Esports facilities and alcohol?

Even if esports men are more likely to be the energy drink consumers, locations such as esports bars or LAN arenas are quite wondering whether it is possible to obtain a permit for the dissenter of alcohol. Of course, this can also increase the turnover as an operator enormously.

Gastronomic establishments, such as bars, pubs, restaurants where alcohol is to be dispensed, must go through a concession procedure involving several offices in order to obtain a restaurant licence.

This usually requires:

• completed business registration,
• completed application for concession
• Identity card / passport (for inspection), foreigners also need a residence permit, which allows self-employment in the applied trade.
• Certificate of management and information from the central register of trades, both for submission to an authority. The extract must not be older than 3 months.
• Proof of participation in the restaurant information,
• if necessary, proof of the instruction to the Infection Protection Act,
• purchase, lease or lease agreement,
• If applicable, a brief description of the project/operation
• Floor plan drawing of the entire plant on a scale of 1:100. If necessary, site plans must be submitted to demonstrate that the premises are usable for the catering industry.
• Corporations / legal entities also need an extract from the commercial register or, if necessary, from the register of associations.

Whether alcohol is permitted or can be banned depends on several standards. With one of those that would be particularly relevant for esport locations, Paragraph 3 III, first sentence, of the Regulation on gaming equipment and other games with the possibility of winning is.

This standard regulates that in“amusement arcades or similar businesses where alcoholic beverages are served for consumption on the premises […] a maximum of three cash or merchandise gaming machines are placed [dürfen].”

The further subsumption of the norm and the circumstances is inevitably linked to the question of the extent to which esport is skill gaming or gambling(see my article on this) and how far the reservation of permission of § 33i Gewerbeordnung goes(see my elaboration on a 15-year-old ruling of the Federal Administrative Court). The judgment is old, but there is no newer case law. Nevertheless, it is clear in my opinion that neither 33f Gewerbeordnung as the authorising standard for the game regulation nor 33i Gewerbeordnung wants to cover normal PCs with the well-known esport titles (and actually never wanted to) cover them. These are always rules designed to cover devices with profit opportunities, such as the typical slot machines, with which, for example, a Fortnite is simply not comparable – neither in the nature of the game nor in relation to the recitals on the protection of minors and/or the prevention of addiction. Thus, Paragraph 33i of the German Trade Code also refers to Sections 33c and 33d GewO, both of which refer to ‘profit opportunities’. In my opinion, this does not even include tournament wins in esports titles, since they cannot be subsumed under the definition of Section 3 of the State Treaty on Gambling.

Incidentally, the amendment of the 33i Trade Code on the basis of an infringement procedure by the EU Commission against Germany also speaks in favour of this interpretation. The latter took the view that the old version of the standard, and a reservation of authorisation for non-profit games, simply infringed Article 9 of 2006/123/EC.

(1. Member States may make access to and the exercise of a service activity subject to authorisation schemes only if the following conditions are met are met:

(a) the licensing arrangements are not discriminatory in respect of the service provider in a non-discriminatory manner;
(b) the licensing regulations are justified by overriding reasons of of the general interest;
c) the objective pursued cannot be achieved by a milder means achieved, in particular because an ex post control would take place too late to be effective.

The legislator has therefore reacted and expressly decided:

Amusement arcades and similar establishments in which onlyentertainment equipment (in particular computers withwith gaming facilities) are set up, are subject to the § Section 33i (1) sentence 1 GewO (old version) of a permit. Of these, internet cafes in particular. These can be previous case law (BVerwG, ruling dated March 9 2005) and practice (Item 3.1.1.2 of the Administrative Regulation on the of the administrative regulation for the gaming ordinance).Depending on their design, such venues may have the character of a gaming hall and thus require a license.

[…]

Since the protection of minors can indeed be guaranteed by the measuression can be ensured by the measures outlined by the Commission, The equation of Internet cafes and similar facilities with
Facilities with gaming halls for gaming machines with the possibility ofdisproportionate.
By the deletion of the words “or the commercial of amusement games without the possibility of these trades will be exempt from the licensing requirement in the future.
exempt from the obligation to obtain a permit.

As a result, in typical esports venues, only entertainment games are offered without the possibility of winning and the Game Ordinance is therefore not applicable. At least for this reason, an alcohol drink-driving service is unlikely to be banned or an alcohol-drinking licence should be granted. However, many trade offices could see this differently and, in the end, it depends on the concrete design. Open communication with the authorities can also make a difference here.

Only through an honest registration and the “clean” and professional design of the operating company will one achieve that order and youth offices do not find reasons to either prohibit the alcohol consumption or even the whole location on the “Kieker” “To have what would inevitably lead to litigation in which authorities, even if by means of “immediate enforcement”, could often unfortunately cause more problems than one as a trader would like. Of course, this also applies to all other circumstances such as the question of the protection of minors (see this article for a sub-area in this regard).

As you can see, all this can be extensive and complicated. I have been experienced and active in this area as a lawyer and can also help to establish the legal form that may be necessary. For further questions simply contact us without obligation.

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.