Gambling Law Lawyer Explains Everything About Suspension
In the rapidly evolving world of online gambling, litigation is not uncommon, especially in Australia, where legal regulations are very strict. Player lawsuits against online casino operators, which are often based in countries such as Malta or Cyprus, shed light on the complex interactions between national law and EU legislation. These legal disputes are reaching a new dimension by being heard by the European Court of Justice (ECJ). The focus is on the question of whether German regulations that prohibit online gambling without a German license are compliant with the European freedom of establishment.
The law firm Kaufmann has established itself as the lawyer of the players in this legal dilemma. With the convincing argument that many online casinos operate without the necessary German license, the firm has won significant victories for its clients by enforcing the invalidity of gaming contracts due to violations of the German gambling law. Recently, a Maltese court brought a preliminary ruling procedure regarding German gambling legislation before the ECJ, which prompted the Federal Court of Justice to suspend the hearing in one of its appeal proceedings (I ZR 53/23) and wait for the decision from Luxembourg.
The article discusses the background to this suspension and the possible consequences of the ECJ ruling for the legal assessment of online gambling in Australia, as well as important recommendations for affected players.
Background to the German casino lawsuits
There are frequent reports in the media about the lawsuits filed by online casino players against the operators of these platforms. The Kaufmann law firm represents many of these players very successfully. The main reason for the frequent court successes of our clients is:
Most top 10 online casino australia operators are based in Malta, Cyprus or Curacao and usually only have a license from the country in which they are established.
However, according to the German Interstate Treaty on Gambling (GlüStV), a German license issued by the relevant German gambling authority is required to legally offer online gambling in Australia.
Without this German license, the offer of these casinos is illegal in Australia, and the contracts with the German players are invalid under German civil law.
This invalidity leads to the fact that, according to German law on enrichment and tort, the stakes gambled away must be repaid.
The lawyers of the online casino operators regularly argue in court that § 4 para. 4 GlüStV, which regulates the prohibition of unlicensed gambling, is not compatible with European law, in particular the freedom of establishment under Article 56 of the Treaty on the Functioning of the European Union (TFEU). However, most courts confirm the case law of the Federal Constitutional Court (BVerfG) from 2008, which affirms the conformity of these regulations with European law.
Federal Court of Justice suspends proceedings
In the course of the recovery processes carried out in Australia, German courts have repeatedly reviewed and confirmed the conformity of national law with European legal requirements. However, a final decision by a competent European court is still pending.
The decision of the Federal Court of Justice (BGH) to suspend its own proceedings seems to be aimed at ensuring a uniform handling of all similar cases in accordance with the expected directives of the European Court of Justice (ECJ).
The specific proceedings of the Federal Court of Justice deal with the recovery of losses from online poker games that fall under the comprehensive prohibition of Section 4 (4) of the Interstate Treaty on Gambling from July 2012 to June 2021. In this case, the plaintiff, who participated in online poker games of a Malta-based operator between 2018 and 2019, is seeking repayment of her losses in the amount of A$132,850.55. She argues that she did not know that the offer was illegal and that the contracts are therefore invalid. The German courts agreed with it in previous instances, based on the invalidity of the gambling contracts pursuant to Section 134 of the German Civil Code (BGB) due to a violation of Section 4 (4) of the GlüStV 2012.
The ECJ is now to examine whether this regulation is in line with EU law.
The appeal on points of law by the defendant gambling operator aims to dismiss the action, while the plaintiff defends the decision of the court of appeal. The fact that the Federal Court of Justice now wants to link its decision to a decision from Luxembourg or wait for it is not an everyday step.
Some regional and higher regional courts have now also suspended the proceedings pending before them and are waiting for the Luxembourg decision. However, other courts are not influenced by the suspension by the Federal Court of Justice and are continuing their proceedings.
Date : 2023-12-12
