Online Casinos in general: [Chargeback] - Ulm Regional Court rules in favor of player (Page 21)

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Stromberg wrote on 16.06.2020 at 10:29: Of persecution of the casinos as written in the first paragraph, can be anyway no question.
It is clear that laws should actually be enforced, especially if they are obviously disregarded for years on a grand scale and obviously and that is known.
The question is why nothing was done for years and whether the legal basis did not allow it? However... Now in the year before the whole is to be regulated to start I hold however also actually for nonsense!

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RebellYell wrote on 06/16/2020 at 10:09 am: New interesting article...


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Possible precedent
A first payment service Provider already refers to the planned acquiescence. The NDR has bank records of a gambling addict, which show that he made dozens of payments to an online casino that is not licensed in Germany on just a few days with the help of the Klarna transfer service. In total, the man deposited several tens of thousands of euros and lost the money at virtual Roulette tables.

When asked why Klarna had made the transactions to a casino that was banned in Germany, a spokesman explained that "the first federal states are already tolerating online casino games in view of the upcoming new regulation of the State Gambling Treaty next year, and [they] are thus unlikely to be considered fundamentally unauthorized."
Service provider expects suspension of enforcement
When asked, the company writes that it expects that "due to the expected changes in the law, the enforcement will be suspended." Further, Klarna writes in the wording: "As an aside, we just want to note that we cannot understand why the authority in Lower Saxony, contrary to other authorities, counteracts the opening of the market (...) decided by all prime ministers (!) by trying to prevent the services that are already legal next year."


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But best of all, read the whole article.



https://www.tagesschau.de/investigativ/ndr/gluecksspiele-bundeslaender-103.html

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On 03.06.2020, the Federal Court of Justice published its lead decision dated 27.02.2020. With this decision, the Federal Court of Justice clarified that the criminal offence of Section 284 StGB is fulfilled if a gambling Provider organizes gambling without official permission. In this context, it is also irrelevant whether the gambling would be approvable under substantive law.

We quote one of the guiding principles:

"If the perpetrator acts without official permission, it does not matter for the fulfillment of the offense of § 284 para. 1 StGB whether his intention is approvable under substantive law." (BGH, judgment of 27.02.2020 - 3 StR 327/19)

The existence of an official permit is the sole decisive factor, as Section 284 (1) StGB is designed to be accessory to administration. This means that the administrative act (= official permission) alone is decisive and not the substantive administrative law.

In other words, there is no criminal liability if a purely formally effective permission has been granted. If formally no permission exists, the criminal offence of § 284 StGB is fulfilled.
In relation to online gambling, this means that all sports betting organized on the Internet without a formally issued permit/concession from a German authority fulfills the criminal offence of Section 284 StGB.
According to the case law of the Federal Court of Justice, it is irrelevant whether such a permit has been applied for or even has to be granted, as otherwise the purpose of the requirement for a permit would be null and void.

We quote:

"The absence of an official permit fulfills the facts of Section 284 (1) of the Criminal Code irrespective of a possible ability to obtain a permit under substantive law. The existence of a circumstance in which permission could or even should be granted does not constitute an exclusion of the offense, since otherwise the meaning and purpose of the reservation of permission would be empty." (BGH, judgment of 27.02.2020 - 3 StR 327/19)

Since Online Casinos are not even permissible - i.e. absolutely prohibited - the criminal offence under Section 284 of the Criminal Code is fulfilled anyway if online casino games are offered and organized in Germany.
In addition, the Federal Court of Justice has clarified that criminal liability under Section 284 in conjunction with the current State Treaty on Gambling does not violate EU law.

We quote the further guiding principle:

"European law requirements do not preclude criminal liability under Section 284 (1) of the Criminal Code in conjunction with the State Treaty on Gambling of December 15, 2011 (GlüStV) and the Lower Saxony Gambling Act (NGlüSpG)." (BGH, ruling dated 27.02.2020 - 3 StR 327/19)
For players who have gambled away their money on online sports betting or in online casinos, the ruling is a very pleasing decision.

With this decision, online gambling providers can not only be accused of violating Section 4 (4) GlüStV (Internet ban), but now also of criminal liability under Section 284 StGB.
Section 284 of the German Criminal Code also constitutes a prohibition law within the meaning of Section 134 of the German Civil Code. A violation of this then leads to the nullity of the gambling contract between the player and the online gambling provider and thus to the player's claim for reimbursement against the online gambling provider.

In view of this BGH decision and the ruling of the OLG Koblenz from July 2019, which awarded damages as a result of the violation of the online gambling ban, it is worth taking action against the online gambling providers.

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However, the Federal Court of Justice clarified something else in its leading decision

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