope of application of the freedom of establishment and freedom to provide services is affected because the claimant was established under German law and has its registered office in Germany. Whether the material scope of application of the freedom of establishment pursuant to article 49 (1) of the Treaty on the Functioning of the European Union (TFEU, OJ C 115 47) is affected or whether, in case the claimant's betting shop was not to be deemed to be a national presence of the gaming operator, the freedom to provide services is alternatively affected can remain open pursuant to article 56 (1), article 57 (1) and (3) TFEU. The monopoly regulation restricts both freedoms. In its territorial, national scope of application, it excludes the operation of bettings by persons or entities other than the holder of the monopoly. It also does not permit the placing of bets with gaming companies other than the monopoly supplier. The requirements of EU law with respect to the justification of the restriction are identical for both fundamental freedoms. The restriction must observe the principle of non-discrimination and must be justified pursuant to article 51 et seq. in conjunction with article 62 TFEU or by overriding reasons of public interest, and guarantee achievement of the legitimate objective pursued under EU law. Furthermore, it must not go beyond what is necessary to achieve the objective (BVerwG, judgment of 24 November 2010 - 8 C 14.09 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 138, 201 para. 62).

29 For the justification of monopoly regulations under gaming legislation, the Court of Justice consistently considers in its rulings whether overriding reasons of public interest exist, including objectives such as consumer protection, prevention of both fraud and incitement to squander on gaming, as well as the general need to preserve public order (CJEU, judgments of 6 November 2003 - C-243/01, Gambelli et al. - (...) para. 60, 64, of 6 March 2007 - C-338/04 et al., Placanica et al. - (...) para. 45, of 8 September 2009 - C-42/07, Liga Portuguesa de Futebol Profissional - (…) para. 56 and of 8 September 2010 - C-46/08, Carmen Media - (...) para. 45). This includes the objectives of fighting addiction and protecting minors and players stated in section 1 GlüStV (CJEU, judgment of 8 September 2010 - Markus Stoß - see above para. 79).

30 In the absence of harmonisation of EU law in the area of games of chance, the Member States enjoy considerable leeway ("sufficient margin of discretion"). They may determine their gaming policy in accordance with their own scale of values and define the level of protection sought. The necessity and proportionality of the measures thus adopted only need to be assessed having regard to the objectives pursued and the level of protection sought. Thereby, each restriction imposed is to be examined separately (CJEU, judgments of 6 March 2007 see above para. 49 and of 8 September 2010 - Carmen Media - see above para. 46 with further references). A monopoly regulation which is based on combating addiction and protecting players as overriding reasons of public interest is only proportional if the regulation itself as well as its application in practice is suitable for ensuring the achievement of said objectives by contributing to limiting betting activities in a consistent and systematic manner (see CJEU, judgments of 6 November 2003 see above para. 67, of 3 June 2010 - C-258/08, Ladbrokes et al. - (...) para. 21 as well as of 8 September 2010 - Carmen Media - see above para. 64 and - Markus Stoß - see above para. 98; BVerwG, judgments of 24 November 2010 see above para. 77 and of 1 June 2011 - 8 C 2.10 - (…)).

31 The requirement of consistency specifies the prerequisites of the proportionality of the restrictive regulation in two respects. On the one hand, it requires that within the scope of the monopoly regulation, the Member State genuinely pursues the legitimate objectives under EU law. It must not hypocritically pretend to pursue legitimate objectives while actually pursuing other, namely fiscal, objectives which are not suitable to justify the restriction (CJEU, judgments of 21 October 1999 - C-67/98, Zenatti - (...) para. 35 et seqq., of 6 November 2003 see above para. 67 et seqq. and of 8 September 2010 - Markus Stoß - see above para. 88 et seqq. as well as - Carmen Media - see above para. 55, 64 et seqq.; BVerwG, judgment of 1 June 2011 see above para. 45). This prerequisite applies exclusively to the monopoly sector and demands that both the regulatory implementation and the practical handling of the monopoly is consistently in line with the legitimate objectives under EU law (see CJEU, judgment of 8 September 2010 - Markus Stoß - see above para. 83 and 98 et seq.). It can therefore be described as a requirement of internal consistency and is in line with the constitutional requirement of regulatory implementation and practice which is consistently aligned with the vitally important public interest objectives of the monopoly (see in this respect Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), judgment of 28 March 2006 - 1 BvR 1054/01 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 115, 276 <309 et seqq.>; BVerwG, judgment of 24 November see above para. 32).

32 The second demand derived from the requirement of consistency extends beyond the monopoly sector and takes into account that the suitability of the monopoly regulation for achieving a (genuinely) pursued legitimate objective under EU law may be affected by a counteractive gaming policy in other gaming sectors. The monopoly regulation must therefore not be counteracted by the policies Member States apply in other gaming sectors. Thus, the requirement of consistency neither stipulates uniformity of regulations nor optimisation of the achievement of the objectives (CJEU, judgments of 8 September 2010 - Markus Stoß - see above para. 95 et seq. and - Carmen Media - see above para. 62 et seq.; BVerwG, judgment of 1 June 2011 see above para. 45 with further references). This is significant namely in Member States such as Germany, whose constitutional principles include a federal structure in a Federation and several federal states, each having autonomous legislative power (see article 28 (1), article 79 (3), article 23 (1) third sentence of the Basic Law (GG, Grundgesetz)). However, if the competent authorities apply or tolerate policies in another sector of gaming which are contrary to the objectives pursued by the monopoly, preventing the objective underlying the establishment of the monopoly from being effectively pursued by the monopoly, this will render the monopoly regulation inconsistent (CJEU, judgments of 8 September 2010 - Markus Stoß - see above para. 106 and - Carmen Media - see above para. 68 et seq.). This is to be assumed in the case of a monopoly established with the objective to fight gambling addiction if in another gaming sector posing the same or a higher potential risk for addiction, even if other authorities of the same Member State are responsible (CJEU, judgment of 8 September 2010 - Carmen Media - see above para. 69 et seq.), circumstances are brought about by respective regulations or, if they exist contrary to regulations, are regularly tolerated which across all sectors result in the relevant regulation actually not being able to contribute to the realization of the objectives which were at the root of it such that it is no longer suitable for the achievement of the objective (CJEU, judgments of 8 September 2010 see above; BVerwG, judgments of 24 November 2010 see above para. 82, of 1 June 2011 see above para. 45 and of 11 July 2011 - 8 C 11.10 - (...) para. 43).

33 bb) The Higher Administrative Court correctly defined the first specification of the requirement of consistency relating to internal coherence with respect to the limits of permitted advertising for the offerings provided under the monopoly and assumed without reversible error that the monopoly regulation of section 10 (2) and (5) GlüStV (old version) did not satisfy the requirement of consistency due to the systematic violation of these limits by the holder of the monopoly.

34 (1) Only advertising which remains measured and strictly limited to what is necessary in order to channel consumers towards legal supplies of games of chance is in line with the legitimate objective under EU law of fighting addiction and protecting minors and players (CJEU, judgment of 8 September 2010 - Markus Stoß - see above para. 103). This may imply offering an extensive range of games, advertising on a certain scale and the use of new distribution techniques (see CJEU, judgment of 6 March 2007 - C-338/04 et al., Placanica et al. - (...) para. 55). However, such advertising must not aim to encourage consumers' natural propensity to gamble by stimulating their active participation in it, such as by trivialising gambling or giving it a positive image due to the fact that revenues derived from it are used for activities in the public interest. It is also not allowed to increase the attractiveness of gambling by means of enticing advertising messages depicting major winnings in glowing colours. The financing of such social activities must merely constitute an ancillary beneficial consequence of, and not the substantive justification for, the restrictive policy established (CJEU, judgment of 8 September 2010 - Markus Stoß - see above para. 104). Where the authorities of a Member State incite and encourage consumers to participate in lotteries, games of chance or betting to the financial benefit of the public purse, they cannot invoke public order concerns relating to the need to reduce opportunities for gambling in order to justify restrictive measures (CJEU, judgment of 8 September 2010 - C-46/08, Carmen Media - (...) para. 66).

36 Contrary to the view of the Court of Appeal, the adoption and application of such principles by the appeal judgment does not constitute an inadmissible limitation of the definition of advertising resulting from section 5 (1) and (2) GlüStV or other legislation of the Member States. The principles outlined do not restrict the definition of advertising, but merely limit the scope within which advertising is admissible with respect to offerings provided under the monopoly. The scope is, however, not narrowed down to such an extent that the admissible measures are no longer to be qualified as advertising in its literal sense. The criterion is met by any reference made to the public by a provider with respect to supplies offered by it in return for payment (BVerwG, judgment of 24 November 2010 - 8 C 14.09 - BVerwGE 138, 201 para. 50). Due to the primacy of application of EU law, more generous national rules of the Member States cannot be held against its advertising restrictions. Rather, section 5 (2) first sentence GlüStV is to be interpreted in line with EU law with respect to article 49 (1), article 56 (1) TFEU, where it explicitly encourages consumers to participate in betting. By contrast, constitutional objections can, even irrespective of the scope of the primacy of application of EU law, not be invoked. Rather, the constitutional limits of permitted advertising arising from article 12 GG in conjunction with the principle of proportionality which are to be taken into account by interpreting section 5 (1) and (2) GlüStV in conformity with the constitution are essentially congruent with the requirements of EU law. Under constitutional law, advertising for supplies offered under the monopoly must be consistently aligned with the objective of limiting addiction and be limited to factual information and education on the possibility of legal betting. It must not solicit, incite or encourage to participate in betting (BVerfG, judgment of 28 March 2006 see above p. 318; BVerwG, judgment of 24 November 2010 see above para. 34, 46 et seqq.). It is not the intention which is decisive in this respect, but rather the impact to be determined in accordance with the standpoint of the average recipient (judgment of 24 November 2010 see above para. 48 et seq.). Participation in betting must above all not be presented as socially acceptable or even positively rated entertainment. This also excludes advertising including references to the use of the revenue for activities in the public interest (BVerfG, judgment of 28 March 2006 see above p. 316 et seqq.; BVerwG, judgment of 24 November 2010 see above para. 52).

36 Furthermore, the limits of permitted advertising do not have to be made "more flexible" because of the legitimate objective under constitutional law to channel the passion for betting in order to create the "equality of arms" claimed by the defendant with such private providers who are less restricted than the holders of the monopoly or who evade the applicable restrictions. Just the same, it is neither imperative nor admissible under EU law to allow for advertising which not only channels consumers who are already determined to participate in games of chance towards legal supplies but also encourages consumers who are still undecided to actively participate in such games. Therefore, pursuant to article 267 (3) TFEU, it is not necessary to instigate the proposed preliminary ruling procedure to the Court of Justice. These questions were already unambiguously answered in the Court's previous case law, leaving no room for reasonable doubt. Contrary to the defendant's assumption, the jurisdiction of the Court of Justice stays within the competency assigned to it (article 267 TFEU). It does not decide on the law on public security and order but merely on the scope of the fundamental freedoms to be taken into consideration by the courts of the Member States when considering measures under public security and order law.

37 The Court of Justice declared a policy of controlled expansion including "advertising on a certain scale" to be permissible with respect to the supplies offered under the monopoly, to the extent that this is necessary in order to channel players participating in clandestine, prohibited betting and gaming to activities which are legal (CJEU, judgment of 8 September 2010 - C-316/07 et al., Markus Stoß et al. - (...) para. 101 et seq.). This unequivocally shows that advertising may channel consumers who are already determined to participate in games of chance towards legal supplies but must not encourage consumers who are still undecided to actively participate in such games. Channelling the passion for gambling through advertising must be exclusively geared towards diverting the already existing and to date illegally satisfied demand and to thus increase the market share of the legal providers at the expense of the market share of illegal providers. Therefore, the Court of Justice distinguishes a permissible restrained commercial policy seeking only to capture or retain the existing market for the organisation with the monopoly, and a forbidden expansionist commercial policy whose aim is to expand the overall market for gaming activities (CJEU, judgment of 15 September 2011 - C-347/09, Dickinger and Ömer - (...) para. 69). At the same time, it is made clear that the objective of channelling existing demand cannot justify the incitement or encouragement of consumers to participate in games of chance. Certain advertising could contribute to legitimately channel consumers, but only subject to the requirements resulting from the prohibition of such measures (CJEU, judgment of 8 September 2010 - Markus Stoß - see above para. 102 with reference to para. 97 et seqq.). Therefore, the channelling advertising must not only be strictly limited to what is necessary in order to channel consumers. Even such advertising intended to direct consumers must also not stimulate active participation in gambling, but may only inform of the existence of the products. It must thereby observe the prohibitions which have already been set out in detail (CJEU, judgments of 8 September 2010 - Markus Stoß - see above para. 103 and of 15 September 2011 see above para. 68). Allowing for more flexibility with respect to the limits of admitted advertising is not in accordance with these considerations. Because they are bound by the fundamental freedoms, public holders of a monopoly cannot demand "equality of arms" with private providers. The same holds true under constitutional law. The federal states who have established and designed a monopoly are not holders of fundamental rights, but rather obliged by fundamental rights and are bound by legal obligations pursuant to article 1 (3), article 20 (3) GG which cannot be eased based on considerations of expediency.

38 The defendant's objection that it was impossible for the holders of a monopoly under these legal prerequisites to direct and channel the demand for games of chance in accordance with their mandate, does not justify any other interpretation. Channelling is not a mandate imposed by EU law, but merely a justification for certain advertising measures within the legal limits described. Assignments of tasks through non-constitutional legal provisions of the Member States cannot influence the justification of intervention under EU law.

39 (2) In its assessment, the Higher Administrative Court rightly did not focus solely on the advertising for sports betting by the holder of the monopoly in North Rhine-Westphalia when assessing whether the limits of permitted advertising under EU law were observed, but also took into consideration the advertising activities of the holder for other supplies under the monopoly, such as lotteries. Since the genuine objectives pursued by the monopoly regulation are essential for the purpose of assessing the proportionality, their entire scope of application and thus all supplies subject to a monopoly must be taken into account. Inconsistency is already to be assumed if the holder of the monopoly on bets on sporting competitions conducts promotional activities with respect to lotteries which are also subject to the monopoly that are not permitted under EU law and violate the advertising restrictions (CJEU, judgment of 8 September 2010 - Markus Stoß - see above headnote 1 d) first indent para. 100, 103 et seq.; BVerwG, judgment of 24 November 2010 - 8 C 14.09 - BVerwGE 138, 201 para. 77). The unequivocal reference made to the overall conduct of the holder of the monopoly in connection with the just as unequivocal, strict and therefore not flexible limits of permissible advertising leaves no room for a differentiation of the limits of advertising in terms of the degree of addiction risk emanating from the game of chance advertised in each case. Due to the clarity of its jurisdiction, it is not necessary to obtain a preliminary ruling from the Court of Justice pursuant to article 267 (3) TFEU.

40 No reversible error can furthermore be found in the fact that the Higher Administrative Court, in addition to the advertising conducted by the holder of the monopoly in North Rhine-Westphalia, took into consideration the advertising coordinated within the German association of State lottery companies (Deutscher Lotto- und Totoblock) conducted by other holders of a monopoly under the umbrella brand Lotto. However, the advertising measures are not attributable to the holder of the monopoly in North Rhine-Westphalia, merely because the Member State is obliged under EU law to observe the fundamental freedoms and because national divisions of competence cannot justify a violation of this obligation. Rather, its attribution to the holder as constituting an advertising measure of its own is justified because the advertising measures conducted by the holders of a monopoly of other federal states assessed in the appeal judgment are the expression of a sales strategy which is coordinated and implemented across the borders of the federal states by all holders of a monopoly according to the findings of the previous instance. The Higher Administrative Court assumed in fact that the holders of the monopoly associated in the German association of State lottery companies market their products within the framework of a common umbrella brand strategy existing across the borders of the federal states. Thus, it assumed an approach for the marketing of the products which is supported by all holders of the monopoly, coordinated and systematic and which also uses the promotional effects of the advertising conducted for a product of the umbrella brand for the benefit of promoting other products under the same umbrella brand. By issuing common advertising guidelines, the coordination across the borders of the federal states even extended to the field of supervision.

41 Pursuant to section 137 (2) VwGO, the Senate is bound by the findings of the Court of Appeal, as no procedural complaints were raised in this respect. The errors claimed relate to the evidential evaluation of individual advertising measures, not, however, to the findings regarding the umbrella brand strategy itself. The defendant did also not claim that it had been impossible to link the advertising measures utilized in the appeal judgment to the common umbrella brand strategy.

42 Its legal objection that the inclusion of the advertising coordinated within the German association of State lottery companies violated the federal principle (Bundesstaatsprinzip) (article 20 (1), article 79 (3) in conjunction with article 23 (1) third sentence GG) is not correct. The factual attribution of advertising measures conducted within the framework of the umbrella brand advertising coordinated among the monopoly suppliers, undertaken by the Court of Appeal is not objectionable under constitutional law. With respect to the constitutional assessment of the monopoly on bets on sporting competitions in Bavaria, the Federal Constitutional Court also took into consideration, inter alia, the advertising which was at the time coordinated nationwide in the German association of State lottery companies (BVerfG, judgment of 28 March 2006 - 1 BvR 1054/01 - BVerfGE 115, 276 <309 et seqq., 314>). This is not in contradiction with the federal division of competencies and the sovereignty of the federal states, but rather derives legal implications from a certain way of jointly agreed, jointly organised and coordinated use of the respective competency.

43 (3) The Higher Administrative Court correctly assumed that the image-advertising for West-Lotto, the presentation of Glücksspirale prior to the main issue of Tagesschau and the Jackpot-advertising cited by it all disregarded the limits of permissible advertising under EU law.

44 The Higher Administrative Court interpreted the slogan "Happiness is being able to help your fellow human beings" ("Glück ist, wenn man seinen Mitmenschen helfen kann") used by West-Lotto without a reversible error as upgrading participation in the Lotto to social action in the form of assistance. Thus, the slogan contradicts the prohibition directed at the holder of the monopoly to give games of chance a positive image (CJEU, judgment of 8 September 2010 - C-316/07 et al., Markus Stoß et al. - (...) para. 103 et seq.). The prohibited moral upgrading of participation in games of chance cannot be compensated by giving addiction prevention advice (BVerwG, judgments of 24 November 2010 see above para. 51 et seq. and of 11 July 2011 - 8 C 11.10 - (...) para. 32; regarding the parallel constitutional assessment see BVerfG, chamber decision of 14 October 2008 - 1 BvR 928/08 - (...) para. 39, 47, 57). Based on a comparison with similar advertising strategies which were designated as "Lotto-Helps" ("Lotto-Hilft")-campaigns in the challenged judgment, the Higher Administrative Court classified the advertising conducted in North Rhine-Westphalia as being part of a systematic violation of the prohibition of upgrading games of chance under the umbrella brand strategy.

45 No effective procedural complaints were raised against this. (...)

49 The Higher Administrative Court also determined without reversible error that the Jackpot advertising identified by it violated the restriction of advertising for supplies offered under the monopoly under EU law. In this instance, there exists an enticing advertising message which increases the attractiveness of lotteries by depicting major winnings in glorious colours. However, the Court of Appeal focused mainly on the press release of 11 August 2011 by the monopoly supplier in Rhineland Palatinate, cited by the court with respect to the incentive effect which highlights that a greater number of people than those who would normally participate in the game purchased lottery tickets due to the large jackpot. The defendant claims in this respect that it was unaware of the press release. It need not be decided, however, whether its right to be heard in court was violated because of this. Irrespective hereof, the Court of Appeal was right to extrapolate from the generally known manner of promoting the jackpot to an encouragement to participate and to rely on the frequency of the advertising messages on the radio immediately prior to the draw. In doing so, it evidently assumed that the repeated reference to a profit opportunity which only existed on the same day suggested time pressure, and that emphasizing the failure of earlier attempts to "hit" the jackpot together with the reference to the size of the current jackpot incited and encouraged participation. (...)

50 (4) There are no reversible errors in the fact that the lower court extrapolated from these advertising measures a systematic violation of the advertising restrictions and then concluded that the monopoly regulation in section 10 (2) and (5) GlüStV did in fact not serve legitimate objectives under EU law but rather illegitimate fiscal objectives. All three advertising measures have in common that they are not individual cases but rather constitute advertising strategies which were applied regularly and for a significant period. The regulatory authorities did not effectively prevent this systematic violation of advertising limits. Rather, it follows from the common advertising guidelines cited in the appeal judgment that even in the year following the specification of the requirements for permissible advertising under the monopoly under EU law in the rulings of the Court of Justice of 8 September 2010 and the subsequent judgments of the Senate of 24 November 2010 cited above, the authorities incorrectly deemed only the explicit encouragement to participate in games of chance to be illegal, rather than taking into account the objective impact. Following the findings of the Court of Appeal in this regard, which were not challenged with procedural complaints, the advertising guidelines of the gambling supervisory authorities of the federal states, pursuant to the latest version of May 2011 available to the Court of Appeal, still incorrectly declared image advertising, including the moral appreciation of the participation in games of chance to be admissible. The Higher Administrative Court was therefore right to conclude that a structural lack of enforcement existed which indicated the pursuit of illegitimate objectives under EU law. Contrary to the opinion of the defendant, this contradicts neither the binding nature of the statute under the rule of law nor the nature of protection under administrative law. Even in constitutional law, it is possible to conclude from the existence of a structural lack of enforcement that a monopoly regulation is disproportionate in the narrower sense and that, therefore, a normative defect exists (BVerfG, judgment of 28 March 2006 - 1 BvR 1054/01 - BVerfGE 115, 276 <309, 313 et seqq.>). It is a genuine task of the administrative courts to assess the prerequisites of such an infringement of the law.

51 cc) The second demand of the requirement of consistency, focusing on impairments of the effectiveness of the monopoly regulation by a counteractive gaming policy in other gaming sectors which can be described as requirement of intersectoral coherence is, however, not specified correctly in the challenged judgment. The findings of the Court of Appeal do also not suffice to justify the assumption of intersectoral incoherence due to a policy which counteracts the monopoly in the sector of commercial automated games. The appeal judgment is, however, not based on this error, because its assumption that the monopoly regulation was inconsistent is already independently justified by its reasoning with regard to the violation of the limits of permissible advertising. However, due to the controversial discussions on this point in the course of the appeal proceedings on points of law, the Senate will none-the-less dwell on this point.

52 (1) The Court of Appeal wrongly assumed that the second coherence requirement demands a gaming policy which is coordinated between the Federation and the federal states, cross-sectoral, and systematically and consistently geared towards the monopoly objective of fighting addiction and which equally includes similar risks. This assumption has no foundation in article 56 TFEU or its interpretation by the relevant rulings of the Court of Justice. According to the recent case-law of the Court of Justice, a sectoral consistency test which is confined to the monopoly sector does not suffice in order to assess the suitability of the monopoly. Rather, the impact of a potentially counteractive regulation in other gaming sectors posing the same or a higher potential risk of addiction must be taken into account. However, this does not expand the object of examination from the proportionality of the monopoly regulation to the proportionality of the other regulations, nor does the coherence of the monopoly require a coherent regulation in other sectors. All the more, there is no need for a system of coordinated regulations which is designed trans-sectorally and reaches across competencies in the sense of an overall consistency spanning all gaming sectors. Such specification would disregard the fact that the proportionality must be assessed separately for each of the restrictions (CJEU, judgments of 6 March 2007 - C-338/04 et al., Placanica et al. - (...) para. 49 and of 8 September 2010 - C-316/07 et al., Markus Stoß et al. - (...) para. 93), and would lose sight of the object of examination, namely the suitability of the monopoly regulation for achieving the legitimate objectives for which it was established. Furthermore, it would give rise to objections under constitutional and EU law. Due to the principle of conferral of powers of the European Union, the democratically legitimised legislator of a Member State is, in principle, free to define the level of protection sought and the objectives pursued with the gaming policy and to design individual gaming sectors accordingly in non-harmonised areas of gaming law, due to its parliamentary prerogative (CJEU, judgments of 8 September 2010 - Markus Stoß - (...) para. 76 et seq. and - C-46/08, Carmen Media - (...) para 45 et seq., 58). In the case of federally organised Member States, this applies to each legislator acting in the respective Member State within the framework of its federal division of competencies. The fundamental freedoms of EU law restrict this regulatory power and prohibit disproportionate restrictions. However, they do not require the Member State to establish and implement a concept of protection which is coherent in its entirety, comprising all gaming sectors and applying across all federal competencies.

53 Pursuant to the case-law of the Court of Justice, inconsistency due to counteracting regulations does not exist only because policies are applied in another gaming sector which are contrary to the objectives pursued by the monopoly, but rather expressly only if this prevents the objective underlying the establishment of the monopoly from being effectively pursued by the monopoly (CJEU, judgments of 8 September 2010 - Markus Stoß - see above para. 106 and - Carmen Media - see above para. 68). Contrary to the assumption made in the appeal judgment and the opinion of the claimant, an analysis of the consequences is not superfluous. As the monopoly regulation can only take effect within its scope of application, impairments to its effectiveness can only be identified in this area. Therefore, the repercussions of the counteractive gaming policy existing in the other gaming sector on the monopoly sector are decisive. It must be assessed to what extent this gaming policy impairs the effectiveness of the monopoly regulation and its contribution to achieving the pursued objectives. This does not constitute a return to an insufficient sectoral consistency test. The latter excluded possible impacts of an expansionary policy in other gaming sectors for the sector of bets on sporting competitions, while the intersectoral consistency test, by contrast, includes them. It merely declines the more extensive demand for an overall consistency spanning all gaming sectors, as the contribution of the monopoly regulation to achieving the objectives alone is relevant with respect to its suitability.

54 The earlier case-law regarding the freedom to provide services cited in the challenged judgment is not capable of refuting the specification of the requirement of consistency developed specifically with respect to gaming law. Also, the submission of the claimant that the press release of the Court of Justice indicated the opposite is not decisive, because such press releases lack binding legal force. The relevant rulings themselves are decisive. The operative provisions leave no room for doubt that the inconsistency of the monopoly regulation does not result from the mere determination of a counteractive gaming policy in another sector posing the same or a higher potential risk of addiction. According to the operative provisions, the referring court, if it finds that an expansionary policy running contrary to the objectives of the monopoly in the area of other types of games of chance not covered by the said monopoly which pose a higher potential risk of addiction exists, may legitimately be led to consider that such monopoly is not suitable for ensuring the achievement of the objective for which it was established by contributing to reducing the opportunities for gambling and to limiting activities within that area in a consistent and systematic manner (in each case CJEU, judgments of 8 September 2010 - Markus Stoß - see above headnote 1 d) and/or - Carmen Media - see above headnote 2). According to this finding, this conclusion is not coercive but only potentially justified. According to the grounds underlying the ruling, whether this conclusion must be drawn depends on the assessment as to whether the monopoly can effectively contribute to achieving the objectives for which it was established, despite the counteractive regulation of the other gaming sector. The Court of Justice has left it to the courts of the Member States to make this determination (see CJEU, judgments of 8 September 2010 - Markus Stoß - see above para. 98, 106 et seq. and - Carmen Media - see above para. 65, 68, 71).

55 Also in this respect, it would not be necessary to obtain a preliminary ruling from the Court of Justice pursuant to article 267 (3) TFEU. As set out above, the necessity to analyse the impact as disputed by the claimant, results clearly and unequivocally from the wording of the two relevant rulings of the Court of Justice on the consistency of the German monopolies on bets on sporting competitions. Also, the dogmatic classification as an element of the suitability of the monopoly regulation which may be impaired by the impact of a counteractive policy in other sectors, does not lead to a different conclusion. The balance in the form of intersectoral consistency which is neither confined to an examination of the monopoly sector nor requires an overall consistency which can hardly be realised in federally organised Member States is thus unequivocally predetermined. The subsequent case-law of the Court of Justice on gaming law does not question the middle course taken. Above all, nothing can be deduced with regard to the necessity of an overall consistency of gaming law from the earlier ruling in the case of Petersen on the law regarding panel dentists (CJEU, jugment of 12 January 2010 - C-341/08, Petersen - (...) para. 53 et seqq., 58 et seqq.). In this ruling, the Court of Justice does not qualify the profession as a panel dentist, for which an age limit was introduced, and the profession as a private dentist, which is not subject to this regulation, as two different sectors. Rather, it interprets the absence of an age limit for private dentists as an exception to the regulation of the age limit which it held was not justified due to a lack of a viable justification for such unequal treatment.

56 (2) Insofar as the challenged judgment suggests the necessity of an analysis of the impact in the form of auxiliary considerations, it unduly confines the view to current groups of players so that its factual findings cannot justify the assumption that the monopoly regulation lost its effectiveness as a result of a counteractive gaming policy in the sector of commercial automated games.

57 The starting point of the Court of Appeal, namely that the gaming policy in the sector of commercial automated games can only lead to impacts in the monopoly sector if the groups of potential customers overlap (see section 21 (2) GlüStV, new version), is correct. However, this merely constitutes a necessary, but not a sufficient prerequisite for the occurrence of problematic impacts. The Court of Appeal identified an overlap of customer groups, in particular in the subgroup of young male adults who are at a particularly high risk of addiction. However, it was content with the further finding that the expansive policy in the sector of commercial automated games resulted in the movement of a large number of the players of this subgroup from the sector of bets on sporting competitions to the sector of commercial automated games. This finding is inadequate in two respects. On the one hand, it is not yet clear whether this movement will in practice render the monopoly regulation redundant or reduces the latter to a mere alibi function. On the other hand, a view which is confined to the migration of (current) players fails to take into consideration that with respect to assessing whether the contribution made by the monopoly regulation is effective, one cannot solely rely on the already active players, persons who are at risk of becoming addicted or even players who are already addicted. Rather, fighting addiction includes addiction prevention which will protect potential customers from such risk when participating in games of chance. Consequently, an analysis of the impacts, establishing not only the current but also the potential demand for both types of games of chance and the impacts of the counteractive gaming policy applied in the other sector on the demand in the monopoly sector, is therefore necessary.

58 dd) The Higher Administrative Court rightly held that the monopoly regulation in section 10 (2) and (5) GlüStV is inapplicable due to its violation of EU law. The fundamental freedoms, being primary-law guarantees, are directly binding on the Member States of the European Union in their respective scope of application, even outside the areas of regulation already harmonised by secondary Union legislation. Their primacy of application generally renders any provisions conflicting with the fundamental freedoms inapplicable (CJEU, judgment of 8 September 2010 - C-409/06, Winner Wetten - (...) para. 53 et seqq.).

59 Contrary to the defendant's opinion, this jurisdiction is within the scope of the competencies granted under EU law and can therefore not be called into question by constitutional considerations. Article 5 of the Treaty on the Functioning of the European Union (TEU) in the version of the Treaty of Lisbon (OJ C 306, 1, corrected OJ 2008, C 111, 56) prohibits the Union from expanding its competencies beyond the sovereignty conferred to it pursuant to article 23 (1) GG. However, the Treaty-based judicial power of the Court of Justice pursuant to article 267 TFEU includes the competence to define the primacy of application of the fundamental freedoms. The obligation of the Member States' courts throughout all instances to observe the primacy of application results from the fact that the Member States are bound by the Treaty which, being supranational primary law, does not require transformation and from the fact that the courts are bound by applicable law, which includes EU law. Article 100 GG is not applicable, since neither the constitutionality of the provision nor the exclusive power of the Federal Constitutional Court to reject illegal provisions is in question. A legal provision which is contrary to EU law and therefore inapplicable in a particular case, will not be declared void because it violates EU law.

60 The rule of law is also not violated, because a preferential treatment under a subjective right would possibly be derived from a violation under an objective right. The guarantee deriving from the subjective right results from articles 49 or 56 TFEU. Encroachments in subjective rights are, just as in the national law of the Member States, only justified if they are legal under the rule of law. There may also be a lack of legality due to an infringement of objective legal requirements.

61 b) The defendant is of the opinion that any errors existing with respect to its exercise of discretion were not relevant, because its scope of discretion had been reduced to such an extent that only the issuance of a prohibition would have been lawful. This submission does not lead to the success of the appeal on points of law.

62 aa) The Court of Appeal correctly held that a reduction of the discretion to zero (Ermessensreduzierung auf Null) at the expense of the claimant did not exist. Such a reduction of discretion could only result from section 284 (1) StGB if the lack of authorisation could be invoked against the claimant. This requires that the authorisation was not withheld or denied contrary to EU law. The obligation to seek authorisation pursuant to section 4 (1) GlüStV is in accordance with the constitution and EU law. However, because the monopoly violated EU law, the issuing of an authorisation was not to be excluded because of the monopoly, but only after an assessment of the requirements for the authorisation which are in accordance with EU law and independent of the monopoly (CJEU, judgment of 24 January 2013 - C-186/11 et al., Stanleybet Int. Ltd. et al. - (…)). In the relevant time period, this requirement was not fulfilled in North Rhine-Westphalia, because the approval procedure was not opened up to individuals, in contrast to other federal states, such as the Free State of Bavaria or the Federal State of Rhineland Palatinate. Furthermore, it is not evident from the establishment of facts of the Higher Administrative Court that an authorisation could not be granted for the brokering activities of the claimant for reasons independent of the monopoly. This applies also in the light of the finding that the claimant had forwarded the placed bets with the betting provider via the internet. The lower court rightly assumed without revisible error that a violation of the internet ban set out in section 4 (4) GlüStV is not committed by way of the online transmission of previously terrestrially placed bets to the betting provider, but only if the bets themselves were concluded on the internet.

63 bb) The assumption of the Court of Appeal that section 9 (1) third sentence no. 3 GlüStV did not grant a legally bound discretion (intendiertes Ermessen) does also not show any reversible errors. Pursuant to section 137 (1) no. 2 VwGO, the provision cannot be appealed on points of law. Also, its application by the Court of Appeal does not fail to acknowledge the legal concept of legally bound discretion, which, as a question of the applicability of section 40 VwVfG NW is subject to review on points of law, pursuant to section 137 (1) no. 2 VwGO. After all, the defendant fails to consider that a legally bound discretion, while it can render a justification for the exercise of discretion unnecessary, cannot remedy a faulty justification.

64 c) Contrary to the opinion of the defendant, the error of assessment (when exercising discretion) was not remedied by the considerations subsequently submitted in the pleading of 21 September 2011. The challenged order could not be amended retroactively, because it had already become ultimately moot prior to the drafting of the pleading. For the rest, the retroactive amendment would have been inadmissible under administrative procedural law, because the amendment replaced the key considerations with regard to the exercised discretion which considerably impaired the claimant its legal defence (see, in this respect, BVerwG, judgments of 14 October 1965 - 2 C 3.63 - BVerwGE 22, 215 <217 et seq.>, of 16 June 1997 - 3 C 22.96 - BVerwGE 105, 55 <59> and of 29 January 2001 - 11 C 3.00 - (…)). The prohibition was initially based on the incompatibility of the commercial activity exercised by the claimant with the monopoly and on the lawfulness of the monopoly on bets on sporting competitions. This criterion was irrelevant for the subsequently submitted reasons; now, the prohibition was solely based on the formal and substantive illegality of the placing of bets, regardless of the monopoly on bets on sporting competitions. The fact that both justifications are based on the lack of authorisation does also not speak against the replacement of the key considerations. The formal illegality fulfils the constituent requirements of the authorisation to issue prohibitions and thus merely grants the possibility to exercise discretion. The exercise of discretion must therefore be based on other criteria. Whether the replacement of the key considerations alone constitutes a change of the nature of the prohibition is irrelevant. At any rate, the legal defence of the person concerned is significantly impaired by the replacement of the key considerations of the discretionary decision. The new justification of the prohibition refers for the first time to the requirements for the placing of bets and the offering of bets which are independent of the monopoly. The person concerned is left merely with the possibility to assess these requirements and state with respect to the period that has already passed either that the requirements were unlawful or to provide evidence that its activities were in line with these requirements. If the action no longer has prospects to succeed due to the retroactive amendment of the justification, the person concerned can only act on this retrospectively.

65 d) The Higher Administrative Court held without revisible error that the challenged prohibition order was also unlawful in the period from its issuance up until 31 December 2007. The exercise of discretion granted by section 14 OBG NW was faulty, as the monopoly on bets on sporting competitions on which the prohibition was based already infringed the requirement of consistency under EU law at the time.

66 In the grounds for its judgment, the Higher Administrative Court held without reversible error that the monopoly on bets on sporting competitions in North Rhine-Westphalia did not fulfil the first of two requirements of consistency, because it did not pursue the alleged, legitimate objectives of fighting addiction and protecting minors and players under EU law because of its regulatory implementation and its practical handling. Although section 1 no. 1 and 2, section 4 LoStV provided these objectives, there was a lack of provisions which guaranteed that the monopoly would be consistently aligned, also in practice, to these legitimate objectives. In this regard, the Higher Administrative Court rightly referred to the relevant evaluation by the Federal Constitutional Court (with regard to the law of North Rhine-Westphalia, see BVerfG, chamber decision of 7 December 2006 - 2 BvR 2428/06 - (…) para. 26 et seq. with reference to the monopoly on bets on sporting competitions in Bavaria of 28 March 2006 - 1 BvR 1054/01 - BVerfGE 115, 276) and assumed that the constitutional requirements for a structuring of the monopoly sector which is consistently geared towards the objective of fighting addiction correspond to the requirements under EU law. Pursuant to EU law, the creation of a monopoly must be accompanied by the establishment of a regulatory framework guaranteeing that the holder of the monopoly will indeed be able to consistently and systematically pursue the set objective with an offer that is estimated in quantitative terms and designed in qualitative terms and is subject to strict official control (CJEU, judgment of 8 September 2010 - C-316/07 et al., Markus Stoß et al. - (...) para. 83). The aforementioned requirements were not fulfilled pursuant to the findings of the Higher Administrative Court, which were not challenged with effective procedural complaints, according to which the legal situation in North Rhine-Westphalia, which cannot be appealed on points of law, corresponded to the challenged legal situation in Bavaria up until 31 December 2007. In particular, no provisions existed in North Rhine-Westphalia which guaranteed observance of the limits of permissible advertising. Although the relevant regulations set out in section 4 (3) LoStV prohibited misleading and inappropriate advertising, they did not exclude advertising which was exclusively oriented towards the objective of expansive marketing. Furthermore, it was not guaranteed that fiscal interests would take second place behind the objective of fighting addiction due to the lack of a neutral supervisory body (BVerfG, judgment of 28 March 2006 see above S. 312 et seq.; see chamber decision of 7 December 2006 see above).

67 The fact that the Federal Constitutional Court allowed the application of the unconstitutional monopoly regulation in Bavaria for a transitional period up until 31 December 2007 at the latest under certain conditions (BVerfG, judgment of 28 March 2006 see above p. 319) cannot justify the application of the monopoly regulation in North Rhine-Westphalia under the State Treaty on Lotteries contrary to EU law. The implementation of the stipulations of the Federal Constitutional Court is not decisive in this respect, as it could neither remedy nor fully compensate the deficits of the regulatory implementation of the monopoly. The stipulations were solely geared towards creating a minimum of consistency between the legitimate legal objectives and the actual exercise of the monopoly. For the rest, they were confined to the requirement to start aligning the monopoly with the objective of fighting addiction during the transitional period (BVerfG, judgment of 28 March 2006 see above). This highlights that, according to the assessment of the Federal Constitutional Court, their fulfilment did not yet constitute a situation which was in accordance with the constitution. The requirement made only a temporarily continued application of the unconstitutional legal provision seem acceptable under constitutional law (BVerfG, judgment of 28 March 2006 see above p. 317, 319; see chamber decision of 20 March 2009 - 1 BvR 2410/08 - (…)).

68 The temporary application of the disproportionate monopoly regulation was in any case not justified under EU law. The order of the Federal Constitutional Court was not enough in this respect. The temporary application of provisions contrary to EU law can only be legitimised in accordance with the rules laid down by EU law. The prerequisites for this were, however, not fulfilled (CJEU, judgment of 8 September 2010 - C-409/06, Winner Wetten - (...) para. 60 et seqq., 67 et seqq.). Contrary to the opinion of the defendant, the judgment of the Court of Justice of 24 January 2013 (- C-186/11 u.a., Stanleybet Int. Ltd. et al. - (…)) does not contain such a justification under EU law. Rather, this ruling explicitly confirms, referring to the above-cited judgment of 8 September 2010, that a monopoly on games of chance which is contrary to EU law must not be applied, not even temporarily (CJEU, judgment of 24 January 2013 see above para. 38 et seq., 42). However, the Member State is not obliged to liberalise the monopoly. It may also decide to reform the monopoly in accordance with EU law (CJEU, judgment of 24 January 2013 see above para. 46). In any event, the Member State is obliged to assess applications for authorisations by other providers of games of chance during the transitional period where the monopoly violates EU law, until a revision has taken place, and to decide on the applications in accordance with prerequisites that are in line with EU law (CJEU, judgment of 24 January 2013 see above para. 39, 48).

69 It is not necessary to obtain a preliminary ruling from the Court of Justice pursuant to article 267 (3) TFEU on the question whether the freedom of establishment prohibited an enforcement of the obligation to seek authorisation during the transitional period up until 31 December 2007, because the question is not relevant to the ruling. In the relevant time period at the end of the year 2007, the challenged prohibition order was not justified with the enforcement of the obligation to seek authorisation, i.e., the formal and substantive illegality of the specific activity, but with the monopoly on bets on sporting competitions which was unconstitutional and contrary to EU law. In case the defendant intended to retroactively replace the considerations for the discretionary decision with the pleading dated 21 September 2011, this was inadmissible under administrative procedural law. Any concerns as to whether the prohibition could have been justified with the enforcement of the obligation to seek authorisation in case the monopoly was unconstitutional and contrary to EU law despite the absence of an approval procedure for individuals in the transitional period, are irrelevant. Even if such prohibition would have been legally possible, this would not render the actually made, faulty discretionary decision lawful.