Opinion of Advocate General Szpunar in the Ince case (C-336/14)

Opinion of Advocate General Szpunar (ince, C-336/14) from Martin Arendts

Hesse proposes fundamental changes to German Interstate Treaty on Gambling

Sportwettenrechtrecht aktuell Nr. 132 from Martin Arendts

Arendts on failed gambling licensing procedures (European Gaming Lawyer)

Failed gambling licensing procedures from Martin Arendts

Hesse Minister of the Interior concedes that Interstate Treaty on Gambling has failed

In an article, published today by Frankfurter Allgemeine Zeitung, the Minister of the Interior and Sport for the German state of Hesse, Peter Beuth, whose department is responsible for issuing Germany's 20 sports betting licences, has called for an overhaul of the Interstate Treaty on Gambling (Glücksspielstaatvertrag). He admitted that the current legislation is incapable of achieving its objectives. The German states should leave the "blind alley" and change the law.

http://wettrecht.blogspot.de/2015/06/peter-beuth-sportwetten-neu-regeln.html

CJEU further clarifies requirements for EU-compliant gambling law

Brussels, 12 June 2015

Yesterday, the CJEU not only questioned several aspects of the Hungarian gambling law, but its ruling also provided a number of conclusions that are widely applicable (Case C-98/14, Berlington Hungary). These included taxation, the need to provide an attractive regulated offer and the requirement to notify gambling legislation.

EGBA Secretary General Maarten Haijer said: “The ruling of the CJEU is a timely reminder to Hungary and other Member States that national gambling legislation needs to respect the requirements of EU law. In particular, legislation must actually and primarily address the pursued objectives. Restrictions can only be justified if they serve to combat actual problems in the Member States, for example with regard to gambling-related crime or gambling addiction. Today’s ruling adds to the growing body of CJEU case law on gambling and the limits within which Member States must set their gambling policy.”

The particular case at hand concerns an amendment to the Hungarian law on games of chance made in 2012, which prohibited the operation of slot machines in amusement arcades (allowing them only in casinos).

The CJEU confirms (see link http://curia.europa.eu/juris/document/document.jsf?text=&docid=164955&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=496760) that:

- Prohibitions are found to constitute technical rules, which need to be notified to the EC: “the provisions of national legislation that prohibit the operation…constitute ‘technical rules’ within the meaning of that provision, drafts of which must be communicated...” to the European Commission (para. 100)

- The CJEU confirms that taxes may constitute a restriction on the freedom to provide services: “… national legislation, such as that at issue in the main proceedings, which, without providing for a transitional period, introduces a five-fold increase in the … tax … constitutes a restriction on the freedom to provide services, guaranteed by Article 56 TFEU provided that it is liable to prohibit, impede or render less attractive the exercise of the freedom to provide the services…” (para.42)

- The Court also inter alia embraces the need to have an attractive regulated offer as a pre-requisite to channel the consumer: “In order to achieve that objective of channelling into controlled circuits, the authorised operators must provide a reliable, but at the same time attractive, alternative to a prohibited activity...” (para. 70)

It will now be to the local Court in Hungary to provide the material ruling in the case, taking into account today’s CJEU conclusions.

For more information, please contact: Maarten Haijer, Secretary General of EGBA: +32 2 554 08 90, maarten.haijer@egba.eu

Arendts, The German Licensing Fiasco

Arendts_Germany licensing procedure_igamingbusiness from Martin Arendts

CJEU will hear Ince referral case on 10 June 2015

More information on the upcoming decision (C-336/14):

http://wettrecht.blogspot.de/2015/03/martin-arendts-zu-dem-eugh.html

Martin Arendts on the referral case Ince (CJEU, C-336/14)

Question to the European Commission with regard to the Interstate Treaty on Gambling

Question for written answer to the Commission Rule 130 John Stuart Agnew (EFDD)

Subject:  Germany's Interstate Treaty on Gambling

Germany’s apparent ‘gentlemen’s agreement’ (Commission communication SG(2012) D/50777) with the Commission has protected it from an infringement procedure related to its amended Interstate Treaty on Gambling for over two years now. Under the agreement, Germany was obliged to prove the suitability of its gambling law. Although the agreement’s two-year validity period expired on 1 July 2014, no infringement procedure has been initiated to date. This means that a potentially illegal law is still in place. 1. Have other Member States been granted a gentlemen’s agreement before which delayed the initiation of an infringement procedure? 2. Does the Commission deem the amended Interstate Treaty on Gambling and its implementation to be in compliance with EC law? 3. If not, why has the Commission not taken action by means of an infringement procedure without further delay?

European Commission on the sports betting licensing procedure in Germany

Question for written answer to the Commission Rule 130 Alexander Graf Lambsdorff (ALDE)  Subject:  Modification to the German State Treaty on Gambling On 15 December 2011, all the German states apart from Schleswig-Holstein signed a modification to the State Treaty on Gambling. The most significant amendment is that private sports betting providers can obtain up to 20 concessions. Transposition of the modification took place in 2011 and 2012 with implementation laws which differed among the states. For example, as the state government of Hessen concedes in a reply to a parliamentary question, imposing the numerical restriction on concessions has proved enormously long, complicated and open to dispute. In particular, the measure to contain illegal sports betting has backfired and had the opposite effect. This is mainly because the state government has still not awarded the concessions, nearly two years after the Modification came into force. The current limbo surrounding the award procedure enables private betting providers operating illegally to function largely without regulation. The Commission gave the new Treaty a two-year trial period, which expired in July 2014. 1. What is the Commission's assessment of the implementation of the Treaty in Germany? 2. Does the tendering procedure in Hessen satisfy the principle of equal opportunity and transparency, and is it compatible with European law? 3. Does the Commission intend to initiate infringement proceedings against Germany as a result of the situation surrounding the award procedure? _____ Parliamentary questions
11 March 2015	P-000412/2015
Answer given by Ms Bieńkowska on behalf of the Commission
The Commission continues monitoring closely the implementation of the German State Treaty on Gambling. The modified regime for sport betting is part of that ongoing evaluation. The Commission is aware that the tendering procedure for the award of sport betting concessions is currently still subject to review in the national remedy system. The process of the award of sport betting concessions is considered as part of the overall assessment of whether the objectives in the public interest justifying the restrictions of the German gambling legislation are met in a consistent and systematic manner as stipulated in the case law of the Court of Justice of the European Union (see recently Case C-390/12, Pfleger, judgment of 30 April 2014 paragraph 43).

Ince case: New referral to the CJEU from Germany

Reference for a preliminary ruling from the Amtsgericht Sonthofen (Germany) lodged on 11 July 2014 — Criminal proceedings against Sebat Ince

(Case C-336/14)

 

Language of the case: German

 

Referring court

Amtsgericht Sonthofen

 

Party/parties to the main proceedings

Sebat Ince

Other party: Staatsanwaltschaft Kempten

 

Questions referred

 

I.    On the first charge (January 2012) and the second charge in so far as it relates to the period up to the end of June 2012:

 

 

1(a)    Must Article 56 TFEU be interpreted as meaning that criminal prosecution authorities are prohibited from penalising the intermediation of bets on sporting competitions carried on without German authorisation on behalf of betting organisers licensed in other Member States, where such intermediation is subject to the condition that the betting organiser too must hold a German authorisation, but the legal position under statute that is contrary to EU law (‘monopoly on sports betting’) prohibits the national authorities from issuing an authorisation to non-State-owned betting organisers?

 

1(b)    Is the answer to question 1(a) altered by the fact that, in one of the 15 German Länder which jointly established and jointly implement the State monopoly on sports betting, the State authorities maintain, in prohibition or criminal proceedings, that the statutory prohibition on the issue of an authorisation to private suppliers is not applied in the event of an application for an authorisation to operate as an organiser or intermediary in that federal Land?

 

1(c)    Must the principles of EU law, in particular the freedom to provide services, and the judgment of the Court of Justice in Case C-186/11 be interpreted as precluding a permanent prohibition or an imposition of penalties (described as ‘precautionary’) on the cross-border intermediation of bets on sporting competitions, where this is justified on the ground that it ‘was not obvious, that is to say recognisable without further examination’ to the prohibiting authority at the time of its decision that the intermediation activity fulfils all the substantive conditions of authorisation (apart from the reservation of such activities to a State monopoly)?

 

2    Must Directive 98/34/EC ¹ be interpreted as precluding the imposition of penalties for the intermediation of bets on sporting competitions via a gaming machine, without a German authorisation, on behalf of a betting organiser licensed in another EU Member State, where the interventions by the State are based on a law, not notified to the European Commission, which was adopted by an individual Land and has as its content the expired Staatsvertrag zum Glücksspielwesen (State Treaty on Gaming) (‘the GlüStV’)?

 

II.    The second charge in so far as it relates to the period from July 2012

3    Must Article 56 TFEU, the requirement of transparency, the principle of equality and the EU-law prohibition of preferential treatment be interpreted as precluding the imposition of penalties for the intermediation of bets on sporting competitions, without a German authorisation, on behalf of a betting organiser licensed in another EU Member State in a situation characterised by the Glücksspieländerungsstaatsvertrag (State Treaty amending the provisions on games of chance) (‘the GlüÄndStV’), applicable for a period of nine years and containing an ‘experimental clause for bets on sporting competitions’, which, for a period of seven years, provides for the theoretical possibility of awarding also to non-State-owned betting organisers a maximum of 20 licences, legally effective in all German Länder, as a necessary condition of authorisation to operate as an intermediary, where:

 

(a)    the licensing procedure and disputes raised in that connection are managed by the licensing authority in conjunction with the law firm which has regularly advised most of the Länder and their lottery undertakings on matters relating to the monopoly on sports betting that is contrary to EU law and represented them before the national courts in proceedings against private betting suppliers, and was entrusted with the task of representing the State authorities in the preliminary ruling proceedings in Markus Stoß [and Others, ,,,, and, EU:C:2010:504], Carmen Media [Group,, EU:C:2010:505] and Winner Wetten [, EU:C:2010:503];

 

(b)    the call for tenders for licences published in the Official Journal of the European Union on 8 August 2012 gave no details of the minimum requirements applicable to the proposals to be submitted, the content of the other declarations and evidence required or the selection of the maximum of 20 licensees, such details not having been communicated until after the expiry of the deadline for submission of tenders, in a so-called ‘information memorandum’ and numerous other documents, and only to tenderers who had qualified for the ‘second stage’ of the licensing procedure;

 

(c)    eight months after the start of the procedure, the licensing authority, contrary to the call for tenders, invites only 14 tenderers to present their social responsibility and safety policies in person, because these have fulfilled all of the minimum conditions for a licence, but, 15 months after the start of the procedure, announces that not one of the tenderers has provided ‘verifiable’ evidence that it fulfilled the minimum conditions;

 

(d)    the State-controlled tenderer ‘Ods’ (Ods Deutschland Sportwetten GmbH), consisting of a consortium of State-owned lottery companies, is one of the 14 tenderers invited to present their proposals to the licensing authority but, because of its organisational links to organisers of sporting events, is probably not eligible for a licence because the law (Paragraph 21(3) of the GlüÄndStV) requires a strict separation of active sport and the bodies organising it from the organisation and intermediation of bets on sporting competitions;

 

(e)    one of the requirements for a licence is to demonstrate ‘the lawful origin of the resources necessary to organise the intended offer of sports betting facilities’;

 

(f)    the licensing authority and the gaming board that decides on the award of licences, consisting of representatives from the Länder, do not avail themselves of the possibility of awarding licences to private betting organisers, whereas State-owned lottery undertakings are permitted to organise bets on sporting competitions, lotteries and other games of chance without a licence, and to operate and advertise them via their nationwide network of commercial betting outlets, for up to a year after the award of any licences?

  ____________

¹ Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37).

Arendts on the sports betting licensing procedure in Germany

Germany: sports betting licensing procedure from Martin Arendts

German Highest Administrative Court Confirms Fantasy-League-Game Is Not Gambling

By Martin Arendts, Attorney-at-Law

The German Federal Administrative Court (Bundesverwaltungsgericht) decided that “Super-Manager”, a Fantasy-League-Game offered online, is not gambling within the sense of the German Interstate Treaty on Gaming (Glücksspielstaatsvertrag). With its decision of 16 October 2013 (file no. BVerwG 8 C 21.12), the Federal Administrative Court confirmed the appellate decision of the Baden-Wuerttemberg Administrative Court of Appeal.

The plaintiff, a media company in Berlin, offered online a Fantasy-League-Game called “Super-Manager”, based on the German Football Bundesliga. Participants had to pay a participation fee of EUR 7.99. They were then, within a fixed budget, allowed to put together a fictitious team of 18 Bundesliga players of the season 2009 - 2010. On the basis of a jury’s evaluation of the performance of the players, each Bundesliga day a new line up was submitted in three different fictitious leagues. A participant was allowed to submit a maximum of ten teams, from which every third was free of charge. The winners (top finishers) were prized with cash or other prizes. The overall winner, Super-Manager of the season 2009 - 2010, won EUR 100.000 in cash.

The Regional Authority of Karlsruhe (Regierungspräsidium Karlsruhe), acting on behalf of the State of Baden-Wuerttemberg, issued a prohibition order against the plaintiff, ordering him not to organize and not to advertise this or any other forms of gambling online. The media company filed an action against this prohibition order, but lost in the first instance. The Administrative Court of Karlsruhe rejected the arguments raised against the prohibition order. In the appellate procedure, the Baden-Wuerttemberg Administrative Court of Appeal overturned this decision and held that Super-Manager does not fall under the restrictive provisions of the German Interstate Treaty on Gambling.

The State of Baden-Wuerttemberg filed a further appeal, which was now rejected by the Federal Administrative Court. According to the Federal Administrative Court, Super-Manager is not to be classified in the sense of Section 3, Par. 1, sentence 1 Interstate Treaty on Gambling (§ 3 Abs. 1 Satz 1 GlüStV). In this provision those games are defined as gambling which depend on random chance of the gain and in which in context of the game a payment (consideration) for the acquisition of a chance of winning is required. In addition, the commitment in which the chance of winning is considered must be based on the criminal gambling term definition of gambling according to the German Criminal Code (section 284 et seq.). However it is not sufficient that a mere participation fee (admission fee) is required. With paying the participation fee, the participants obtain only the authorization for playing, without being associated with the chance of winning.

The payment for Super-Manager represents only such a participation fee. It only permits to participate in the game. It is only the composition of the team and the weekly list of the team, which is attached to the winning chance. A further interpretation of the gambling definition in the Interstate Treaty would also contradict the sense and purpose of the law and the constitutional principle of the proportionality. The far-reaching restrictions in the Interstate Treaty on gambling aims at ensuring youth protection, preventing fraud as well as gambling addiction, also channelling the population’s gambling desire to state controlled gaming operations. These are only constitutionally justified; so far their actions are suitably, necessarily and relatively strictly targeted towards these dangers. That is not the case with the games, whose danger is necessarily small and can be controlled by fewer drastic regulations. Thus it is situated after that - undisputed between the parties - statements of the Administrative Court with the Super-Manager game. In particular, the game rules did not permit the participants to at run time spend more money in expectations to compensate or adjust the suffered failures. The remaining risks can be met within the framework of the commercial law (Gewerberecht).

Sports betting licensing procedure in Germany

Arendts: Sports betting licensing procedure in Germany from Martin Arendts

Martin Arendts, Attorney-at-Law (Germany)
Intergaming Law, Issue 1 2013

The legality of online penny auctions in Germany

Online penny auctions in Germany from Martin Arendts

Martin Arendts, Attorney-at-Law (Germany)
World Online Gambling Law Report, August 2013