The district court Munich found a Munich man guilty of participation in an unlicensed public game of chance due to his participation in online blackjack games. The player was fined under criminal laws and the funds received by the player from these activities were confiscated.

The judgment was passed on 26 September 2014 (1115 Cs 254 Js 176411/13) but only published recently and concerns a case which took place in 2011. In the district court’s view, playing Blackjack online on a website not licensed in Germany constitutes participation in a public game of chance. The website in question was operated by a Gibraltar-based operator licensed in the UK. The Court ordered a fine in the total amount of EUR 2,100 and that the state confiscated funds found in the attic of the man’s apartment (EUR 63,490) which the man admittedly received from playing Blackjack online.

Several aspects of the decision are problematic and raise concerns about the thoroughness and accuracy of the legal analysis.

In the opinion of the Court, the man acted with the requisite conditional intent because the operator’s Terms of Use displayed on the respective website notified users that in some countries, participation in online casinos is punishable as illegal gambling. According to the Court, if a user is notified of a possible criminal offense in the website’s Terms of Use, he must then make appropriate inquiries as to whether his individual participation is allowed. The Court stated that the first four results of a Google search for the term “gambling” conducted by the court dealt with the criminalization of Internet gambling and mentioned that, at least under formal consideration, participation in online casinos is punishable as illegal gambling.

However, factually, it is quite questionable whether users really do take notice of the details of the Terms of Use. The existence of consumer protection principles on fairness and transparency are based on the understanding that most consumers do not review general terms and conditions. Also, taking into consideration that gambling law in Germany is one of the most complex areas of law tested regularly by the high courts in Germany and the European courts (in particular around the time of the offence in 2011) it leaves a question mark whether a non-legally trained person can indeed draw the respective conclusions.

The reasoning of the Court may imply that it would not have seen illegal activity if sports bets had been concerned due to the judgments of the CJEU which found the German state monopoly on sports betting as existent in 2011 to be non-compliant with European market freedoms. In this context, the Court stated that the defendant could not rely on the fact that certain prominent celebrities have promoted online gambling because the celebrities acted only with regard to sports betting. According to the Court, even the layman knows the difference between sports betting and gambling such as Blackjack. Again, the distinction of sports betting and other gambling activities and in particular the legal consequences of this distinction are far from trivial. To the contrary, the Interstate Treaty on Gambling clearly sets out that sports betting must be considered as a “game of chance”, ie identical to Blackjack.

Quite importantly, according to the press release of the Court of 2 January 2015, the judgment is not final which implies that the defendant already filed for appeal. Also, the case at hand concerned activities which took place in 2011 when the Interstate Treaty on Gambling 2008 was still in effect. It is therefore questionable whether the reasoning of the Court can be applied to the legal situation which exists currently in Germany under the Interstate Treaty on Gambling 2012. The general ban on online gambling as existent in 2011 no longer exists (lotteries and licensed horse race and sports betting operators may offer their services online) and, today, several operators hold a Schleswig-Holstein licence for the offering of online casino games. Also, amongst other legal issues, it is questionable whether the different treatment of sports bets and online casino games under the Interstate Treaty on Gambling 2012 is justifiable under European laws.

Judgments like these just emphasize the need for a transparent and reliable legal framework in Germany in line with European and constitutional laws.