The Federal Administrative Court has now his court opinions in the three Revisonsverfahren (8 C 13:09, 14.09 and 15.09) sent. Of general interest, of course, especially the two place-making decisions in the process 8 C 14:09 and 15.09. Only the key findings from this should be reported here. For a detailed analysis of the verdict yesterday received reasons it may be too soon.
thing is already clear that - should have the previous case of most higher administrative courts not survive - despite reluctance of the Federal Administrative Court on European law review. The two were with the revision of judgments under the Bavarian Administrative Court of 18.12.2008 to prohibition orders at a betting shop operator of the company Happybet Sportsbetting and working for the company Sportingbet bookmaker, as reported, and the case for cross-negotiation of the Bavarian Administrative Court been referred back. About the only date this press release by the Federal Administrative Court also provides the first analysis of the grounds, especially the following important findings: first According to the Federal Administrative Court shall permit the reservation and the exclusion of private betting licenses for the fate of the monopoly. Permission subject to § 4 para 1 and exclusion of GST permits are requiring justification, limitations on freedom. You need to fulfill the law of the ECJ from the resulting requirements of Union law (Case 24/11/2010 - 8 C 15.09, para 60 f. and 8 C 14:09, par 61 f...). The entire European legal reasoning of the Federal Administrative Court will build on this major premise, and is part of subsumption under the Federal Administrative Court on this formulated four requirements.
then it is clear that in the opinion of the Federal Administrative Court of the Union subject to authorization in the case of illegality of sports betting monopoly and not associated with the exclusion of private providers has been upheld. If the legal and factual development of the gambling law is incoherent, a lack of a permit does not result in a per se prohibition of the activity. only for this reason can the Federal Administrative Court also finally get to the finding that the Court's BayVGH also not other reasons to be right legally, could not be assessed because the illegality of the prohibition order only on the basis of facts found by the Appeal Court. If the Federal Administrative Court of the argument with the formal illegality would have gained from something, it would have been the legality of the prohibition order for violation against the permit must accept reservations. Instead of lifting the judgments and remand to the BayVGH would be a rejection of the revisions must be made.
second Similarly, obsolete with the judgments of the Federal Administrative Court and the case law is likely line of High Administrative courts of Berlin-Brandenburg and his Lower Saxony, to the lack of ability to consent, that is to bring the material illegally. Since the stationary sports betting marketing the internet ban - so it could be because in general regarded as effective, which reject most of the main decisions to date (VG Berlin, Uv22.9.2008 - 35 A15.08 - (for lottery operator); VG Hall, Uv11.11.2010 - 3 A 158 u.156/09 - (for lottery operator), VG Gera, Uv14.12.2010 - (sports betting), aA VG Hamburg)) - from the outset can not be relied on because it was not for him, and against the stationary distribution given the parallel distribution structure of the state-ODDSET also offer other fundamental concerns are not apparent, had laid the Higher Administrative Courts a remarkable volte:
Because they do not stop to violations of the operators were able to, instead, that other legal violations by the provider can not stand, to which they convey. The EU foreign suppliers could get in this case, not a German license for its stationary (why?) And the domestic betting shop operator therefore does not convey to him. Such a situation was then placed under the law of the relevant courts seeking protection, without giving them the opportunity to comment on it.
This - apart from the unacceptable procedure - substantive law more than questionable construction, the Federal Administrative Court also could draw any anything. The State Bar Bayern had to mobilize, referring to the two decisions by letter dated 11/11/2010 and tried in vain in the oral argument to claim that the relevant EU foreign suppliers would provide for the facts found on the Internet. Rightly, the Federal Administrative Court has become involved not to this argument and accepted that the judgments prove to be so for reasons other than correct. needed to coherence and effectiveness of the ban on the Internet Federal Administrative Court in order to run any more.
third The Federal Administrative Court considers the ruling of the constitutional BayVGH respect to the basic right of freedom to be incompatible, as it considers the prohibition order on the basis of its findings of fact to be lawful. The BayVGH have laid a failed constitutional benchmark.
as incompatible with the constitutional requirements, the Federal Administrative Court in particular the interpretation of the rules for promotion of the state betting line in § 5 para 1 and 2 to GST (8 C BVerwG 14:09 and 15.09 para. 45). It is clearly far more stringent requirements than in the case law have been applied yet.
"All forms of advertising that bet yet from one to the determined average recipient of the message have to understand betting as motivation to" (paragraph 48), go to the Federal Administrative Court on the "due restriction to factual information on legal betting opportunities beyond" (para. 48). Significantly after the objective statement content. Informative content of advertising and the context of the presentation form according to the Federal Administrative Court of the advertising message each other and need to be reviewed together to see if they confine themselves to point out a legal way to bet on an existing decision implementation (para. 49). 
"Any form of image or image advertising, the bets on the reference to the legality of the monopoly provision also arouses sympathy for themselves," is not permitted by the Federal Administrative Court (para. 52). Even "the moral appreciation of betting on the assessed positive behavior," which is denied by the Federal Administrative Court (para. 52). The Federal Administrative Court formulated the extent such a strict standard that not only the entire current advertising practice of the German Lotto Toto-Block is not fair, but likely to remain little advertising opportunities.
4th The consequences go beyond the sports betting area. Rightly, the Federal Administrative Court makes clear in its ruling in the Union legal context is that included with regard to the extent that the government offered overall coherence behavior in the range of lotteries with (para. 79). The implementation and compliance of the Judgement is therefore likely to amount to a fiscal catastrophe if countries adhere to it, support the lottery monopoly to continue as before to fight the addiction. Without advertising is shrinking the state's lottery monopoly assessment informed individuals from the lottery industry within a short time together to half of current income.
forces politically and fiscally, the verdict of the country, therefore, to the longest offered to draw conclusions and the delusion of the lottery event monopoly (see VG Hall and opinions Stöver, the results of the evaluation in Mainz) and give a reasonable justification for the lottery monopoly turn. The absurd fetters of the advertising restrictions can then stripped and a modern and market needs nascent lottery offer are possible again.
5th As for distribution through the nationwide network of private adoption agencies operators to keep the Federal Administrative Court rejected remarkably strong and well argued in the case unconvincing.
(1) It has first to be sufficient that the legislature stretched to reduce the number of collection points over the term of the State Treaty on Gambling has (!). It seems but at least very doubtful whether this is consistent with the requirement of the Federal Constitutional Court, that
"the distribution channels ... so choose and set up [are] that opportunities will be used to realize the players and youth protection" (BVerfGE 115, 276, 318)
instead of the scale of the Federal Constitutional Court, the Federal Administrative Court required only to limit [to] the
'distribution channels and [to] making sure that the single embodiment of betting opportunities to the player and minors account is "(paragraph 36 in two judgments) should.
Here gape between the constitutional requirements and the implementation by the Federal Administrative Court, a certain vulnerability to it for decision but ultimately did not matter.
(2) Nevertheless, the judgment for the German Lotto Toto-Block and so far no small snag: The Federal Administrative Court has the limitation can be sufficient only on the grounds that the treaty provided for scientific evaluation should be waiting on the need for further adjustments to the distribution system, whether at an over-supply collection points. there should therefore may be decided later.
This is the question now virulent, what has to happen when the scientific evaluation is concerned at all with this issue. Just before this problem are the states. Because the gem. § 27 p. 2 GlüStV no later than 01/01/2011 to submit to evaluation involving the Scientific Advisory Board (!) Behaves at all on how far out of addiction prevention and seeks political point of view, the dense collection points network of the German Lotto Toto-Block go beyond what a drug prevention-oriented policies is required. When the Federal Administrative Court granted the grace period is so far beyond which the great question whether, by now lags behind the requirements of the distribution monopoly of the Federal Constitutional Court. As an appeal court had to the Federal Administrative Court does not deal with it.
(3) And must not forget the design of distribution - the Federal Administrative Court has unfortunately not discussed in detail, although it has been the subject of the revision - that the Federal Constitutional Court had the following explicitly challenged:
Nor are the distribution channels created for ODDSET to combat the dangers of addiction and to limit the passion for betting. The State Lottery Administration ODDSET operates through its wide network of lottery outlets, where the official motto "a vast country - short distances" based on. This was to primarily magazine and tobacco shops or similar small or medium-sized businesses, so that the distribution in conscious proximity to the customer takes place. This is the way to sports betting to everywhere available "standard" commodity of daily life. "(BVerfGE 115, 276, 314 f.)
in this basic objection of the Federal Constitutional Court, the legislature and has the German Lotto Toto-Block since then nothing changed. The mere reduction in the number of collection point by about 5% at any rate remains well below this scale. The quote could just as well to a recent administrative court decision come.
The Federal Administrative Court tries not his quoted statement of the Federal Constitutional Court with expert testimony from Meyer / Hayer into perspective. It conceals that the Federal Constitutional Court at that time also existed without the Federal Administrative Court had therefore changed its wording a bit (!).
It also seems to do more than doubtful whether it can really serve the coherent substance abuse, if their more than 18 times as many lottery sites (about 25,000) are as McDonalds Restaurants (after self-representation currently 1361 in Germany, that these fast food Chain Daily has (!) treated, an average of 2.67 million daily, and in 2009 a total of 937 million visitors (?!), but seems more than doubtful.
(4) Something strange is in this context, the strange attempt of the Federal Administrative Court to remove the objection to the revision, the legislature half as many adoption agencies, that 12,000 postal retail outlets, has seen the nation-wide supply of postal services as sufficient (§ 2 No. 1 PUDLV). The revision had argued that it seeks to be classified as endangering property did not fit, they disseminate to twice as intense as a not only harmless but even for the Infrastructure provision of vital public services.
The Federal Administrative Court will now hold the contrary, that "a significant portion of the previously reserved for the postal services provided by other providers" would (Rn.38). This is however not really accurate (about 90% of the supply of letters to this day provides the DP AG), yet it meets the legal core. For the specification of the legislator concerned the Germans of his time and to date only from the Post rendered universal service, and only this. The claim is refuted not arise.
(5) Since the Federal Administrative Court with the question of the appropriate density of the distribution network But not even had to learn in this section or would they rather regarded as an object of the findings of the appellate court, this will have to be examined in detail in subsequent appeals. It is unlikely that experts would confirm this, the supply of lottery tickets and betting slips in lottery authorities could guarantee social control. As customers realize this long precisely as socially adequate exercise.
6th Union in legal terms, the ruling essentially contains no surprises. In that regard, reference may be made mainly to avoid repetition of the recently published review of the colleague Dr. Bart Holmes at isa-law.
is expected between the Administrative Court and the advocates of monopoly persistently defended thesis, the coherence issue should only sectoral, so here are being investigated for betting area discarded. The test of consistency rather the government must conduct in the field of lotteries and other games involving with (para. 79). As far as gambling monopoly on the gambling addiction as an overriding concern for the common good justification called to have the regulations turn out, therefore, limited in the future for each gambling sector as a systematic and coherent. In addition, they must, as formulated by the Federal Administrative Court,
"on the issue cover, whether the statutory provision or the application of practices in other gambling sectors, particularly those with similar or greater potential for addiction, the consumer to take part encourage the gambling or incites, or whether in some other way - especially from fiscal interests - a expansion is directed or tolerate this. " (Para. 80).
The Federal Administrative Court objected, therefore, that the appellate court is not full of rules and practical applications in casino and gaming deals. It is also clear that the union legal review of course, the federal law covering page (para. 81).
7. Be emphasized, finally, that the Federal Administrative Court in consequence of the ECJ rulings, the adoption of the BayVGH - and OVG Nordrhein-Westfalen - required either a "stark mismatch" of gambling policy in the field of sports betting on the one hand and the casinos and gaming machines on the other hand, explicitly rejects (Rn . 82). Following the ECJ, it is sufficient even if the
"legitimate purposes of the sports betting monopoly in other gaming areas of principle or are thwarted by the practice of law. This can happen in that meet these purposes, running counter to embodiments tolerated. On the severity of such a contradiction is it not. "(paragraph 82).
the Bavarian Administrative Court will make up for in consistency is referred back to the lack of findings of fact now. Since the result of the available results is already foreseeable, likely on the findings of a union illegal law and the inadmissibility of pass by action against private betting providers any more. Presumably, the Bavarian Administrative Court in the then pending urgent decisions have consequences. At least as significant as the aforementioned political and fiscal conclusions about the Prime Ministers' Conference will decide in March / April. That is the now the present situation the will prevail under monopoly advocates the states still appears unlikely.
Contact:
Redeker Sellner Dahs
Dr. Ronald Reichert
partner and specialist in administrative law
Mozartstraße 40-10
53115 Bonn
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