When are the „Federal Constitutional Court“ and the ECJ finally going to bring Clarification to the whole Issue of Private Gaming Operators?

[key:AREN]

As we already mentioned in issue 18 of our newsletter „German Gaming Law updated“ many crucial legal question will be resolved this year. In the WTO case Antigua v. USA the WTO‘s Appelate Body has meanwhile reached its decision (without really bringing clarification to the crucial questions, so that both sides claim to have won).

Next to the upcoming „Gambelli II“ decision (dealing with Italian facts concerning the case „Placanica“) there will probably soon be a „Gambelli III“ decision concerning several German cases. Finally a German court announced to submit the legal questions in respect to the German situation to the ECJ for giving preliminary rulings thereon. The
interesting aspect of these cases is that the subject matter is not only sports betting, but also the legality of casino games. Similarly to the EFTA case regarding the Norwegian monopoly on gaming machines, the ECJ will have to clarify the scope of application of the „Gambelli Criteria“. Bookmakers invoke in this cases not only the freedom to
provide services and the freedom of establishment guarantee, but they also argue that the currently applicable legal provisions are incompatible with the competition rules set up by the EC Treaty. The Federal Court of Justice (Bundesgerichtshof) in its Faber decision (regarding a lottery agent) has already pointed to the legal problems arising from the cartel „Deutscher Lotto- und Toto-Block“ (a federation of the 16 state operators) in view of the principles set up by competition law.

The fundamental decision of the Federal Constitutional Court announced to be delivered this summer still dominates the legal debate in Germany. As we have announced, a preliminary decision regarding the closing of gambling offices should be rendered beforehand. A first decision was rendered last week. It constitutes a provisional opinion of the Federal Court of Justice and does therefore not yet directly lead to the fall of the State Monopoly. Nonetheless, no one can turn back the clock anymore, since hundreds of betting shops have already opened and – according to this decision – must not be closed anymore (although the state authorities will keep trying).

We will keep an eye on the development and keep you informed.



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