Federal Constitutional Court: There are „considerable doubts“ as to the Prohibition of private Betting Offers

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

Arendts Rechtsanwälte
Perlacher Str. 68
D - 82031 Grünwald (bei München)
As we already mentioned in our last newsletter, in the context of several preliminary procedures, the Federal Constitutional Court (Bundesverfassungsgericht) asked the local regulatory authorities not to take any measures against agents of sporting bets anymore. Despite this clear request issued by the highest German court, even during the last weeks many state authorities (especially those in Hessia, Bavaria and North-Rhine Westphalia) have kept trying to enforce so called orders of interdiction (Untersagungsverfügungen) by force, threatening to seal betting shops and to take away computers and printers.

With its decision of last week (decision of 27th April 2005, case-no. 1 BvR 223/05) the Federal Constitutional Court has put the kibosh on this practice. The court held that the fact that there is the possibility of a violation of Art. 284 German Criminal Code was not sufficient in order to close betting shops. In its third preliminary decision regarding sporting bets after the Gambelli decision, the Federal Constitutional Court expressed „serious doubts“ as to whether the penal sanctions were compatible with Community Law and the Criteria set forth by the ECJ. Therefore betting shops could only be closed in case there was a tangible danger for public order.

The mere cross-border provision of sporting bets to a bookmaker licensed in another EEA member state cannot serve as an argument for closing a gaming office anymore. In any case, judicial steps should be taken against orders of interdiction. From now on, given the doubts expressed by the Federal Constitutional Court, penal punishments for transmitting sporting bets is rather unlikely.