MR-Int 2009, p. 41 – 50: Is poker bidding farewell to gambling law?

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
A report on the current situation in administrative and criminal law regarding the poker variant Texas Hold’em by Attorney-at-law Dr. Wulf Hambach/Attorney-at-law Dr. Michael Hettich/Tobias Kruis

Poker is a game of chance. This has been the unconsidered opinion of many legal experts for more than 100 years. A blanket judgment such as this, however, neither complies with high court decisions regarding the distinction between games of chance and games of skill, nor does it apply to the poker variant Texas Hold’em, which at present is the most popular form of poker. Proof for this, which had so far been missing, has now been provided in a first large field study in Germany, supervised by TÜV Rheinland,[1] and has been confirmed in an appeals decision by the LG (Regional Court) of Karlsruhe. This report examines the results of the field study and describes its consequences regarding criminal law and administrative law. In conclusion, the legislative objective of the privileged position of games of skill will be analysed, using poker as an example.

I. Introduction

Looking at games of chance and games of skill from a legal point of view, the observer may be led to believe that he faces paradise on one side, and purgatory on the other. Even before Dostojewski’s novel “The Gambler”, games of chance had the reputation of being socially destructive, morally undesired and iniquitous. As early as in the Middle Ages, games of chance were referred to as “the devil’s prayer book”, and at times were subject to a complete ban.[2] Games of skill, on the other hand boost the good in every human being; they train the body and the soul. The Reichsgericht (supreme court of the German Reich) held that games of skill serve “honest amusement” and disport, while games of chance serve acquisitiveness.[3] Skat, Schafkopf and Doppelkopf, for instance, have been generally recognised as games of skill for a long time[4], while poker is not permitted to take this privileged position, even though all of the mentioned games hold competitions as national and international championships[5]. In 1906, the Reichsgericht made do with two sentences in order to disqualify Draw Poker as a game of chance[6]. Numerous scientific studies abroad, on the other hand, have reached the conclusion that Texas Hold’em Poker, for instance, is a game of skill.[7] Taking this into consideration, it is even more surprising that a large part of legal literature and many court decisions continue to uncritically follow the 100 year old Reichsgericht decision.[8]

As is so often the case, the devil is in the details. This is because there is poker and there is poker. The “Draw Poker” variant, which is the form examined by the Reichsgericht,[9] may be known to some people from the so-called “Spaghetti Westerns”. The most popular form nowadays, and also the most important variant in the practical work of courts and authorities, however, is Texas Hold’em, which has little in common with the game to which the Reichsgericht decision referred. On the other hand, a legal delimitation between games of skill and games of chance is only possible on the basis of the specific modalities of a game.[10] This has also hardly been taken into consideration up to now.

A new study oriented at high court decisions with regard to the delimitation of games of skill and games of chance, however, shows that Texas Hold’em, at least in some variants of the game, actually is a game of skill in the legal sense of the term.[11] This conclusion has now also been reached by the LG of Karlsruhe in a recent judgment.[12] In this decision, the Court correctly refused to transfer to Texas Hold’em the conclusions reached by the Reichsgericht.

As the delimitation between games of skill and games of chance is of major significance for criminal liability under section 284 StGB (German Criminal Code) on the one hand, and – due to section 33h No. 3 GewO (Trade, Commerce and Industry Regulation Act), which in the German dual gaming law system sets the course for either trade law or the state monopoly – for the evaluation under administrative law on the other hand, this report shall initially classify Texas Hold’em on the basis of the criteria developed by the courts.

II. Game of chance or game of skill?

The question as to whether Texas Hold’em is a game of chance or a game of skill is of major importance for the further legal evaluation. Section 284 StGB as well as section 3 subsection 1 GlüStV (Inter-State Treaty on Gambling) are based on the term “game of chance”. However, pursuant to section 33h No. 3 GewO, sections 33c et seq. GewO are not applicable to other games as defined in section 33 d subsection 1 sentence 1 GewO[13] which are “games of chance” in the meaning of section 284 StGB. The decisive issue for the classification are the criteria developed by high court decisions.

1. Definition

According to settled case law, the term “game of chance”, and thus the differentiation between such games and games of skill, is uniformly defined as follows:

“It is the nature of a game of chance that, under the contractual terms and conditions, the decision on winning or losing does not substantially depend on the skills, the knowledge and the level of attention of the players, but only, or mainly, on coincidence. The decisive factors for this evaluation are the circumstances of the game under which the game is opened and is usually being operated, i.e. the skills and experience of the average player. The standard here is to be the audience to which the game is open, not the more experienced or very experienced participant.”[14]

This means that the decisive question is whether the decision on winning or losing only, or mainly, depends on chance.[15]

2. Classification of mixed games

On this basis, it is possible at the same time to make a rough classification into three categories, which are: absolute games of chance, pure games of skill and mixed games. While in pure games of chance, such as roulette, the outcome unproblematically merely depends on chance,[16] pure games of skill only depend on the player’s skills, while chance does not play any role at all.[17] The latter will, however, rarely be the case as the influence of chance – such as the condition of the pitch during a football match, which causes the ball to bounce in a different direction and into the goal – can never be completely excluded, even in games of skill. The most frequent types therefore are the so-called mixed games. In these games, the decision on winning or losing depends partly on chance and partly on the players’ skills.[18]

Texas Hold’em is definitely a mixed game. The card distribution is definitely an element of chance here, which has more importance if the number of played hands is lower.[19] Texas Hold’em can, however, not be reduced to this element of chance, which is what parts of legal literature and some court decisions have been trying to do.[20] The card distribution plays a role in all other card games as well, for instance in Skat or Schafkopf, irrespective of whether they are regarded as games of chance, or, as the latter, are unanimously classified as games of skill. In addition to this, Texas Hold’em has numerous options of influencing the outcome of the game due to the players’ skills, which will be described in more detail below.

Such mixed games are only to be classified as games of chance if the decision on winning or losing only, or mainly, is influenced by chance rather than by the average player’s skills.[21]

a) Control options

In order for a game to not only, or mainly, depend on chance, it is first of all necessary that the game is sufficiently difficult to learn, otherwise it would not come into consideration as a game of skill. This means that the player must be able to obtain a sufficient level of playing ability (in other words: sufficient skills) by a certain amount of practice.[22] The decisive abilities in this respect, according to court decisions, primarily are the mental and physical abilities (in particular good memory and quick deduction skills), knowledge, such as mastering the rules of the game, and also practice and the player’s level of attention.[23] Darts can be used as an example in this context. In this case, the player needs to learn how to control the flight path of the dart and thus to make a targeted throw.

Transferring this to Texas Hold’em, it can be seen that a successful game requires a number of skills.[24] Texas Hold’em is played with 52 cards (French deck) and game chips. The only player left in a game, or the player showing the best hand in a showdown, wins the hand.

The decisive difference between this game and the variant of Draw Poker is that community cards are placed face up during different phases of the game, which all players can use to form their “best hand”, and also that a much larger number of betting rounds per game is scheduled than in ordinary poker.[25]

The player first of all must have sufficient knowledge of the rules of the game regarding the betting options. Furthermore, theoretical knowledge comprises the options of game strategy. In particular for Texas Hold’em, these options are particularly diverse and can only be roughly outlined here, as the specialised literature in this respect in the meantime has increased to more than 100 books.[26] The strategy options mainly relate to the number of players[27], the types of players[28] and the table image[29], the position[30], the blinds & stacks[31] and the pot odds[32]. Further strategies refer to the various action options call, bet, raise or fold. The options of blind stealing[33], bluff[34], semi-bluff[35], value bet[36], information bet[37], slow play[38], check raise[39] and change gears[40] are foremost in this context. Texas Hold’em furthermore requires a high level of concentration, as the players are forced to make fast decisions under pressure. Also, the player must commit the other players’ way of behaviour, and his competitors’ cards during the previous rounds, to memory in order to thus be able to draw conclusions regarding their future actions. Finally, the player must implement his theoretical knowledge in a competitive situation. This requires a large amount of discipline and practice. Therefore, Texas Hold’em requires the mastering of a variety of skills which initially have to be learned. Texas Hold’em can be influenced by the player’s skills.

This at the same time shows that Texas Hold’em has even more possibilities of influencing the game than Skat. While in Skat, the possibility of betting and the fact that all cards are dealt provide sources of information on the other players’ strength of play, this cannot provide complete information on the composition of the opponents’ hands. This also applies to the possibility of counting cards which have already been played, as the remaining cards may have been dealt in any combination to the other two players. Furthermore, the element of chance in the card distribution in Skat plays a much more important role than in Texas Hold’em. While Skat knows so-called “made hands” which the player just “plays down”, even a particularly experienced player cannot use his abilities if he is dealt a very poor hand.[41] The only additional information he may have is that he will get a caning.

The situation in Texas Hold’em is not comparable. Rather, the player can at all times, even if he holds poor cards, force all other players to give up by applying his tactical skills so that he wins, or can reduce his losses to almost zero by putting down his own hand.[42] This fact is being completely overlooked by some court decisions (possibly due to lack of awareness of the course of the game), which assume that the only decisive factor are the cards the player is dealt.[43] Contrary to this, several studies have shown that in more than 88% of poker games, the winning player is not the player who has been dealt the best hand.[44]

b) Average players

In order to answer the question as to whether a player can predominantly influence the outcome of the game by applying his skills, general opinion holds that it is necessary to use an average player as the standard.[45] In particular, mere mathematical computations and complicated probability calculations must not be taken into consideration, as they do not reflect the average player’s skills.[46] The decisive circle is the audience to which the game is open, rather than the experienced or very experienced player.[47] However, it has been made clear by the courts that for this average player the decisive level is not the beginner’s situation, as otherwise the predominant number of mixed games would have the character of a game of chance. For instance, a raw recruit in the mentioned game of Darts will usually not be able to control the throw of the darts, so that the results reached will only depend on chance, as the average players will only in rare cases be able to master all abilities on which skill are based, prior to the beginning of the game. This means that the decisive factor is:

“whether or not the level of skill that overcomes the element of chance can be obtained by a person interested in the game, with an average standard, within a period of time which is short enough to ensure that the rule of chance is at the most limited to a introductory phase, the length of which is determined according to the empirical average duration of participation in the game.”[48]

This means that the average player must be interested in the game and must already have played the mentioned practice phase which must be tolerated, and thus must have reached a level of proficiency which is higher than the beginner’s level. Only when a player fulfils these requirements does he have the level of skill of an average player. For Texas Hold’em, this means that the average player will initially have to learn the rules and have to play a certain number of practice games during a practice phase, which must correspond to the average duration of a game participation.

c) Predominant influence

(1) Approaches in the past

The decisive question as to whether or not the average player is able to predominantly influence the outcome of the game by applying his skills, is often referred to in legal literature as a question of assessment[49] or balancing of interests[50]. Even those authors who have up to now tried for a differentiating approach ultimately base their classification on an assessment which is not supported by empirical data.[51] One approach in literature is the “rule of thumb” that poker as a cash game is a game of chance while the tournament variant is a game of skill.[52] Other authors always classify Texas Hold’em as a game of skill[53], or as a game of chance[54]. In the decision mentioned at the beginning of this report, the LG of Karlsruhe had to decide on a Texas Hold’em tournament and reached the conclusion that this was a game of skill as the players must be able to limit their losses if they are dealt poor “hands” and to obtain the highest possible winnings if they are dealt good “hands”. This requires tactical skills, strategy and mathematical and psychological intuition – all of which are characteristics which are to be classified as elements of skill.[55] Other court decisions in the past did either not make a differentiation between the various poker variants in the evaluation of Texas Hold’em, and treated poker in general as a game of chance,[56] or made a differentiation while ultimately not answering the question of how to classify the game.[57]

(2) Criticism

All mentioned approaches, even though they reach different results, have one thing in common: They ultimately answer the question as to whether the elements of skill or of chance prevail, by means of a subjective assessment or an abstract balancing of interests. Subjective assessments are generally unsuitable here to provide legal proof. Stochastical considerations may provide proof which is convincing from the point of view of logic and mathematics, however, they are insufficient for solving the legal issues. According to the high court decisions described above, the skills and abilities of an average player are decisive for the classification of a game as a game of chance or as a game of skill. This playing ability of the average player can, however, not be determined by stochastical means nor can it be simulated in an abstract way. As has been confirmed by high court decisions, the question as to whether the average player is able to predominantly influence whether he wins or loses a game, can only be answered in a field study with test persons.[58]

(3) Classification on the basis of a practical test

High court decisions state that this test must differentiate between the game variants where participants play against a machine (e.g. slot machine/ gaming machine as defined in sections 33c, d GewO) or where each player plays against the bank (e.g. Black Jack), and the case where the participants only play against each other and the organiser has pure organisational functions, which has to be evaluated in a completely different manner.[59]

(a) Game against the bank or a machine

If the individual participant plays against a machine or against the bank, the test is obvious, according to court decisions. In this case, the decisive question is whether the win rate is above or below 50%. If it is below 50%, this leads to the conclusion that

“the average skill was not sufficient to overcome the element of chance. Under these circumstances, the outcome of the game has been reached mainly due to circumstances which the player could not influence.”[60]

This test is not applicable to Texas Hold’em and other games where the participants compete against each other, for reasons of logic alone. This is because, as soon as one participant wins more than 50% of the games, one of the competing players, who are similarly worth of protection, must lose more than one half of the games. This means that if average players compete against each other (rather than against the organiser) it is impossible for all average players to win more than 50% of the games. A game of skill would therefore be out of the question in this constellation.

The most frequently played games in practice, which courts, legislator and authorities have already unambiguously acknowledged as games of skill, such as Skat, Schafkopf, Billiards, various types of sports etc.[61], are based on the competitive situation, i.e. on a game structure where the participants compete against each other. It is therefore necessary to apply a different type of test to games such as Texas Hold’em in order to determine whether they are to be regarded as games of skill.

(b) Games against other participants

Court decisions have made it clear that a game test regarding competition games can only answer the question as to whether the majority of the games are decided by skill or by chance if the average player competes against players acting randomly.[62] This means that in games where participants compete against each other, the decisive issue is that a specific test is carried out with players. A mere theoretical and abstract approach and probability calculation is not sufficient, as this does not adequately take into consideration the effects of the competition character of a game.[63] Rather, the average players must be put into a real competitive situation. Only a test with test persons can provide the necessary proof.

© Summary

Summarising, it can be stated that, in a game such as Texas Hold’em, where the participants compete against each other, only a practical test with test persons allows a conclusion as to whether the average player is able to predominantly influence the outcome of the game by applying his skills. During this test, average players must compete against players acting completely randomly. If the average players predominantly win – i.e. in more than 50% of the cases – the game is a game of skill. For this purpose, it is necessary to create a real competitive situation in the form of a field study, which causes the average player to perform as well as he can.

This shows that a mere subjective assessment, or abstract balancing of interests, which up to now has been used as the basis for the classification of Texas Hold’em as a game of chance or as of game of skill by legal literature and by the courts, is not sufficient. This also applies to approaches which differentiate between tournament games and cash games in making this evaluation. Here, too, only the field study described above can lead to a classification of a specific game variant.

d) Implementation of a practical test by TÜV Rheinland Secure iT GmbH, and its results

A practical test such as this, aligned along the prerequisites set by court decisions, has been carried out by TÜV Rheinland Secure iT GmbH.[64] In this context, the following game variants were examined: No Limit and Fixed Limit Hold’em (according to the standard rules), six players at one table, 30 seconds limit for a play, initial game account balance 2000 chips, minimum buy-in: No Limit: 40 chips, Limit: 20 chips – maximum buy-in: No Limit: 200 chips (buy-in = chips which may be brought to the table), small blind (small obligatory stakes): 1 chip, big blind (large obligatory stakes): 2 chips, small bet: 2 chips, big bet: 4 chips, no pay-outs prior to the conclusion of 300 hands, re-buys (new credits into the game account), if 2000 chips were lost during the first 200 hands, 300 chips during the first 300 hands, or 4000 chips during the entire 300 hands. After each re-buy, a 1 hour break must be observed. In this test, it was ensured by means of a questionnaire that the participants were persons interested in the game and they had gone through the necessary practice phase prior to their participation, i.e. they were average players in accordance with the definition developed by the courts.[65] 100 test persons participated in the test and played, after having completed their training (if necessary) to become average players, for at least 6 hours or at least 300 hands under real conditions in a monitored competition carried out according to the terms described above. This test has shown that the average players beat the random players in a significant number of cases. The significance of the test results[66] for the overall evaluation of the game was established to be positive, applying stochastical methods.[67] This shows that Texas Hold’em in the series game versions examined in the study, is a game of skill.[68]

III. Consequences for the legal evaluation

Texas Hold’em in the examined variant of a series game is thus a game of skill. The legal consequences resulting from this depend on the utilisation of the term “game of chance”, which plays an important role in the various fields of law and in various statutes.

1. Uniformity of the term “game of chance”

The most prominent statutory use of the term “game of chance” is in section 284 StGB. In addition to this, the term can also be found in section 33h No. 3 GewO and, most importantly, in the GlüStV, its implementing acts and in the casino acts. The RennwLottG (Act on horse racing and lotteries) does not use the term “game of chance”, but section 27 RennwLottG mentioned lotteries, draws and oddset bets, all of which are games of chance.[69] Due to the fact that the prerequisites of the norms in sections 284 et seq. StGB are linked to administrative decisions, the necessity of a uniform use of the term “game of chance” is obvious; it shall, however, nevertheless be examined again hereinafter.

The fact that the terms are identical in section 284 StGB and section 33h No. 3 GewO does not require any additional explanation, as the latter expressly refers to the criminal law provision. With regard to section 17 RennwLottG, the following applies: the intention of the provision was to achieve an adaption to the criminal law regulations,[70] so that the terms must be interpreted uniformly in this area as well.

Section 3 GlüStV, on the other hand, contains an expressed definition of the term “game of chance”, and is not restricted to a mere reference to criminal law. According to section 3 subsection 1 GlüStV, a game is a game of chance if remuneration is requested within the framework of a game in return for the chance of winning, and if the decision on winning only, or predominantly, depends on coincidence. In this context, the decision on winning is considered to always depend on coincidence if the basis for this decision is the uncertain occurrence or outcome of future events. Here, some think that, while the term “game of chance” as used in the GlüStV is similar to the term in criminal law, it is by no means identical.[71] This differentiation has up to now mainly become important with regard to the term “remuneration” as used in section 3 subsection 1 GlüStV,[72] however, it cannot be excluded that other deviations from the characteristics of the criminal law term “game of chance” may be taken into consideration in the future. However, the legislator had not intended to cause a deviating development of the term under criminal and administrative law, which furthermore would have fatal consequences on the stability of the law. For systematic and historic reasons, as well as due to the principle of the uniformity of the legal system, nothing but a uniform interpretation of the term “game of chance” can apply.[73]

The Federal Republic of Germany knows a so-called “dual system of gaming regulations”,[74] which is divided into commercial gaming law on the one hand and gambling and lottery law on the other hand. The decision on the route to be taken is made in section 33 h No. 3 GewO which has already been mentioned above. While according to this provision gaming appliances offering winning opportunities (section 33c GewO) are governed by commercial gaming law, other games as defined in section 33d subsection 1 sentence 1 GewO are only encompassed if they are not to be considered as games of chance under section 284 StGB.[75] The backdrop to this regulation is the distribution of legislative powers between the Federal government and the individual Länder (Federal States). According to Art. 74 section 1 No. 11 GG (German Constitution – Law of the Economy), the Federal government in principle has concurrent legislative powers with regard to the regulation of commercial gaming law,[76] of which the Federal government has conclusively made use to this extent.[77] According to recent judgments by the BVerfG (Federal Constitutional Court), gambling and lottery law is also encompassed by this legislative power.[78] However, this has not been used up to now, which means that the Länder were able to keep their legislative powers in these areas. They have used these powers by passing the GlüStV, the associated implementing acts and the casino acts.

Depending on whether or not a game is to be qualified as a game of chance as defined in section 284 StGB, it is either subject to the Federal government’s commercial gaming law, or to the Länder gambling and lottery laws. Double competence is excluded. Rather, the licensing obligation and licensability either depend on the GewO or on the Länder gambling acts. If the term “game of chance” is interpreted to encompass a wider range of games in section 3 subsection 1 GlüStV than in section 284 StGB, this will have the consequence that a game, as it is not a game of chance under section 283 StGB, requires a licence under section 33d subsection 1 GewO, while it at the same time is subject to a permission obligation under section 4 subsection 1 GlüStV, because it qualifies as a game of chance under section 3 subsection 1 GlüStV. This would mean that the licensing prerequisites, the prohibition powers and the administrative competences would at the same time follow from the GewO and from the Länder gambling laws.[79] This would, on the one hand violate the separation between national and Länder law and, on the other hand, would give rise to the risk of inconsistent decisions which must be avoided in order to comply with the principle of consistency of the legal system[80].

Such blurring of the delimitation line between commercial gaming law and gambling law was not intended by the legislators of the GlüStV either. This can be seen from the legislative material – the explanations on the draft of the treaty and the revised explanations on the GlüStV. According to these, the Länder clearly assumed that the GlüStV would not be applicable to “situations which are regulated under Federal law”. Furthermore, the treaty was in particular not meant to apply to “games with winning opportunities which are conclusively regulated in the GewO”.[81] The reform of the federalism system in Germany, which gave the Länder exclusive legislative powers with regard to the law regulating amusement arcades, but not for commercial gaming law, was not intended to change this either.[82]

In addition to this, a different development of the terms “game of chance” in criminal and administrative law would be questionable in view of the principle of uniformity of the legal system. Criminal liability under section 284 StGB depends on the lack of an administrative licence. This means that the provision refers to facts which depend on administrative decisions.[83] In connection with this dependence on administrative decisions (the problems of which have up to now mainly been discussed in the area of environmental criminal law)[84] the principle of uniformity of the legal system, according to prevailing opinion, means that activities which are permitted under administrative law cannot be liable to criminal punishment.[85] Due to this, the question regarding the significance of the administrative licence is only governed by administrative law, as this is the only way to avoid inconsistent results.[86] If criminal law provisions which depend on administrative decisions contain elements which at the same time are a prerequisite of the administrative licence obligation – such as the term “game of chance” – it is necessary to additionally base the decision on a uniform definition of terms which are used identically in order to avoid inconsistencies. Otherwise, there would be a violation of the principle of clarity and definiteness of legal enactments as provided for in Art. 103 section 2 GG. The affected citizens would no longer know from the wording of a criminal law provision on its own, in which games their participation is subject to criminal punishment.

This uniform interpretation of the term “game of chance” in criminal and administrative law, which is required due to the principle of clarity and definiteness of legal enactments and due to the allocation of legislative powers, is decisive for the legal treatment of Texas Hold’em.

2. Evaluation of Texas Hold’em in the various areas of law

Sections 284 et seq. StGB do not encompass Texas Hold’em game variants which – such as, for instance, the variant examined in the empirical study carried out by TÜV – are organised as games of skill. This excludes criminal liability.

Similarly, the regulations of the licence obligation in section 4 subsection 1 GlüStV and the prohibition provisions in section 4 subsection 3-4 and section 5 GlüStV do not apply to Texas Hold’em variants which are organised as games of skill.

In section 33d subsection 1, the GewO provides for a general licensing obligation for games of skill, and thus also for the corresponding Texas Hold’em variants. An exception in this area is the organisation of games on the internet. As violations of section 33d GewO are administrative offences and, in case of persistent repetition, may even lead to criminal liability pursuant to section 148 No. 1 GewO, the organisation of games on the internet cannot be encompassed due to the principle of clarity and definiteness under Art. 103 section 2 GG, unless this has expressly been provided for. This means that the GewO can only be relevant for Texas Hold’em variants organised offline.

IV. Privileged status of games of skill

As according to the aforesaid, Texas Hold’em, at least in certain organisation forms, has been proven by the tests demanded by the courts to qualify as a game of skill, we shall finally examine whether the conclusion we have reached complies with the intent and purpose of the differentiation between games of skill and games of chance.[87]

The wording of sections 284 et seq. StGB as well as the legislative intent only refers to games of chance. It is consistent that the organisation of games of skill is not liable to criminal punishment, which has been settled case law for more than 125 years, and was initially clarified in decisions by the Reichsgericht, later by the Bundesgerichtshof (Federal Court of Justice).[88] As the foundations of this decisive differentiation between games of chance, liable to criminal punishment, and games of skill, exempt from punishment, go back as far as the Allgemeine Preußische Landrecht (General Law for the Prussian States) dated 1794 (sections 1298 et seq.) and the Strafgesetzbuch des Norddeutschen Bundes (Criminal Code of the Northern German Federation) dated 1870 (sections 284 et seq. StGB),[89] it is hard to find a legislative intent for the privileged status of games of skill in criminal law which would still be valid today. The legislative intent of acts tightening or liberalising gambling law throughout the last 215 years, however, allows the deduction of some general principles which show the necessity of the privileged status of games of skill.

The historic legislative material shows that games of chance were only made subject to criminal punishment as they were played because of greed, or because they were organised in order to exploit the playing instinct in order to obtain a profit.[90] Present court decisions and legal literature consider the reason for the penalisation of games of chance to lie in the exploitation of the natural play instinct with the intention of making a profit. This risk does not exist if the average player can influence the outcome of the game by applying his skills.[91] Here, the player does not enter the vicious circle of losing and hoping to win everything back, as he will win in more than one half of the cases on average anyway.

Furthermore, games with elements of skill are socially desirable. They train the body and the soul, which enhances the participants’ performance potential.[92] This special privileged status of games of skill is usually not being expressly justified any more. However, the Reichsgericht, in a decision in 1906, stated in detail that, in games of skill where the decision is mainly based on the better proficiency or practice of the players, the incentive of a prize is less important than the joy in playing, while games of chance mainly satisfy greed.[93]

Summarising, it can thus be said that games of chance were made subject to criminal punishment as this game form makes it possible for the organiser to induce a large number of persons to put at stake substantial parts of their assets without obtaining any further consideration, merely by promising a prize which can only be obtained by a very small number of players. Games of skill, on the other hand, have a privileged status as here the joy in playing and physical exercise and/or mental training are in the foreground.[94]

Applying this to Texas Hold’em, one will reach the conclusion that the privileged status of games of skill is justified.[95] The game and the various tactical options as well as the competitive situation train the players’ minds. Furthermore, ability to react and concentrate and mathematical and economic understanding are being improved. The fact that tactical consideration and the joy in playing are in the foreground can be seen in the establishment of associations and clubs[96], trade fairs[97], magazines[98] and championships on a mass audience level[99] as well as the countless internet forums where poker players discuss the best tactical options[100].

V. Conclusion

The classification of Texas Hold’em as a game of skill or game of chance in the past was based on an inadequate subjective assessment or abstract balancing of interests, while according to high court decisions a field study was indispensible. If in a game, as is the case here, several competitors play against each other, average players must prevail against random players in a real competitive situation within the framework of this study. If the former predominantly win – i.e. in more than 50% of the cases – the game is a game of skill. A study carried out and monitored by TÜV Rheinland Secure iT GmbH[101] has shown that this is the case, at least for Texas Hold’em in a series variant where a pay-out is only possible after a large number of hands have been played.

The treatment of Texas Hold’em under criminal and administrative law is linked to this classification. In this context, it must initially be stated that the term “game of chance” as used in sections 284 et seq. StGB and in section 3 subsection 1 GlüStV must be interpreted uniformly due to historic and systematic reasons and also due to the principle of uniformity of the legal system. Texas Hold’em as a game of skill falls neither under the scope of application of section 284 StGB nor under section 3 subsection 1 GlüStV, while this is the case for the organisation form as an offline game as defined in section 33d subsection 1 GewO. Furthermore, the issue in the foreground in Texas Hold’em is the joy in playing and the learning effect, while the incentive of winning is less important, which means the game even more is among the privileged games of skill. The demonization of games of chance referred to at the beginning of this report definitely is unsuitable for Texas Hold’em.

[1] Hambach & Hambach Rechtsanwälte/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008 (the study, which has not been published up to now, is at the authors‘ disposal).

[2] See Süddeutsche Zeitung dated 14.04.2008, “Der Teufel schlägt den Papst“, accessible online at http://www.sueddeutsche.de/kultur/404/439147/text/, and http://de.wikipedia.org/wiki/Spielkarte.

[3] RG, 07.12.1906 – V 473/06, RGSt 40, 21, 35 et seq.

[4] See, for instance Marcks, in: Landmann/Rohmer, GewO, § 5 a SpielVO, par. 7; v. Bubnoff, in: LK-StGB, § 284, par. 9.

[5] For Skat, see, for instance the homepage of the Deutsche Skatverband e.V., accessible at http://www.dskv.de/.

[6] RG JW 1906, 789.

[7] E.g. the studies by Cabot/Hannum, Poker: Public Policy, Law, Mathematics, and the Future of an American Tradition, Cooley, Law Review 2005, 443 et seq.; Alon, Poker, Chance and Skill, Working Paper, University of Tel Aviv 2007; Dreef/Borm/v. d. Genugten, On Strategy and Relative Skill in Poker, International Game Theory Review 2003, 83; Borm v. d. Genugten, On a Relative Measure of Skill for Games with Chance Elements, TOP 2001, 91; Dedonno/Dettermann, Poker is a Skill, Gaming Law Review 2008, 12; summary in: Hambach & Hambach Rechtsanwälte/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 14 and 142 et seq., as well as Rock/Fiedler, Die Empirie des Online-Pokers – Bestimmung des Geschicklichkeitsanteils anhand der kritischen Wiederholungshäufigkeit, ZfWG 2008, 412, 414 et seq.

[8] see Dietlein, in: Dietlein/Hecker/Ruttig, Glücksspielrecht, 2008, § 3 GlüStV, par. 4; Kühl, in: Kühl, StGB, 2007, § 284, par. 3; v. Bubnoff, in: LK-StGB, § 284, par. 14; Duesberg, Die Strafbarkeit des Online-Pokers, JA 2008, 270, 271; Reeckmann, Zur Zulässigkeit des Pokerspiels außerhalb konzessionierter Spielbanken, ZfWG 2008, 296, 296; Fischhaber/Manz, Grenzen der Zulässigkeit von Pokerturnieren, GewArch 2007, 405, 406; VG (Administrative Court) of München, 08.05.2007 – M 22 S 07.900; VG of Frankfurt a. M., 12.02.2008 – 7 G 4212/07, ZfWG 2008, 219. A further development of the Reichsgericht’s case law can be found in: VG of Düsseldorf, 18.05.2009 – 27 L 1607/08; OVG (Higher Administrative Court) of Berlin-Brandenburg, 20.04.2009 – 1 S 203.08.

[9] Here, each player is dealt five cards face down which he can improve by exchanging them and can also play against his opponents in two betting rounds. For a detailed description of the game, see, for instance, http://de.wikipedia.org/wiki/Five_Card_Draw.

[10] To this effect, BGH, 11.01.1989 – 2 StR 461/88, BGHSt 36, 74; v. Bubnoff, in: LK-StGB, § 284, par. 7, 14.

[11] Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008 (the study, which has not been published up to now, is at the authors‘ disposal).

[12] LG (Regional Court) of Karlsruhe 20.01.2009 – 18 AK 127/08.

[13] The “other game” primarily is another game in relation to section 33c subsection 1 sentence 1 GewO, which encompasses gaming machines with winning opportunities.

[14] BGH, 18.04.1952 – 1 StR 739/51, BGHSt 2, 274, 276; BGH, 07.12.1979 – 2 StR 315/79, BGHSt 29, 152, 157; BGH, 11.01.1989 – 2 StR 461/88, BGHSt 36, 74, 80; v. Bubnoff, in: LK-StGB, § 284, par. 7 with further references; also see BVerwG, 17.05.1955 – I C 133.53, BVerwGE 2, 110, 111. This definition is also being taken over in § 3 Abs. 1 GlüStV, see Dietlein, in: Dietlein/Hecker/Ruttig, Glücksspielrecht, 2008, § 3 GlüStV, par. 2 et seq.

[15] Also see Hambach & Hambach Rechtsanwälte/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 88.

[16] See, for instance, BVerwG, 17.05.1955 – I C 133.53, BVerwGE 2, 110, 111; OLG (Higher Regional Court) of Frankfurt, NStZ 1988, 459; BVerwG, 24.10.2001 – 6 C 1/01, BVerwGE 115, 179, 186.

[17] One classic example is the game of chess. Here, the starting conditions are the same for all players, the decisive issue for winning or losing merely is the mastering of the rules of the game and the individual player’s strategic abilities, see, for instance v. Bubnoff, in: LK-StGB, § 284, par. 9.

[18] BVerwGE 17, 182, 184.

[19] Duesberg, Die Strafbarkeit des Online-Pokers, JA 2008, 270 et seq.; Holznagel, Poker – Glücks- oder Geschicklichkeitsspiel?, MMR 2008, 439, 441; Koenig/Ciszewski, Texas Hold’em Poker – Glücksspiel oder Geschicklichkeitsspiel, GewArch 2007, 402, 402.

[20] Duesberg, Die Strafbarkeit des Online-Pokers, JA 2008, 270, 271: “Ultimately, it depends on chance whether the player concerned has the best cards in comparison to his opponents at the end of each round of poker, and will therefore win.“ Similar: Fischhaber/Manz, Grenzen der Zulässigkeit von Pokerturnieren, GewArch 2007, 405,. Reaching the same conclusion: VG of Neustadt (Weinstraße), 09.07.2008 – 5 L 592/08.NW, ZfWG 2008, 293; VG of München, 08.05.2007 – M 22 S 07.900; VG of Münster, 03.04.2008 – 9 L 13/08, ZfWG 2008, 151, with further references; VG of Düsseldorf, 18.05.2009 – 27 L 1607/08; OVG of Berlin-Brandenburg, 20.04.2009 – 1 S 203.08. See early decision RG, 11.06.1906 – 1443/05, JW 1906, 789.

[21] BGH, 18.04.1952 – 1 StR 739/51, BGHSt 2, 274, 276.

[22] OVG of Kassel, 10.04.1979 – II OE 41/77.

[23] BVerwG, 09.12.1975 – I C 14.74, GewArch 1976, 87, 87 et seq.; Hambach & Hambach Rechtsanwälte/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 89 et seq.

[24] Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 90 et seq.

[25] An explanation of the rules of the game can, for instance, be found at http://de.wikipedia.org/wiki/Texas_Hold%27em.

[26] See the detailed description in Koenig/Ciszewski, Texas Hold’em Poker – Glücksspiel oder Geschicklichkeitsspiel, GewArch 2007, 402, p. 403 et seq.

[27] The higher the number of players, the better a hand must be in order to win, as the probability of having the best hand at the table is reduced with an increasing number of players.

[28] Depending on their willingness to take a risk, players can roughly be categorised as “loose” or “tight”. A player must adjust his actions to this, and must adapt his playing behaviour to his opponents’ behaviour.

[29] “Table image” means the impression which the opponents have of a player. A player can influence this image through his own behaviour.

[30] The position determines the volume of information a player has prior to his own action, and correspondingly influences his behaviour.

[31] Refers to the relation of the basic stakes in comparison to the remaining number of chips held by the individual players (stacks). The lower the stacks are in comparison to the blinds, the higher the pressure on a player.

[32] “Pot odds” is the relation between the sum of the pot at stake and the required bets. This must be compared with the winning probability which is determined by the so-called outs, i.e. the number of possible remaining cards which may be dealt face up during the various card dealing phases, and can therefore improve the player’s hand so that he will win the showdown. This allows reliable conclusions regarding the opponents’ cards, which is what some court decisions fail to recognise: see, for instance, VG of Düsseldorf, 18.05.2009 – 27 L 1607/08; OVG of Berlin-Brandenburg, 20.04.2009 – 1 S 203.08.

[33] Here, a bluff attempt in a late position can be particularly successful, as the players who had to bet the blinds also can only play a maximum of 20% of all hands, and will usually fold if there is a raise.

[34] In a bluff, a player pretends to have a strong hand by betting or raising, even though this is not the case.

[35] Similar to a bluff, with the difference that, due to the pending card dealing phases, there is the possibility that the hand may still turn into a strong hand.

[36] The so-called “value bet” is a strategic measure to increase a pot with the aim of maximising a players winnings, as the player is convinced that his hand will win the showdown.

[37] A further strategy is an “information bet“. A relatively small bet is often suitable to draw information from an opponent regarding the strength of his hand, with a small financial risk.

[38] In principle a reverse bluff: The player intends to cause the impression that he holds a weak hand, while the opposite is the case.

[39] Here, too, the player holds a strong hand, but does not show this immediately, but checks to start with, in order to then raise after a hoped for bet by the opponent.

[40] Consistent creation of a certain image at the table, in order to execute an action which constitutes exactly the opposite in special situations.

[41] Kretschmer, Poker – ein Glücksspiel?, ZfWG 2007, 93 (96).

[42] To this effect, see Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 126 et seq.

[43] VG of Düsseldorf, 18.05.2009 – 27 L 1607/08; OVG of Berlin-Brandenburg, 20.04.2009 – 1 S 203.08.

[44] see the study by Cigital, Inc., 05.03.2009, Hope/McCulloch, Statistical Analysis of Texas Hold’em, www.cigital.com and by TÜV Rheinland Secure iT GmbH, April 2009 (unpublished, at the authors’ disposal).

[45] MüKo StGB. par. 7; Wohlers, in: NK-StGB, § 284, par. 9; v. Bubnoff, in: LK-StGB, § 284, par. 8, all with further references; Ennuschat, in: Ennuschat/Geerlings/Mann and others, Gedächtnisschrift für Peter J. Tettinger, 41, 45; Dickersbach, Der Geschicklichkeitsautomat als Problem des gewerblichen Spielrechts, GewArch 1998, 265, 267; Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 94 et seq.

[46] VG of Wiesbaden, 10.10.1995 – 5/3 E 32/94, GewArch 1996, 68; VG of Wiesbaden, 10.12.2007 – 5 E 1417/05, GewArch 2009, 117; BVerwG, 28.09.1982 – 1 C 139/80, GewArch 1983, 60.

[47] BGH, 18.04.1952 – 1 StR 739/51, BGHSt 2, 274, 276; BGH, 07.12.1979 – 2 StR 315/79, BGHSt 29, 152, 157; BGH, 11.01.1989 – 2 StR 461/88, BGHSt 36, 74, 80.

[48] BVerwG, 09.10.1984 – 1 C 20/82, GewArch 1985, 59, 60; also see BVerwG, 28.09.1982 – 1 C 106/78, GewArch 1983, 63, 65; BVerwG, 24.10.2001 – 6 C 1/01, BVerwGE 115, 179, 185.

[49] For instance: Kretschmer, Poker – ein Glücksspiel?, ZfWG 2007, 93, p. 98.

[50] Holznagel, Poker – Glücks- oder Geschicklichkeitsspiel?, MMR 2008, 439, 444.

[51] To this effect, also see the analysis of German-language literature by Rock/Fiedler, Die Empirie des Online- Pokers – Bestimmung des Geschicklichkeitsanteils anhand der kritischen Wiederholungshäufigkeit, ZfWG 2008, 412, 414.

[52] Kretschmer, Poker – ein Glücksspiel?, ZfWG 2007, 93, 98.

[53] Koenig/Ciszewski, Texas Hold’em Poker – Glücksspiel oder Geschicklichkeitsspiel, GewArch 2007, 402, 404. Similar: Holznagel, Poker – Glücks- oder Geschicklichkeitsspiel?, MMR 2008, 439, 442 et seq., while this author does not answer the question as to whether some cash games variants may also be games of skill.

[54] Fischhaber/Manz, Grenzen der Zulässigkeit von Pokerturnieren, GewArch 2007, 405, et seq. In a similarly brief manner, Duesberg, Die Strafbarkeit des Online-Pokers, JA 2008, 270 et seq., states that in poker, the player by no means had the chance to substantially influence the outcome of the game. Also to this effect: Reeckmann, Zur Zulässigkeit des Pokerspiels außerhalb konzessionierter Spielbanken, ZfWG 2008, 296.

[55] LG of Karlsruhe, 20.01.2009 – 18 AK 127/08.

[56] Many court decisions refer to the abovementioned judgment by the Reichsgericht dated 1906 in order to prove that Texas Hold’em is a game of chance (see, for instance, VG of Neustadt (Weinstraße), 09.07.2008 – 5 L 592/08.NW, ZfWG 2008, 293. However, the Reichsgericht decision was given on Draw Poker, while the administrative courts nowadays mainly have to decide on Texas Hold’em. But even decisions addressing current forms of poker lack empirical evidence: for instance: VG of Düsseldorf, 18.05.2009 – 27 L 1607/08; OVG of Berlin- Brandenburg, 20.04.2009 – 1 S 203.08.

[57] The VG of Wiesbaden, however, makes the differentiation and distinguishes between Texas Hold’em (VG of Wiesbaden, 10.12.2007 – 5 E 1417/05, GewArch 2009, 117) and Omaha (VG of Wiesbaden, 10.12.2007 – 5 E 770/06, juris); however, the court ultimately does not classify the game.

[58] In this context, see, for instance BVerwG, GewArch 1985, 59 et seq.

[59] Schmidt/Wittig, Poker: Alles nur Glück?, JR 2009, 45, 48 also realise that it is necessary to distinguish between games against machines and games against opponents. However, contrary to our position here, they think that this differentiation is relevant for the definition of the average player.

[60] BVerwG, 24.10.2001 – 6 C 1/01, BVerwGE 115, 179, 187. Detailed information in this context: Marcks, in: Landmann/Rohmer, GewO, § 33 d GewO, par. 4 a-f.; also see Dickersbach, Der Geschicklichkeitsautomat als Problem des gewerblichen Spielrechts, GewArch 1998, 265, 268 et seq.; Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 99 et seq.

[61] BVerwG, 28.11.1963 – I C 69.60, I C 72.60, BVerwGE 17, 182, et seq.; BFH, 11.11.1993 – XI R 48/91, BFH/NV 1994, 622; BPatG, GRUR 2004, 685, et seq.

[62] BVerwG, 09.10.1984 – 1 C 20/82, GewArch 1985, 59, 61: “Finally, the taking of evidence (…) was laid out incorrectly (…), as all participants strived for success, applying all skills available to them, rather than – which is what would have been required – one player in the various games being guided by coincidence (…) However, the game examination would only have been able to answer the question as to whether the majority of games is decided by skill or by chance, if in each individual game one player had made two untargeted throws while his opponent made two targeted throws.” OVG of Kassel, 10.04.1979 – II OE 41/77 states the same: “The demonstration of the game carried out before the Court confirmed the conclusions reached by the defendant in numerous tests (375 games with seven persons), which is that mere chance decisions, i.e. drawing cards face down, led to poorer results in comparison with games played according to the rules.” Also see Dickersbach, Der Geschicklichkeitsautomat als Problem des gewerblichen Spielrechts, GewArch 1998, 265, 268.

[63] To this effect, see BVerwG, 09.10.1984 – 1 C 20/82, GewArch 1985, 59, 61.

[64] This field study is described in Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 51 et seq.

[65] Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 96 et seq.

[66] E.g. 20 tables with six players each, with one average player and five random players: The average player came first at 19 tables, and reached second place at one table.

[67] This was carried out by Mr. Henze, head of the Institute of Stochastics at the TU of Karlsruhe, who used the standard trust probability of 95%.

[68] According to the legal evaluation of the field study in: Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 103 et seq.

[69] v. Bubnoff, in: LK-StGB, Vor § 284, par. 24. Lotteries and draws fall under the scope of application of the criminal law provision in section 287 StGB as lex specialis, see v. Bubnoff, in: LK-StGB, § 284, par. 4. For oddset bets, the legal classification is disputed, prevailing opinion, however, treats them as games of chance, see BGH, 28.11.2002 – 4 StR 260/02, wistra 2003, 145; Heine/Eser, in: Schönke/Schröder, StGB, 2006, § 284, par. 7. The utilisation of the term “game” in section 762 BGB (German Civil Code) also is relevant in this context, shall, however not be discussed here in detail.

[70] Schild, Die Öffentlichkeit der Lotterie des § 286 StGB, NStZ 1982, 446, 447.

[71] Dietlein, in: Dietlein/Hecker/Ruttig, Glücksspielrecht, 2008, § 3 GlüStV, par. 3.

[72] For an interpretation of the term “remuneration“ which deviates from the criminal law term “stakes”, among others: VG of München, 09.02.2009 – M 22 S 09.300, ZfWG 2009, 70; similar result: VG of Münster, 03.04.2008 – 9 L 13/08, ZfWG 2008, 151; VG of München, 08.05.2007 – M 22 S 07.900; VG of Frankfurt a. M., 12.02.2008 – 7 G 4212/07, ZfWG 2008, 219; VG of Weimar, 19.10.2007 – 5 E 1520/07, ZfWG 2008, 62; in legal literature, above all Dietlein, in: Dietlein/Hecker/Ruttig, Glücksspielrecht, 2008, § 3 GlüStV, par. 5 making reference to the different wording. Holding a different opinion: OVG of Koblenz, 21.10.2008 – 6 B 10778/08; OVG of Münster, 10.06.2008 – 4 B 606/08, GewArch 2008, 407; VG of Trier, 03.02.2009 – 1 K 592/08, ZfWG 2009, 66.

[73] Reaching the same conclusion: OVG of Koblenz, 21.10.2008 – 6 B 10778/08; OVG of Münster, 10.06.2008 – 4 B 606/08, GewArch 2008, 407; VG of Trier, 03.02.2009 – 1 K 592/08, ZfWG 2009, 66.

[74] To this effect: Tettinger, in: Tettinger/Wank, GewO, § 33 h GewO, par. 1.

[75] See Ennuschat, in: Ennuschat/Geerlings/Mann u. a., Gedächtnisschrift für Peter J. Tettinger, 41, 43 et seq.

[76] The reform of the German federalism system has removed certain parts of trade law from the concurrent legislative powers, and has attributed them to the exclusive legislative power of the Länder. However, commercial gaming law is not affected by this, with the exception of the law regulating amusement arcades, see Höfling/Rixen, Die Landes-Gesetzgebungskompetenzen im Gewerberecht nach der Föderalismusreform, GewArch 2008, 1.

[77] This corresponds to the view taken by the Länder in the legislative material on the Inter-State Treaty on Gambling, see printed matter Drs. 15/1454 of the Parliament of Rhineland Palatinate, p. 31.

[78] BVerfG, 28.03.2006 – 1 BvR 1054/01, BVerfGE 115, 276. In this context, see Degenhart, in: Sachs, GG, Art.74, par. 47 and 52.

[79] Similar: OVG of Koblenz, 21.10.2008 – 6 B 10778/08.

[80] In this context, see also: Sodan, Das Prinzip der Widerspruchsfreiheit der Rechtsordnung, JZ 1999, 864.

[81] See supplement to printed matter Drs. 13/5365 of the Parliament of North-Rhine Westphalia, 24, and printed matter 15/1454 of the Parliament of Rhineland Palatinate, 31.

[82] Printed matter Drs. 15/1454 of the Parliament of Rhineland Palatinate, 31. This means that the Länder assume that, even after the changes introduced by the reform of the German federalism system, commercial gaming law is conclusively regulated by the Federal government in sections 33c to 33g GewO, and that the Länder at the most have been granted the power to decide on the permission (with only local validity) regarding amusement arcades.

[83] Fischer, StGB, § 284, par. 14; Heine/Eser, in: Schönke/Schröder, StGB, 2006, § 284, par. 18.

[84] Cramer/Steinberg-Lieben, Cramer/Heine, in: Schönke/Schröder, StGB, 2006, Vor §§ 324 et seq., par. 15 et seq.; Dannecker/Streinz, in: Rengeling/Breier, Handbuch zum europäischen und deutschen Umweltrecht, § 8, par. 17 et seq.

[85] Dannecker/Streinz, in: Rengeling/Breier, Handbuch zum europäischen und deutschen Umweltrecht, § 8, par. 17; Heine, Verwaltungsakzessorietät des Umweltstrafrechts, NJW 1990, 2425, 2431.

[86] Detailed information for the area of environmental criminal law – where the fact that the elements of the offence are linked to administrative decisions is of substantially greater importance: Cramer/Steinberg-Lieben, Cramer/Heine, in: Schönke/Schröder, StGB, 2006, Vor §§ 324 et seq., par. 15 et seq.; Kloepfer/Vierhaus, Umweltstrafrecht, 1995, par. 31 et seq.; reaching the same conclusion: Paeffgen, in: Küper/Welp, Festschrift für Walter Stree und Johannes Wessels zum 70. Geburtstag, 587, 608 et seq.

[87] On the entire subject: Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 114 et seq.

[88] The first decision on games of chance can be found as early as in the second volume of the Reichsgericht decisions: RG, RGSt 2, 390. Further differentiations, for instance: RG, RGSt, 172, et seq.; RG, RGSt 25, 12, et seq.

[89] On the historic development of gambling law: Klam, Die rechtliche Problematik von Glücksspielen im Internet, 28 et seq.

[90] On the Allgemeines Preußisches Landrecht: Klam, Die rechtliche Problematik von Glücksspielen im Internet, 28 et seq.; on the act against games of chance, a tightening of the criminal law provisions regarding gambling law dated 1919: Lange, in: Jescheck/Lüttger, Festschrift für Eduard Dreher, 573, 574, and on the legislative intent of the last decisive amendment of the act: BT-Drs. 13/8587, 67.

[91] Argumentum e contrario from BVerwG, 24.10.2001 – 6 C 1/01, BVerwGE 115, 179; Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 116.

[92] Tettinger, in: Tettinger/Wank, GewO, Vor §§ 33 c et seq., par. 2; Korte, Das staatliche Glücksspielwesen, 24.

[93] RG, 07.12.1906 – V 473/06, RGSt 40, 21, 35 et seq.

[94] Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 118.

[95] For detailed information in this context, see: Hambach & Hambach Law Firm/TÜV Rheinland Secure iT GmbH/Henze (Head of the Institute of Stochastics at the University of Karlsruhe)/Kalhamer (author of textbooks on poker), Poker study, 2008, 119 et seq.

[96] See, for instance www.pokerclubzwickau.de; http://www.cuxhavener-pokerlounge.de/; see, for instance http://www.deutscherpokerbund.net/. At present, 430,000 people play poker regularly: Forsa study dated 10.06.2008, http://www.bitkom.org/de/presse/8477_52665.aspx.

[97] http://www.pokermesse.de.

[98] At the moment, there are four German poker magazines with high circulation, see, for instance: http://royalflush.magnus.de.

[99] See, for instance: www.poker-bundesliga.de.

[100] See, for instance: www.pokerreing.com/.

[101] The test was carried out by TÜV Rheinland Secure iT GmbH.

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