In two rulings of 4 June 2009, the Higher Regional Court of Frankfurt am Main (OLG) confirmed the prohibition of public games of chance on the Internet under the State Treaty on Games of Chance.
Lotterie-Treuhandgesellschaft mbH Hessen, which offers, among other things, the so-called state-owned "ODDSET bets" via stationary betting shops in Hesse", had filed two lawsuits against several operators based in the new German states and Gibraltar for injunctive relief against the offering and brokering of sports betting via the Internet.
While the Wiesbaden Regional Court had dismissed the claims in 2007, the Higher Regional Court responsible for the appeal affirmed a corresponding claim by the lottery company for the Federal State of Hesse and amended the previous judgments accordingly. At the same time, the court ruled that the defendants must pay damages to the lottery company.
The OLG cites the State Treaty on Gambling in Germany (State Treaty on Gambling), which entered into force on 1 January 2008. According to § 4 IV of this treaty, organising and brokering public games of chance on the internet is prohibited. According to the court, the defendant sports betting organisers violate this provision of the State Treaty on Gambling by offering or providing the opportunity to place sports bets at fixed odds via the internet. The relevant provision of the State Treaty on Gambling was compatible with both constitutional law and European Community law. At the same time, the sports betting organisers were also behaving in an anti-competitive manner. The defendant organisers could also not rely on the fact that they still had a licence granted during the existence of the GDR or another member state of the European Union.
The judgements are not legally binding, as the OLG has allowed an appeal to the Federal Supreme Court. The full text of the decisions will soon be available at http://www.rechtsprechung.hessen.de/.
Notes:
- The decisions do not deal with the admissibility of the state gambling monopoly according to § 4 I of the State Gambling Treaty.
- The rulings only apply to the federal state of Hesse.
- The text of the State Treaty on Gambling can be found on the Internet at www.hessenrecht.hessen.de/gesetze/Staatsvertraege/90-GluecksspielStV/GluecksspielStV.htm.
OLG Frankfurt am Main, judgements of 4.6.2009, file number 6 U 93/07 and 6 U 261/07
Source: Press release of the Higher Regional Court Frankfurt am Main
Goldberg Attorneys at Law
Attorney at Law Michael Ulrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
