|The German Constitutional Court have issued an important decision concerning the legality of intermediary activities for a Gibraltar licensed gaming operator which will have ramifications for the online gambling industry.|
The German Constitutional Court, Bunderverfassungsgericht, raised substantial doubts on the compatibility of the German cross-border gaming restrictions, notably article 284 StGB – Criminal code, and the requirements of European law.
In line with the Gambelli and Lindman decisions, the Bunderverfassungsgericht stressed the need to have an in concreto analysis of the compliancy of these national restrictions. In Lindman, the European Court of Justice (ECJ) held that Member states have to prove with statistical or other evidence, that the national restrictions on the cross-border provision of games meet the requirements of European law.
Furthermore, the Constitutional Court made particular reference to the decision of the Landgericht München I of 27 October 2003. In this decision, the Landgericht held that the organisation of sports bets and lotteries was subject to a monopoly. However, this monopoly was not adopted and maintained for reasons of public order, but mostly for tax reasons. For this reason, the court stated it would not be justified to impose to an Austrian licensed bookmaker an obligation to obtain an additional German license.
Eventually, it stated that it is almost impossible for a national court to answer the compliancy of the restrictions imposed with European law without referring the case to the ECJ. The German Constitutional Court will soon issue another important ruling in a case relating to the freedom to exercise a profession and bring some fundamental clarifications to the current German gaming policy.
With a decision still pending, the Constitutional Court have asked local authorities to remain prudent and refrain from being too restrictive against local intermediaries.