In addition to the legal question regarding the reimbursement of stakes in online sports betting(see this blog post), the Federal Court of Justice will also decide whether the organizer of an online poker game banned in Germany must reimburse the lost stakes of a player.
This case differs significantly from the proceedings under case number I ZR 90/23, in which the First Civil Senate will hear oral arguments on March 7, 2024, in that the subject matter here is losses in online poker games that are subject to the total prohibition of Section 4 para. 4 of the Interstate Treaty on Gambling in the version that came into force on July 1, 2012 and is valid until June 30, 2021 (GlüStV 2012), and not losses in online sports betting for which the operator already holds a license in accordance with Section 4 para. 5, §§ 4a, 10a GlüStV 2012 had applied for.
Facts:
The defendant, based in Malta, offers games of chance via a German-language website. In 2018 and 2019, the plaintiff took part in the defendant’s virtual poker games, which do not involve playing against people. During this period, the defendant held a license from the Maltese gambling supervisory authority, but no domestic license.
The plaintiff asserts the inadmissibility of online gambling and the invalidity of the gambling contracts. She claims that she did not know that the defendant’s offer was a prohibited game of chance. With her lawsuit, she demanded repayment from the defendant of the payments made to her in the amount of the losses suffered of € 132,850.55 plus interest.
Previous process history:
The district court upheld the action. The defendant’s appeal was unsuccessful. The Court of Appeal assumed that the international jurisdiction of the German courts arose from Art. 18 para. 1 of the Brussels Ia Regulation. It also has the right under Art. 6 para. 1 of the Rome I Regulation, German substantive law is deemed applicable.
The plaintiff could assert a claim for enrichment against the defendant under Section 812 para. 1 sentence 1 case 1 BGB. The gambling contracts under consideration as a legal basis are void pursuant to Section 134 BGB because the organization of public games of chance on the Internet pursuant to Section 4 para. 4 GlüStV 2012 had been prohibited. This standard conforms to EU law and its protective purpose also requires the nullity of the gambling contracts in the event of a unilateral breach of the ban.
The claim for repayment is not excluded according to § 817 sentence 2 BGB. The standard could not be reduced teleologically. However, the requirements of the facts were not met. § Section 817 sentence 2 BGB presupposes that the party providing the service, in this case the plaintiff, has intentionally violated the statutory prohibition. It would be the same if he had recklessly refused to recognize that his actions were illegal. The defendant, who invokes the concession bar, has to explain and prove the requirements. In the end, she did not succeed.
With the appeal allowed by the Senate, the defendant continues to pursue its motion to dismiss the action.
The decision of the Federal Supreme Court:
By resolution dated January 10, 2024, the Senate stayed the appeal proceedings pending a decision by the Court of Justice of the European Union in case C-440/23 on a request for a preliminary ruling from the Civil Court Malta dated July 11, 2023 suspended. The preliminary ruling procedure concerns in particular the question of whether Section 4 para. 4 GlüStV 2012 was in conformity with EU law.
