EU ADVOCATE GENERAL UPHOLDS PRIMACY OF EU LAW

29 January 2010

No exception to the primacy of EU law over national gaming legislation says Advocate General Bot

A decision this week by the EU Advocate General that EU law holds primacy over national legislation has been applauded by the European Gaming and Betting Association, a trade association that has most of Europe's major online gambling companies among its membership.

EGBA Secretary General Sigrid Ligne said Tuesday that the association welcomes the opinion of Advocate General Bot in the betting case involving Winner Wetten (C-409/06) before the Court of Justice of the EU (CJEU).

The opinion confirms that the primacy of EU law over national gaming legislation does not allow for any exception or transitional period. AG Bot dismissed the argument of Germany and other Member States that they should be allowed to have such an exception.

Member States therefore have to immediately stop applying national gaming legislation that is not consistent with EU law.

This case involves Winner Wetten, a company located in Germany, accepting bets on behalf of an online betting service provider based and licensed in Malta. The Court in Cologne asked whether governments are allowed to continue to apply for a transitional period gaming legislation that is not compatible with the freedom of establishment and freedom to provide services provisions in the EU Treaty. The Cologne court considered North Rhine-Westphalia´s law on sports betting in force in 2006 to be inconsistent with the freedom to provide services as interpreted in the Gambelli legal precedent.

AG Bot clarified that there are no legal arguments to allow for an exception to the direct application of the Treaty to the gaming and betting sector. In addition, the AG confirms that it is not in the interest of consumers to maintain non EU compliant legislation that does not offer consistent and systematic protection. According to AG Bot, such "...legislation is itself inappropriate for the protection of consumers."

Ligné commented: "This opinion is crucial for developments in Germany. The AG has made clear that EU law prevails and that unjustified restrictions are not admissible even for a transitional period. Today’s opinion will further fuel the current political debate on online gaming in Germany."

"We agree with the conclusions of AG Bot. Essential is AG Bot´s confirmation that it is detrimental to consumers to have national gambling legislation that doesn’t offer consistent and systematic protection. Many Member States do not have consistent and systematic gambling legislation; this opinion clearly strengthens our argument," Ligne added.

A date for the ruling of the CJEU has not yet been set.

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