Article by Maximilian Krietenstein, Senior Associate

I. Introduction

For more than five years, German courts have been dealing with lawsuits to reclaim losses from online gambling. At the heart of the matter lies the question: Can players recover their losses based on the illegality of past gambling offers in Germany, or can operators rely on the argument that former regulations were contrary to European law?

Initially, most Higher Regional Courts ruled in favor of the players that a claim for repayment generally exists. However, the compliance of the old Interstate Treaty on Gambling with European law was not sufficiently clarified. The turning point in this respect was a decision by the Federal Court of Justice in January 2024, in which it suspended proceedings against an online casino operator for the first time due to several questions referred from a Maltese court. The oral hearing in these proceedings (C-440/23) took place on April 9, 2025. The final opinion of the Advocate General of the ECJ is expected in July 2025. This should shed some light on how the ECJ assesses the former gambling regulations in Germany, as the ECJ often follows the Advocate General's statements. The fundamental direction of the courts is likely to depend on the outcome of this legal dispute.

However, anyone who thinks that the lawsuits are limited to the question of the legality of the former gambling regulations under European law and the potential nullity of the gambling contracts, is mistaken.

On the contrary, the team at Hambach & Hambach attorneys has observed that the courts are turning away from the "standard problems" of the case. In the last few months alone, our team obtained numerous Higher Regional Court decisions in favor of the gambling operators, most of which are legally binding. These impressively demonstrate that it is worth taking a look beyond the standard problems of the case, as all of the decisions in favor of the clients were won due to secondary issues. The fundamental problem that the gambling operators did not have a German license to operate games of chance in Germany was completely pushed into the background.

II. The gameplay outside Germany

In recent months, numerous Higher Regional Courts have ruled in more than a dozen cases in favor of gambling operators that the players' claims should be rejected as inconclusive due to participation abroad to an unknown extent. In addition, there are hundreds of first-instance court decisions that have also positioned themselves in favor of the clients represented by Hambach & Hambach regarding this issue. All these cases have been won without the basic question of the invalidity of the individual gambling contracts, any toleration regimes, substantive violations of compliance requirements or similar issues. The Hambach & Hambach team receives new positive decisions on this issue on a daily basis. Given the frequency and consistency of these decisions, it is fair to say that Higher Regional Court jurisprudence has become well established in this respect.After analyzing the stored IP addresses, the operators often discover that the plaintiffs have also logged in from abroad during the - often multi-year - gambling periods and participated in the games offered there.

Especially through professionally prepared and intensive questioning of the plaintiffs in the oral hearings at court, it is often possible to prove that claimants - contrary to their statements in almost every lawsuit did not play exclusively from Germany – but outside the scope of applicability of the German gambling laws. It has become clear that questioning by specially trained lawyers during the oral hearing is essential.

If the claimant cannot demonstrate and prove that he has suffered all losses from within Germany, this generally leads to the claim being dismissed in its entirety. This has already been decided by the following Higher Regional Courts, for example:

• OLG Frankfurt, judgment of April 2, 2025, 14 U 151/24.
• OLG Dresden, e.g. with judgment of December 19, 2024, 10 U 436/24.
• OLG Munich, e.g. with decision of October 24, 2024, 24 U 2080/24 e.
• OLG Hamm, e.g. with decision of July 4, 2024, I-21 U 69/24.
• OLG Braunschweig, decision of September 9, 2024, 9 U 72/23.
• OLG Stuttgart, decision of November 6, 2024, 5 U 113/24.
• OLG Nuremberg, decision of November 21, 2024, 3 U 1502/24.
• OLG Celle, decision of February 5, 2025, 14 U 190/24.
• OLG Cologne, decision of November 28, 2022, 19 W 16/22.
• OLG Oldenburg, decision of February 29, 2024, 14 U 157/23.
• OLG Stuttgart, decision of November 6, 2024, U 113/24.

The result is clear: without solid proof of domestic losses, claims typically fail—often without touching the underlying legal questions about licensing or European law.

III. Right to conduct proceedings– Role of litigation financers

Another key defense strategy with which our team wins many cases is, for example, the litigant's right to conduct the proceedings on his own behalf.

This is because most player lawsuits are financed by litigation financiers. For securitization, the financiers often have the claim in dispute assigned to them. In a nutshell, this means that it is no longer the player but the financier who has become the “owner of the claim”. Now, however, the player, who is to continue to act as the claimant in order to avoid any problems with the jurisdiction of German courts, needs effective authorization from the financier to continue to assert the disputed claims in court on his own behalf.

The team at Hambach & Hambach attorneys has already succeeded in casting considerable doubt on this construct in a number of cases before the regional courts and Higher Regional Courts. This issue, which on the face of it has nothing to do with gambling law, has also led to success in numerous cases.

IV. Outlook

These examples impressively demonstrate how important it is to focus on the individual case, even in mass proceedings, and to question the claimants in a targeted and professional manner during the oral hearings. If you consider all aspects of the facts, there are hardly any proceedings in which there are no starting points for winning the case. - all without an ECJ ruling.