„The conditions established by constitutional as well as Community law for a possible restriction of the freedom to provide services and the freedom to choose one’s profession are not fulfilled on the basis of the current legal situation in the Free State of Bavaria. Punishability of the accused is exempt in accordance with Art. 284 par. 1 German Criminal Code (StGB) for reasons of Community – and insofar corresponding constitutional law – reasons.“
Several sports betting agents have subsequently been acquitted by invoking this very comprehensively reasoned decision of the Court of Appeal of Munich, e. g. by the County Court of Munich (decision of 10 October 2006, case-no. 1113 Cs 307 Js 47629/04) and the County Court of Kempten, Sonthofen branch (decision of 28 September 2006, case-no. Cs 325 Js 6747/05).
This new decisions, like the decision of the Court of Appeal of Munich, concern so called „old cases“, that is cases emerged before the Federal Constitutional Court’s fundamental decision of 28 March 2006. The Court of Appeal has nonetheless declared on several occasions, that the current legal situation was not compatible with Community law. Therefore one has to assume exemption from punishment for the cross-border transfer of sporting bets within the internal market. Several public prosecutors have meanwhile withdrawn preliminary proceedings regarding this year’s facts. An order of withdrawal of the public prosecutor’s office of Kempten holds:
„The proceedings were to be dismissed since the constituting element ‚without public license‘ of Art. 284 par. 1 German Criminal Code is not fulfilled. A license for an operator established in another EU Member State under its national law has to be regarded as a public license in terms of Art. 284 German Criminal Code as well. A national provision, like Art. 2 and 3 of the Bavarian State Lottery Act (Bayerisches Staatslotteriegesetz), reserving the operation and the transfer of bets exclusively to the state and thereby prohibiting private operators, therefore constitutes a restriction of the freedom of establishment and the free movement of services as provided for under Art. 43 and 49 EC Treaty (for an overview see Court of Appeal of Munich of 26 September 2006, 5 St RR 115/05). Art. 284 German Criminal Code (StGB) is therefore not compatible with Community law in such cases, a punishable behaviour does not exist.“
After the clarification in terms of criminal law one can only hope that the administrative courts are going to observe Community law requirements as well, instead of suspending the freedom of establishment and the freedom to provide services for a transitional period (which comes close to perversion of justice with regard to the immediate and direct effect of Community law). As we mentioned in Nr. 47 of the Newsletter „German Gaming Law updated“ the Administrative Court of Cologne submitted this legal question to the European Court of Justice (whose settled case law assumes the direct and immediate application of the basic freedoms).