ECJ confirms special path taken by Kiel

By Peter Bock, published at www.sponsors.de

The European Court of Justice (ECJ) has decided on German gaming legislation. According to this decision, the special path taken by the federal state of Schleswig-Holstein does not violate the coherence requirement under EU law. 

The ECJ decided the question as to whether the temporary issue of licences for providers of online gaming in Schleswig-Holstein resulted in the restrictions for internet games in force in Germany being no longer applicable as a whole. According to the judges in Luxembourg, the special path taken by the federal government in Kiel during a 14 month period does not violate the coherence requirement under EU law.

This means that two regulatory systems continue to exist in Germany. On the one hand, there is the Inter-State Treaty on Gambling (GlüStV), under which 20 licences are intended to be issued to private and state-run sports betting providers, and on the other hand, there is the special path taken by Schleswig-Holstein. After 2012, the state issued 26 licenses for sports betting providers and 23 licences for providers of online casino games, with six-year terms. In the meantime, Schleswig-Holstein has joined the Inter-State Treaty, but the licences issued prior to that date continue to apply.

Lawyer Wulf Hambach: “This judgment does not help anyone”

Wulf Hambach, expert for gaming law at the law firm Hambach & Hambach, does not see the judgment as providing a solution for the disorganised legal situation in the German gaming market. “The ECJ has taken the easy way out and not really examined whether there is overall coherence. This judgment does not help anyone and has not decided anything. It seems that the ECJ is not willing to do the homework for the German legislator.”

Here, Hambach refers to the last sentence of the ECJ judgment, according to which the German Federal Court of Justice (BGH) will have to examine whether the Inter-State Treaty complies with the principle of proportionality. “In my opinion, the ECJ leaves the coherence review to the BGH.”

CDU politician Hans-Jörn Arp: “All accusations have been invalidated”

The CDU politician Hans-Jörn Arp, who was among those who initiated the gaming law in Schleswig-Holstein at the time, feels vindicated by the ECJ judgment. “All accusations against the successful Schleswig-Holstein regulatory model have now been invalidated.” The coalition of SPD, Grüne and SSW decided to join the Inter-State Treaty on Gambling of the other 15 federal states after taking over the government from CDU and FDP at the beginning of 2013.

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