OLG Karlsruhe; 2023-12-19; 19 U 44/23
Decision by national courts in the field of European Union law — ECLI:DE:OLGKARL:2023:1219.19U44.23.00
Date: 2023-12-19
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE1219(51)_ENG_SUMJURE
JURE summary
JURE summary
A person domiciled in Baden-Württemberg (hereinafter ‘the plaintiff’) sought repayment from the defendant of gambling stakes amounting to EUR 87 446, which he had lost between 2014 and 2021 in online casino games. He argued that the bets had been placed exclusively for private purposes and that he had not been aware of the illegality of the defendant’s offer in Germany. Therefore, the defendant was liable for the losses both under the law of unjust enrichment and under tort law.
The defendant argued that there was no liability under the law of unjust enrichment or tort. Section 4(4) of the GlüStV 2012 (1), which provided for a ban on casino games on the internet, was contrary to European Union law as it violated the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union. Furthermore, the gaming contracts could not be deemed null and void under Section 134 of the BGB (2) as there was no mutual breach of law. A claim under Section 817, second sentence of the BGB was likewise precluded, as the claimant had at least tacitly accepted that the game was unlawful. Furthermore, the defendant raised the defence of limitation and invoked the defence of loss of enrichment, submitting that any enrichment had been extinguished due to statutory minimum payout requirements.
The Landgericht Heidelberg (hereinafter ‘the Court of First Instance’), as the court seised, upheld the claim. It found that German law was applicable under Article 6 of the Rome I Regulation (3) and that international jurisdiction existed under Article 18 of the Brussels I Regulation (recast) (4). The gaming contracts concluded between the parties were void pursuant to Section 134 of the BGB in conjunction with Section 4(4) of the GlüStV 2012. The prohibition was compatible with European Union and constitutional law, as it served legitimate public interest objectives such as the protection of young people and players. An exclusion under Section 817, second sentence of the BGB or Section 814 of the BGB did not apply, as the plaintiff was not aware of the invalidity. The objection under Section 762 of the BGB was also not applicable, as the claim for repayment was based not on the gambling nature of the contract but on its nullity.
The defendant lodged an appeal with the Oberlandesgericht Karlsruhe (hereinafter ‘the Court of Appeal’). It reiterated its arguments and further contended that the claims had been assigned to a litigation funder, which is why jurisdiction over consumer contracts was not applicable in the case. It also claimed that the plaintiff had been aware of the illegality since March 2021, meaning that subsequent bets were no longer eligible for reimbursement.
The Court of Appeal dismissed the defendant’s appeal against the judgment of the Court of First Instance, stating that the plaintiff acted as a consumer. In terms of content, the Court of Appeal clarified that the gaming contracts were void pursuant to Section 134 of the BGB in conjunction with Section 4(4) of the GlüStV 2012. The prohibition was compatible with higher-ranking law. Although claims for enrichment for bets placed before 2019 were time-barred, there was also a tortious claim for damages under Section 23(2) of the BGB in conjunction with Section 284 of the StGB (5), as the defendant was offering illegal gambling intentionally.
(1) Staatsvertrag zum Glücksspielwesen in Deutschland vom 15. Dezember 2011 (Glücksspielstaatsvertrag – GlüStV) (German State Treaty on Gaming).
(2) Gesetz vom 18. August 1896, Bürgerliches Gesetzbuch (German Civil Code)
(3) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
(4) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(5) Gesetz vom 15. Mai 1871, Strafgesetzbuch. (German Criminal Code).