K&R 2009, p. 457 – p. 461: 50 Cent Sweepstake Competition: Legal on TV – prohibited on the Internet?

Rechtsanwalt Dr. Wulf Hambach

Hambach & Hambach Rechtsanwälte
Haimhauser Str. 1
D - 80802 München
Tel.: +49 89 389975-50
Fax: +49 89 389975-60
E-Mail: w.hambach@timelaw.de
Essay, and commentary on a judgement by the LG (Regional Court) of Köln dated 7. 4. 2009 – 33 O 45/09 by Attorney-at-law Dr. Wulf Hambach, Attorney-at-law Susanna Münstermann, Munich.

In 2004, Albert/Müller stated that TV sweepstake competitions have not only established themselves de facto, but that the allegation that they are to be regarded as illegal games of chance, is not sustainable.[1] Almost none of the TV channels turn down this new source of income. After the internal rules of application and interpretation of the Länder (German States) Media Authorities regarding the supervision of TV sweepstake competitions were passed 2005, which was meant to ensure a uniform supervisory standard, an expressed regulation could be reached as of 01 Sep. 2008 in section 8a of the Rundfunkstaatsvertrag (RStV – Inter-State Broadcasting Treaty).[2] It seems that the discussion regarding the legality of comparable sweepstake competitions on the internet (e.g. rtv.de, digibet.tv, swoopoo.de) is now following on seamlessly. The LG of Köln[3] recently had to deal with an online raffle and classified the offers as illegal games of chance. In order to participate in the draw for the non-cash prizes, participants had to pay 50 Cents per ticket. The Court would have had to discuss the differentiation between a sweepstake competition under sections 8a, 58 subsection 3 RStV and a game of chance under section 3 subsection 1 Glücksspielstaatsvertrag (GlüStV – Inter-State Treaty on Gambling)[4], which, however, it failed to do. In order to define the term ”game of chance”, it would have been necessary to discuss court decisions on section 284 StGB (German Criminal Code). We shall subsequently catch up on this. The first part (I) discusses the revised provision in section 8a RStV, and briefly describes its significance and contents with regard to internet sweepstake competitions. Following this, we shall illustrate in detail the term ”game of chance”, in view of the requirement of ”not entirely insignificant stakes”, on the basis of past court decisions on section 284 StGB (II). The question as to why these guidelines are also applicable to the term ”game of chance” as used in the Glücksspielstaatsvertrag will then in conclusion be substantiated in the third and last part (III).

I. New rules for sweepstake competitions on the internet – sections 8 a, 58 subsection 3 RstV

1. Scope of application of section 8 a RStV – comparable telemedia

In its decision dated 07 April 2009, the LG of Köln assumed that the game was a ”game of chance” and left the question unanswered as to whether the internet offers which were the subject of the proceedings could in principle fall under the scope of application of section 8a RStV. The online raffle would be encompassed by the scope of application due to the following reasons: Section 8 a RStV states that sweepstake competitions with a participation fee of up to 50 Cents are admissible.[5] While the Rundfunkstaatsvertrag above all applies to the operation and dissemination of radio and television broadcasting, and only partially to telemedia, section 58 subsection 3 RStV[6] (originally section 58 subsection 4 RStV) states that section 8 a RStV is applicable mutatis mutandis to ”comparable telemedia”. In section 58 subsection 3 RStV, the statute defines ”comparable telemedia” as such which are directed to the public. The legislative intent does not provide any further indications with regard to the interpretation of the term either. As almost all telemedia are directed at the public, it must correctly be assumed that practically all relevant cases of sweepstake competitions on telemedia will be encompassed.[7] A wide scope of application would additionally satisfy the interest of creating a uniform regulation and of providing for similar rules for similar offers on telemedia and radio/TV.

2. Scope of application of section 8 a RStV – sweepstake competitions

The term ”sweepstake competitions” has not been defined by the RStV nor by any other parliamentary statutes. The Länder Media Authorities – authorised to pass articles of association on section 8 a RStV pursuant to section 46 RStV – included the following provision in section 2 No. 1 of the articles of association with regard to sweepstake competitions and sweepstake broadcasts dated 23 Feb. 2009 (hereinafter: the articles of association)[8]: ”A sweepstake competition is a part of a radio programme or telemedia offer which provides the participating user with the possibility of obtaining a benefit, in particular in the form of money, goods or services.”

This means that the term sweepstake competition is interpreted in a very broad manner. While a differentiation between sweepstake competitions and games of chance continues to be necessary, as the legislator did not intend to interfere with the regulations of the GlüStV[9], the LG of Köln should, however, have reached a different conclusion, as the following considerations will show.

3. Requirements as to contents resulting from section 8 a RStV and from the Länder Media Authorities‘ articles of association

The statutory regulation in section 8 a RStV states that sweepstake broadcasts and sweepstake competitions are admissible, and that a maximum of 50 Cents may be charged for the participation in such games. The provision at the same time intends to improve the protection of participants and stipulates the guidelines of the obligation to ensure transparency, the protection of participants and youth and the prohibition of deception. It is in particular mandatory to provide information on the costs of participation, the eligibility for participation, the design of the game and on the solution of the set puzzle. The mentioned statutory requirements are defined in detail in the articles of association of the Länder Media Authorities.

4. The 50 Cent limit and multiple participation

Even though the tickets for the online raffle on which the LG of Köln had to decide only costs 50 Cents, the Court nevertheless held that the game was to be classified as a game of chance as each player could without any problems purchase several tickets, and was even encouraged to participate more than once. This decision clearly shows that it would have been desirable for the legislator to have set rules for the problem of multiple participation – a problem which had already been known. The wording of section 8 a RStV only states that the fee for participation may not be more than 50 Cents. The articles of association, however, mention the possibility of multiple participation. According to section 8 of the articles of association, the participant is to be protected from excessive participation. It is, for instance, prohibited to encourage multiple participation (section 8 subsection 1), to set special incentives for multiple participation (e.g. by means of a comparison between fee and prize money) and to provide price reductions for multiple participation. This regulation does not, however, lead to an absolute prohibition of multiple participation; rather, the provider of the game is merely obligated not to set any incentives for multiple participation, in order to avoid harm to the participants due to excessive participation. Pursuant to section 13 No. 7 of the articles of association, violations may lead to administrative fines of up to 500 000 €.

The LG of Köln accused the provider of the raffle of having designed the game in such a way as to incite the players to purchase more than one ticket, but this fact on its own was not decisive for the classification of the game as a game of chance. The Court also objected to the fact that the sum actually paid as a fee for participation is left to the participant’s discretion, as he can choose how many tickets to purchase. In this context, the participation in the specific case, according to the offered game design and from the point of view of the circle of addressees, at least refers to the draw of one of the offered non- cash prizes. This means that the decisive point for the Court was that the stakes are accumulated, so that up until the decision on winning or losing, more than 50 Cents may be spent. This can also be seen from the concern voiced by the Court that, in case of a different interpretation, ”any game of chance could in the future be organised without a licence, also on the internet, provided that the respective basic stakes are restricted to 0.50 € and that gradual increases of the chances of winning by payment of additional stakes of 0.50 € each are possible.”

This line of argumentation, as well as the lack of a detailed discussion of the wording, the contents of the articles of association, court decisions and legal literature create the impression that the Court reached its decision above all in view of the desired outcome. As has been explained above, neither the RStV nor the articles of association provide for a prohibition of multiple participation. The line of argumentation of the LG of Köln, which states that the restriction to 50 Cents ”for the participation” means that a general prohibition of multiple participation (at least up until the draw) has been introduced, cannot be concluded from the wording, is not supported by the legislative intent, and contradicts the articles of association. The LG of Köln would furthermore have had to consider that neither the invitation to participate several times nor the repeated payment of the 50 Cent stakes, nor the request for payment of higher stakes automatically lead to the offered sweepstake competition turning into a game of chance. A violation of the requirements of section 8 a RStV and the articles of association ”merely” lead to an administrative fine in accordance with section 13 of the articles of association. The decision as to whether the violation leads to the offers having to be classified as a game of chance under section 284 StGB and section 3 subsection 1 GlüStV[10], however, requires a discussion of existing court decisions and legal literature regarding the interpretation of the term ”game of chance” in section 284 StGB, which we shall provide below.

II. Games of chance under section 284 StGB

A person is liable to punishment under section 284 subsection 1 StGB, if he or she operates a game of chance without an official licence. A game is a game of chance if the decision on winning or losing does not substantially depend on the players’ skills and knowledge and on their level of attention, but merely, or predominantly, on chance.[11] Furthermore, the agreed prize must represent a benefit which is ”not entirely insignificant”, and the player must make a more than insignificant financial sacrifice in order to have the chance of winning.[12] This means that the decisive issue for the differentiation between games of chance, liable for criminal punishment, and sweepstake competitions, exempt from punishment, is whether the stakes paid by the participant are to be regarded as a ”not entirely insignificant” financial sacrifice.

1. Development of the interpretation of the term ”stakes”

The term ”game of chance” is not defined in a statute, which means that a definition of the element ”not entirely insignificant stakes” had to be developed by the courts.[13] The Reichsgericht (supreme court of the German Reich) already regarded such games as harmless social entertainment, where the stakes, according to the general opinion in society, do not have the significance of an ”asset”.[14] The BGH (German Federal Court of Justice) in a subsequent decision defined the term ”stakes” as follows: ”Stakes” are any benefit which is granted in the hope of receiving a similar or higher-value benefit in case of a ”win”, and in the fear of losing it to the opponent or the organiser in case of a ”loss”. However, due to the necessary delimitation against mere entertainment games, these stakes must be higher than ‘entirely insignificant’ (v. Bubnoff in LK, 10 edition § 284 par. 6 et seq.; Samson loc. cit.).”[15] According to the prevailing opinion in legal literature and case law regarding the interpretation of the term ”game of chance”, the payment of ”stakes which are higher than ‘entirely insignificant’” therefore is a decisive criterion for the delimitation against mere entertainment games.[16] As the prohibition of games of chance is intended to protect the participants from financial loss, ”substantial stakes” rightly are a necessary element of the offence.[17]

2. Significance limit

A ”significance limit” has not been precisely defined by the courts. Some decisions state absolute limits, such as 49 Cents per participation[18], others set relative limits, such as a worker’s average income per time unit of play, or the costs of an entertainment event of the same duration[19]. For the determination of an absolute standard, often a very low sum is being used, while there is no consensus regarding the exact amount of this sum.[20] The bottom limit in this context are the telephone and postage costs.[21] However, an increasing number of legal authors hold the opinion that postage costs cannot be a standard for the significance of an “asset”, as they do not represent a benefit for the organiser but for a third party.[22] Rather, in case of added value services, it is a logical consequence that the sum to be considered as stakes are not the entire telephone costs, but rather only the part of the sum which the organiser of the game receives.[23]

As early as 1957, the OLG of Köln tried to find a more flexible standard. It examined whether the installation of a gambling machine with stakes of 0.10 DM per game was covered by section 284 StGB, and denied this, arguing that ”even if a player plays such machines with 10 Pfennig stakes for a full hour, it is impossible to lose more than the sum a worker would earn within one hour, due to the winnings which will automatically occur.[24] The potential loss therefore, in comparison, is within the framework of that which anybody has to spend if he visits an entertainment event where he has to pay an entry fee or where he is required to spend money on food and beverages.” The AG (Local Court) of Wiesbaden agreed with this assessment, and held that there was no criminal liability in a case where the costs were 20 Cents.[25] A growing number of legal authors are also of the opinion that games where the entertainment character clearly is decisive, and where the expenses for the participants are not higher than for other forms of entertainment (price of a cinema ticket), do not fall under the scope of application of section 284 StGB.[26]

This opinion is correct, as the determination of the 50 Cent limit, which was fixed on the basis of the postage for a post card for the typical participation in sweepstake competitions, probably was made for reasons of practicability. It would be correct to not assume that a game is a game of chance in the sense of section 284 StGB if the sum of 50 Cent has been exceeded, while an overall assessment of the offer shows that the entertainment purpose of the game is at the forefront, and that a danger to the participants’ assets can be excluded.

3. Significance of multiple participation

For the issue of multiple participation in TV sweepstakes, the majority of the courts assume that such games still are sweepstake competitions, free of criminal liability, even if several calls are made.[27] The LG of Freiburg supports this opinion, as the ”broadcasting station itself (…) does not have a direct influence on how often a participant dials the provided number. The game stakes as a whole are defined by the caller’s actions, and are insignificant for the individual call. Furthermore, each call gives the participant a new chance in return for the small fee due for each individual call.”[28] The Staatsanwaltschaft (public prosecution) München I dismissed proceedings against 9Live, giving the same reasons. The LG of München left this question unanswered, but remarked that multiple participation, if players were invited to play several times by means of advertising, may lead to ”the sum accumulating to a sum which would exceed the significance limit”.[29]

The AG of Wiesbaden, on the other hand, discussed the issue of multiple participation in a decision regarding the opening of the main proceedings against an internet gambling hall, and decided that even multiple participation, which was held to be very likely, would not result in the game being a game of chance[30]. The court drew an analogy to offline gambling machines, which also are legal, and to the threshold values defined in the Spielverordnung (Decree on Gaming). As the legislator accepts that in such games the losses incurred by a player can accumulate, this must also be taken into consideration when classifying online games. If, therefore, online games fulfilled similar threshold values, the legal evaluation may not lead to a different conclusion.

When evaluating multiple participation, it therefore rightly must be taken into consideration that, on the one hand, a responsible consumer makes a new autonomous intentional decision with regard to each new telephone call, which cannot be allocated to the disadvantage of the organiser[31] and that, on the other hand, the passion for gambling may not be exploited, irrespective of whether many small individual sums are put at stake consecutively or at the same time.[32]

As a conclusion, it can be stated that the discussion regarding the admissibility of multiple participation only perpetuates the basic dispute regarding the ”not entirely insignificant stakes”, and that therefore the above conclusion can also be used for solving this problem. Neither one-off stakes nor multiple participation may endanger the participants’ assets. One-off stakes of 50 Cents do not represent a danger to the participant’s assets, even applying the absolute standard. However, the assumed practicability for the courts and authorities cannot justify an inflexible limit, as such limit is not apparent for those who apply the law, and as it would make game forms subject to legal punishment which, because they do not endanger assets, should not fall under the scope of application of section 284 StGB. Rather, the decisive issue should be whether the offered games actually may result in a danger to assets. This also applies to the evaluation of multiple participation. An overall assessment also would have to include the question as to the extent to which the provider actually incites the participants to spend excessive sums, and the extent to which the participants act on their own responsibility. Furthermore, the entertainment character of the games, the participants’ control possibilities and potential measures to be taken by the organiser in order to protect the participants must also be taken into consideration.

The LG of Köln would therefore have had to discuss whether there is the danger that a participant in the online raffle may lose his assets by repeatedly purchasing tickets. Even if a participant purchased tickets with a value of 10 € for the same draw, this does not constitute a danger to his assets. For the draw of the non-cash prizes in the game in dispute, it is improbable that assets are being endangered, as this game form incites the participants to try their ”luck”, in order to obtain a desired object at a low price, but each participant will only be interested in individual offers and will certainly not spend more than the object’s purchase price on buying the tickets. Whether the offers nevertheless may lead to a danger to assets would have had to be discussed, taking into consideration the customer’s behaviour and also the above-mentioned criteria.

III. Uniform interpretation of the term ”game of chance”

The LG of Köln could not have reached a different conclusion when examining the term ”game of chance” in the context of the GlüStV. The term ”game of chance” is defined in section 3 subsection 1 sentence 1 GlüStV. According to this, a game is a game of chance if, within the framework of a game, a fee is requested in return for obtaining a chance to win, and if the decision on winning mainly, or predominantly, depends on chance. The wording of this definition is almost identical to the definition developed by the courts for the term ”game of chance” under section 284 StGB.[33] The only difference is that section 3 subsection 1 sentence 1 GlüStV uses the general term ”fee” instead of the term ”stakes”. The legal history, which is of substantial importance for a new statute such as this, does not provide any indication for the assumption that the different wording was meant to lead to a different interpretation of the terms. The legislative intent in another place expressly states that a provision is meant to deviate from the criminal law provisions, namely in the area of the public organisation of lotteries and draws under section 3 subsection 2 GlüStV.[34] However, for the first subsection of the same provision – the definition of the term ”game of chance” in section 3 subsection 1 sentence 1 GlüStV – an expressed statement of such intention to deviate from the criminal law provisions, was not included.

A different interpretation of the terms ”fee” and ”stakes”, and thus of the term ”game of chance” in section 284 StGB on the one hand and in section 3 subsection 1 sentence 1 GlüStV on the other hand, would furthermore contradict the structure of the statute. The OVG (Higher Administrative Court) of Berlin-Brandenburg[35] correctly points out that the term ”game of chance” is used in a provision the elements of which are linked to administrative decisions and depend on the lack of an administrative licence. Against this background, it cannot be assumed that the legislators of the Länder insofar had the intention of expanding the necessity of obtaining a licence beyond the level set by the Federal legislator in its criminal law provisions. In addition to this, the separation intended by section 33 h No. 3 Gewerbeordnung (GewO – Trade Regulations) between commercial gaming law (sections 33 c to 33 g GewO) on the one hand and gambling law on the other hand would be blurred. Due to the different fields of regulation and different legislative powers of the GewO as Federal law and the GlüStV and its implementing acts as Länder law, it must be ensured that the same circumstances will not be covered by both sets of rules at the same time.

If insignificant stakes were classified as a ”fee” under section 3 subsection 1 sentence 1 GlüStV, but not at the same time as ”stakes” under section 284 StGB, the licence requirements, the prohibition authorisations and the official competence for the same circumstances would at the same time result from the GewO and from the Länder gambling law (GlüStV and implementing acts). This consequence was not what the Länder intended when concluding the GlüStV.[36] The legislative explanations on the GlüStV (printed matter 15/1454 of the parliament of Rheinland-Pfalz, p. 31) also show that the Länder felt that they were being prevented from regulating commercial games in gambling halls in the GlüStV, due to the conclusive legislation of the Federal Government in the GewO and in the SpielV. According to the opinion held by the Länder, the legislative powers granted to them during the reform of the German federalism system does not encompass commercial gaming law under sections 33 c to 33 g GewO.[37] A uniform interpretation of the term ”game of chance” in section 284 StGB and in section 3 subsection 1 sentence 1 GlüStV is therefore necessary in order to avoid overlapping and conflicting legislative competence.[38]

IV. Conclusion

The LG of Köln regards TV sweepstakes as being in a grey zone of what still is admissible and fears that any game of chance could be organised on the internet under the veil of the 50 Cent limit.

In this context, the Court fails to see that neither section 8 a RStV nor the articles of association prohibit multiple participation. The provider must, however, anticipate an administrative fine pursuant to section 13 of the articles of association if he invites participants to participate more than once, or if he does not comply with the 50 Cent limit. Violations of these prerequisites will, however, not automatically lead to criminal liability under section 284 StGB, nor to a violation of section 4 subsection 1, subsection 4 GlüStV.

Rather the uniform interpretation of the term ”game of chance” in section 284 StGB and in section 3 subsection 1 GlüStV requires ”not entirely insignificant” stakes to be demanded. The stakes will, however, not automatically become ”significant” if they exceed the inflexible 50 Cent limit. An overall evaluation of the offers is necessary in order to determine whether the specific game in question may lead to a danger to the participants’ assets or whether the entertainment character of the game is at the forefront. In this context no differentiation is made between offers on TV or on the internet. Should the examination come to the conclusion that the games are legal 50 Cent sweepstake competitions, they are admissible, whether as a TV or radio broadcast or on the internet.

[1] Albert/Müller, MMR 2004, issue 12, V.

[2] Staatsvertrag für Rundfunk und Telemedien (Rundfunkstaatsvertrag – RStV – Inter-State Treaty on Broadcasting and Telemedia) dated 31. 8. 1991, amended by Art. 1 of the Zehnter Staatsvertrag zur Änderung rundfunkrechtlicher Staatsverträge (Tenth Inter-State Treaty on the Amendment of Inter-State Treaties on Broadcasting Law) dated 19. 12. 2007 (see GBI. dated 18. 6. 2008). Now in the version of Art. 1 of the Zwölfter Staatsvertrag zur Änderung rundfunkrechtlicher Staatsverträge (Twelfth Inter-State Treaty on the Amendment of Inter-State Treaties on Broadcasting Law) dated 18. 12. 2008 (see GBl. dated 27. 3. 2009), in effect as of 1. 6. 2009.

[3] LG of Köln, judgment dated 7. 4. 2009 – 33 O 45/09, the decision is accessible on the internet under http://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/j2009/33_O_45_09urteil20090407.html (as per: 22. 6. 2009).

[4] Staatsvertrag zum Glücksspielwesen in Deutschland (Inter-State Treaty on Gambling in Germany), Gesetz- und Verordnungsblatt für das Land Hessen (Law Gazette for the Land of Hesse), Part I, 20. 12. 2007, p. 841.

[5] Section 8 a was included into the Rundfunkstaatsvertrag in the 10th Rundfunkänderungsstaatsvertrag (Amending Inter-State Treaty on Broadcasting) and came into effect as of 1. 9. 2008.

[6] Section 58 subsection 2 was deleted in the Zwölfte Rundfunkänderungsstaatsvertrag, subsections 3 and 4 are now subsections 2 and 3.

[7] Liesching, Gewinnspiele im Rundfunk und Telemedien, Gutachten 2008, p. 121; Bolay, K&R 2009, issue 2, p. 91 et seq., 96.

[8] Satzung der Landesmedienanstalten über Gewinnspiele und Gewinnspielsendungen (Articles of Association of the Länder Media Authorities regarding sweepstakes and sweepstake broadcasts) dated 23. 2. 2009, accessible under www.alm.de (as per: 22. 6. 2009).

[9] Legislative intent on the Zehnte Staatsvertrag zur Änderung der rundfunkrechtlichen Staatsverträge (Zehnter Rundfunkänderungsstaatsvertrag), p. 4.

[10] On the uniform interpretation of the term ”game of chance”, see III. below.

[11] BGH, judgment dated 18. 4. 1952 – 1 StR 739/51, BGH St 2, 274, 276.

[12] BGH, resolution dated 29. 9. 1986 – 4 StR148/86, BGHSt 34, 171 et seq., 176.

[13] Also see: Schaeffer, GewArch 1980, 112 et seq.

[14] RG, judgment dated 28. 2. 1882, RGSt 6, 70, 74; RG, judgment dated 4. 3. 1921, RGSt 55, 270, 271.

[15] BGH, resolution dated 29. 9. 1986 – 4 StR 148/86, BGHSt 34, 171 et seq., 176.

[16] Eser/Heine, in: Schönke/Schröder, StGB Kommentar, 27. edition 2006, § 284 par. 5; Fischer, StGB Kommentar, 56. edition 2009, § 284 par. 3 et seq., holding a different view: VG of Wiesbaden, judgment dated 20. 3. 2007 – 5 E 1713/05 – quoted from juris.

[17] Odenthal, GewArch 2002, 315, 316.

[18] OLG of München dated 22. 12. 2005 – 6 W 2181/05, MMR 2006, 225, 226.

[19] OLG of Köln, judgment dated 19. 2. 1957 – Ss 417/56, NJW 1957, 721 et seq.

[20] Fischer, StGB Kommentar (footnote 16), § 284 par. 5, Dismissing decision by the StA of München I dated 21. 4. 2004 – 124 Js 12258/03.: Postage and telephone costs; OLG of Hamm, JMBl NW 1957, 251, stakes amounting to 1 DM per game were regarded as ”significant”; following the same line of argumentation, taking into consideration the inflation rate, costs of living and the higher general standard of living, Eichmann/Sörup (MMR 2002, 142) think that a sum of 2.50 € is adequate, while Kleinschmidt (Gewinnspiele in Deutschland und der Europäischen Union, p. 22) calculates a sum of 1.89 €; OLG of Düsseldorf, judgment dated 23. 9. 2003 – I- 20 U 39/03 – quoted from juris, the costs of a service telephone number amounting to 3.60 DM/minute are ”significant”.

[21] LG of München, resolution dated 28. 7. 2005 – 17 HK O 13392/05; OLG of München; resolution dated 22. 12. 2005 – 6 W 2181/05.

[22] Kleinschmidt (footnote. 20), p. 22; Gabriel/Barth, VuR 2006, 301 et seq., 302.

[23] Liesching (footnote. 7), p. 41 et seq.

[24] OLG of Köln, judgment dated 19. 2. 1957 – Ss 417/56, NJW 1957, 721.

[25] AG of Wiesbaden, resolution dated 9. 8. 2005, GewArch 2005, 485 et seq.; holding a different view: OVG of Magdeburg, resolution dated 29. 8. 2005 – 1 M 297/04 – quoted from juris.

[26] Odenthal, GewArch 2002, 315, with further references; Wohlers, in: Kindhäuser/Neumann/Paeffgen (editors), Nomos Kommentar StGB, vol. 2, 2. edition 2005, § 284 par. 12; Groeschke/Hohmann, in: Hefendehl/Hohmann (editors), Münchener Kommentar zum Strafgesetzbuch, vol 4, 2006, § 284 par. 8; holding a different view, for instance, Hoyer, in: Rudolphi/Wolter (editors), Systematischer Kommentar zum Strafgesetzbuch, ¦ 6. edition 1999, § 284 par. 6, who wants to generally take the sum of 40 DM? as a basis, oriented at section 142 StGB.

[27] LG of Freiburg dated 12. 5. 2005 – 3 S 308/04; OLG of München dated 22. 12. 2005 – 6 W 2181 – quoted from juris; dismissal decision by the Staatsanwaltschaft dated 21. 4. 2004 – Js 12258/03; holding a different view: OLG of Düsseldorf, judgment dated 23. 9. 2003 – I-20 U 39/03, whereby in this case, the participants were invited to ”phone towards” the winning number.

[28] LG of Freiburg, judgment dated 12. 5. 2005 – 3 S 308/04, quoted from juris.

[29] LG of München, resolution dated 28. 7. 2005 – 17 HK O 13392/05.

[30] AG of Wiesbaden, resolution dated 9. 8. 2005, GewArch 2005, 485 et seq.; this is countered by the argument that the threshold values in the Gewerbeordnung are too high, and that the games regulated by the Gewerbeordnung in section 33 c GewO have the character of games of chance restricted by the licensing requirement, rather than sweepstake competitions: Odenthal, GewArch 2006, 58 with further references; OVG of Magdeburg, resolution dated 29. 8. 2005 – 1 M 297/04; Liesching (Fn. 7), p. 51 et seq., making reference to Marcks, in: Landmann/Rohmer, GewO – Kommentar, as per 2007, § 33 c par. 4.

[31] Albert/Müller, MMR 2004, issue 12, V; Eichmann/Sörup, MMR 2002, 142, 145.

[32] Liesching (footnote. 7), p. 41 et seq.

[33] BGH, judgment dated 18.4.1952 – 1 StR 739/51, BGH St 2, 274, 276; BGH resolution dated 29.9.1986 – 4 StR 148/86, BGH St 34.171 et seq., 176; Fischer, Beck’scher Kurz-Kommentar Strafgesetzbuch und Nebengesetze, 56. edition 2009, , § 284 par. 4; Eser/Heine, in: Schönke/Schröder (footnote 16), § 284 par. 5.

[34] See the legislative intent on the GlüStV. An expressed deviation from the criminal law provisions was only made for the public organisation of lotteries and draws pursuant to section 3 subsection 2 GlüStV, see Parliament of Nordrhein-Westfalen, printed matter 13/5365, p. 8. Similar: OVG of NRW, ZfWG 2008, 204 par. 8 – quoted from juris. Probably holding a different view: VG of München, resolution dated 9. 2. 2009 – M 22 S 09.300, however, without providing detailed reasons.

[35] OVG of Berlin-Brandenburg, resolution dated 21. 4. 2009 – OVG 1 S 203.08.

[36] As can be seen from the explanations on section 2 of the draft, (see Annex to printed matter 13/5365 of the Parliament of Nordrhein-Westfalen, p. 24): The GlüStV is not applicable to ”circumstances regulated by Federal law”, and is in particular not intended to apply to the ”games providing winning opportunities as conclusively regulated in the Gewerbeordnung”.

[37] OVG of Koblenz, resolution dated 21. 10. 2008 – 6 B 10778/08.

[38] Also see VG of Neustadt, ZfWG 2008, 293 par. 10 et seq.; OVG of NRW, ZfWG 2008, 204, par. 10 – quoted from juris.

Source: TIME LAW NEWS 4/2009 (www.timelaw.de) Hambach & Hambach Law Firm / Kommunikation und Recht