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German Gaming Law updated No. 22 |
Newsletter on Betting and Gambling Law
No. 22 of the 11th of July 2005
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Contents:
1. Editorial: Tame Regulatory Authorities and effective Legal Protection
2. EU Commission: Action for Infringement of the Treaty against Germany ?
3. Eighth Edition of the Internet Gambling Report released
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1. Editorial:
Tame Regulatory Authorities and effective Legal Protection
Dear Readers,
The Federal Constitutional Court’s fundamental judgement announced for this fall does now impress even very restrictive regulatory authorities. Even the local Munich district authority announced not to execute orders of prohibition until a final judgement is reached in the proceedings in the main action (that is - with regards to the extensive duration of administrative court procedures - in the foreseeable future).
Positive decisions reached in summary administrative procedures confirm the legal opinion of the Federal Constitutional Court, which pointed out the necessity of effective legal protection in the three decisions it rendered after the Gambelli-decision. In one case the Administrative Court of Wiesbaden (decision of the 18th of May 2005, case no. 5 G 592/05 (V)) forced the state of Hessia to tolerate the operation of sporting bets until a final decision in the test case before the Federal Constitutional Court (case no. 1 BvR 1054/01) was reached. In a recent decision the Administrative Court of Appeal of Rhineland-Palatinate (decision of the 2nd of June 2005, case no. 12 b 10467/05.OVG) referred to the Federal Constitutional Court’s decision of the 27th of April 2005 in order to restore the suspensive effect of the objection against an order of prohibition, thus overturning the first instance decision. Therefore the administrative authority cannot execute the order of prohibition for the time being.
As we already mentioned in our last edition of our newsletter, the clock cannot be turned back anymore, for, after these decisions, betting shops may not be closed anymore.
A breakthrough might take place this week in case the EU Commission should really formally initiate an action for infringement of the treaty against Germany. This may lead to a final clarification by the European Court of Justice.
We will stay “on the ball” and will continue reporting on the development of jurisdiction and administrative practice.
The Staff
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2. EU Commission: Action for Infringement of the Treaty against Germany?
- by Attorney at Law Martin Arendts, M.B.L.-HSG
According to a report in today’s business magazine “Handelsblatt” the EU Commission is planning to initiate an action for infringement of the EC Treaty against Germany. In the Commission’s opinion the state gambling monopoly in place in Germany in particular infringes the freedom to provide services as provided for by the EC Treaty.
This action for infringement of the treaty is governed by Art. 226 of the EC Treaty and is composed of several steps. First, after an informal finding of the facts, the Commission notifies the concerned state formally, thus formally initiating the action. In this case the inquiries were proposed by the EBA, the European Betting Association (http://eu-ba.org), founded last year. The question, whether Germany is going to receive a letter from Brussels or whether the formal initiation of the action is going to be postponed (for political reasons), will become evident on Wednesday. On this day the Commission as a collegial body is going to decide on Charlie McCreevy’s, the responsible European single market commissioner’s, proposal. He finds the foreclosure of the German market from operators from other EU member states to constitute an infringement of the treaty. Similar actions for infringement of the treaty have already been brought against Denmark and Greece.
In a second step Germany can then comment on the Commission’s reminder. In case the Commission does not find the arguments brought forward by Germany to be convincing it issues a justified and well-founded opinion. In case the Member State does not comply with the opinion in due time, the commission may bring the case before the ECJ and thus sue Germany.
With regards to this multi-level action and the long duration of the procedure (12 – 18 months for the pre-trial proceedings; ca. 25 months for the trial proceedings) caused thereby, the legal questions arising thereof ought to be resolved before in the context of the preliminary rulings procedure (Art. 234 EC-Treaty).
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3. Eighth Edition of the Internet Gambling Report released
The “Internet Gambling Report”, a publication also known as the “bible” of internet gaming, was released in its eighth edition (ISBN 09717718-3-9, 632 pages, US-$ 95). Attorney-at-law Martin Arendts is one of the expert authors. He presents the current legal developments and jurisdiction in Germany. Compared to the seventh edition, 12 new chapters were added to the new report (inter al. regarding DDOS attacks, internet poker and age verification).
For further information please contact the Casino City Press homepage www.casinocitypress.com, where you can also buy the book online.
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