The Frankfurt am Main Regional Court has issued a very exciting ruling on the question of whether a German gambler is entitled to a repayment claim against a gambling provider in Malta.
The defendant was MrGreen.de, which offers online gambling in German.
The player, or the plaintiff to whom the claim was assigned, is of the opinion that the underlying legal transaction with the defendant is void pursuant to § 134 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) because the defendant does not have a license to organize games of chance in Germany. The defendant violated § 4 para. 4 GlüStV as well as § 284 StGB. The plaintiff is of the opinion that a claim for enrichment does not fail in particular due to § 817 p. 2 BGB, since this norm is to be reduced teleologically, because the legislator with § 4 para. 4 GlückStV had deliberately decided in favor of an absolute ban on casino games on the Internet and that the intention of the Prohibition Act would be completely undermined if the stakes were subject to condictions.
The Regional Court of Frankfurt am Main found that it had jurisdiction and also found that there was a claim for repayment under §§ 812 para. 1 Sentence 1 Var. 1, 398 BGB for justified. German law had to be applied, because the choice of law clause contained by MrGreen in its General Terms and Conditions of Business is illegal due to infringement of Directive EC 93/13 (Clause Directive) and due to infringement of Art. 14 para. 1 p. 1 lit. a) Rome II Regulation ineffective. Maltese law therefore does not apply to the contractual relationship. It is probably particularly nasty for the defendant that the court was of the opinion that § 4 para. 4 GlüStV does not violate Article 56 TFEU, as the restriction on the free movement of services brought about by the GlüStV and its implementing provisions under Article 56 is based on overriding reasons relating to the public interest within the meaning of Union law (see BGH, judgment of. 28.9.2011 – I ZR 92/09; referring to this judgment: LG München I, Urt. v. 13.4.2021 – 8 O 16058/20) serves.
However, it is particularly interesting that the court also did not recognize an exclusion of the claim for damages, since the player was not aware of the illegality of the game on MrGreen.de and the court proceedings would not have presented any other circumstances. In particular, it was credible that the player had not read the terms and conditions that referred to the circumstances and the defendant could not prove any other circumstances, as it was known to the court that extensive terms and conditions are never actually read.
This, in turn, is a very exciting (but also questionable) line of argument that has many implications for the question of how general terms and conditions should be designed AND integrated in order to achieve a different assessment of the concession claim in similar cases in which the distinction between skill games and gambling may be at issue.
I would be happy to advise on this.
However, it is also clear that providers are well advised to check their general terms and conditions and other circumstances and to make use of the possibilities offered by the GlüStV in Germany.
