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Ladies and Gentlemen,
This is about my gambling loss of 900 euros at the casino, which I gambled away.
The casino has refused to reclaim the money.
So far, the casino does not have a valid licence in Germany to legally offer casino gambling in Germany.
I have been addicted to gambling since 2009 and have also recently attended an inpatient rehab due to my pathological gambling addiction.
According to § 105, paragraph 2 of the German Civil Code, a declaration of intent made in a state of unconsciousness or temporary disturbance of mental activity is also null and void. The nullity of a contract leads to the reversal of the transaction under enrichment law. What has been obtained must then be refunded.
Gambling addiction, which is particularly present in online gambling, can also be qualified as a state of temporary mental disturbance.
The gambling contracts are then void if the stakes are placed to satisfy the gambling addiction. I have also gambled with you for the satisfaction of my gambling addiction.
The gambling stakes made in the state of temporary mental disturbance must then be returned. The OLG Hamm has already confirmed that the gambling contracts concluded because of the gambling addiction are invalid.
There are already several rulings by German courts where casinos have been ordered to refund the stakes to the player, as gambling without a German licence is prohibited and illegal. Since you do not have a licence in Germany, your online casino is illegal and therefore you have to refund my deposit that I made with you.
I issue the following notices:
1.) If you are of the opinion and refer to the T&C that the responsibility for the use of the services on the website in accordance with the law lies solely with the player.
This view is wrong, I refer to the judgement of the Regional Court of Gießen. The Regional Court of Gießen sentenced the casino Bwin to repay the player the stakes,Case number: 4 O 84/20 of the Giessen Regional Court.
The Regional Court of Giessen states:
In the case before the Regional Court of Giessen, the court ruled that the contract on the player's participation in gambling was void from the outset and that he was entitled to the recovery of the stakes paid. The court also commented on further issues in connection with reclaiming stakes lost at the online casino. For example, the player was also entitled to a refund of the lost amounts if he himself had violated legal regulations by participating in illegal online gambling. This is because the State Treaty on Gambling is intended to protect gambling participants from "addictive, ruinous and/or fraudulent forms of gambling". Furthermore, the current tolerance on the part of the supervisory authorities until the entry into force of a new State Treaty on Gambling in mid-2021 does not change the law prohibiting online gambling. Even the fact that the company has a licence in Malta does not change anything. The contract on gambling participation was null and void, the player had thus placed his bets without legal grounds.
2.) If you are of the opinion that your licence from Curacao is valid in Germany.
This opinion is wrong. Once again, I refer to the judgement of the Gießen Regional Court, file number: 4 O 84/20.
Even if a casino provider advertises with European licences, such as in Malta, gambling remains prohibited in Germany. Gambling is also illegal if a casino provider has received a licence in a certain federal state, but the online player makes the payment from another federal state.
3.) If you are of the opinion that your website has been adjusted after the circulation decision of the federal states in Germany of 08.09.2021 and you invoke the EU freedom to provide services and thus a refund of the gaming stakes is excluded:
This view is wrong. The Regional Court of Gießen stated that "any toleration of the defendant's offer by the Hessian Ministry of the Interior does not override the said prohibition law and is therefore not relevant here."
On 1 July, a new State Treaty on Gambling is to come into force in Germany. Online casinos will then be allowed to apply for a licence throughout Germany for the first time. Already since October, many casinos have been de facto tolerated by the supervisory authorities. Legally, however, this regulation is controversial.
In the past years, providers of online casinos had always stressed that the German gambling law violated the freedom of services in the EU. However, numerous courts have denied this. The Regional Court of Gießen also writes that the ban on online gambling in Germany "has not been annulled or declared void by decisions of the administrative courts, the Federal Constitutional Court or the ECJ".
Illegal online casinos cannot plead that their own online casino offer is justified by the freedom to provide services in the European Union. This argument is now countered by no less than six decisions of the higher administrative courts as well as the landmark decisions of the Federal Administrative Court of 26.10.2017 (Ref.: 8 C 18.16 and 8 C 14.16).
3.) Criminal liability of casino without German licence:
In its leading sentence decision of 27.02.2020 published at the end of June, the third criminal senate of the Federal Supreme Court (BGH) has clearly positioned itself on this (ref. 3 StR 327/19). The BGH clarifies that organising games of chance without official permission is generally punishable under section 284 of the Criminal Code - even if the event could be authorised under substantive law. The decision of the Federal Supreme Court also confirms the prohibition of online gambling established by several administrative courts.
Further examples of rulings by various courts against online casino
The Regional Court of Freiburg im Breisgau ordered the online casino provider "Genesis Global Ltd." to repay all amounts that the plaintiff had lost in the online casino there in a judgement of 14 October 2020. The court's reference number is 14 O 122/20.
After the plaintiff had lost € 27,165.00 in the online casino "vegashero.com" of one of the leading online casino providers "Genesis Global Ltd." and only afterwards learned of the illegality of the offer of this online casino, she demanded all the gambled amounts back from the online casino due to violation of a legal prohibition.
In addition to the very well-known online casino "www.vegashero.com", the online casino provider "Genesis Global Ltd." also operates the online casino sites casinojoy.com, sloty.com, casoola.com, genesiscasino.com, spinit.com, and many more.
The court's file number is: 2 O 616/20).
As the Regional Court of Meiningen has decided, Rabbit Entertainment Ltd. must pay back the lost stake in full. The court found that the offer to gamble in the online casino via the German-language website was directed in particular at customers in Germany. The plaintiff had also participated in online gambling from his residence in Germany.
This was decided by the Regional Court of Meiningen in a judgment dated 03.02.2021 (Ref.: 2 O 616/20).
Another judgement on the repayment of gambling stakes was issued from Berlin, the judgement was also confirmed in the second instance by the Higher Regional Court of Berlin.
This is the judgement against the casino Mr. Green, which was ordered to repay the gaming stakes.
In its judgement of 06.10.2020, the Berlin Court of Appeal confirmed the first-instance decision of the Berlin Regional Court and ordered the online casino Mr. Green to cease online gambling due to its lack of a German licence. The judges ruled that there is also no tolerance for organising online gambling without a licence.
According to the Court of Appeal, this is not changed by the fact that a reform of the State Treaty on Gambling is planned for this year. Nor can it be concluded from the reform that the ban on online gambling currently in force in Germany (§ 4 para. 4 of the State Treaty on Gambling) violates European law.
Tolerating online casino offers WITHOUT a licence is already ruled out for reasons of the rule of law.
"The Regional Court correctly assumed and very carefully substantiated (LGU 10-14) that and why the provisions of § 4 para. 1, 4 and § 5 para. 5 GlüStV at issue here do not restrict the free movement of services regulated in Article 56 TFEU in a manner that is contrary to EU law. This is in line with the unanimous case law of the highest and higher courts, which has extended to the present [...]. The appeal challenges this in vain." (KG Berlin judgement of 06.10.2020)
Illegality in the absence of authorisation:
The ruling makes it clear that operating an online casino without a licence from a supervisory authority is illegal in Germany. Other courts previously ruled the same way (OLG Koblenz, OVG Berlin-Brandenburg, OVG, Saxony-Anhalt and Schleswig-Holstein).
The Berlin court states:
The Kammergericht Berlin has thus clarified that offering online casino games without the permission of the German supervisory authorities is illegal. The Koblenz Higher Regional Court and several Higher Administrative Courts had also recently ruled in the same way.
The online casinos cannot refer to the possession of a licence from another EU member state and are thus illegal.
The Kammergericht clearly rejected the argument of the freedom to provide services within the European Union, which is repeatedly put forward by online casinos, and thus followed the legal opinion of the OLG Koblenz and numerous higher administrative courts.
The Kammergericht also made it equally clear that the change in the law due in 2021 will have no influence on the current legal situation:
"The envisaged reform of the State Treaty on Gambling with a planned licensing procedure for (inter alia) online casino games and online poker in the draft State Treaty on Gambling 2021 does not lead to any other view (likewise VG Schleswig, decision of 30.06.2020 - 12 B 27/20 - juris-Rn. 52-54). In particular, it cannot be deduced from this - contrary to the appeal - that the previous legal situation - contrary to the entire unanimous case law cited above (B II) - is for instance contrary to Union law, let alone that this is the view of the current draft treaty law." (KG Berlin Urt. v. 06.10.2020)
Judgments of courts on the legality of Union law:
The most recent rulings on the legality of the online gambling ban in Germany were:
OVG NRW, decision of 30 March 2020 - 13 B 1696/19 -.
OVG Lower Saxony, ruling of 28 February 2019 - 11 LC 242/16 -, juris, para. 52 et seq.
OVG Schleswig-Holstein, decision of 3 July 2019 - 4 MB 14/19 -, juris, marginal no. 16
OVG Saxony-Anhalt, decision of 9 July 2019 - 3 L 79/16 -, juris, marginal no. 51 f.
VGH Baden-Württemberg, decision of 11 July 2019 - 6 S 2759/18 -.
OVG Berlin-Brandenburg, decision of 20 August 2019 - OVG 1 N 46.18 -.
For this reason, the casino must refund my gaming stakes.
I request the casino to refund my deposit of 300 euros to my account.
If I do not receive payment from the casino, I will take the following steps against the casino:
Involvement of a lawyer who will file a lawsuit with the court, which will then order the casini to reimburse me for the gaming stakes. This involves higher costs for the casino.
Report to the responsible regulatory authority
Notification to the Regional Council in Germany, Department of Gambling Supervision
Involvement of the press / media
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May 30, 2021