On January 24th 2013 two highly anticipated decisions were made in Germany concerning Gambling regulations, one by the Federal Court of Justice and another one by the parliament of Schleswig-Holstein, one of the 16 federal states in Germany.
These two decisions change yet again the legal situation concerning online gambling in Germany and lead to new legal uncertainties.
Up until 12pm on January 24th 2013, the German landscape concerning the legalities of gambling was divided. 15 of the 16 German states were parties to a joint State Treatyconcerning gambling regulations. Only Schleswig-Holstein, the most northern state of Germany, had its own laws on the matter. While the Schleswig-Holstein law was quite liberal and allowed online gambling and online bets with a state licence, the joint State Treaty on gambling is quite strict and forbids online gambling in total and allows only a limited number of licences for online bets on sports. Because of its strictness the conformity of the joint State Treaty on Gambling with Community Law was always vividly discussed, whereas it was widely agreed upon that the Schleswig-Holstein Law on Gambling did confer with European requirements.
On the morning of January 24th 2013, the German Federal Court of Justice finally had a chance to give its opinion on the validity of the joint State Treaty on Gambling. As was expected, it did not decide directly on the matter at hand, but instead referred various questions concerning the conformity of the joint State Treaty on Gambling with Community Law to the European Court of Justice (ECJ). It is now the ECJs turn to decide on the validity of the joint State Treaty on Gambling and the restrictions on online gambling set out within it.
Only hours after this decision by the German Federal Court, the parliament of Schleswig-Holstein voted to revoke its own gambling law (which is assumed to be in conformity with EU law) and to join the State Treaty on Gambling with the other 15 German states (which is at risk of being overturned by the ECJ). This means that starting January 24th 2013 online gambling and online advertising in Germany yet again involves high legal risks, at least until the ECJ decides otherwise.
The vote in Schleswig-Holstein also leads to another legal uncertainty: As there were already licences for online gambling with a duration of six years issued in Schleswig-Holstein it is now the case that online gambling is officially illegal in the whole of Germany even though some licensees have official permission to operate. We await with interest to see how German courts and authorities deal with this situation.