The applicant, based in North Rhine-Westphalia, intends to hold poker tournaments as part of the "Poker Bundesliga" in a pub in Rheine. These tournaments are played for prizes provided by sponsors. The players only pay a participation fee of 15 euros, which is used exclusively to cover other event costs. Each player receives a certain number of chips at the beginning of the tournament; there is no possibility of re-buying during the tournament. In December 2007, the city of Rheine (respondent) prohibited the organisation of these tournaments with immediate effect. It is of the opinion that the applicant is organising public gambling within the framework of the tournaments, which is subject to the criminal offence of § 284 para. 1 of the Criminal Code (StGB). The applicant's preliminary application for legal protection against this was rejected by the Münster Administrative Court in its order of 3 April 2008. The appeal of the applicant against this order was granted by the Higher Administrative Court in the order mentioned above. In its reasoning, it stated that the ban imposed by the defendant was probably unlawful. The poker game in the manner planned by the applicant was not a prohibited game of chance within the meaning of § 284 (1) StGB. Such a game of chance was characterised, inter alia, by the fact that the players paid a stake from which the individual's chance of winning grew. The participation fee charged by the applicant did not constitute such a stake because it did not serve to finance the winnings but exclusively to cover the other costs of the event. Insofar as (other) illegal poker events were advertised in the context of such poker tournaments, in principle only the advertising of such events could be banned, but not the entire tournament in which the advertising took place. However, the Senate pointed out that the respondent now had to examine whether the poker events were other games with the possibility of winning within the meaning of the Gewerbeordnung (Trade, Commerce and Industry Regulation Act) (§ 33 d) and whether they had to be prohibited because the necessary requirements (permit, clearance certificate) were missing. The court itself could not make this decision because the authorities had discretionary powers in such a prohibition.
The order of the Higher Administrative Court is unappealable.
Decision of the Münster Higher Administrative Court of 10.06.2008 - Ref.: 4 B 606/08
Source: Press releases of the Münster Higher Administrative Court of 10 June 2008, Press Office, Postfach 63 09, 48033 Münster, Telephone: 0251 505-255, Fax: 0251 505-429,
E-mail: pressestelle@ovg.nrw.de; URL: http://www.ovg.nrw.de/
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
