OLG Munich or “Gambling costs money again!”

The issue of gambling, the State Contract of Gambling and payments to providers is not only very relevant, but also has its own facets. Thus there was at the beginning of this year in very exciting judgement the regional court Koblenz(see this contribution), which followed in this respect a iurisdiction of the Federal Administrative Court. Accordingly, gambling is inadmissible in the Federal Republic of Germany, unless covered by the State Treaty on gambling, and cannot be legalised by the freedom to provide services. This has also put my clients, albeit more in the area of skillgaming, in a compulsion, because as a result users were able to reclaim payments to the providers directly from the payment provider, which led to various game providers of companies being able to payPal and other payment providers, as well as some new contracts. Numerous other courts agreed with this development, so even legal tech companies developed, which recovered deposits without risk by discovering an argumentation possibility with illegal gambling (Section 4 para. 1 p. 2 GlüStV), To give gambling participants hope of having their gambling losses replaced by the banks involved.

Whether the providers of payment options are the real culprits, however, can be perfectly disputed. This is especially true as players are naturally happy to withdraw winnings from gambling providers. However, the Higher Regional Court has now put a stop to the development. It thus confirmed a decision of the Regional Court of Munich of 28 February 2018 (Az. 27 O 11716/17), which is why, at least within the jurisdiction of the OLG Munich, it is now clear that one cannot ignore his obligation to settle the balance from the credit card agreement with his bank simply because one participated in an illegal online gambling. In spite of Section 4 para. 1 Sentence 2 GlüStV is not the responsibility of the credit company to verify the legality of payments. This also has a data protection component. In addition to data protection, the intention of the Gambling State Treaty would also speak against the acceptance of a refund obligation. If potential gambling addicts could claim profits but not have to pay, this could increase the urge to participate in gambling. I think it is a very good argument.

The regional court also recognized the immense amount of examination, now confirmed by the Higher Regional Court.

The official justification for the GlüÄndStV is:

the provision in Section 9 para. 1 Sentence 3 no. 4 of the clarification and clarification of Paragraph 4(4) 1 sentence 2. According to that provision, the parties to payment transactions, in particular credit and financial service institutions, including e-money institutions (point 4), may be called upon as responsible disruptors by means of a dynamic legal referral, provided that they have previously been participation in illicit gambling offers has been notified by the Gaming Authority. This presupposes that the organiser or intermediary of the illicit gambling offer has previously been used in vain, in particular because of a foreign connection.

However, checking each payment against the whitelist would involve an immense amount of scrutiny, going beyond the normal processing of payment transactions. In addition, the judges did not consider that a normal credit card debit would lead to a possible breach of Section 285 of the German Criminal Code (StGB).

The latter is consistent and applies above all to the currently confused situation in Germany, which is a game ball out of the interests of individual federal states (not least Schleswig-Holstein), decisions of the Federal Administrative Court, demarcation problems between gambling and skillgaming and largely inactive legislators.

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.