OLG Dresden; 2022-10-27; 10 U 736/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGDRES:2022:1027.10U736.22.00
Date: 2022-10-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1027(51)_ENG_SUMJURE
JURE summary
JURE summary
A private resident in Germany (hereinafter ‘the plaintiff’) filed a claim against an online gambling operator based in Malta (hereinafter ‘the defendant’) for repayment of the amounts lost.
The plaintiff registered on the website of the defendant, who had a gambling license in Malta but not in Germany and gambled away more than EUR 19 000. The defendant stated on the website that it had a licence to operate the online casino in Germany. The plaintiff points out that, according to the current State Treaty on Gambling, the organisation of public games of chance on the Internet is prohibited. The defendant argued that the German ban on online gaming violated European law on the freedom to provide services and was invalid.
The Landgericht Leipzig (hereinafter 'the Court of First Instance'), seised pursuant to Article 17(1)(c) and Article 18(1) of the Brussels I Regulation (recast) (1), dismissed the action. The plaintiff's claim for restitution was excluded by the bar on concession in Article 817, second sentence, of the BGB (2), as the plaintiff was also guilty of a breach of the law by participating in the prohibited online gambling.
The plaintiff's appeal to the Oberlandesgericht Dresden (hereinafter ‘the Court of Appeal’) was successful.
The plaintiff engaged the online games of chance as a consumer. The plaintiff's payment in the form of the amount wagered was made without legal grounds because the online gambling contract is void pursuant to Article 134 of the BGB due to a breach of a statutory prohibition under Article 4(4) of the State Treaty on Gambling of 2011. This ban pursues legitimate public interest 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. Nothing else results from the State Treaty on Gambling, which was amended in 2021.
The plaintiff also denied that he was aware that the contracts with the defendant were void and that he was therefore not obliged to perform. The Court of Appeal was unable to make establishments otherwise.
The Court of Appeal amended the judgement of the Court of First Instance to the effect that the defendant was obliged to repay the claim.
(1) 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).
(2) Bürgerliches Gesetzbuch (Civil Code).