Bavarian Administrative Court of Appeal: Internet ban not coherent and disproportionate

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

Arendts Rechtsanwälte
Perlacher Str. 68
D - 82031 Grünwald (bei München)
Tel.: +49 89 649111-75
Fax: +49 89 649111-76
E-Mail: martin.arendts@anlageanwalt.de

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

The Bavarian Administrative Court of Appeal (Bayerischer Verwaltungsgerichtshof), in its recently published decision of 26 June 2012, file no. 10 BV 09.2259, held that the Internet ban with regard to gambling advertising was not enforceable. Section 5 par. 3 of the German Interstate Treaty on Gambling states that advertising public gambling over the Internet is prohibited.

The court rescinded a prohibition order against an Internet portal (offering sport news), which advertised a private bookmaker. It argued that there was a serious “structural enforcement deficit”. All state operators were continuously and systematically breaking the law, advertising their services over the Internet. The Internet ban was not adequate and not coherent and, therefore, not enforceable. Apart from that, the Internet ban was also not proportionate, as the authorities were issuing prohibition orders only with regard to private operators. As the ban was not enforced against state operators, the regulation was obviously not taken seriously (and, in truth, fiscal reasons were decisive).

From my point of view, it is a very important decision, as it points to the fact that the treatment of state operators and private operators is clearly discriminatory and disproportionate. According to the court, the state operators (in Bavaria, it is the state itself who operates casinos, lotteries, scratch cards and sports betting) were systematically breaking the law (without any enforcement by the authorities). Last year, the Federal Court of Justice (Bundesgerichtshof), ignored this fact and upheld the Internet ban in several unfair competition cases. The Bavarian Administrative Court of Appeal now comes to the conclusion that the whole regulatory system is not working properly. So, I do not follow the state attorney (Landesanwaltschaft) who argued that the decision was only relevant with regard to the situation before 1 July 2012 (when the Amendment Treaty to the Interstate Treaty became effective).