Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim.

• Jurisdiction: European Union
• Celex Number: 62006CJ0409
• ECLI: ECLI:EU:C:2010:503
• Docket Number: C-409/06
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 08 September 2010

Case C-409/06

Winner Wetten GmbH

v

Bürgermeisterin der Stadt Bergheim

(Reference for a preliminary ruling from the Verwaltungsgericht Köln)

(Articles 43 EC and 49 EC – Freedom of establishment – Freedom to provide services – Organisation of bets on sporting competitions subject to a public monopoly at Land level – Decision of the Bundesverfassungsgericht finding the legislation for such a monopoly incompatible with the German Basic Law, but maintaining the legislation in force during a transitional period designed to allow it to be brought into conformity with the Basic Law – Principle of the primacy of European Union law – Admissibility of, and possible conditions for, a transitional period of that type where the national legislation concerned also infringes Articles 43 EC and 49 EC)

Summary of the Judgment

European Union law – Direct effect – Primacy – National legislation concerning a public monopoly on bets on sporting competitions

(Arts 43 EC and 49 EC)

By reason of the primacy of directly-applicable EU law, national legislation concerning a public monopoly on bets on sporting competitions which, according to the findings of a national court, comprises restrictions incompatible with the freedom of establishment and the freedom to provide services, because those restrictions do not contribute to limiting betting activities in a consistent, systematic manner, may not continue to apply during a transitional period.

Rules of national law, even of a constitutional order, may not be allowed to undermine the unity and effectiveness of EU law.

Even if considerations similar to those concerning the maintenance of the effects of an EU measure annulled or declared invalid, the purpose of which is to prevent a legal vacuum from arising before a new measure replaces the measure thus annulled or declared invalid, were capable of leading, by analogy and by way of exception, to a provisional suspension of the ousting effect which a directly-applicable rule of EU law has on national law contrary thereto, such a suspension, the conditions of which could be determined solely by the Court of Justice, must be excluded from the outset in the absence of overriding considerations of legal certainty capable of justifying the suspension.

(see paras 61, 66-67, 69 and operative part)

JUDGMENT OF THE COURT (Grand Chamber)

8 September 2010 (*)

(Articles 43 EC and 49 EC – Freedom of establishment – Freedom to provide services – Organisation of bets on sporting competitions subject to a public monopoly at Land level – Decision of the Bundesverfassungsgericht finding the legislation for such a monopoly incompatible with the German Basic Law, but maintaining the legislation in force during a transitional period designed to allow it to be brought into conformity with the Basic Law – Principle of the primacy of Union law – Admissibility of, and possible conditions for, a transitional period of that type where the national legislation concerned also infringes Articles 43 EC and 49 EC)

In Case C‑409/06,

REFERENCE for a preliminary ruling under Article 234 EC, from the Verwaltungsgericht Köln (Germany), made by decision of 21 September 2006, received at the Court on 9 October 2006, in the proceedings

Winner Wetten GmbH

v

Bürgermeisterin der Stadt Bergheim,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.‑C. Bonichot and P. Lindh, Presidents of Chambers, K. Schiemann (Rapporteur), A. Borg Barthet, M. Ilešič, J. Malenovský, U. Lõhmus, A. Ó Caoimh and L. Bay Larsen, Judges,

Advocate General: Y. Bot,

Registrar: N. Nanchev, Administrator,

having regard to the written procedure and further to the hearing on 9 December 2009,

after considering the observations submitted on behalf of:

– Winner Wetten GmbH, by O. Bludovsky and D. Pawlick, Rechtsanwälte,

– the Mayor of Bergheim, by M. Hecker, M. Ruttig and H. Sicking, Rechtsanwälte,

– the German Government, by M. Lumma, C. Schulze‑Bahr, B. Klein and J. Möller, acting as Agents,

– the Belgian Government, by A. Hubert, and subsequently by L. Van den Broeck, acting as Agents, assisted by P. Vlaemminck and S. Verhulst, advocaten,

– the Czech Government, by M. Smolek, acting as Agent,

– the Greek Government, by A. Samoni‑Rantou, G. Skiani, M. Tassopoulou and K. Boskovits, acting as Agents,

– the Spanish Government, by F. Díez Moreno, acting as Agent,

– the French Government, by E. Belliard, G. de Bergues, C. Jurgensen, C. Bergeot‑Nunes and A. Adam, acting as Agents,

– the Portuguese Government, by L. Inez Fernandes, P. Mateus Calado and A.P. Barros, acting as Agents,

– the Slovenian Government, by M. Remic, acting as Agent,

– the Norwegian Government, by F. Sejersted, G. Hansson Bull, K. B. Moen and Ø. Andersen, acting as Agents,

– the European Commission, by E. Traversa and K. Gross, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 January 2010,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Articles 43 EC and 49 EC and the consequences attaching to the principle of the primacy of Community law.

2 This reference has been submitted in the context of a dispute between Winner Wetten GmbH (‘WW’) and the Mayor of Bergheim, concerning the decision of the latter prohibiting WW from pursuing its business of offering bets on sporting competitions.

National legal context

National legislation

3 Paragraph 12(1) of the German Basic Law (Grundgesetz) provides:

‘All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.’

4 Paragraph 31 of the Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) provides:

‘(1) Decisions of the Bundesverfassungsgericht shall bind constitutional powers of the federation and Länder and all courts and authorities.

(2) ... the decision of the Bundesverfassungsgericht shall have the force of law ... where the Bundesverfassungsgericht declares that a law is compatible or incompatible with the Basic Law, or void. Where a law is declared compatible or incompatible with the Basic Law or other provisions of federal law, or void, the operative part of the decision must be published in the Bundesgesetzblatt ...’

5 According to Paragraph 35 of the Law on the Federal Constitutional Court:

‘The Bundesverfassungsgericht may decide in its decision who will implement the latter; it may also determine the manner in which implementation shall take place.’

6 Paragraph 284 of the Criminal code (Strafgesetzbuch) provides:

‘(1) Whosoever without the authorisation of a public authority publicly organises or operates a game of chance or makes equipment for it available shall be liable to imprisonment of not more than two years or a fine.

...

(3) Whosoever in cases under subparagraph (1) above acts

1. on a commercial basis ...

...

shall be liable to imprisonment of between three months and five years.

...’

7 By the State treaty concerning lotteries in Germany (Staatsvertrag zum Lotteriewesen in Deutschland; ‘the LottStV’), which entered into force on 1 July 2004, the Länder created a uniform framework for the organisation, operation and commercial brokering of gambling, apart from casinos.

8 Paragraph 1 of the LottStV states:

‘The objectives of the State treaty are:

1. to channel the natural propensity of the population for gambling in an ordered and supervised manner, and, in particular, to prevent it being transferred to unauthorised games of chance;

2. to prevent excessive incitements to gamble;

3. to prevent the exploitation of the propensity to gamble for profit‑making private or commercial purposes;

4. to ensure that games of chance take place in a regular manner and that their logic is comprehensible; and

5. to ensure that a significant part of the receipts from games of chance is used to promote public objectives, or objectives with a privileged tax status, within the meaning of the Tax Code.’

9 Paragraph 5(1) and (2) of the LottStV provide:

‘1. The Länder are, within the framework of the objectives set out in Paragraph 1, legally obliged to ensure [the existence of] a sufficient supply of games of chance.

2. On the basis of the law, the Länder may themselves assume that task, or entrust it to legal persons under public law or to private law companies in which legal persons under public law directly or indirectly hold a controlling shareholding.’

10 In the Land Nordrhein-Westfalen, implementation of the LottStV is by means of the Law on Bets on Sporting Competitions (Sportwettengesetz Nordrhein‑Westfalen), of 3 May 1955 (the ‘SWG NRW’), of which Paragraph 1(1) provides:

‘The government of the Land may authorise companies taking bets on sporting competitions. Such companies must be legal persons under public law or a private law company the majority of the shares of which belongs to legal persons under public law. ...’

11 One single authorisation of that type has been issued in the Land Nordrhein‑Westfalen, namely to Westdeutsche Lotterie & Co. OHG.

The judgment of the Bundesverfassungsgericht of 28 March 2006

12 In a judgment of 28 March 2006, the Bundesverfassungsgericht held, concerning the legislation transposing the LottStV in the Land of Bavaria, that the public monopoly on bets on sporting competitions existing in that Land infringed Paragraph 12(1) of the Basic Law, guaranteeing freedom of occupation. That court held in particular that, by excluding private operators from the activity of organising bets, without at the same time providing a regulatory framework capable of ensuring, in form and in substance, both in law and in fact, the effective pursuit of the objective of reducing the passion for gambling and combating addiction to it, that...