Online gambling law and regulation in Germany

Is online gambling permitted?

It depends...4

Licence available for

Betting

No1

Sports

Yes*

Skill Games

No2

Card Games

No**

Casino

No***

Lottery

Yes*

Arcade

No

Can online operators licensed in other EU Member States offer their online services?

No3

Can online operators licensed in other EU Member States advertise their online services?

No3

  1. except for sports and horse racing
  2. no license necessary, not considered as gambling
  3. except sports betting
  4. …on the type of gambling

* Lottery and online betting for sports and horse racing can be permitted if the legal conditions are fulfilled. The German government has submitted an amended interstate treaty on gambling to the European Commission for approval. The amendment would remove certain restrictions, such as quotas, that are currently in place and which prevent operators from obtaining a licence for sports betting. 

** It is controversial whether poker must be classified as a card game (gambling) or as a skill game. 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.
In 2015 the Administrative Court of Karlsruhe (3 K 3872/13) followed the Federal Administrative Court’s assessment and, moreover, decided that poker (Hold’em) must be classified as gambling, because of different elements of uncertainty, which aren´t predictable for the players.

Skat is mostly seen as a skill game, whereas skat tournaments with various players are considered as a subset of gambling.

*** Although some licences were already issued for a period of five years in Schleswig-Holstein under a separate Gambling Act, which is no longer in force.

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 July 2012, provides a general prohibition of 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. All other forms of online gambling are still completely prohibited.

Before joining the ITG in 2013, the state of Schleswig-Holstein had its own Gambling Act allowing online lottery, sports and horse betting as well as online casino. It issued more than 50 licences under this Act, of which 23 were for online casino, 7 of which also included a licence for online poker, and 25 for sports betting. These licences are about to expire and are applicable only to services offered to players based in Schleswig-Holstein.

For sports betting, the ITG provides for twenty concessions (as a special form of permission) to be granted to applicants for an experimental seven-year period especially to observe positive effects on resolving black market gambling.

Due to various pending disputes and a decision of the Higher Administrative Court of Hesse of 16 October 2015, which has confirmed several defects in the sports betting licensing process as contrary to fundamental rights and EU law, no licences have been granted.

Furthermore the CJEU decided on 4 February 2016 (C-336/14- Ince) that private economic operators, who offer sports betting without the obligatory concession cannot be punished, because of the unclear legal situation.

The Federal Administrative Court in a judgement of 26 October 2017 confirmed the online casino ban and the licence requirement for sports betting. It further confirmed that the law was enforceable against sports betting operators who did not apply for a licence.

A planned reform of the ITG to become effective on 1 January 2018 has failed and different regulatory concepts are discussed among the state legislators.

Schleswig-Holstein recently announced its intention to issue interim permissions for offering sports betting services to customers in Schleswig-Holstein to EU and EEA based operators who fulfill the licensing requirements stipulated by the ITG. Earlier attempts to issue interim permissions were held to infringe EU law. Therefore it remains to be seen whether Schleswig-Holstein will enforce the law against operators not having obtained an interim permission and whether such enforcement measures will be upheld by the courts.

On 7 December 2017 the European Commission stated in a press release that it will terminate its infringement proceedings against Germany regarding the gambling sector because of a more strategic approach to enforcing EU law.

Updated 21 May 2018

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