As reported in the last two editions of our newsletter, the fundamental decision which the Federal Constitutional Court announced will be decided in summer of this year, is dominating the legal conflict in Germany.
The “million dollar question” for many who are directly affected by this decision is: What will the Federal Constitutional Court decide? Ultimately, one can only speculate on this as the Federal Constitutional Court has clearly political considerations in mind based on its personnel composition as well as its conceptual formulation (in particular the billion euro state revenue). Because of this, a full liberalisation cannot seriously be expected.
On the other hand, the letters from the Federal Constitutional Court, mentioned in our last newsletter, show that the current legal situation in relation to constitutional freedom of profession guarantee (Art. 12 of the German Constitution, GG) is certainly not unproblematic. Fundamental comments by the Federal Constitutional Court on this have had considerable effect on this area. Commercial gambling agents who have had their occupational expansion potential and their price calculations restricted by the States Lotteries Treaty (Lotterie-Staatsvertrag) may also place hope on this decision.
Easier than the question of what the court will decide is the question of what the court cannot decide. The Federal Constitutional Court – like the normal courts – cannot authoritatively interpret the EC Treaty. This is reserved to the European Court of Justice which – as reported – is to decide on “Gambelli II” soon (and maybe also on a question submitted on German facts of the case).
The Federal Constitutional Court (BVerfG), in the two decisions in which it cited the European Court of Justice Decision, clearly rejected the partially (for instance by the Bavarian Highest District Court from November 2003) undertaken attempts to determine the Gambelli Decision and the criteria set out by it to be immaterial as well as the roundabout misinterpretation to bring about the reverse of the decision. The Federal Constitutional Court is also of the view that the Gambelli Decision has fundamentally altered the legal situation in relation to the (EU) cross border provision of sports betting. The “Gambelli Criteria” must – according to the clear request from the Federal Constitutional Court – be examined by the German courts (including by means of the pertinent legislative materials).
One thing is clear: All sides will inevitably try to appropriate the unclear points and implications of the decision, which is in need of interpretation, to their own position. On a long term basis, the legislator will need to draft a regulation which creates an appropriate balance between consumer protection and market liberty.