because such a clause was not part of the GlüStV 2021 and would also be an expression of an inadmissible sanctioning concept and would not serve to avert danger.
In each specific case, a final conviction for a criminal offense under Section 284 StGB would therefore necessarily have a negative impact on the licensing procedure or on a license that has already been granted. However, a violation of legal requirements that are sufficiently specific, foreseeable and transparent will also trigger the same negative consequence for the provider in question. However, formal prohibition orders under the “old“ state treaty cannot be relied upon as a decisive factor; rather, the authority must assess the underlying facts independently, because the prognosis decision is based exclusively on facts. Insofar as foreign decisions are to form the basis of a declaratory procedure, the authority must ensure that the procedural rules applied by foreign authorities can be brought into line with the essential principles of German law. Te positive decision on unreliability must be based on a legally binding decision by an authority or a court (cf. Becker, ZfWG 2002, p. 114 ff.).
Te applicant's or provider's willingness to be regulated, which must be proven, is of decisive importance in the authority's “prognosis decision“ with regard to reliability, because the key objective of the GlüStV 2021 is to steer gambling offers towards legal gambling offers and their provision by appropriate gambling providers. Tis willingness to regulate must be expressed in the behavior of the applicant.
Te decisive factor is compliance with the requirements of the GlüStV 2021 - which are admittedly questionable from a legal point of view - as specified in the guidelines, the response to sufficiently precise complaints and the prompt elimination of actual deficits - in cooperation with the licensing authority (see Streinz, NVwZ - Extra 3/2022). In order to demonstrate the willingness to regulate, supra- mandatory efforts such as voluntary audits are likely to be extremely helpful, which can thoroughly check and establish compliance with all relevant gaming law requirements.
It is also important that the institute of “self- cleaning“, which is known from public procurement law (Section 125 GWB), must be taken into account analogously for reasons of proportionality. Tis opens up the possibility, and thus takes account of the principle of proportionality, of disproving an unreliability that has actually been proven and restoring the guarantee of proper performance of the organiser's activities. In this context, self- cleaning means that concrete technical, organisational and personnel measures have been taken, that clarification has been provided through active cooperation with the competent authority, and that effective compensation for damage has been provided. Te burden of proof for this lies with the applicant, the evaluation of the self-cleaning efforts with the authority. If an applicant no longer poses a threat that must be prevented under GlüStV 2021 because the self- cleaning process has been successfully completed, it will be difficult to accuse him of past unreliability (cf. Becker, ZfWG 2002, p. 114 ff.). Tis is also in line with the legal concept of Section 35 (6) sentence 1 GewO.
“If a company based in
Germany as the applicant does not comply with applicable German law, it is regularly to be classified as unreliable. The same is likely to apply to a
company based abroad that does not provide services for the German market but offers unauthorised gambling in
contravention of the law of the market there. This is justified by the fact that it is at least
anything but impossible that the person who is guilty of
violations in one (gaming) legal system will also not behave in a legally compliant manner in another gaming market.”
“It is likely to be of eminent importance that the entry into
force of the State Treaty on the New Regulation of Gaming in Germany on July 1, 2021 marks a turning point, which means that the competent authorities must base their “risk prognosis“ on a new
foundation, as violations of the old legal situation can no longer justify an unfavorable
prognosis without the addition of further circumstances.”
An applicant who has already permissibly offered corresponding games of chance relevant to the assessment of reliability in Schleswig- Holstein, has consistently had the required reliability certified will be able to duly assert this, in particular insofar as there are no relevant objections, when deciding on the required reliability, also in the case of an application for a licence for games of chance pursuant to the GlüStV 2021 (cf. Streinz, NVwZ - Extra 3/2022).
Te formal administrative act of granting the license is less decisive in this regard than the expression of the organiser's continued willingness to submit to the supervision of the licensing authority and the applicable regulations. In this context, it is likely to be of eminent importance that the entry into force of the State Treaty on the New Regulation of Gaming in Germany on July 1, 2021 marks a turning point, which means that the competent authorities must base their “risk prognosis“ on a new foundation, as violations of the old legal situation can no longer justify an unfavorable prognosis without the addition of further circumstances. Tus, it can no longer be held against an applicant that he did not seek a corresponding licence under the GlüStV 2012. Tis is because such a licence was not available at all.
Pursuant to Section 4a (1) lit. d) GlüStV 2021, the fact that “unauthorised gaming is organized or brokered“ is an argument against reliability. In view of the diversity of international gaming regulations, it remains questionable, for example, according to which legal system the permissibility or impermissibility of organizing or brokering games of chance should be determined in the case of an applicant domiciled abroad (cf. Becker, ZfWG 2002, p. 114 et seq.).
Pursuant to Section 4 GlüStV 2021, a game of chance is organised or brokered where the player is given the opportunity to participate. If a company based in Germany as the applicant does not comply with applicable German law, it is regularly to be classified as unreliable. Te same is likely to apply to a company based abroad that does not provide services for the German market but offers unauthorised gambling in contravention of the law of the market there. Tis is justified by the fact that it is at least anything but impossible that the person who is guilty of violations in one (gaming) legal system will also not behave in a legally compliant manner in another gaming market. And the prognosis of a legal violation in the future, supported by facts from the past, establishes unreliability under commercial law.
For a transitional period, the heads of the state and senate chancelleries of the Federal States agreed by circular resolution of September 8, 2020, on a joint procedure for assessing the reliability of providers, so that after the GlüStV 2021 comes into force, companies can offer games of chance that are eligible for approval even before it comes into force, without running the risk of having to fear adverse consequences for the subsequent assessment of their reliability (cf. on this Becker, ZfWG 2002, p. 114 ff.). Providers should be offered a “transition to the regulatory framework of the GlüStV 2021“ insofar as they actually already adapt their
WIRE / PULSE / INSIGHT / REPORTS P55
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