County Court of Bremen and Recklinghausen: Procuring sporting bets is not liable to prosecution

Rechtsanwalt Dr. Wulf Hambach

Hambach & Hambach Rechtsanwälte
Haimhauser Str. 1
D - 80802 München
Tel.: +49 89 389975-50
Fax: +49 89 389975-60
With two decisions the County Court of Bremen respectively the County Court of Recklinghausen have denied to open main (penal) proceedings arguing that Art. 284 StGB was not applicable to the procurement of sporting bets to a bookmaker established in another Member State (of the EU).

In its decision of March 16th 2004 (case no. 74 Ds 601 Js 7083/03) the County Court of Bremen acts on the assumption that a license “issued in another Member State of the European Union” was sufficient. The court invokes the bet-at-home decision of the District Court of Munich as well as the decision of the County Court of Heidenheim (to be found at ) and says:

“In recent history miscellaneous county- and District Courts have denied the applicability of Art. 284 Penal Law on identical fact for legal reasons. (…) It is explicitly being referred to the content of the cited decisions located in the files.”
In the view of the facts a conviction of the accused is not probable, so that the opening of the main proceedings was to be denied due to legal reasons.”

Like the District Court of Bochum the County Court of Recklinghausen in its decision of March 19th 2004 (case no. 32 Ds 11 Js 474/04) acts on the assumption that the elements of Art. 284 Penal Law are not fulfilled since sporting bets were not to be regarded as games of chance. The question, whether the relevant state law constituted a disproportional interference with the freedom of establishment and the freedom to provide services, could therefore be left debatable.

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