The Federal Administrative Court in Leipzig has confirmed that the ban of organizing and running online casinos, scratch card and poker games is compatible with constitutional and EU laws, even after the partial permit to distribute sports betting and lotteries online.
The plaintiffs, based in Malta and Gibraltar, turned against gambling prohibition orders as they were offering online casino, scratch card and poker games. The plaintiff in the process BVerwG 8 C 18.16 also offered online sports betting without having a license required by the State Treaty on Gambling. The Administrative Court of Baden-Württemberg upheld the appeal against the dismissal of plaintiff’s actions and annulled the prohibitions.
The appeal by the defendant country was successful. The Administrative Court’s assumption that the types of gambling explicitly mentioned in the prohibition orders should be described in detail overstretched the requirement of clarity. Furthermore, the Administrative Court has wrongly assumed that a prohibition order is arbitrary, unless it is based on a predetermined intervention concept.
As a result, the annulment of the prohibitions by the Administrative Court appeared to be incorrect. With the exception of sports betting and lotteries, organizing and offering online gambling is prohibited and therefore should not be allowed. This ban does not infringe the freedom of establishment and the freedom to provide services guarantee mobility of businesses and professionals within the EU. The European Court of Justice and the Federal Administrative Court relate to the former general prohibition because of the extra danger of the online gambling as opposed to the conventional gambling (among other things unrestricted availability of the offer, comfort issues, lack of child protection). The fact that the State Treaty on Gaming now allows to offer tightly regulated sports betting and online lotteries does not provide any changes to this case-law. The limited legalization aims to supervise the play instinct of the population in orderly manner and to combat illegal online gambling on the black market.
The prohibition of online sports betting, which was also challenged in the process BVerwG 8 C 18.16, is not objectionable because the plaintiff did not have the necessary license and did not apply to obtain one. The provisions of the State Treaty on Gambling do not discriminate the operators established in other Member States. They are sufficiently clear, precisely and unambiguously formulated, and set limits to the selection of candidates to a sufficient extent.
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