OLG Köln; 2024-05-06; I-19 U 76/23, 19 U 76/23
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2024:0506.19U76.23.00
Date: 2024-05-06
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE0506(51)_ENG_SUMJURE
JURE summary
JURE summary
A private individual residing in Germany (hereinafter ‘the plaintiff’) demanded that the defendant (hereinafter ‘the defendant’) repay the stakes he had lost between 2013 and 2020 in online casino games and online sports betting.
The plaintiff argued that the games of chance offered by the defendant were inadmissible in North Rhine-Westphalia due to the lack of a national licence and that the contracts concluded were therefore null and void pursuant to Section 134 of the BGB (1). He also asserted that both Section 4 GlüStV 2012 (2) and Section 284 StGB (3) constituted protective laws within the meaning of Section 823 (2) BGB and that the defendant had violated his rights through its conduct.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) dismissed the action, stating that the contracts were valid. Although the defendant did not hold a licence and thus formally violated Section 4 of the GlüStV 2012, the authorities were unable to prohibit sports betting during the period in question effectively. However, since the authorities were unable to prohibit sports betting during the period in question effectively, no violation of a legal prohibition within the meaning of Section 134 of the BGB could be assumed. In addition, the plaintiff had not sufficiently demonstrated any gambling addiction.
The plaintiff appealed against this ruling to the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’), arguing that Section 4(4) GlüStV 2012 was in conformity with European Union law and a restriction on the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union (4) was justified on compelling grounds of public interest. Mere tolerance on the part of the authorities could not lead to the contracts being effective.
The defendant requested that the appeal be dismissed. It argued that there had been ‘active tolerance’ on the part of the authorities, which was equivalent to approval. Furthermore, it had not offered any illegal live betting, and the Maltese licence it held had to be taken into account. It considered Section 4(4) of the GlüStV 2012 to be contrary to European Union law and inapplicable.
The Court of Appeal ruled that the claim for EUR 118 557.46 was justified. It found that the contracts concluded between the parties were void pursuant to Section 134 of the BGB as they violated Section 4(1) and (4) of the GlüStV 2012. The internet ban was in conformity with European Union law and compatible with the objectives of player and youth protection. Active or passive tolerance could not eliminate the illegality. Furthermore, a Maltese licence did not replace a German licence.
An exclusion of the claim for repayment pursuant to Section 762 and Section 817, second of the BGB, was out of the question. The plaintiff did not intentionally or recklessly violate any prohibitions, as the content of the GlüStV 2012 was not readily known to legal laypersons. Nor was it possible to invoke Section 242 of the BGB, as the defendant itself acted unlawfully and did not provide any information about the inadmissibility of its offer.
The Court of Appeal overturned the judgment of the Court of First Instance and upheld the plaintiff’s appeal.
(1) Gesetz vom 18. August 1896, Bürgerliches Gesetzbuch (German Civil Code).
(2) Staatsvertrag zum Glücksspielwesen in Deutschland vom 15. Dezember 2011 (Glücksspielstaatsvertrag – GlüStV) (German State Treaty on Gaming).
(3) Gesetz vom 15. Mai 1871, Strafgesetzbuch (German Criminal Code).
(4) Treaty on the Functioning of the European Union.