An article by Dr Thomas Bart Holmes
The complete grounds of the
Court
of the Federal Administrative Court of 24/11/2010 (8 C 15.09)
are now published on the website
www.vewu.com / urteile.php
.
is the official motto of the decision: first
If a state Sports betting monopoly set up to combat gambling addiction and to combat problem gambling, the promotion of the state monopoly provision to factual information concerning the possibility to restrict the legal betting. An advertisement with a reference to a non-profit use of betting revenue is inadmissible.
second The test of appropriateness and coherence restriction of the union's legal freedom to provide services should not sectorally limited to those covered by the monopoly system sports betting, but must also state behavior in the field of lotteries and other games with similar or greater potential for addiction.
third The constitutional distribution of legislative powers in the state makes the consistency test for gambling sectors, the legislative power of the Federation are not subject to European Union law unnecessary.
The ruling is intended for publication in the official collection of decisions.
The following description is limited to the legal side of the pan-European appeal.
According to the Federal Administrative Court, "the test of consistency is not sectorally limited to those covered by the monopoly system sports betting area. Rather, they involve the state's behavior in the field of lotteries and other games with" (Para. 78). "The consistency must be asked, therefore, the question extends to whether the statutory provision or the application of practices in other gambling sectors, particularly those with similar or greater potential for addiction, consumer participation encouraged at gambling or incites, or whether in some other way - especially for fiscal interests - is directed to an expansion or tolerate this. " The Federal Administrative Court has also rejected the theory of monopoly advocates, the European Court of Justice in its judgments of 09/08/2010 enumerative lists the conditions under which the national court should deny the coherence of monopoly control. The Court of Justice in the respective judgments of 08.09.2010 established criteria are sufficient but not necessary conditions. Literally, the Federal Administrative Court explains:
is "Regardless of the decisions cited by the applicant (Carmen Media and Markus shock, the author) to see clearly and unequivocally that it only in combination, sufficient conditions for a - the national court reserved -. specify conclusions about the inconsistency of a monopoly system, but not determine which conditions must be fulfilled at least (...) The fact that an inconsistency in the legal sense, no union improper advertising requires, but also - as expansion policy - other may be present in licensed areas shows directly from the formula in the decision ruling the Court of 8 September 2010 - Case C-46/08 Carmen Media "(paragraph 89) The ECJ in its rulings of 09.08.2010 on the basis of the (different) observations of the national courts from established Following that, in the presence of the national court should assume a non-coherent scheme. The opposite conclusion, the monopoly is already then union law standpoint, if not even one of these can be drawn, is justified on the other hand in any way. It is conceivable that the mere fact that games of chance with a higher risk of addiction potential open to private broadcasters as sports betting, in itself, can justify the adoption of an inconsistency, even if it does not necessarily look at a Europe-wide in each case must be. Even the Gambelli suggests that advertising, the consumer to take part encourage the gambling and incentive, even if they only other gambling sectors (not necessarily those with higher risk of addiction potential) affect, by itself, the suitability of a betting monopoly to curb The gaming activities can be omitted without that it still depended on other findings to a policy of expansion. The Federal Administrative Court notes:
"With an improper promotional practices of the monopoly carrier no longer has the constitutional justification for the invasion of vocational choice, without it were up to the existence of further breaches of the requirement for a consistent orientation to the goal of substance abuse." (Para. 89)
This can be transferred to the union legal justification. Literally, the Federal Administrative Court explains:
"The union legally permissible purpose to combat gambling addiction and to direct the play instinct of consumers in areas controlled legally, can only be in a consistent and systematic should way will be prosecuted if the monopolist decided not to promote the passion for betting. "(para. 77)
The decision of the Federal Administrative Court of the German courts make clear that determining whether a monopoly legislation is likely to achieve the objectives of combating to ensure gambling addiction in the sense that it consistently and systematically to control the game activities contribute, not be transformed into an examination of the justification of unequal treatment. The long period of German courts, and the OVG NRW even today, made identification of the consistency requirement with the general principle of equality is the Federal Administrative Court not followed. A - subject - "sufficient justification" to the unequal treatment of sports betting with other gambling forms can justify, according to the Federal Administrative Court, under any circumstances, a betting monopoly if consumers in other gambling sectors to participate in gambling encouraged or incited to be or the relevant statutory provision or application practice expansion is addressed or tolerate this.
operates therefore a Member State in a game area with a high risk of addiction potential, a policy of expansion of supply, it profit him nothing if the relevant legal regulations by the "concerns" should be determined, "limit" to gambling opportunities in the sense that the increase in supply does not fail even more pronounced (so but apparently still the OVG NRW). As the Federal Administrative Court rightly points out, the contradiction or inconsistency must not be 'serious' (para. 81).
The Federal Administrative Court is the OVG NRW not followed is that the European Court of Justice said of the national courts expect findings on the subjective side of national legislation in the sense that a proof of a "deliberate and purposeful" strategy of expansion must be performed. to examine is whether the statutory provision or the application of either the practice encourages consumers to participate in gambling or incites, or whether in some other way - especially from fiscal interests - is directed to an expansion or tolerate this "(paragraph 79). The word "especially" that is pointed in the Court's judgments, "Carmen Media" and "Mark surge" is used in this context that the finding of a fiscal motivation from the perspective of the Federal Administrative Court is essential not to show the inconsistency. In the field of marketing, it keeps the Federal Administrative Court is not essential to establish a fiscal motivation of advertising. The Federal Administrative Court makes a finding of inconsistency to do even by a "motive" of gambling opportunities in a drug prevention against the current way to expand, depending, as is usually the OVG NRW. Knowing the pertinent legal opinion of the OVG NRW from its order of 15.11.2010 (4 B 733/10), the Federal Administrative Court is not even considered the possibility that factual inconsistency would not flow due to a "reflection period" for the legislature may legally on 11/24/2010 may have been even more significant.
The Federal Administrative Court did not finally - from monopoly advocates vehemently disputed - provided local legal point in question, that the national Court must then have a look at the betting monopoly to be excessive if it (played 12 A 102/06, in the verdict "Carmen Media" in para. 31 to 33) the same findings as the Administrative Court of Schleswig in the order of 30.01.2008 applies. As the trial court had made no findings in this regard and make some of the Federal Administrative Court as court of appeal did not have its own findings of fact, the dispute was referred back.
is noteworthy, finally, that the Federal Administrative Court held the prohibition of sports betting exchange is not solely for lawful because the plaintiff to the sports betting company Sportingbet Co. Ltd.. had taught, and those known to be betting on the Internet today - including from Bavaria - receiving. Thus, the Federal Administrative Court has indirectly distanced themselves from the opposite views of the High Administrative Court of Berlin-Brandenburg and Lower Saxony, which had been adopted and introduced into the proceedings.
Contact: Dr. Thomas
lawyer Bart Holmes
Küntzler Legal
In the space factory
29 76227 Karlsruhe
Tel: 0721-46471612 Fax :0721-
46,471,620
update from 22.02.2010
PDF Download the judgments of the website of the Federal Administrative Court:
BVerwG 8 C 13:09
motto
BVerwG 8 C 14:09
motto
BVerwG 8 C 15:09
motto
BVerwG
Press Release No: No 110/2010 dated 24/11/2010
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