Lottery monopoly

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The so-called lottery monopoly exists in countries such as Germany, Austria and Switzerland. According to this, only the licensed lottery companies (in Germany and Switzerland organized at the level of the federal states or cantons) may carry out the lottery .

Similarly, there is a betting monopoly, for example in the area of sports betting .

The emergence of the monopoly

Since Prussia's first establishment in 1703, the lottery has always been held for the poor and needy of the population. In the middle of the 18th century, not only foreign lottery entrepreneurs were to be found in Prussia, numerous private providers also wanted to obtain approval for a lottery from Friedrich II. The king approved many lotteries, but many lotteries were run without his approval. By 1763, numerous foreign lottery providers were already selling their tickets throughout Prussia, so that a lot of money flowed outside the country. The numerous private providers also let the income of their own lottery fall, so that there was a lack of income for charitable organizations.
Many complaints about irregularities in the lotteries of private providers were further reasons for Frederick II to proclaim the state monopoly. In order to strengthen his own lottery, Frederick II issued bans against private providers and foreign lotteries. On February 8, 1763, Friedrich II signed the royal majesty patent, thereby declaring the state monopoly of the lotteries.
History shows the development of the lotteries as a state institution over several centuries. Frauds were repeatedly found in private draws: Lotteries could not be played due to insufficient funds, the ticket seller disappeared with the income, false tickets were sold or more rivets were thrown into the pot. Regardless of who cheated, whether salesman, operator or entrepreneur, the game participant was always the victim and the chance of winning was gone. In addition, the private providers and lottery companies did not support any charitable organizations, which was guaranteed with the state lotteries.

The battle of state lotteries, monopoly, gambling addiction and private, unlicensed providers is repeated in waves. Even before the state games for money existed, every government tried to prevent the rampant gambling everywhere by issuing bans with the toughest penalties. Fines and penal sentences were the most harmless of them; Corporal punishment, expropriation, and the exile of the entire family, including the death penalty, were all imposed in order to control gambling fraud and gambling addiction.

To justify the monopoly

The monopoly was set up, among other things, to protect gamblers from gambling addiction . However, it is also doubted that monopolies can control addictive behavior. Furthermore, various points of view are discussed from the point of view of the competition . In Switzerland, for example, requests from WWF and Greenpeace to set up their own lottery were rejected. In Germany, a lottery run by Greenpeace and other organizations apparently failed due to legal requirements that did not allow a high jackpot and only very limited lottery advertising.

A not insignificant part of the income of the state lottery companies - the so-called special purpose income - goes to charitable purposes. In Switzerland this is organized with lottery funds , while with private providers this is not guaranteed - also because the company is based abroad.

Situation in Germany

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Commercial syndicates or commercial gaming agents offer the lottery for a fee (a maximum of one third of the amounts received from the players for participation in the game, § 19 No. 1 GlüStV e contrario) , but do not play the lottery themselves, but rather with the licensed companies. For this, companies in Germany require a permit (Section 4 Paragraph 1 Sentence 2 GlüStV in conjunction with Section 3 Paragraph 6 No. 1 GlüStV).

Some providers who do not have a license to act as commercial gaming agents in Germany organize bets on the German lottery abroad that can be used over the Internet. However, these bets on the German lottery are not permitted due to the preventive prohibition of Section 4 (1) sentence 2 GlüStV.

state contract

The lottery monopoly is based on the State Treaty on Lottery in Germany. The contract stipulated, among other things, that “sufficient gambling offer is ensured”, but also that the “natural gambling instinct of the population is directed into orderly and monitored channels”. It is also regulated there that “a considerable part of the income from games of chance is used to promote public or tax-privileged purposes within the meaning of the tax code”.

State Treaty on Gambling

The development of the new State Treaty on Gaming (GlüStV - in force since January 1, 2008) was initiated by the sports betting judgment of the Federal Constitutional Court on March 28, 2006. In it, the BVerfG ruled that a state monopoly for sports betting is incompatible with the basic right to freedom of occupation under Article 12 (1) of the Basic Law. It did, however, allow the federal states to “consistently align a state monopoly with the aim of combating the dangers of addiction”. As a result, the federal states developed a new set of rules aimed at combating gambling addiction not only in the area of ​​sports betting, but also for lotteries.
According to the GlüStV, the organization and brokering of games of chance is only possible with a permit from the competent authority of the respective country (Section 4 (1)); Games of chance on the Internet are generally prohibited (Section 4, Paragraph 4). On October 14, 2008, the Federal Constitutional Court first dealt with the new regulations of the GlüStV.

In the opinion of the court, the provisions of the GlüStV and in particular the prohibition of organizing and brokering public games of chance on the Internet (Section 4 (4) GlüStV) and the transitional provisions for 2008 (Section 25 (6) GlüStV) are reasonable and therefore constitutional not to complain about.

Before this decision, the new state treaty was viewed by some observers and lawyers as illegal. This was also hinted at by court rulings of the Federal Constitutional Court, the Federal Cartel Office and the European Court of Justice before the ratification of the treaty. An infringement procedure by the EU is foreseeable.

In the meantime, on September 8, 2010, the ECJ passed groundbreaking judgments regarding the lottery and sports betting monopoly.

In a resolution dated November 23, 2010, the OVG North Rhine-Westphalia stated: "Because in these decisions the ECJ did not declare the provisions of the State Treaty on Gaming to be contrary to European law".

In the specialist literature it is stated in relation to these judgments: "The ECJ (...) has only ruled that a state monopoly for sports betting and lotteries is incompatible with Union law if it does not actually provide a coherent and systematic incentive to excessive expenditure for the Avoids gambling and combats gambling addiction. ”“ For future gambling law in Germany, the decision of the European Court of Justice in a certain way forms a parallel under Union law to the statements made by the Federal Constitutional Court in its March 2006 ruling on the Basic Law and countries, within the scope of their competencies, also from the point of view of Union law, continue to have room for maneuver that includes both a monopoly solution and liberalization. "

The judgments thus ultimately turn out to be a directional decision for politics with regard to the State Treaty on Gaming, which expires on December 31, 2011. Either the entire area of ​​gambling is regulated coherently as a monopoly, which is possible according to the ECJ, or the gambling system has to be liberalized so that the lottery monopoly can no longer exist.

Legal basis - racing betting and lottery law

The racing betting and lottery tax, which has its legal basis in the racing betting and lottery law, is a so-called indirect tax. In principle, their income is due to the federal states, which also take on the entire organization and administration.

The Racing Betting and Lottery Act is divided into two sections. The first section deals with the taxation of racing bets, while the second section deals with lotteries, draws and sports betting.

In addition to the actual law, there are so-called implementing provisions that regulate more details about this law.

Antitrust proceedings

On August 28, 2006, the Federal Cartel Office announced that it would open administrative proceedings, according to which the state lottery companies of the federal states must allow more competition with immediate effect. Then it should u. a. Private-law companies will be able to easily sell the state lottery offers on their own - even in their own retail outlets. The restriction of the lottery companies to the respective federal state is also to be lifted, so that there is also competition between the state institutions. The state lottery monopoly will not be abolished by this decision, as only state lottery offers continue to exist, but these are now being considerably supplemented by private reseller offers.

Situation in Switzerland

In the German-speaking cantons and in Ticino the monopoly lies with Swisslos , in the French-speaking cantons with Loterie Romande .

The legal basis is the Federal Law on Lotteries and Commercial Betting of June 8, 1923 and the cantonal lottery laws or ordinances.

literature

  • Sabine Schönbein: The millionaire game with tradition. Books on Demand, Norderstedt 2008, ISBN 978-3-8334-8779-8 .

Individual evidence

  1. ↑ http://www.tagesspiegel.de/politik/deutschland/laender-verlaengern-lotteriemonopol/786696.html
  2. ↑ http://www.taz.de/pt/2004/12/22/a0126.1/text.ges,1
  3. ↑ http://www.stern.de/politik/deutschland/lotteriemonopol-sportwetten-bitte-nur-beim-staat-563888.html
  4. ↑ https://www.jaxx.com/de/lottotipp/information.html
  5. ↑ State Treaty on Lottery in Germany
  6. ↑ State Treaty on Gambling - GlüStV
  7. ↑ http://www.bundesverfassungsgericht.de/entscheidungen/rs20060328_1bvr105401.html
  8. ^ Order of the Federal Constitutional Court of October 14, 2008
  9. ↑ http://www.flickr.com/photo_zoom.gne?id=782951324&size=o (advertisement by the German Lotto Association e.V.)
  10. ↑ http://www.bverfg.de/entscheidungen/rs20060328_1bvr105401.html
  11. ↑ http://wettrecht.blogspot.com/2007_06_03_archive.html
  12. ↑ http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=de&num=79929693C19040338&doc=T&ouvert=T&seance=ARRET
  13. ↑ Federal states risk infringement proceedings by the EU in the case of lottery monopoly. In: Focus Online . Archived from the original on May 26, 2007 ; accessed on October 14, 2018 .
  14. ↑ ECJ (Grand Chamber), judgment of September 8, 2010 - C-316, 358, 359, 360, 409, 410/07 Markus Stoss u. a./Wetteraukreis; Kulpa Automatenservice Asperg-GmbH u. a./ State of Baden-Württemberg; ECJ (Grand Chamber), judgment of 8 September 2010 - C-46/08 Carmen Media Group Ltd./Land Schleswig-Holstein; ECJ (Grand Chamber), judgment of September 8, 2010 - C-409/06 Winner Wetten-GmbH / City of Bergheim.
  15. ^ Decision of the OVG North Rhine-Westphalia of November 23, 2010 (Az. 13 B 1016/10), BeckRS 2010, 56942
  16. ↑ Dr. Michael Lysander Fremuth , comment on ECJ (Grand Chamber), judgment of September 8, 2010 - C-316, 358, 359, 360, 409, 410/07, NVwZ 2010, 1417
  17. ↑ Prof. Dr. Jörg Ennuschat, European Court of Justice overturns gambling monopoly! Or not? Commercial archive 2010, 425 (427)
  18. ↑ Section 28, Paragraph 1, Sentence 1 of the GlüStV stipulates that it will expire at the end of the fourth year after its entry into force.
  19. ↑ Racing Betting and Lottery Act - Information & Basics. In: Information on the profession of tax advisor. Retrieved on May 13, 2016 (German).
  20. ↑ Federal Law on Lotteries and Commercial Betting of June 8, 1923 (with amendments)
  21. ↑ For example, for the Canton of Zurich the Cantonal Lottery Ordinance (KLV) of June 18, 1932 (with amendments) , for the Canton of Bern the Lottery Act of May 4, 1993 (with amendments) , for the Canton of Zug the Act on Lotteries and Commercial Betting ( Lottery Act) of July 6, 1978 (with amendments) .