It thereby rejected an appeal by the Public Attorney’s office against the decision of the County Court of Ravensburg of 6 June 2006 (case-no. Ds 36 Js 21918/04), which had not allowed to open criminal proceedings against an agent transferring sporting bets to a bookmaker licensed in Austria.
The District Court referred to the fundamental decision of the Federal Constitutional Court of 28 March 2006, which established the current legal situation’s violation of constitutional law, and explicates:
Art. 284 German Criminal Code (StGB) – like all provisions – has to be interpreted in the light of the Constitution. In addition the question of the so called „administrative accessoriness“. Accordingly, such an action can only be subject to punishment, if the current legal situation is in conformity with the Constitution. The current administrative legal situation does comply neither with national law nor with Community law as it violates Art. 12 of the German Constitution as well as the freedom of establishment granted by Community law (see Federal Constitutional Court, l.c.). Accepting liability to prosecution in accordance with Art. 284 German Criminal Code in such a case would imply to apply this article isolated from applicable administrative law, since, according to the decision of the Federal Constitutional Court, the current administrative practise and the provisions on which it is based, are in violation of national and Community law. This would mean that one would have to separate the penal part of Art. 284 German Criminal Code – operating a game of chance – from a valid administrative part, that is the necessity of a lawfully required official license. Such an application of Art. 284 German Criminal Code would not correspond to the imperative of certainty set forth by the rule of law (Art. 104 para. 2 German Constitution). A penal provision must be phrased in such a way, that it gives clear indication of what is allowed and what is not, even to a legal novice. This is not given with regards to such a judgement as to the question of liability to prosecution.
The District Court thereby affirmed that there cannot be exist any liability to prosecution for operating and transferring sporting bets until a legal situation in conformity with Constitutional law is established.