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German Gaming Law updated No. 34 |
Newsletter on Betting and Gambling Law
No. 34 of 9 June 2006
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Newsflash:
County Court of Ravensburg: Transferring sporting bets to an operator licensed in another EU Member State is not subject to criminal prosecution
by attorney-at-law Martin Arendts, M.B.L.-HSG
With its decision of 6 June 2006 (case no. 11 Ds Js 21918/04), served today, the County Court of Ravensburg refused to open main proceedings against the accused for having transferred sporting bets to an operator licensed in another EU Member State. In these proceedings an agent represented by attorney-at-law Martin Arendts, ARENDTS ANWÄLTE (www.gaminglaw.de), was accused for aiding and abetting illegal gambling.
The Court refused to open main proceedings on the grounds that the current legal situation was not compatible with Community law and therefore the provision of Art. 284 German Criminal Code could not be invoked due to the primacy of Community law. With regard to the transitional period ruled by the Federal Constitutional Court (Bundesverfassungsgericht), the Court pointed out:
“The decision of the Federal Constitutional Court of 28 March 2006 does not change anything in this respect, since transitional periods leaving national provisions in violation of Community Law applicable are not provided for, neither by Community Law nor by the jurisprudence of the European Court of Justice.”
According to the decision of the Federal Constitutional Court the requirements set up by (German) Constitutional Law and those set up by the European Court of Justice had to be regarded as concurrent. The existing state monopoly for sports betting was not consequently aimed at limiting betting fervour and fighting betting addiction, but rather fiscal interests were prevailing. These valuations were determining, whether the state monopoly was compatible with the requirements set up by Community law. Therefore the accused was not subject to criminal prosecution.
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