Administrative Court of Appeal of Baden-Württemberg: Sports betting agent is allowed to continue his activity

Rechtsanwalt Martin Arendts, M.B.L.-HSG

Arendts Rechtsanwälte
Perlacher Str. 68
D - 82031 Grünwald (bei München)
Appeal of the State of Baden-Württemberg dismissed

The Administrative Court of Appeal (Verwaltungsgerichtshof) of Baden-Württemberg, in its decision of 25 January 2007 (file-no. 6 S 2964/06) which was served today, dismissed an appeal filed by the State of Baden-Württemberg. The plaintiff, a sports betting agent represented by ARENDTS ANWÄLTE, thus succeeded in the last level of jurisdiction against an order of prohibition issued by the Regional Council (Regierungspräsidium) of Karlsruhe. The Administrative Court of Stuttgart, in its decision of 23 November 2006 (file-no. 4 K 3895/06), had already ordered suspensive effect of the legal action and thus granted stay of execution to the agent (cf. German Gaming Law updated no. 53).

The Administrative Court of Appeal pointed out that the Federal Constitutional Court (Bundesverfassungsgericht), in its sports betting decision of 28 March 2006, ordered the states to consequently focus the current betting monopoly on fighting betting addiction and limiting betting fervour even during the transitional period. The Administrative Court of Stuttgart had answered the issue in the negative. The Administrative Court had pointed out that it could not find measures limiting the distribution channels criticised by the Federal Constitutional Court. It also expressed doubts regarding effective youth protection. Following up these arguments, the Administrative Court of Appeal explained that the State of Baden-Württemberg still had not proven to comply with the requirements demanded by the Federal Constitutional Court. In addition, the appeal did not go into the issue of advertising by the state-owned Staatliche Toto-Lotto GmbH Baden-Württemberg which, according to the Administrative Court of Stuttgart, exceeded pure information.

Comment: The completely diverging jurisdiction of the administrative courts regarding the cross-border transfer of sporting bets continues. Whereas several Administrative Courts of Appeal (such as the Administrative Courts of Appeal of North Rhine-Westphalia, of Bavaria and of Berlin-Brandenburg) affirmed prohibition orders contradicting the criminal law judgement, others (such as the Administrative Courts of Appeal of Schleswig-Holstein and of the Saarland) expressed severe legal doubts and granted stay of execution. The Administrative Court of Appeal of Baden-Württemberg now followed this latter opinion. One can only hope that the European Court of Justice is going to clearly rule on the importance of the freedom to provide services and the freedom of establishment with regard to the cross-border provision of sports betting in the upcoming Placanica decision, now awaited to be pronounced in March.