State Treaty on Gambling

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Basic data
Title: State Treaty on Gambling in Germany
Short title: State Treaty on Gambling
Abbreviation: GlüStV
Type: state contract
Scope: Federal Republic of Germany
Issued on the basis of: Art. 70 para. 1 GG
Legal matter: public safety and order
Issued on: December 15, 2011
Effective on: July 1, 2012
Weblink: Text of the GlüStV
Please note the note on the applicable legal version.

The State Treaty on Gambling in Germany (short Gambling Treaty or GST ) is a treaty among all 16 German federal states , the federal uniform framework for the organization of games of chance created. It came into force in its original version on January 1, 2008. On December 31, 2011, however, it ceased to be in force because the state minister-presidents had not decided that it would continue to apply beyond this date (Section 28 (1) sentence 1 GlüStV old version). Nonetheless, its essential provisions applied in the federal states - with the exception of Schleswig-Holstein- as provisions of state law until a new state treaty comes into force. This was based on provisions in the implementing laws for the State Treaty in the individual countries. In addition, the First State Treaty on Gaming (1st GlüÄndStV) came into force in 2012 . It was supposed to be replaced by the Second State Treaty on Gaming (2nd GlüÄndStV) in 2018 . However, its entry into force failed because not all federal states ratified it. On January 1, 2020, the Third State Treaty on Gaming ( 3rd GlüÄndStV ) came into force, which abolished the upper limit for sports betting concessions and extended the "experimentation clause" for sports betting. Its term is limited to June 30, 2021.

In spring 2020, the federal states agreed on an amendment to the State Treaty on Gaming. According to this, licenses can be granted for previously illegal games of chance on the Internet, such as online poker, online casinos or online slot machine games, subject to conditions, which in particular relate to player protection. For example, there is a monthly deposit limit of 1000 euros for games of chance on the Internet. The game and player data are monitored nationwide by a supervisory authority. The new state treaty came into force on July 1, 2021.

The original State Treaty on Gambling

The legislative competence for the substantive gambling law, which belongs to the law of public security and order, belongs to the states according to Article 70.1 of the Basic Law.

content

The fact that the State Treaty on Gambling gave priority to health protection over the liberalization of gambling offers can already be seen from its objectives in accordance with Section 1, which it stated

  1. to prevent the development of gambling addiction and betting addiction and to create the conditions for an effective fight against addiction,
  2. to limit the range of games of chance and to direct the population's natural instinct to play in orderly and monitored channels, in particular to prevent a switch to illegal games of chance ,
  3. the youth and the protection of players to ensure
  4. ensure that games of chance are properly conducted, that gamblers are protected from fraudulent activities and that the follow-up and incidental crime associated with games of chance are warded off.

In its original version, the GlüStV accordingly anchored the unrestricted gaming monopoly of the state sports betting provider Oddset . In doing so, he followed the requirements of the Federal Constitutional Court . According to the considerations of the court, the state gambling monopoly can only be justified through consistent and credible compliance with state addiction prevention.

criticism

At the beginning of 2010, operators of some casinos criticized a distortion of competition due to unequal treatment between state casinos and commercial arcades: This led to state-controlled gaming in Berlin casinos, for example, slipping into the red for the first time in 2010. The cause is the State Treaty on Gambling, which prescribes deterrent ID checks, in connection with a lack of state controls - also for the protection of non-smokers - in the gambling halls. The First State Treaty Amending Gaming introduced regulations specifically for amusement arcades with gaming machines or gaming machines with the possibility of winning (§§ 24 ff. GlüStV new version ).

The German Lotto Association also repeatedly points out the incoherence and contradiction in the GlüStV. This manifests itself in an over-regulation of the lotteries compared to other forms of gambling.

Decision of the ECJ

In its judgment of September 8, 2010, the European Court of Justice ruled that the state sports betting monopoly of the original State Treaty on gaming violates European law. As a justification, the ECJ referred inter alia. on intensive advertising campaigns of the state gambling providers, which ran counter to addiction prevention as the necessary basis of a gambling monopoly.

First State Treaty Amending Gambling

Introduction and content

On December 15, 2011, all federal states, with the exception of Schleswig-Holstein, signed an Interstate Treaty on Gaming. He finishes among other things. the ban on selling the lottery on the Internet and enables cross-border lottery jackpot and casino advertising.

In addition, the Erste GlüÄndStV provides for an exception to the state monopoly (so-called experimental phase) limited to seven years for providers of sports betting. According to Art. 10a GlüÄndStV, a maximum of 20 licenses for state and private providers of sports betting are to be awarded for this period.

In its current version, the so-called First State Treaty on Gaming came into force on July 1, 2012.

The sports betting market was opened to private providers for a seven-year experimentation clause. The award procedure for the 20 corresponding concessions was opened on August 8, 2012; The state of Hesse was in charge. After the award was originally announced for spring 2013, it was initially delayed. All decisions in the licensing procedure are made by the Gambling College, which is made up of administrative representatives from all countries.

With regard to commercial gaming machines , an additional permit requirement has been introduced for new and existing arcades . Association of the machine industry see this as a threat to the very existence of the company. In contrast, the actual GlüÄndStV no longer includes the web blocks for online casinos, which were standardized in the draft of April 2011 under Section 9 Paragraph 1 Sentence 3 No. 5 .

In order to implement the amending state treaty, different implementation laws were passed in 2011 and 2012 at the federal state level. These also regulate the area of ​​the amusement arcades. In addition to the requirements of the Gaming Ordinance , additional requirements are set for these, such as the ban on the distribution of food and drinks, curfew , a ban on outdoor advertising and minimum distances to other gaming halls and facilities that are mainly visited by children and young people.

Schleswig-Holstein's special route

Schleswig-Holstein was initially the only federal state not to participate in the First GlüÄndStV. Instead, on September 14, 2011, the state parliament in Kiel passed its own “Law on the Reorganization of Gambling” drafted by the law firm WIRTSCHAFTSRAT Recht. The law left the state monopoly on events for the lottery, but largely lifted restrictions on distribution and advertising. At the same time, it allowed private providers of sports betting and online casinos to purchase licenses from the state for five years each.

The law was controversially discussed: The CDU-led state government justified the new regulation by stating that the licenses would generate annual additional income of 40 to 60 million euros, new jobs would be created and the primarily foreign-based online gambling could not be prevented anyway. Other federal states, however, criticized the regulation. The opposition accused the government of following suggestions from the lobby of private gambling providers without considering the dangers of gambling addiction.

As a result of the 2012 state elections , the previous coalition of CDU and FDP lost its majority in Schleswig-Holstein . Instead, a government alliance consisting of the SPD , the Greens and the SSW was formed . This newly elected state government initially granted a few licenses on the basis of state law, but joined the First GlüÄndStV in January 2013 and thus ended the state-specific special regulation. In a decision of June 12, 2014, the ECJ confirmed Schleswig-Holstein's special route retrospectively.

Second State Treaty Amending Gambling

prehistory

In July 2014 the EU Commission published a recommendation with principles for the protection of consumers and users of online gambling services and for the exclusion of minors from online gambling (2014/478 / EU). This was a first, albeit not yet binding, impulse from the EU to either systematically liberalize gaming law or to pursue a stringent protection concept when restricting it.

In October 2015, the Hessian state government proposed to replace the gaming college with a new supervisory authority with nationwide responsibility.

The decisive reason for a new version of the GlüÄndStV was provided by the case law: In 2015 the Bavarian Constitutional Court confirmed that the restrictions on private gaming offers by the 1st GlüÄndStV were compatible with the Bavarian Constitution. The award procedure for the 20 concessions was stopped in 2015 by a ruling by the Wiesbaden Administrative Court. In an urgent decision in September 2014, the court assessed the procedure for awarding sports betting as non-transparent and as a violation of the EU freedom to provide services . In its judgment of May 5, 2015, the administrative court upheld the decision. The State of Hesse appealed against the decision to the Hessian Administrative Court . However, the complaint was rejected. The Administrative Court also criticized the award procedure as being non-transparent and declared the award of the licenses by the gaming college to be unconstitutional . In addition, in response to a request for a preliminary ruling on February 4, 2016, the ECJ ruled that the State Treaty on Gambling Amended was incompatible with EU law due to its inconsistent protection concept in the sports betting area. The fact that the GlüÄndStV is found to be in breach of European law calls for an adaptation of the rules and regulations.

Ratification phase

On March 16, 2017, the Prime Ministers of the federal states signed the draft of the second State Treaty on Gaming in Berlin . Preliminary permission was granted to the previous 20 license holders and 15 other sports betting providers who had applied for a gaming license, who met the minimum requirements and who deposited a security deposit of EUR 2.5 million. The provisional permit is valid until January 1, 2019 and is legally equivalent to a license. The limitation to 20 or 35 sports betting licenses should not apply in future, as the EU Commission had objected to the limitation in its examination of the draft for the 2nd GlüÄndStV. The federal state of North Rhine-Westphalia was to take over the nationwide licensing , while the establishment of the office for the gaming college in Saxony-Anhalt was planned.

In order to bring the Second State Treaty on Gaming to come into force on January 1, 2018, the state parliaments had to approve and the objections of the EU Commission had to be dispelled. As a result of the state elections in Schleswig-Holstein in May 2017, a CDU-led Jamaica coalition was formed. The CDU, the Greens and the FDP agreed in their coalition agreement to press for a liberalization of gaming law and to suspend the ratification of the 2nd GlüÄndStV until renegotiation. In addition, voices from the coalition stated that if necessary, they would be prepared to take another special route and allow online gambling if no nationwide agreement was reached. Since Art. 2 of the 2nd GlüÄndStV required that all 16 federal states ratify the State Treaty by the end of 2017, the amendment failed due to resistance from Schleswig-Holstein and North Rhine-Westphalia. In February 2018, the Prime Minister's Conference dealt with the new regulation again.

At the end of October 2017, the BVerwG decided that the unequal treatment of online sports betting and online casinos provided for by the 1st and 2nd GlüÄndStV is also compatible with constitutional and Union law. Subject to a contrary decision by the BVerfG or the ECJ, a reorganization of online gaming would therefore not only be complete but also partial liberalization in conformity with constitutional and EU law.

Third State Treaty Amending Gambling

After the failed ratification of the 2nd GlüÄndStV, negotiations for a new regulation of the gaming sector were resumed. Due to the time pressure due to the imminent expiry of the so-called "experimentation clause" for sports betting on June 30, 2019 and the existing political differences, the federal states initially agreed in March 2019 on the Third State Treaty on Gambling (3rd GlüÄndStV) as a transitional solution until the end of June 2021 resolved the controversial issue of the online casino and only extended the experimental clause for the validity of the state treaty until June 30, 2021 and at the same time lifted the planned upper limit of 20 sports betting concessions. In doing so, the federal states also reacted to the central point of criticism of the failed licensing procedure. The state of Hesse was commissioned again to carry out a procedure for the issuing of national sports betting licenses. The aim was a legally secure, regulated sports betting market with licensed providers in Germany from January 2020. At the same time, with the agreement on the 3rd GlüÄndStV, the granting of online casino licenses in Schleswig-Holstein was recognized by the other federal states.

While the ratification in the federal states took place without problems and the 3rd GlüÄndStV came into force on January 1, 2020, shortly before the award of the first sports betting licenses in Germany in May 2020, the procedure carried out by the Darmstadt Regional Council was initiated following a lawsuit by the Austrian provider "Vierklee betting office" stopped by the Darmstadt Administrative Court. The court criticized the lack of transparency and a non-discriminatory award procedure. After the Hessian Administrative Court declared the lawsuit ineffective, the Darmstadt Regional Council began awarding sports betting licenses in October 2020.

criticism

While the industry and experts welcomed the new state treaty as a transitional regulation until June 2021, at the same time there was pressure for a fundamental new regulation - also due to the unregulated online casino market in Germany, which has been growing strongly for years and which, according to the supervisory authorities, gross gaming revenues of 1.76 billion euros.

As part of the EU notification, the European Commission renewed its criticism of German gaming regulation that it had already submitted when the 1st State Treaty on Gaming was notified in 2012. The Commission again doubted whether sufficient legal online sports betting could be offered within the framework of the regulation. In addition, Brussels renewed the criticism in August 2019 that the continued ban on online casino offers did not provide sufficient scientific evidence of the dangers of gambling and that the reasoning was accordingly inadequate. The Commission's request to demonstrate the proportionality of the ban had not been met.

State Treaty on Gambling 2021

In parallel to the development and signing of the 3rd GlüÄndStV in spring 2019, negotiations for a comprehensive subsequent regulation were continued from July 2021. The biggest point of contention was the future handling of online games of chance such as online casino games, for which there is currently only a license in Schleswig-Holstein. Regardless of the desire for a nationwide uniform regulation, there were major differences between the individual federal states, which prevented an agreement for a long time. Despite the establishment of a federal state working group, negotiations between the federal states stalled until the end of 2019.

The regulation of online slot machines and virtual table games such as online roulette or blackjack not only met with resistance in terms of content, but also caused concerns about the lottery monopoly . Since the aim was to avoid the liberalization of what some countries consider to be the most dangerous forms of gaming would undermine the monopoly on lotteries, an expert opinion on the compatibility of the proposed regulations was commissioned to the law firm "CBH Rechtsanwälte". In the report presented in November 2019 by Markus Ruttig , who also represented the State of Hesse in the dispute over the 2014 concession procedure, different regulatory models were shown. At the same time it was argued that the approval of private gaming providers that had already taken place would endanger the lottery monopoly. On the basis of this expert opinion and after further negotiations, the country representatives agreed on a new state gambling treaty that provides for the approval of online slot machine games at a special conference of the bosses of the state and senate chancelleries on January 17 and 18, 2020 at Tegernsee gives the federal states the possibility of granting concessions for the organization of online casino games. In addition, a new joint gaming supervisory authority based in Saxony-Anhalt is to be set up. A player blocking system will also be introduced uniformly , which is now mandatory across countries and game types. The only exceptions are lotteries, which, like today's “ 6 out of 49 ”, are organized no more than twice a week, lotteries in the form of profit savings and horse bets , which are run by clubs that operate a totaliser in accordance with Section 1 of the Racing Betting and Lottery Act can be offered stationary at a domestic horse racing track (Section 8 (2) GlüStV 2021).

For the entry into force on July 1, 2021, the State Treaty cleared the last hurdle on April 21, 2021: After notification by the EU, the contract had to be approved by at least 13 federal states by March 31, 2021 and by the State of Saxony by June 30. Anhalt to be ratified as the seat of the joint supervisory authority for gambling.

criticism

The planned comprehensive surveillance of online gamblers was particularly criticized . As early as March 2019, plans were announced that in addition to network blocks and payment blocking, state-set betting limits should be introduced for every online player and monitored centrally. A "limit file" intended for monitoring was sharply criticized in the media as a monitoring instrument, and the criticism was also taken up by the data protection officers of the federal states. During the written hearing on the new State Treaty on Gambling on March 10, 2020 , the data protection conference expressed concerns that the establishment of a "parallel game prevention file" and a "limit file" could lead to personality profiles and the data collection would significantly encroach on the players' right to informational self-determination represent. The data protection conference therefore recommended not to set up the two files.

Ilona Füchtenschnieder, chairwoman of the professional association for gambling addiction, accused politicians of a lack of cooperation with addiction experts in the reform. She also criticized the fact that the gambling industry is not involved in the follow-up costs of gambling addiction.

literature

  • Johannes Dietlein , Manfred Hecker, Markus Ruttig (eds.): Gambling law. State Treaty on Gambling, § 284 StGB, §§ 33c ff. GewO, SpielVO, RennwLottG, GG, EGV, GATS, EV / SlgLottVO-DDR and others. Comment. CH Beck, Munich 2008, ISBN 978-3-406-58093-2 .
  • Martin Pagenkopf : The new State Treaty on Gambling. New banks, old waters. In: New Legal Weekly . Vol. 65, No. 40, 2012, pp. 2918-2924.

Web links

Individual evidence

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  3. ↑ see BVerfG, decision of March 18, 1970 - 2 BvO 1/65 = BVerfGE 28, 119 for casino law
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  5. ↑ Tagesspiegel - Nothing is going on in Berlin's casinos anymore and the AWI Automaten-Wirtschaftsverbände-Info GmbH replies .
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  8. ↑ Caroline Freisfeld: State Treaty on Gaming is signed , FAZ Online December 15, 2011
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  11. ↑ Interview with Rahela Welp , head of the procurement process, as PDF
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