The plaintiff in this case had also participated in online casino games of a Malta-based provider and now claimed back his gambling losses on the grounds that the games he had played had not been permitted in Germany. The gaming contract was therefore allegedly null and void and the gambling losses were therefore to be reimbursed. The player had already failed with this argument before the Euskirchen District Court, but appealed. Without success: The Regional Court of Bonn (File No. 5 S 70/21) now rejected the appeal with convincing reasons:
Also in the opinion of the court of appeal, the action failed because the plaintiff himself had violated a legal prohibition. This is because participation in unauthorised gambling is punishable in Germany under Section 285 of the Criminal Code. The court of appeal did not accept the gambler’s argument that he had not known about the legal situation in Germany. This was because the unlawfulness of online gambling had been strongly in the public eye, especially in the years of his participation in 2019 and 2020, not only on the internet but also in the national press. Against this background, it was unrealistic to assume that the plaintiff did not know this.
He should have been aware that he would have had to clarify the question of legality himself before participating. According to the court, the plaintiff could have easily done this by inquiring at the competent authorities or by researching on the internet. Furthermore, there was no damage in the legal sense, as the plaintiff had voluntarily participated in the games and had therefore himself been the cause of his gambling losses.
Furthermore, the assertion of a claim for restitution by a gambler who had participated in illegal online gambling with his own eyes open and out of his own motivation to act, and who had then incurred losses, violated the legal principle of good faith and was therefore also ruled out.
According to Maximilian Kienzerle, Senior Associate with Hambach & Hambach Law Firm, more than 1000 gamblers‘ complaints are currently before the courts throughout Germany. On various internet sites, law firms promise gamblers that they can recover losses from online casino games. What the lawyers apparently do not explicitly point out to their clients is the fact that in order to sue, the gamblers must also claim that they themselves have committed a criminal offence under Section 285 of the Criminal Code. This is not only risky for the gamblers, but in the end, the gambling providers often win as well, according to his colleague Claus Hambach. According to industry experts, the appeal ruling, the first of its kind in Germany, is likely to set the trend and further cloud the players‘ prospects of success.