Administrative Court of Schleswig refers German Interstate Treaty to the European Court of Justice

Court questions justification of the state monopoly regarding sports betting and lotteries

by Attorney-at-Law Martin Arendts, M.B.L.-HSG

The Administrative Court of Schleswig (Schleswig-Holsteinisches Verwaltungsgericht) has raised serious doubts about the justification of the new Interstate Treaty on Gambling (Glücksspielstaatsvertrag) and referred a dispute about the state monopoly regarding sports betting to the European Court of Justice (decision of 30 January 2008, file no. 12 A 102/06). Plaintiff in the main proceeding is a remote gaming operator, licensed in Gibraltar. The gaming operator which wants to offer its services cross-border also in the State of Schleswig-Holstein, filed an application. This application was rejected by the state, citing the monopoly for sports betting and gambling. The gaming operator relied on the freedom to provide services, as guaranteed by the EC Treaty, and filed suit in 2006.

The Administrative Court raised doubts whether the prevention of compulsive gambling and the protection of minors, which were put forward as a justification of the Interstate Treaty, really justify the exclusion of private operators. Other forms of gambling, e. g. gambling machines, are not restricted in the same way. Under EU law, this inconsistent regulation is problematic.

After the seven already pending preliminary proceedings brought by the Administrative Courts of Cologne, Giessen and Stuttgart, the Administrative Court of Schleswig is the fourth German court to refer a sports betting case to the ECJ. As reported, the ECJ has joined the six cases from Giessen and Stuttgart. The new proceeding from Schleswig expressly refers to the new legal situation according to the Interstate Treaty, which became effective as of 1 January 2008, and the still incoherent and inconsistent regulation of gambling in Germany.