Online gambling law and regulation in Germany

Is online gambling permitted?It depends on the type of gambling.
Licence available for…BettingNo1
SportsYes2
Card GamesNo3
CasinoNo4
LotteryNo (monopoly)
Footnotes

1. Except for horse racing.

2. Licences for online sports betting are available under the current Interstate Treaty that came into force on 1 January 2020. The Regional Council of Darmstadt currently runs the application process.

3. Whether poker should be classified as a card game (gambling) or as a skill game is a controversial topic. In 2014 the Federal Administrative Court (BVerwG 8 C 26/12) considered poker as a form of gambling as long as participants pay the gaming amounts. Under the future Interstate Treaty, which is expected to come into force on 1 July 2021, licences for online poker will be available.

4. Under the current Interstate Treaty, no licences are available for online casinos. Some licenses were issued in the state of Schleswig-Holstein under a separate Gambling Act. Also, under the future Interstate Treaty, which is expected to come into force on 1 July 2021, there is no licensing process for online casinos. However, the states may decide to run a tender for online casinos licences. The number of licences to be granted is limited to the number of offline casinos in the respective state.

Notes

The regulatory landscape for online gambling in Germany remains uncertain. Although online gambling is subject to regulation at an individual state level, the Interstate Treaty on Gambling (ITG) was enacted to ensure unified rules throughout the 16 German states.

The ITG in its current version, effective as of January 2020, provides a general prohibition on online gambling but with the exception that permission for lottery, horse racing and sports betting can be given. The requirements for permission are listed in the ITG. The Regional Council of Darmstadt is currently in the process of granting interim sports betting licences, but the process was put on hold by a court order of 1 April 2020. There is no longer a limitation on the number of licences available.

All other forms of online gambling are still completely prohibited and applicants for an interim sports betting licence must confirm that they and all of their affiliates will comply with the prohibition of online casino games.

A new wave of enforcement activity is to be expected once interim sports betting licences are granted. Furthermore, it is unclear whether operators operating under a sports betting licence issued by another EU member state can continue to rely on the Ince-judgement of the CJEU (decision of 4 February 2016, C-336/14) once interim sports betting licences are granted by the Darmstadt Council.

The current ITG will be replaced by a new ITG with effect from 1 July 2021 (ITG 2021). There is a first political compromise for an ITG 2021, but the draft has not yet been signed. The interim sports betting licences to be granted by the Regional Council of Darmstadt under the current ITG will – according to the draft ITG 2021 – remain valid until 31 December 2022. From 1 January 2023 operators will require a new licence under the ITG 2021. Such licences will be granted by a new joint authority of all 16 states that is to be established in Saxony-Anhalt. Under the ITG 2021, licences will be available not only for horserace betting and sports betting but also for virtual slot machines and online poker. The licences will be granted for a duration of 5 years and subsequent renewal terms of 7 years.

Also, under the ITG 2021, there will be no licences for online casino games and applicants for a sports betting, virtual slot machine or poker licence and all their affiliates may not offer online casino games to customers playing from outside of Germany. The states can decide under the ITG 2021 to offer online casino games within their territory by a state-owned operator or to run a tender for one concession to be granted to a private operator. States that have issued more than one concession for offline casinos can grant an equal number of online concessions to private operators.

Licences for online casino games issued by Schleswig-Holstein for the territory of Schleswig-Holstein continue to be valid at the latest until 31 December 2024 provided the operator has applied for a licence under the ITG 2021 by 1 July 2022.

Dr. Benjamin Schirmer
Portrait of Nantje Johnston
Dr. Nantje Johnston, LL.M. (LSE)
Principal Counsel
Hamburg
Portrait of Sebastian Cording
Dr. Sebastian Cording
Partner
Hamburg