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Germany: Review of latest developments |
The German courts have considered a number of gambling related cases. Martin Arendts, Attorney at law, reports of the latest developments.
Sports betting agencies
Freedom of profession of sports betting agencies: Decisions of the Federal Constitutional Court coming up this year.
In recent weeks, the regulatory authorities, supported by the state interior ministers, have been proceeding solidly against sporting bet providers. The authorities are justifying this, in particular, by alleging that the Gambelli Decision has not changed anything and in any case has absolutely no relevance for Germany. Following the decision of the Federal Constitutional Court on the 26th of August 2004, which we have reported on, this reasoning has become invalid.
The Federal Constitutional Court (BVerfG), in several signed letters from the Federal Constitutional Court judge with special responsibility for the case, Prof. Dr. Bryde, indicated that there would be a fundamental decision on the question of the admissibility of the provision of sporting bets. He wrote that in 2005, a decision on the constitutional complaint proceedings which have been pending for several years is going to bring about a “comprehensive clarification of the legal situation”.
To emphasise the importance of the pending decision, the addressees of this letter, the regulatory authorities proceeding against sporting bet agencies, were, in December 2004, expressly requested to refrain from enforcing measures “for the time being”.
In a further letter in February 2005, the Federal Constitutional Court (BVerfG) went one step further. In this, the regulatory authorities are expressly requested to refrain from enforcing measures until it has ruled upon the Application for a Provisional Order.
In our opinion, fundamental remarks are to be expected from the Federal Constitutional Court on the freedom of profession (Art. 12 of the German Constitution - Grundgesetz) of the sports betting providers (as well as the affected bookmakers). The Federal Constitutional Court (BVerfG) will also have to look into the “Gambelli Criteria” on freedom of services and restrictions on it.
State monopoly on sports betting
The Upper Administrative Court of Saxony questions the validity of the state monopoly on sports betting
In two decisions of the 22nd of December 2004 (Case Nos.: 3 Bs 405/04 and 3 Bs 28/04), the Upper Administrative Court of Saxony (Sächsisches Oberverwaltungsgericht (OVG)) assumes a wider applicability of the decision of the Hessian Upper Administrative Court (VGH) of the 9th of February concerning the market expansion strategy. The OVG goes on to say: “The amendment (Note.: to the decision of the Hessian VGH of the 9th of February 2004) by the decision of the 27.10.2004 - 11 TG 2096/04 - followed solely because the EC Treaty provisions were not applicable to the local provider of bets with residence on the Isle of Man.”
The “Gambelli Criteria” are according to this view ( and contrary to a view widely held by the authorities) to be continued to be examined by the German courts where the bookmaker concerned has his residence and authorisation within the European Economic Area (EEA) (in practise, particularly, in Austria, Great Britain, Gibralter and Malta). The following determination, made by the Hessian Upper Administrative Court (Hessischen Verwalt-ungsgerichtshof) in its 9 February decision (Case No.: 11 TG 3060/03), referring to the “Gambelli” Decision made by the ECJ, is of particular significance:
“The above mentioned reasons speak in favour of the view that the monopolisation of the organisation and provision of sporting bets by state and state licensed operators, Art. 1 para. 1 s. 1 und para. 5 of the State Sporting Bets and Lotteries Act of Hessia (Spw/LottoG Hessisches Sportwetten und Lotteriegesetz), constitutes an inadmissible restriction to a foreign betting provider in respect of the freedom of services and freedom of establishment guarantees granted by Community Law, with the result that these rules to bear down on foreign companies may not be applied.”
Martin Arendts Attorney at Law
M.B.L.-HSG
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