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Second lotteries may not be offered via the Internet

‘Secondary lotteries’, which are designed to offer a bet on the outcome of draws by the lotteries of state lottery providers, are not lotteries within the meaning of the Gambling State Treaty. On the contrary, the submission of the tip is a bet, so that , unlike lotteries and sports betting, “second lotteries” may not be organised or mediated on the Internet (internet prohibition under Section 4(4) of the State Treaty on Gambling). This was decided by the 9th Civil Senate of the Higher Regional Court of Koblenz in a recently published judgment and in this respect confirmed the judgment of the Regional Court of Koblenz at first instance.

In the specific case, the defendant, who is based in Gibraltar, offered, for a fee,, tips on the outcome of lotteries LOTTO 6aus49, EuroJackpot, GlücksSpirale and KENO. The applicant, which organises lotteries with the approval of the Land of Rhineland-Palatinate or is entrusted by the Land of Rhineland-Palatinate with the task of carrying out the lotteries and sports betting organised by the Land, objected to that decision. It requested, inter alia, that the defendant be ordered to discontinue that internet service and pointed out that public gambling, with the exception of lotteries and sports betting, is prohibited on the Internet in principle (Section 4(4) of the State Treaty on Gaming. The defendant countered this by claiming that its offer was a lottery. The restrictive provision of the State Treaty on gambling also infringes EU law, in particular the freedom to provide services.

The Landgericht did not follow the defendant’s argument and upheld the action on the ground that the internet offer was not a lottery, but rather the mediation of bets on the lotteries of the German lottery and totoblocks. The Senate confirmed the legal opinion of the Landgericht and rejected the defendant’s appeal in that regard.

BGH: NetzDG also applicable to messenger services and similar offers

The Senate has made it clear that the lottery differs from the bet in that there is a “game plan” of the organizer, which determines, among other things, which future event is decisive for the entry of the prize, and how this event comes about. . This could be, for example, the drawing of a sequence of numbers. The entry of the relevant future event is therefore within the control of the lottery. On the other hand, in the case of the bet, the decisive event for the prize was outside the influence of the betting provider. The latter is the case with the ‘second lottery’ organised by the defendant. In its case, the decision on profit and loss depends on the implementation and the outcome of the ‘primary lottery’. The organiser of the ‘second lottery’ has no influence on both. He merely takes over the results of the ‘primary lottery’. Consequently, the ‘second lottery’ offered by the defendant is in fact the mediation of a bet on the outcome of the ‘primary lottery’. However, sports betting and lotteries are permitted as an internet offer at most (Section 4(5) of the State Treaty on Gambling). That provision of the State Treaty on Gambling serves the legitimate purpose of combating gambling addiction and preventing the participation of young people in games of chance. It does not infringe EU law. Each Member State may determine the level of protection of games of chance itself.

The Senate did not allow the appeal against the verdict.

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Written by Marian Härtel

Marian Härtel specializes in the areas of competition law, copyright law and IT/IP law and specializes in computer games, sports, marketing and streamers/influencers. He supports start-ups in their development, assists them with all legal problems and supports them in business development.

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