## New Developments in German Wagering Regulations
Legal expert Matthias Spitz, a partner at Melchers Law Firm, illuminates the continuing story of sports wagering legislation in Germany.
The European Court of Justice (CJEU), in its February 4, 2016, decision on the Ince matter (C-336/14), disrupted Germany’s extensive past of gaming control. The court ruled in favor of gaming firms possessing EU permits, upsetting the existing system.
The CJEU stated that EU member states cannot punish sports betting activities if a practical monopoly is present and licenses are essentially unobtainable. This is especially relevant to legal proceedings. This judgment significantly bolstered the legal position of all businesses functioning without German permits but holding valid licenses within the EU. For Germany, the judgment further emphasized the fact that the nation had not managed to substitute its state-run sports betting monopoly with an open and equitable licensing framework, as mandated by EU law. Although the licensing process is a key element of the Interstate Compact on Gambling (“Interstate Compact”), no permits have been granted to date.
**History**
The Ince matter arrived at the CJEU in 2013, originating from a Bavarian local court. The court challenged the validity of criminal penalties against unlicensed gambling enterprises. Essentially, the state prosecutor filed charges against Sebat Ince for operating her local betting establishment without a permit.
The 2008 Interstate Gambling Agreement prohibited issuing permits to non-governmental sports wagering businesses. But, a revised Agreement, implemented in July 2012, began a procedure for granting national sports wagering permits. This procedure remained underway during Ms. Ince’s prosecution.
The Bavarian Regional Court submitted the case to the European Court of Justice (ECJ), emphasizing the difficulties with this permitting procedure. In its judgment, the ECJ pinpointed three significant concerns with Germany’s gambling regulations.
The ECJ identified the “fake permitting process” as a primary concern. This was a substantial setback for Germany’s top administrative court, the Federal Administrative Court.
The ECJ had already determined in 2010, in the Winner Wetten case, that during this interim phase, limitations within the Interstate Treaty supporting the (illicit) state monopoly were not relevant. Nevertheless, in 2013, the Federal Administrative Court permitted regulators to impose preemptive prohibitions on gaming activities unless operators could definitively prove they fulfilled all the material prerequisites a state-run operator would face when seeking a permit. To circumvent enforcement, some gaming enterprises attempted to acquire provisional permits through a process the ECJ considered a sham.
These permits were allegedly never formally sanctioned by German regulatory bodies. Indeed, Advocate General Szpunar strongly rebuked this entire strategy in his assessment of the Ince matter back in October 2015, deeming it “disingenuous.”
Apparently, the European Court of Justice justices concurred. They contended that employing this type of legal tactic to conceal the discrepancies between national controls and EU legislation during a transitional period of regulatory adjustments was simply untenable. Essentially, if the existing regulatory structure doesn’t conform with EU law and everyone is anticipating modifications, it’s not permissible to pursue gambling enterprises for continuing their operations without a permit.
To exacerbate the situation, the Court also elucidated that prolonging the legal prohibition on internet gambling actually falls under the classification of “technical rules” according to Directive 98/34. This implies Germany was obligated to inform the European Commission *prior* to implementing it. The logic is straightforward: operators throughout the EU require ample notice regarding regulatory shifts to facilitate adaptation.
Bavarian authorities, recognized for their, let’s say, self-confidence, appear to have overreached here. By failing to provide adequate notification about extending the ban, they’ve stumbled. The European Court of Justice justices retorted by asserting that “noncompliance with this obligation prevents the applicability of those regulations to individuals in legal proceedings.” Put simply, due to this procedural error, these regulations cannot be utilized to prosecute individuals.
## The German Sports Wagering Permitting Chronicle: An Unresolved Narrative
Picture the German sports wagering licensing journey as a gripping novel. You’d find yourself on a cliffhanger, the phrase “to be continued…” inscribed on the last page. Germany, intending to overhaul its gambling sector, embarked on a mission to grant up to 20 national sports betting permits. This ambitious undertaking, originating from the “experimental clause” within the Interstate Treaty, was presented by the federal states as a trial run for a more transparent and competitive market.
Nevertheless, the licensing procedure, hastily initiated in August 2012, swiftly became entangled in disputes and allegations of obscurity. The European Court of Justice, through significant cases like Engelmann (C-64/08), has set a clear precedent: permitting choices must be based on pre-determined, impartial, and non-discriminatory standards. Germany’s process, regrettably, failed to meet these benchmarks, attracting criticism from German courts which promptly suspended the proceedings.
In a particularly harsh judgment, a high court determined that the German betting authority’s decision-making entity had breached the German constitution. The court contended that this entity constituted an unconstitutional “third tier” of authority between the state and federal governments (Hessian Higher Administrative Court, October 16, 2015, case number 8 B 1028/15). Consequently, the licenses remain unissued, and the responsibility for this procedural deadlock cannot be attributed to the hopeful operators.
The European Union’s highest court, in the matter of Ince, determined that Germany’s framework for licensing sports wagers, formed under the “experimental provision,” did not comply with EU regulations. This noncompliance stemmed from the persistence of a practical state control over gambling, despite efforts to establish order, rendering the governing entity incapable of effectively tackling unsanctioned wagering.
Notwithstanding these apprehensions, dialogues among the betting commission members imply that German regulatory bodies haven’t acknowledged the necessity for reform. Nevertheless, this recent judgment provides essential legal certainty for sports betting providers in Germany, particularly as the sector presently operates without comprehensive oversight.
admin