In a landmark online gambling verdict the District Court of Munich has found a 25 year old German resident guilty of what it terms “illicit online gambling” activities which included playing online blackjack.
This bold move has served as a statement of intent by the German government to crack down on illegal online casinos, as well as German residents who would choose to frequent them.
However whether this was the right time for such an aggressive stance is up for debate. There are several points of law which come into play, and may well support the young gambler in getting the verdict overturned.
One the items up for debate is the validity of pursuing the case under the current legal setup.
What few realise is that Germany is not a single unified legal environment, rather it more closely resembles the United States in that it has 16 federal states each of which has the right to make amendment to how it handles cases such as online gambling.
At the time that the “illicit illegal gambling” took place the 15 of the federal states (bar one, Schleswig-Holstein) had entered into an Interstate Treaty which made online gambling illegal.
The treaty was enacted in 2008 and could only last 4 years. By September of 2010 the European Court of Justice (ECJ) had ruled the treaty in violation of European Law (specifically ‘freedom of services’) under the statutes of the European Union.
As these amendments were only completed in December of 2011 it could be argued that at the time of the alleged offence there was no legally binding code of conduct in affect.
The revisions dealt mostly with the legal operation of online betting, while online casino and poker was still held to be illegal by all states except Schleswig-Holstein.
Schleswig-Holstein had pursued a more liberal Gambling Act for itself.
Where the EU Commission was in favour of Schleswig-Holsteins Gambling Act it still criticised the Interstate Treaty for not complying with European Law.
It had failed to address the government monopoly on gambling and had not provided clear legalisation for all forms of gambling (both online and offline).
Part of this disparity came under fire when the defense argued that the airing of gambling adverts showcasing the talents of famous actors and personalities created an atmosphere of approval for online gambling.
The state argued that the onus to determine legality sat with the individual.
Also that the adverts had been for online betting, and not online gambling on games of chance such as blackjack.
Their position was that the individual was intelligent enough to draw a distinction between betting and games of chances for themselves.
Online gambling legislation is one of the most complicated subsections of German law, and whether a layperson could be completely certain of the current legal environment given the variations of implementation between federal states, complicated legal jargon and, as the EU puts it, ‘inconsistent gambling laws throughout the country’ is a grey area.
At present the online casino player has been fined €2,100 and had his winnings confiscated from his home, he had the cash in a shoebox, totalling €63,490.
His defense have already filed an appeal, and only time will tell if this is the case that creates a precedent for legal online gambling in Germany.
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