Federal Constitutional Court (BVerfG) Decision now due next year

Rechtsanwalt Dr. Wulf Hambach

Hambach & Hambach Rechtsanwälte
Haimhauser Str. 1
D - 80802 München
Tel.: +49 89 389975-50
Fax: +49 89 389975-60
E-Mail: w.hambach@timelaw.de
The long awaited seminal decision of the Federal Constitutional Court on the organisation of sports betting by private providers (Case no: 1BvR 1054/01) is now no longer expected this year. At the start of the year, the final decision was anticipated in Summer 2005 and recently it was to be expected in Autumn 2005, which was even confirmed by spokespersons for the Federal Constitutional Court.

The responsible senate of the Federal Constitutional Court did indeed make a decision on the 13th of July 2005; this was, however, only an order for a hearing on the 8th of November (10 o’clock ). The question as to when a decision will now be delivered remains open, though a spokesperson for the Federal Constitutional Court expects this to be in early 2006 at the earliest.

Why has there been this time delay and now the decision for this oral hearing?

The press office of the Federal Constitutional Court was rather reserved in its explanation. The reasons, according to attorney at law Dr. Wulf Hambach (Munich), are likely to be the huge public pressure, the increased public attention and the wide-reaching effect on the entire gambling industry in Germany. The pressure on the Federal Constitutional Court has certainly not been elevated by the fact that the EU Commission intends to proceed against Germany in the near future because of its sports betting monopoly, which is incompatible with EU law.

An oral hearing only occurs exceptionally in the large number of decisions, which the Federal Constitutional Court makes every year. The fact that an oral hearing is to take place is a further indication in favour of liberalisation of the gambling market in Germany, according to Hambach – an oral hearing normally only takes place where the court considers that a hearing of evidence (e.g., the questioning of witnesses or experts) or an expert opinion is necessary for its decision. The contradictory behaviour of the states will clearly be central to the decision as the state gambling monopoly cannot justify this by fiscal interests coupled with threats of punishment to the private sports betting providers.

Based on this, the requests by the Federal Constitutional Court to the public order authorities not to implement public policy orders against private betting providers make sense. The decision of the Federal Constitutional Court of the 27th of April 2004 is even more important in this context. In that decision, the court decided that the public order authorities could no longer rely solely on Art. 284 of the German Criminal Code (StGB) in closing the private betting agencies, but rather, that the authorities had to prove that there was a “particular danger” posed. The representatives of the state gambling monopoly are going to have to come up with a way of justifying their restrictive policy, which is incompatible with European law and this in view of their extensive advertising campaigns (not least in conjunction with the Football World Cup 2006) by the 8th of November 2005.

How should gambling firms now react to the decision ?

In Hambach’s view, the private providers have gained time to lodge applications in the individual states for (interim) “court licenses” to operate and transfer sports bets. Where these applications for the private operation and transmission of sports bets are rejected by the authorities, corresponding court proceedings can then be initiated.