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)