Gambling and sports betting still not allowed in the same building in Baden-Württemberg

The location of betting shops and casinos is a regular source of legal disputes and political debate. Recently, the strict regulations on the location of gambling in public places have been confirmed once again. The Constitutional Court of Baden-Württemberg ruled that the so-called "separation requirement" was legal.

We have often reported on the legally required distance between gambling facilities - especially casinos and betting shops - in public places: In many German states, such as Bremen, a minimum distance of 500 metres has been introduced for betting shops. This has caused a lot of trouble for the owners of gambling establishments.

In Berlin, the distance regulation for betting shops and casinos was upheld by the courts. In Baden-Württemberg, the opponents were at least partially successful: The decisions on the distance of casinos from children's and youth facilities were at least partially overturned.

Another case from Baden-Württemberg dealt with the so-called "separation requirement" of § 21 (2) GlüStV: "Sports betting may not be brokered in a building or building complex in which a gaming hall or casino is located", is the short and simple wording of the law. The main reason for the regulation is once again player protection. Two local betting shop operators had lodged a complaint. However, they were unsuccessful.

The Constitutional Court of Baden-Württemberg explains its decision as follows

In a press release dated 2 August 2023, the Constitutional Court of Baden-Württemberg published its reasoning for its decision in the case concerning the separation requirement.

In one specific case, two betting shop operators complained about the prohibition of their gambling activities. In addition, the two complained that the existing gambling hall in the building was being favoured over their business and also questioned the legality of the licence.

However, the authority clearly rejected the objection:

"The restrictive interpretation of the separation requirement in Section 21 (2) of the GlüStV by the administrative courts is in line with the freedom of occupation, the general principle of equality and the guarantee of effective legal protection," the press release reads.

This assessment is essentially based on three legal considerations, which are set out below:

• Public welfare objectives: "The fight against gambling addiction is an overriding public welfare objective. If gambling halls and betting agencies are not located in the same building or complex of buildings, a change from one gambling establishment to the other is associated with a higher (time) effort than in the case of establishments in the same building stock. It is obvious that punters should be discouraged from moving from one gambling venue to another after having finished gambling in one, and therefore a mixing or accumulation of different gambling services in one location should be prevented. The associated burdens on betting intermediaries are not disproportionate to the benefits of the regulation".
• Compliance with the general principle of equality: "The separation requirement does not violate the principle of equality either with regard to the unequal treatment of betting agencies on the one hand and casinos on the other hand, which is challenged as unconstitutional. The preferential treatment of casinos takes into account the fact that their investments, which are made over a longer period of time, appear to be more in need of protection than the typically relatively manageable investments of sports betting agents. The provision is therefore primarily aimed at existing situations. In the case of new casinos or betting agencies, the existing situation will prevail".
• No breach of the guarantee of legal protection: "The legislator's decision to give priority to officially licensed betting shops does not necessarily mean that the regulations governing the granting of the relevant licences have a third-party protection effect in favour of suppressed betting brokers, which could lead to an incidence test. "In German" this means that the classification of the preference described above cannot be influenced by a question under licensing law (motto: "Does the existing betting shop offer even have a licence? If not, the betting shop should be preferred in this case").

Conclusion

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