The jurisprudence of the European Court of Justice (ECJ) in the area of gambling, has demonstrated a tendency on the part of the Court, to uphold state monopolies, at the expense of freeing up trade. In the three key judgements in this area; Laara, Zenatti and Schindler, the Court laid down guidelines by which states could derogate from their duties under the Treaty, with regard to the freedom to provide services provisions.
In the more recent case of Gambelli, the Court stated that public interest considerations may justify limitations on the free movement of services, providing the objectives to be achieved are not disproportionate to the restrictions imposed.
In Schindler* , the European Court of Justice held that whilst lotteries were "services" within the meaning of article 60 of the EEC Treaty, given their peculiar nature, the U.K. could restrict or even prohibit lotteries from other EEC Member States, provided those restrictions were not discriminatory on the basis of nationality.
Schindler is an important case, in that whilst it specifically deals with Lotteries, it reveals those objectives which the European Court of Justice will accept as justifying restrictions on Article 59 of the Treaty, which prohibits a Member State from placing restrictions on cross-border services.
The European Court held that restrictions which are based on overriding public interest considerations ( "prevent crime and to ensure that gamblers would be treated honestly; to avoid stimulating demand in the gambling sector which has damaging social consequences when taken to excess; and to ensure that lotteries could not be operated for personal and commercial profit but solely for charitable, sporting or cultural purposes") cannot be regarded as measures involving an unjustified interference with the freedom to provide services.
In the Läärä and Zenatti cases the European Court of Justice stated that the considerations set out in the Schindler were applicable to other forms of gambling - namely, the provision of slot machines and sports betting.
On 21 September 1999 the European Court of Justice issued its decision in the Läärä,a case which had concerned the legitimacy of the Finnish State monopoly on the operation of slot machines.
The Court held that conferring exclusive rights on a single public body did not constitute a violation of the EC Treaty provisions on free movement of services, providing, that the decision had been reached with regard to some of the following considerations; to limit the promotion of gambling, to reduce the risk of crime and fraud and to ensure that some of the collected funds were used for benevolent purposes.
The Court also addressed the issue of whether there were no "less restrictive" means to reach these objectives. It also stated that Member States could use other means, such as taxation, to pursue these objectives.
In the Zenatti case the Court confirmed the views that had been expressed in Läärä.
In Zenatti, Advocate General Fennelly opined that restrictions on the provision of betting services could be justified on the grounds of public interest concerns; which, he said, should reflect the diverse characteristics of each Member State, including their social and cultural attitudes to gambling (his proposals were followed by the court):
The raising of funds for socially useful projects was not on its own an acceptable justification for such a restriction, because of its economic character.
The protection of consumers from fraud was an acceptable public interest objective, but only if the national court established that they were not sufficiently protected by the rules applicable to the foreign bookmakers.
It was permissible to restrict the provision of betting services on social policy grounds, in order to counter its harmful moral and financial effects.
The restriction must be proportional to the aim that is to be achieved and must not go beyond what is necessary to achieve that object.
On April 10, 2003, Advocate General Christine Stix-Hackl gave her opinion in Lindman. The case had revolved around a Finnish national Diane Lindman, who had won £78,000 in a Swedish lottery, whilst in Sweden, and the decision of the Finish Government to tax her on those winnings.
The Advocate General concluded, that in so far as the winnings would have been tax free if they had been won on a Finish Lottery, a decision to tax them in Finland, simply on the grounds that they had been won in Sweden, ran contrary to the spirit of the freedom to provide services, and indeed, restricted this fundamental freedom, without any justification.
The Finish Government had argued that the restriction was justified on the grounds that it would assist in the control of both compulsive gambling and money laundering. Stix-Hackl, however, relying upon the proportionality test laid down in Zenatti, concluded that the measure was disproportionate to the objectives being pursued.
In September 2003 the ECJ published its judgment in the case of Associação Nacional de Operadores de Máquinas Recreativas (Anomar) and eight Portuguese companies involved in the marketing and operation of gaming machines (Others) and the Portuguese State
Anomar, the Portuguese national association of operators in the gaming machine sector et al, had challeneged the efficacy of a decree that stated that the right to operate games of chance or gambling in Portugal is reserved to the State. The Court upheld the right of the state to operate a monopoly;
"Accordingly, the answer to the 6th, 7th, 9th and 10th questions must be that national legislation, such as the Portuguese legislation, which authorises the operation and playing of games of chance or gambling solely in casinos in permanent or temporary gaming areas created by decree-law and which is applicable without distinction to its own nationals and nationals of other Member States constitutes a barrier to the freedom to provide services. However, Articles 49 EC et seq. do not preclude such national legislation, in view of the concerns of social policy and the prevention of fraud which justify it........(I)n the context of legislation which is compatible with the EC Treaty, the choice of methods for organising and controlling the operation and playing of games of chance or gambling, such as the conclusion with the State of an administrative licensing contract or the restriction of the operation and playing of certain games to places duly licensed for that purpose, falls within the margin of discretion which the national authorities enjoy."
Hopes that the ECJ may be about to adopt a more liberal stance towards the issue of cross-border gambling, were quashed somewhat, when it gave its judgement in the Case of Gambelli in November 2003. The Court stated that;
National legislation which prohibits on pain of criminal penalties the pursuit of the activities of collecting, taking, booking and forwarding offers of bets, in particular bets on sporting events, without a licence or authorisation from the Member State concerned constitutes a restriction on the freedom of establishment and the freedom to provide services provided for in Articles 43 and 49 EC respectively. It is for the national court to determine whether such legislation, taking account of the detailed rules for its application, actually serves the aims which might justify it, and whether the restrictions it imposes are disproportionate in the light of those objectives.
Gambelli and others had been acting as agents for Stanley International Betting Limited, an arm of Stanley Leisure, the UK betting concern. Criminal sanctions were taken against them, on the grounds that their activities contravened Italian law which forbade concerns that were not licensed in Italy from accepting bets from Italian citizens.
In his defence Gambelli claimed that the Italian Law ran contrary to the spirit of the European Treaty, with regard to freedom of establishment and freedom to provide services. The Italian Court asked the ECJ to decide upon whether the Italian law was compatible with Italy's obligations under ECJ.
It had been the opinion of Advocate General Siegbert Alber, that in the light of current events, such as Italy's move to liberalise its own gaming market, the Italian law could not be justified and indeed, was, as matters stood, purely discriminatory against bookmakers from other countries. He further dismissed a claim from the Italians that the law was necessary in order to prevent damage to the Italian economy.
However, the full ECJ chose not to follow the more liberal opinion of the Advocate General, turning instead to its own earlier judgements in Laara, Zenatti and Schindler.
The Court again stated, that public interest considerations may justify limitations on the free movement of services, providing the objectives to be achieved are not disproportionate to the restrictions imposed.
Accordingly, the Court ruled that the Italian government's prohibition of unregulated cross-border sports betting via the internet did not in itself represent a breach of EU law per se, but merely served as a restriction on the European market freedoms of establishment and services - something that was endorsed when certain tests were met ( re: Advocate General Fennelly in Zenatti).
However, the Court did send the case back to the national court to determine whether such legislation, taking account of the detailed rules for its application (as outlined in Laara, Zenatti, Schindler) , actually serves the aims which might justify it, and whether the restrictions it imposes are disproportionate in the light of those objectives *. And, whilst not explicity dealing with the issue of cross-border gambling in this judgement, the ECJ did ask the national court to determine whether;
"the imposition of restrictions, accompanied by criminal penalties of up to a year's imprisonment, on intermediaries who facilitate the provision of services by a bookmaker in a Member State other than that in which those services are offered by making an internet connection to that bookmaker available to bettors at their premises is a restriction that goes beyond what is necessary to combat fraud, especially where the supplier of the service is subject in his Member State of establishment to a regulation entailing controls and penalties, where the intermediaries are lawfully constituted, and where, before the statutory amendments effected by Law No 388/00, those intermediaries considered that they were permitted to transmit bets on foreign sporting events."
Gambelli was not the landmark case that many have made it out to be. Post-Gambelli, European Member States may, where they have valid moral or social grounds, restrict directly or indirectly access to foreign based gambling services; providing such restrictions have as their objective the limiting of betting in a consistent and objective manner and that they do not go beyond what is necessary to obtain the objective.
On the 26 November 2003, for example, Ladbrokes was forced to close down its German language internet sites, following a judgement in the German courts in favour of Westdeutsche Lotterie GmbH u. Co. oHG;
"Ladbrokes regret to inform you that as a result of legal action taken against us by Westdeutsche Lotterie GmbH u. Co. oHG, we will no longer be able to accept bets or wagers from German residents. This decision affects every aspect of our site and every location in Germany and therefore, from Wednesday 26th November 2003, action will be taken by us to prevent German residents regardless of their nationality from placing bets either on the Ladbrokes' sportsbook (www.ladbrokes.com), LadbrokesCasino (www.ladbrokescasino.com) and LadbrokesPoker (www.ladbrokespoker.com). We will not maintain a German Language website for customers outside Germany as it is not economically viable."
However, following on from the judgement in Gambelli, and Ladbrokes' retreat from serving German customers, the Hessischer Verwaltungsgerichtshof (Hessian Administrative Court of Appeal) stated on 9th February 2004 that Art. 284 of the German Criminal Code is not applicable to the offering of bets to German consumers, by foreign bookmakers, whether from within Germany or online. Citing extensive marketing by Oddset, to raise funds for the 2006 World Cup, the Court stated that penalising foreign bookmakers would constitute a blatant breach of Article 49.
The Administrative Court of Kassel subsequently declared that the current state licensing provisions on gambling were unconstitutional. The Court stated that the State's exclusive right to operate sports betting was incompatible with German constitutional law, specifically Art. 12 I of the German Constitution concerning the freedom to choose one's profession.
Post-Gambelli, Denmark's gambling monopoly has come under the scrutiny of the European Commission. In March 2004 the Commission warned Copenhagen that it must justify its restrictions on non-Danish bookmakers, or it will face a challenge in the European Court of Justice. The Commission's request, which took the form of a letter of formal notice, formed the first stage in its infringement procedure, under Article 226 of the EC Treaty; "Danish law restricts in particular the provision of sports betting services. The commission intends to verify the compatibility of the ban in question with the provisions of the EC Treaty".
Denmark has two months to either assure Brussels that it has or intends to, lift its ban on betting companies, or, to prove that the ban complies with EU law. If the Commission is not satisfied with the Danish response, then Denmark could find itself in front of the European Court of Justice.
The EU Commission also recently ruled that Greek Law Number 3037, which explicitly forbids electronic games with "electronic mechanisms and software" from public and private places, is not compatible with the provisions of the EC Treaty The law was introduced in an attempt to stamp out illegal gambling, with offenders facing fines of 5,000 to 75,000 euros and imprisonment of one to 12 months. In October 2004 the European Commission said it had decided to refer Greece to the European Court of Justice for infringing Union regulations on the free movement of goods and services.
In May 2004 the Finnish government said that it had rejected licence applications from European Sports Betting Consultants and Ladbrokes. It said that it had rejected the applications on the grounds that licences granted to Oy Veikkaus AB and Fintoto Oy were still in force.
On 2 June 2004 , the Court of Arnhem, in an interlocutory judgment, made explicit reference to Gambelli, and held that restrictions imposed to prevent Ladbrokes entering the Dutch market were inconsistent with European Law.
Specifically citing the commercial bent of the De Lotto organisation (its € 25m marketing budget) and Holland Casino and their very deliberate attempts to stimulate demand for new gambling products, the Court concluded that the commercial nature of the Dutch gambling market was not compatible with national legislation which placed restrictions on cross-border services.
The decision of the Dutch Court is consistent with Gambelli, where the Court of Justice had found that if participation in lotteries, games of chance and betting are encouraged by a Member State with the aim of deriving a benefit for itself, that State cannot rely on the need to uphold public order in order to justify restrictive measures.
In July 2004, the Italian Supreme Court ruled that Italy's restrictive gambling policies are consistent with her obligations under current European Law. The Court found that as the restrictions justifed a public order interest (keeping gambling free from criminality), they did not constitute a restriction on the freedom of establishment and the freedom to provide services provided for in Articles 43 and 49 EC respectively.
The case, involving a certain Mr. Placanica, an agent for Stanley International (as per Gambelli) was subsequently referred to the European Court of Justice, by the Larino District Court on the following question; "Does the Court of Justice consider Article 4(4a) of Italian Law No401/89 to be compatible with the principles enshrined in Articles 43 et seq. and 49 of the EEC Treaty concerning thefreedom of establishment and the freedom to provide cross-border services, having regard to the difference between the interpretation emerging from the decisions of the European Court of Justice (in particular the judgment in Gambrelli) and the decision of the Corte Suprema di Cassazione, Sezione Unitiin Case No 23271/04? In particular, the Court is requested to rule on the validity of the legislation referred to in the indict-ment and under which Massimiliano Placanica is charged in Italy." At the time of writing a decision is awaited in this case.
In October 2004 Ladbrokes accused the Swedish Supreme Administrative Court of "running political errands" after it had ruled that the state's gambling monopoly was consistent with her obligations under current European Law. The National Gaming Board of Sweden, however, threatened to close the Swedish offices of Unibet, Ladbrokes, Expect and Betson.
In November 2004 Hungary's Gambling Supervision initiated legal proceedings against the online bookmaker Sportingbet, claiming that its Hungarian-language website contravened Hungarian gaming legislation. They have already fined Provimar Kft, Sportingbet's Hungarian media buyer Ft 500,000 and asked the company to remove Hungarian-language content from the Sportingbet website. (Slightly ironic perhaps, when one reads on the English Language website of Szerencsejáték Rt, the Hungarian Monopolist; "The Company is also prepared for the days after the accession to the European Union, and potential participation in joint European games.").
In April 2004 the EFTA Surveillance Authority sent a letter of formal notice to Norway today regarding the introduction of a monopoly for Norsk Tipping AS on the operation of gaming machines. The Authority said that it was not convinced that the monopoly was necessary in order to prevent gambling addiction or under-age gambling, to control software, to introduce new regulations more quickly, or to combat crime. It said that it appeared that the same effects could be achieved by less restrictive means, e.g. by imposing stricter rules on the private operators. Following this decisiion, on November 2004, a decision by the Oslo's Municipal Court that the planned state monopoly on gambling machines violated European Economic Area (EEA) Agreement regulations, was upheld by a court of appeal. Following the ruling, in early December 2004, Essnet Interactive AB, jointly owned by Boss Media, received a letter from Norsk Tipping in which it requested a pause in the rollout of new Interactive Video Lottery (IVT) terminals.
In January 2005 Ladbrokes asked that three of the four judges set to hear their forthcoming case against the legitimacy of the Swedish betting monopoly be removed, on the grounds that they are not impartial.
Also, in January 2005, the European Commission signalled their intention to reform the EU gambling market, when they appointed the Swiss Institute of Comparative Law, based in Lausanne to conduct a study to "evaluate how the differing laws regulating on-line and off-line gambling services as well as games in the editorial content of the media and certain types of promotional games impact upon the smooth functioning of the Internal Market for these and associated (e.g. media, sports, charity, tourism) services and thus could restrict the economic and employment growth associated with such services." The study is expected to take eleven months.
In February 2005, the Dutch Supreme Court, as had the Italian Supreme Court before it, refused to interpret Gambelli as providing a green light to cross-border betting in Europe. The Court upheld a ruling, that Ladbrokes, as it does not have a Dutch betting licence cannot accept bets from customers based in Holland.
In May 2005, Finland's Supreme Administrative Court overturned the government's recent decision preventing Ladbrokes from operating there. However, by way of contrast, in June 2005, the Swedish Supreme Administrative Court decided not to overturn the Swedish government's decision to reject an application from Ladbrokes to be allowed to set up betting operations in Sweden. After the ruling, Douglas Roos, Ladbrokes' Nordic CEO, told Svenska Dagbladet that the judgement was "made to order for the government, " and that "The judges are totally lacking in integrity."
On Monday July 11 2005, the German daily Handelsblatt carried a report, citing an unnamed European Commission official, to the effect that the Commission will write to Germany, asking it to open its betting market to outside competition. Click Here
In a decision of July 8, in repsonse to a submission by the PMU, le tribunal de grande instance de Paris ruled that Zeturf Ltd should stop accepting bets on French horse racing. On July 22 Zeturf Ltd filed an appeal against the interim order, whilst on September 9 the company lodged a complaint against France and PMU with the EU Commission.
"Zeturf doit mettre fin à son activité de prise de paris en ligne sur les courses hippiques organisées en France" a déclaré le président du TGI de Paris. "Une menace comparée à "un parasite"" a déclaré le président du PMU, Bertrand Bélinguier.
In August 2005, it was announced that following a submission from the State owned gambling monopoly, Santa Casa de Misericordia, the Portuguese Attorney General's Office was currently reviewing the legality of BetandWin.com's recent four year sponsorship deal of the country's football league.
On 26 August 2005, the Norwegian Court of Appeal dismissed an earlier ruling by the Oslo Town Court, that the granting of a monopoly on gaming machines to Norsk Tipping, violated European Economic Area (EEA) rules on free movement of services and freedom of establishment. The Court, citing Läära, argued that the granting of a monopoly was a proportionate response to a policy that aimed to decrease the spread of betting.
On 31 August, a Dutch Court also ruled that online gaming restrictions were compatible with EU law and ordered the UK based bookmaker Ladbrokes to stop offering online services to Dutch citizens. The Court imposed a €10K penalty per day for non compliance.
In September 2005, it was reported*by Attorneys at Law Dr. Wulf Hambach and Claus Hambach, Munich, that the anticipated decision of the German Federal Constitutional Court regarding the provision of betting services by private companies, had been delayed to early 2006. According to Wulf Hambach, the Court has delayed its decision, in repsonse to huge public pressure; he nonetheless concludes, that the fact that the Court has asked for an oral hearing, may strongly indicate a preference in favour of liberalisng the German betting market.
On their website, Hambach & Hambach also report a decision of the Chamber of the Administrative Court of Stuttgart on the 8th September 2005, to the effect that where an administrative authority seeks to prohibit a betting firm licensed elsewhere in the EU from operating in its territory, it must be able to prove that the firm poses concrete danger to the common good.
Meanwhile, Olivier Drewes , a spokesperson for the Internal Market and Services Division of the European Commission was recently quoted as saying; "There is a risk that the Commission can be sued for inaction."
*** In a recent report on the proposed e-commerce directive, The European Commission was quoted as saying; "In a number of Member States new regulatory initiatives are under way in areas such as online gambling, including online sports betting, e-pharmacies, or the protection of minors.This gives rise to the risk of regulatory fragmentation and/or distortions of competition. The Commission will closely monitor these policy developments in order to identify possible needs for Community action, which will be considered in the second report on the Directive in 2005. As far as online gambling is concerned, which is currently outside of the scope of theDirective and, in relation to which, the Commission has received a number of complaints concerning cross-border activities, the Commission will initiate the appropriate action to deal with these complaints and, in addition, launch a study to provide the information required to examine the need for and scope of a possible new Community initiative."
It has also been reported that the European Commission, at the behest of Internal Market Commissioner, Frits Bolkestein of the Netherlands, was ready to take direct court action against Germany, Italy and the Netherlands on the grounds that their reasons for preventing cross-border betting were not justified by case law. However, following lobbying from various lottery bodies, the decision was put on hold, until the Swiss Institute of Comparative Law has completed its study. However, he was recently succeeded at this post by the former Irish finance minister Charlie McCreevy; a man who undertsands both the horse racing and betting industries better than most, and, a man who, it is believed, is determined to open the European betting market to competition. One of McCreevy's first tasks was to announce sweeping changes to the besieged services directive, pejoratively as `the Bolkestein directive`.
To conclude that Gambelli was not the landmark judgement that many have made it out to be, is not to come out in favour of the continuence of the European Gambling monopolies, or indeed, to conclude that said monopolies are not under threat. Indeed, whilst Gambelli confirms the right of states to restrict directly or indirectly access to foreign based gambling services; providing such restrictions have as their objective the limiting of betting in a consistent and objective manner and that they do not go beyond what is necessary to obtain the objective, there is ample evidence that most of the monopolists do not have as their central objective the restriction of gambling opportunities (as per the Scandic operators); or, indeed, the Hungarian monopolist concern Szerencsejáték Rt, which recently increased H1 revienues by 17% to HUF 65.3 billion; of which 27.5 m was paid to the state.
"The Authority does not dispute that the wish to reduce gambling addiction and combat crime are laudable aims which may, potentially, justify a restriction to a fundamental freedom. However, in light of case law, the Authority questions the extent to which considerations of an economic nature have motivated the choice of a model with Norsk Tipping as a sole operator. Furthermore, the Authority cannot see that the Norwegian Government has shown that its general gaming policy is systematic and consistent enough to justify a restriction to the free provision of services and the freedom of establishment as far as the operation of gaming machines is concerned. In this context, it is noted, inter alia, that consumers are encouraged to play different games and that the Norwegian State, through Norsk Tipping, has lately increased the number of available games and means of gaming." EFTA - Infringement proceedings initiated against Norway with regard to the introduction of a monopoly for Norsk Tipping on the operation of gaming machines. Taken from an article cited on the website betting-law.com and also reproduced on the World Online Gambling Law Report website, www.e-comlaw.com. The global market of Internet-Gambling:
Estimated value of the global Internet-Gambling in Mio. Euro
Source:Christiansen Capital Advisors
As the state gaming monopoly may, from a constitutional law a well as from a European law point of view, no longer be maintained, the private providers will bring an end to the supremacy of the state gambling providers in Portugal and this will result in fair competition.
JUDGMENT OF THE COURT
21 September 1999 (1)
(Freedom to provide services — Exclusive operating rights — Slot machines)
In Case C-124/97,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Vaasan Hovioikeus, Finland, for a preliminary ruling in the proceedings pending before that court between
on the interpretation of the judgment of the Court of Justice of 24 March 1994 in Case C-275/92 Schindler  ECR I-1039 and of Articles 30, 36, 56 and 59 of the EC Treaty (now, after amendment, Articles 28 EC, 30 EC, 46 EC and 49 EC) and Article 60 of the EC Treaty (now Article 50 EC),
composed of: P.J.G. Kapteyn, President of the Fourth and Sixth Chambers, acting for the President, J.-P. Puissochet (Rapporteur) and P. Jann (Presidents of Chambers), C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm, L. Sevón and M. Wathelet, Judges
Advocate General: A. La Pergola,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
— Mr Läärä and Oy Transatlantic Software Ltd, by P. Kiviluoto, of the Jyväskylä Bar,
— Cotswold Microsystems Ltd, by H.T. Klami, Professor at the University of Helsinki,
— the Belgian Government, by J. Devadder, Director of Administration in the Ministry of Foreign Affairs, Foreign Trade and Cooperation with Developing Countries, acting as Agent, assisted by P. Vlaemminck and L. Van Den Hende, of the Ghent Bar,
— the German Government, by E. Röder, Ministerialrat in the Federal Ministry of Economic Affairs, and C.-D. Quassowski, Regierungsdirektor in the same Ministry, acting as Agents,
— the Spanish Government, by L. Pérez de Ayala Becerril, Abogado del Estado, acting as Agent,
— the Netherlands Government, by A. Bos, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,
— the Austrian Government, by F. Cede, Ambassador in the Ministry of Foreign Affairs, acting as Agent,
— the Portuguese Government, by L. Fernandes, Director of the Legal Service of the Directorate-General for the European Communities in the Ministry of Foreign Affairs, A. Cortesão Seiça Neves, of the same Service, and J. Ramos Alexandre, Inspector-General of Gaming in the Ministry of Economic Affairs, acting as Agents,
— the Swedish Government, by E. BrattgÊard, DepartementsrÊad in the Department of Foreign Trade of the Ministry of Foreign Affairs, acting as Agent,
— the United Kingdom Government, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, assisted by M. Brealey, Barrister,
— the Commission of the European Communities, by A. Caeiro, Legal Adviser, and K. Leivo, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of: Mr Läärä and Oy Transatlantic Software Ltd, represented by P. Kiviluoto; Cotswold Microsystems Ltd, represented by H.T. Klami; the Finnish Government, represented by T. Pynnä; the Belgian Government, represented by P. Vlaemminck and L. Van Den Hende; the German Government, represented by E. Röder; the Spanish Government, represented by M. López-Monís Gallego, Abogado del Estado, acting as Agent; the Irish Government, represented by M. Finlay, SC; the Luxembourg Government, represented by K. Manhaeve, of the Luxembourg Bar; the Netherlands Government, represented by M.A. Fierstra, Deputy Legal Adviser in the Ministry of Foreign Affairs, acting as Agent; the Portuguese Government, represented by L. Fernandes and A. Cortesão Seiça Neves; the Swedish Government, represented by L. Nordling, Rättschef in the Legal Secretariat (EU) of the Ministry of Foreign Affairs, acting as Agent; the United Kingdom Government, represented by J.E. Collins, assisted by M. Brealey; and the Commission, represented by A. Caeiro and K. Leivo, at the hearing on 30 June 1998, after hearing the Opinion of the Advocate General at the sitting on 4 March 1999, gives the following