Brandenburgisches Oberlandesgericht; 2023-10-16; 2 U 36/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2023:1016.2U36.22.00
Date: 2023-10-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE1016(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against an online games provider domiciled in Malta (hereinafter ‘the defendant’) demanding to be paid back the amounts the plaintiff lost.
The plaintiff made a registration on the website of the defendant who had a licence for operating online games in Malta but not in Germany and lost more than EUR 60 000. The plaintiff claimed to have participated in the games solely as part of his free time activities and had no doubts about the legality of the plaintiff's offer. By offering online games, the plaintiff committed a breach against Article 4(1), the second and fourth sentence, of the GlüStV 2012 (1).
The defendant demanded that the action be dismissed stating that the Landgericht Potsdam (hereinafter ‘the Court of First Instance’) as the court seised under Article 17(1)(c) and Article 18(1) of the Brussels I Regulation (recast) (2) did not hold international jurisdiction due to the fact that the plaintiff was not a consumer.
The Court of First Instance’ upheld the action, citing that there was no evidence supporting the argument that the plaintiff was a consumer.
The appeal of the defendant lodged with the Brandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) was not successful.
The Court of First Instance was correct to state that the bets of the plaintiff were made without valid legal grounds as the gambling contracts concluded between the plaintiff and the defendant were in breach of Article 14(1), second and fourth sentence, of the GlüStV 2012, and therefore void. This ban pursues legitimate public welfare objectives under constitutional and EU law in a non-discriminatory manner, in particular, the protection of minors and the fight against gambling addiction and associated crime. In the explanatory notes to the Interstate Treaty on Gambling 2012, the internet ban is justified by the high susceptibility of casino games to manipulation, their extreme addictive potential and their susceptibility to being used for money laundering purposes. Contrary to the opinion of the defendant, the internet ban does not only serve to protect players if they are exposed to addictive, ruinous and fraudulent forms of gambling. Rather, it is a general protection against the risks associated with online casino games. Nothing else results from the Interstate Treaty on Gambling amended in 2021. The plaintiff's claim for restitution is also not excluded by the provision of Article 817(2) of the BGB (3). In the present case, it cannot be established that the plaintiff was aware of a violation of the Interstate Treaty on Gambling by participating in online casino games.
The Court of Appeal dismissed the appeal of the defendant against the decision of the Court of First Instance.
(1) Staatsvertrag zum Glücksspielwesen in Deutschland (Glücksspielstaatsvertrag) vom 15. Dezember 2011 (German Interstate Treaty on Gambling of 15 December 2011).
(2) 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 (recast).
(3) Bürgerliches Gesetzbuch (German Civil Code).