Koblenz Regional Court also grants restitution for gambling losses

Can a gambler reclaim her losses suffered in an online casino from 2015 to 2020 from its operator? This question had to be decided by the 1st Civil Chamber of the Regional Court of Koblenz. The Chamber thereby followed the current case law, which can be found manifold here on my blog!

To the facts:

The Defendant is a leading online gaming operator from Malta, which operates several online casino sites and holds a gaming license from the Malta Gaming Authority. However, the defendant did not have a corresponding gaming license in Germany or for the federal state of Rhineland-Palatinate, in which the plaintiff resides, at least at the time of the disputed gaming transactions. The Defendant’s Internet pages together with the FAQ and the Terms and Conditions are written entirely in German.

In the period from 27.12.2015 to 02.12.2020, the plaintiff lost gaming amounts totaling €632,250.00 on the defendant’s online casino sites, taking into account winnings (deposits less payouts).

The plaintiff is of the opinion that, due to the legal prohibition of online gambling at the time, it has a claim for repayment of the stakes placed. Furthermore, it did not learn until 2022 that online gaming had not been permitted during the period at issue, so that potential repayment claims were not time-barred.

In its action, the plaintiff is seeking reimbursement of the stakes in the amount of €632,250.

The decision:

The 1st Civil Chamber of the Regional Court of Koblenz granted the claim in full.

The plaintiff had a claim for repayment of the stakes paid and lost in the amount of €632,250.00 because the defendant had obtained them without legal grounds. The online gaming agreement concluded between the parties violates a statutory prohibition during the period at issue and is therefore void.

It is true that the State Treaty on Gambling will be amended in 2021 and that it will now be possible to obtain permission for public gambling on the Internet. However, the relevant point in time for the assessment of the question of the infringement of the law in the present case was the time of the execution of the legal transaction, so that the question of a possible later legalization of the offer of the defendant was not relevant.

In the present case, the defendant could also not rely on Section 762 of the German Civil Code (BGB), because this provision only applies if the recovery is based on the gambling character.

Nor could the defendant invoke Section 817 sentence 2 of the German Civil Code, according to which recovery is excluded if the party rendering the service is also guilty of a violation of a statutory prohibition. In this respect, the defendant remained obliged to prove that the plaintiff had acted in a subjectively intentional manner in violation of the prohibition or had at least recklessly withheld insight into the unlawfulness. A mere objective violation of the Prohibition Act is not sufficient.

During the personal hearing of the plaintiff, the Board did not come to the conclusion that the plaintiff was positively aware that online gambling was prohibited in Germany (with the exception of Schleswig-Holstein) during the period at issue. The plaintiff had been able to register on the defendant’s German-language website without any problems and had also been able to make the corresponding payments. Moreover, it does not readily appear that the same games of chance that are permitted in arcades and casinos are subject to a total ban if they are offered on the Internet and also advertised in the media. In addition, the defendant has a license in an EU state and has offered its services freely in Germany. In this factual situation, it was not necessary for the plaintiff to consider that the online offer originating from other European countries could be prohibited.

Finally, the claims asserted are not time-barred because the defendant has failed to prove that the plaintiff actually became aware of the circumstances giving rise to the claim before 2022.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.