Koblenz Regional Court - Judgment dated July 24, 2023 - 1 O 224/22
(not final)
Can a gambler reclaim her losses incurred in an online casino from 2015 to 2020 from its operator? This question had to be decided by the 1st Civil Chamber of the Regional Court of Koblenz.
The facts of the case:
The defendant is a leading online gaming provider from Malta, which operates several online casino sites and holds a gaming license from the Malta Gaming Authority. However, the defendant did not have a corresponding gambling license in Germany or for the federal state of Rhineland-Palatinate, where the plaintiff lives, at least at the time of the disputed gambling transactions. The Defendant's website, including the FAQ and the Terms and Conditions, are entirely in German.
In the period from 27.12.2015 to 02.12.2020, the plaintiff lost gaming amounts totaling €632,250.00 on the defendant's online casino sites, taking into account winnings (deposits less payouts).
The plaintiff is of the opinion that, due to the statutory ban on online gaming at the time, it has a repayment claim for the stakes placed. Furthermore, it only learned in 2022 that online gaming was not permitted during the period in question, so that potential repayment claims are not time-barred.
In its action, the plaintiff is seeking reimbursement of the stakes in the amount of €632,250.
The decision:
The 1st Civil Chamber of the Regional Court of Koblenz granted the claim in full.
The plaintiff has a claim for repayment of the stakes paid and lost in the amount of €632,250.00 because the defendant obtained these without legal grounds. The online gaming agreement concluded between the parties violates a statutory prohibition during the period in dispute and is therefore void.
It is true that the State Treaty on Games of Chance will be newly regulated in 2021 and that it is now possible to obtain a permit for public games of chance on the Internet. However, the relevant point in time for the assessment of the question of a violation of the law in the present case is the time of the legal transaction, so that the question of a possible later legalization of the offer of the defendant is not relevant.
In the present case, the defendant could also not rely on Section 762 of the German Civil Code (BGB), because this provision only applies if the recovery is based on the gambling character.
Nor could the defendant invoke Section 817 sentence 2 of the German Civil Code, according to which recovery is excluded if the party rendering the service is also guilty of a violation of a statutory prohibition. In this respect, the defendant remained obliged to prove that the plaintiff had acted in a subjective manner intentionally in violation of the prohibition or had at least recklessly closed its mind to the unlawfulness. A mere objective violation of the Prohibition Act was not sufficient.
During the personal hearing of the plaintiff, the Board did not come to the conclusion that the plaintiff was positively aware that online gambling was prohibited in Germany (with the exception of Schleswig-Holstein) during the period in question. The plaintiff had been able to register on the German-language website of the defendant without any problems and also to make the corresponding payments. Moreover, it is not readily apparent that the same games of chance that are permitted in arcades and casinos are subject to a total ban if they are offered on the Internet and also advertised in the media. In addition, the defendant has a license in an EU state and has offered its services freely in Germany. In this factual situation, it did not have to impose itself on the plaintiff that the online offer originating from other European countries could be prohibited.
Finally, the claims asserted are not time-barred because the defendant has failed to prove that the plaintiff actually became aware of the circumstances giving rise to the claim before 2022.
Excerpt from the State Treaty on Gaming 2011:
§ 4 General Provisions
(1) [...]
(4) Organizing and brokering public games of chance on the Internet is prohibited.
Excerpt from the State Treaty on Gaming 2021:
§ 4 General Provisions
(1) [...]
(4) A permit for public games of chance on the Internet may only be granted for the self-distribution and brokerage of lotteries, for the organization, brokerage and self-distribution of sports betting and horse betting, and for the organization and self-distribution of online casino games, virtual slot machine games and online poker. Furthermore, the organization and brokering of public games of chance on the Internet are prohibited.
Extract from the Civil Code:
§ Section 817 Violation of law or morality
[...] Recovery shall be excluded if the party rendering performance is also guilty of such a violation, unless the performance consisted in entering into a liability; what was rendered to fulfill such a liability may not be recovered.
Source: Press release of the Regional Court Koblenz, Judicial Media Office, Koblenz in September 2023
