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Unjustified restrictions to EU Law dismissed even for a transitional period

February 3, 2010 News & Reports, 2010

In the absence of harmonisation of the gaming legislations, the European Court of Justice has not yet finished to deliver rulings upon the compatibility with European Union law of domestic laws. The opinion of advocate general Bot delivered on 26 January 2010 completes an abundant and consistent case-law on this aspect. The refusal to derogate from the principle of primacy of EU law over national laws has been upheld.

Winner Wetten GmbH is a company established in Germany which provides sports bets services on behalf of another company established and registered in Malta. Pursuant to the legislation of the Land Nordrhein Whestphalen, pursuant to which theses activities are limited, Winner Wetten has been prohibited from continuing to carrying out unauthorized sports betting. Relying upon the freedom to provide services, Winner Wetten has instituted court proceedings against this decision. The Judge has considered it was necessary to make a reference for a preliminary ruling to the Court and wanted to ascertain whether a national law instituting a State monopoly on sports betting which contains restrictions on the freedom of establishment and the freedom to provide services, inasmuch as it do not serve to limit betting activities in a consistent and systematic manner, may still continue to apply exceptionally for a transitional period.

As regards the wording of the question referred, the statement according to which the legislation in question does not effectively combat addiction to gaming appears to be beyond dispute. The restrictions must in any event reflect a concern to bring about a genuine diminution of gambling opportunities through a consistent and systematic policy in reference to the Gambelli case (Judgment of the Court, 6 November 2003, Criminal proceedings against Piergiorgio Gambelli and Others, Case C-243/01). Advocate general Bot confirms the latter case-law considering that the national court has to ascertain whether a national legislation limits gaming opportunities in a consistent and systematic manner by taking into consideration all the aims of the legislation in question and by assessing its actual effect on consumers, and whether the restrictions it imposes are disproportionate in the light of those aims.

On the basis of the ECJ’s landmark ruling in Simmenthal (Judgment of the Court, 9 March 1978, Simmenthal SpA against Commission of the European Communities, Case C-106/77), advocate general Bot confirms that in the event of a conflict between a provision of national law and a provision of Community law which is directly applicable, the national court is under a duty to give full effect to the later rule, if necessary refusing to apply the conflicting provision of national legislation. Considering the derogation from this obligation ruled by the Court in Simmenthal case in order to face exceptional circumstances, the main arguments to refuse it are the following:

  • A directly applicable Community rule must be fully and uniformly applied in the Member States. By virtue of the principle of primacy, the entry into force of that rule has the effect to render automatically inapplicable any conflicting provision of national law.
  • The principle of the primacy of Community law combined with the fundamental right to effective judicial protection of the rights conferred by the freedoms of movement are incompatible with a potential derogation even in case of exceptional circumstances.
  • Furthermore, the legislation in question must not remain in force in order to prevent a gap in the law because that legislation is itself inappropriate for the protection of consumers.

Advocate general Bot is convinced that there are no legal arguments to allow for an exception to the principle of primacy of EU law in the field of gambling law. This opinion could be analysed, if it is confirmed by the future ECJ’s ruling, as a confirmation of the traditional arguments of the European judge in a consistent way.


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