The Regional Court had ordered the defendant to pay a good € 10,000.00. The appeal filed against this was unsuccessful according to the OLG. The OLG confirmed the assessment of the Regional Court that the plaintiff was entitled to demand repayment of the stakes paid. The payment had been made without legal grounds, as the contract with the defendant had been null and void. It had violated the prohibition to organise public games of chance on the internet (§ 4 para. 4 GlüStV as amended in 2012).
This provision was also in conformity with Union law. Insofar as it restricted the freedom to provide services, this served the public interest pursued by the provision.
There were no indications that the defendant's gambling offer was tolerated by administrative action.
The defendant could also not successfully plead that the plaintiff had placed himself outside the legal system through unlawful and immoral conduct. The payment of a credit into a player account had also violated section 4 (4) GlüStV 2012. However, the defendant had not been able to prove that the plaintiff was aware of this violation or that he had in any case recklessly disregarded this knowledge. The regulation prohibiting gambling (§ 4 paras. 1, 4 GlüStV 2012) could not be assumed to be generally known without further ado. By "clicking away" from the general terms and conditions provided by the defendant, the plaintiff had not recklessly closed his mind to this knowledge.
Since the defendant itself had acted unlawfully, it could not raise the objection of abuse of rights against the plaintiff's claim.
In the meantime, the defendant has withdrawn the appeal, so that the judgement of the Regional Court of 25 February 2021 is now legally binding.
Frankfurt am Main Higher Regional Court, Order of 8.4.2022, Case No. 23 U 55/21
(preceded by Landgericht Gießen, judgement of 25.2.2021, Az 4 O 84/20)
Explanations:
§ Section 4 GlüStV read as follows until its expiry in June 2021:
§ Section 4 GlüStV General Provisions
(1) 1Public games of chance may only be organised or brokered with the permission of the competent authority of the respective Land. 2Organising and brokering without such permission (unlicensed gambling) and involvement in payments in connection with unlicensed gambling are prohibited.
(2) ...
(4) Organising and brokering public games of chance on the Internet is prohibited.
Source: Press release no. 46/2022 of the press office of the Higher Regional Court Frankfurt am Main of 02.06.2022
