• The case of Case C-432/05 Unibet v Justitiekanslern [2007] ECR I-2271 concerned the principle of judicial protection in respect of challenging national law alleged to contradict Community law. Indirect remedies can amount to effective protection, free-standing jurisdiction need not challenge the validity of national laws for such.

Facts of Case C-432/05 Unibet v Justitiekanslern [2007] ECR I-2271

  • Member State required those running lotteries or similar games of chance to have licences to be able to practice there
  • Unibet, the C, had advertisers targeted by authorities for such, but were not themselves
  • The C argued this infringed their right to provide services as an online betting site pursuant to Article 49, which provided the freedom to provide services
  • The national court held the claim to be inadmissible as, in accordance with procedural rules, there were no specific legal relations between the C and the Swedish state
  • The matter went to the Swedish Supreme Court which referred to the European Court

Issues in Case C-432/05 Unibet v Justitiekanslern [2007] ECR I-2271

  • Did the principle of effective judicial protection under EC law require a separate self-standing action in national law to review legislative measures alleged to be contrary to EC law? Or,
  • Was it adequate to be challenged indirectly, in the course of enforcement proceedings?

Held by the European Court of Justice

  • The principle of effective judicial protection does not require the national law to set up free-standing actions to exam whether their provisions are compatible with EC law. An indirect challenge is adequate as long as it is effective and not less favourable than similar domestic actions so that possible annulment can be determined as a preliminary issue.

Findings of the Court

The European Court held that, whilst the national courts determine the individual’s standing, “Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection” [42]

  • “the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)” [43]

Applying to the present case:

  • “the principle of effective judicial protection does not require it to be possible, as such, to bring a free-standing action which seeks primarily to dispute the compatibility of national provisions with Community law, provided that the principles of equivalence and effectiveness are observed in the domestic system of judicial remedies.” [47]
  • “it is only where a provision adopted by the Swedish Parliament or Government is manifestly in conflict with a higher-ranking legal rule that such a provision is to be disapplied. … that condition does not apply, on the other hand, where the higher-ranking rule in question is a rule of Community law.” [51]

Interim relief should be granted where there is uncertainty as to the whether the safeguarding of rights under Community law is admissible

  • “the principle of effective judicial protection of an individual’s rights under Community law must be interpreted as requiring it to be possible in the legal order of a Member State for interim relief to be granted until the competent court has given a ruling on whether national provisions are compatible with Community law, where the grant of such relief is necessary to ensure the full effectiveness of the judgment to be given on the existence of such rights.” [77]

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