Newsflash – Federal Court of Justice has Doubts on Compatibility of Art. 284 German Penal Code and other Gambling Provisions with Community Law

Rechtsanwalt Dr. Wulf Hambach

Hambach & Hambach Rechtsanwälte
Haimhauser Str. 1
D - 80802 München
Tel.: +49 89 389975-50
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An abridged report by Dr. Wulf Hambach attorney-at-law

In his recent decision of April 1st 2004 (case no. I ZR 317/01), published today, the Federal Court of Justice expresses doubts on the compatibility of German sporting bet and lottery regulations as well as of Art. 284 German Penal Code with Community Law. The case dealt with the publisher of the German daily newspaper “Die Welt” who had positively reported on a bookmaker licensed in Austria. The report was provided with a hyperlink, containing the internet address of the gambling provider. Thereby the reader could connect to the Austrian gambling business respectively its offer on the internet at any time.

The Federal Court of Justice decided that the publisher of the Newspaper did not violate his duty to verify the content of the link for possibly furthering advertisement for illegal gabling. The Federal Court of Justice invokes the ambiguous legal situation in Germany and explicitly refers to the bet-at-home decision (LG München I, NJW 2004, 171f) as well as to the ECJ’s Gambelli decision.

The Federal Court of Justice pointed out that:

“Without a detailed legal examination it was not and it is not evident, that a license granted by a Member State of the European Union to a business based in that country for operating internet gambling does not exempt from prosecution when operated domestically (compare District Court of Munich I, NJW 2004, 171).”

The key sentence reads as follows:

“It has been doubted that the domestic provisions regarding licensing of gambling operations and the application of Art. 284 German Penal Code compatible with the Community Freedoms to provide services (Art. 46 EC) and the freedom of establishment (Art. 49 EC) In this context it should be referred to the ECJ decision “Gambelli” of November 2003 (RS C-243/01, NJW 2004, 139).”

This way the Federal Court of Justice for the first time since his decision of 2002 (Intertops decision) took a stand on the legality of cross-border sports betting. For the first time the Federal Court of Justice explicitly expresses doubts on the German gambling monopoly. Although the Federal Court of Justice could have avoided to do so, it expressed itself on this problem. The Court’s doubts will surely leave its traces. One can be curious to see whether the Federal Constitutional will follow these doubts.

Those foreign bookmakers having filed for a license for conveying or operating sporting bets in Germany can now hope to receive a positive decision soon. The same applies for German bookmakers who were not put off by the authorities information, conveying sporting bets to foreign bookmakers were illegal and still filed for cross boarder sports betting procurement.