business practices to the anticipated future legal situation and limit their offerings accordingly (cf. item 4 of the circular resolution of the heads of the state and senate chancelleries of the federal states dated September 8, 2020). Te situation becomes problematic if the foreign applicant offers gaming that is permitted under the law of its state, but which is not permitted in Germany or was not permitted in Germany before the GlüStV 2021 came into force.
Insofar as the gaming permitted there does not radiate to the German market, i.e., players cannot participate in it from Germany, an unreliability will be unproblematic to reject. A danger that must be “averted“ does not exist in this respect. Te situation changes considerably, however, if a company offering gaming that is permitted abroad also makes its services available to players in Germany. Provided that there have been no violations in the past, the assessment of reliability or lawfulness becomes difficult. Tis is particularly the case if, according to the law of the foreign country, the “place of play“ is not the residence of the respective player, but the place where the company's computing power takes place.
A participation of German players who play games of chance of a foreign provider on the territory of the Federal Republic of Germany, which cannot be authorised there, will not be reproachable to the same, because it cannot be obligated to initiate active defensive measures for the protection of one or many foreign legal systems. So far, there is no obligation for so- called geolocation. If, however, a company based abroad and holding a foreign licence offers a German-language range of games of chance that are legal at the company's registered office but cannot be licensed in Germany, and promotes this by means of targeted advertising in Germany, the competent authority is likely to want to draw conclusions about reliability from this if the achievement of economic advantages is placed above legal requirements (cf. again Becker, ZfWG 2002, p. 114 ff.).
However, the GlüStV 2021 also has implications for attribution relationships based on group law. Can a third-party unreliability influence the reliability assessment of the applicant? Tis applies in any case if the third-party conduct allows conclusions to be drawn about the applicant's own personality and there is a legal or economic relationship between the two.
If a trader, as the person responsible, is under the influence of a third party that endangers the interests of the general public, he can now also become unreliable himself as a result of this influence of the unreliable third party if he is unable to eliminate such an influence or even admits to such an influence. Tis is of particular importance in cases of so-called straw man relationships, where both the straw man and the backer are judged.
In the case of an unreliable backer, the unreliability of the straw man arises simply from the fact that he allows such a person to engage in commercial activity. In the case of legal entities, the unreliability is ultimately due to the conduct of natural persons, i.e. the conduct of their legal representatives. Section 4a (1) no. 1 lit. d) GlüStV 2021 - in contrast to the previously described attribution of unreliability
“A particular area of conflict can arise, however, if the so- called Gaming College of the
Federal States, which decides on the respective applications, nonetheless rejects
applications or fails to reach a decision even if the licensing requirements are met.
Irrespective of the fact that its legal legitimacy is more than questionable, the Gaming College, as the coordinating body of the Federal States in gaming regulation, is bound by law in accordance with Article 20 (3) GG. Arbitrary decisions are thus eliminated. In this
context, unlawful resolutions by the Gaming College are therefore extremely
problematic and ultimately the starting point for potential claims for damages or official liability claims.”
of third parties under commercial law - does not rely on a concrete influence of the unreliable party on the applicant: Rather, for three types of relationships between the applicant and the third party, such possibilities for influence by the third party are simply assumed on the basis of a corporate or other contractual relationship.
Te attribution in the context of gaming law should seek to prevent the assumption of “reliability“ through the splitting of an entrepreneurial activity when viewed in isolation, even though the group as a whole is not law-abiding and attempts to exploit its (in itself completely legal) fragmentation under company law in order to isolate itself from current or past actions. Section 4a (1) no. 1 lit. d) specifies certain corporate relationships under company law for gaming law and typified paths of influence and control, which is why the competent authority only carries out a purely formal examination of the shareholding relationships.
Precisely because of the diversity of corporate and contractual constructions (worldwide), it must be possible for the applicant to prove, in order to maintain proportionality, that despite a connection to a third company typified in Section 4a (1) No. 1 lit. d) GlüStV 2021, it is ensured through personnel, organizational and contractual arrangements that the possible unreliability of the affiliated company has no effect on its current and future compliance with the law. Tus, an applicant should not be
sanctioned for a third party's disobedience of a standard without gaining anything for the integrity of the gaming market (see again Becker, ZfWG 1/22).
IV. Liability for damages in the case of wrongfully rejected applications despite
reliability under gaming law.
On the basis of the foregoing, it becomes clear that the competent authority must take into account a particularly high number of factors in its decision with regard to the gambling law reliability test in a specific individual case. If the authority comes to the decision that the legal licensing requirements are met, it must also grant the license applied for, because there is then a direct entitlement to this.
A particular area of conflict can arise, however, if the so-called Gaming College of the Federal States, which decides on the respective applications, nonetheless rejects applications or fails to reach a decision even if the licensing requirements are met.
Irrespective of the fact that its legal legitimacy is more than questionable, the Gaming College, as the coordinating body of the Federal States in gaming regulation, is bound by law in accordance with Article 20 (3) GG. Arbitrary decisions are thus eliminated. In this context, unlawful resolutions by the Gaming College are therefore extremely problematic and ultimately the starting point for potential claims for damages or official liability claims if, despite the existence of reliability under gaming law and the other requirements, the majority of the Gaming College votes against an application or - as already written - no decision is reached and an application is therefore not granted. Tis is because, if the requirements are met, there is a right to approval, which the gaming college must approve in accordance with the principles of the rule of law. Tere is no room for “discretion“ here.
An additional potential for conflict also arises from the fact that, pursuant to Section 27p (9) sentence 9 GlüStV 2021, the competent authorities are to be bound by the decisions of the Gaming College. Due to the legality of administration, the question arises as to how “bound“ authorities are to deal with it if the Gaming College does not reach a decision on an application or wrongfully rejects an application. It remains to be seen whether the courts will have to address this issue in the future.
V.Concluding Remarks
Due to the fact that there is no predefined catalog of indicators for reliability or unreliability under gaming law, the competent authority must always make a risk prognosis in the specific individual case. However, infallibility cannot be demanded. Any violations of the law must be weighted, with the principle of proportionality being of eminent importance. Te caesura effect of the entry into force of the State Treaty on the New Regulation of Gaming in Germany on July 1, 2021 is likely to mean that the licensing authority will have to base its old risk forecasts on new foundations, as violations of the old legal situation can no longer justify an unfavorable forecast without the addition of further circumstances.
WIRE / PULSE / INSIGHT / REPORTS P57
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140
