Case summary

Deciding Body
Federal Court of Justice
National case details
Registration ID: I ZR 92/09
Instance: Cassation (review)
Case status: Final
Area of law
Consumer protection
Health law

Life-cycle diagram

  1. 29 September 2007

    LG Wiesbaden, 29.11.2007 - 13 O 119/06

  2. 20 December 2007

    LG Bremen, 20.12.2007 - 12 O 379/06

  3. 5 March 2009

    OLG Bremen, 05.03.2009 - 2 U 4/08

  4. 4 June 2009

    OLG Frankfurt, 04.06.2009 - 6 U 261/07

  5. 29 January 2010

    OLG Bremen, 29.01.2010 - 2 U 4/08

  6. 7 February 2011

    LG Wiesbaden, 07.02.2011 - 13 O 119/06

  7. 28 September 2011

    BGH, 28.09.2011 - I ZR 92/09

Identification of the case

National law sources
  • UWG § 4 Nr. 11; GlüStV § 4(4), § 5(3)
EU law sources
  • Art. 6 TFEU

Summary of the case

Facts of the case

The plaintiff organises and hosts sport bets in Hessia, whereas the defendant is a company hosting the sport betting website ‘’ who is established in Gibraltar. While the latter has a concession for the organisation of sport bets in Gibraltar, it possesses no licence of German authorities for these activities. According to the plaintiff, the defendant acts anticompetitively by offering the possibility of gambling in Germany without possessing a license. Hence, the plaintiff requests an injunction against the defendant ordering her to cease offering her gambling services in Germany without license. Furthermore, the plaintiff requests the payment of damages by the defendant. In contrast, the defendant argues that she only requires the license of Gibraltar to operate in Germany. Either way, the German monopoly on gambling violates the EU freedom of provision of services and of establishment.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Civil injunction (for omission of activities, information and determination of liability for damages)

Reasoning (legal principles applied)

Private sport bets and other online gambling ventures are prohibited under §4(4) GlüStV. As this prohibition infringes the freedom to provide services, the Federal Court of Justice has to determine whether the provision is in line with EU law. Firstly, the Court holds that the provision is justified in the light of policy aims such as combatting gambling addiction, protecting the youth and prevention of fraud. Secondly, the Court focuses on whether the current system fulfils the CJEU’s cohesion requirement. Thereby, it addresses two aberrations. The GlüStV allows gaming machines, which require the physical presence of players. The Court, however, considers that the regulation of internet gambling in §4(4) GlüStV constitutes its own system and, hence, is coherent in itself. In addition, the toleration of horse race bets in the internet does not affect the general risk prevention either, as they form a minimal portion of the market. The Federal Court also briefly considers the CJEU’s decision in C-108/09 Ker Optica. It swiftly decides that Ker Optica is not applicable to the situation, as the justifying dangers of internet gambling are directly and inevitably connected to the internet as medium for gambling. The Court draws this connection from the lack of social control because of the possible anonymity, the permanent possibility of gambling and the special convenience of gambling online. These flaws cannot be counterbalanced by accompanying disclaimers.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
Cited CJEU
  • CJEU C-108/09, Ker Optica
  • C-46/08 Carmen Media
Dialogue techniques

Conform interpretation with EU law as interpreted by the CJEU

Purposes of using judicial dialogue

Confirm that C-108/09 does not apply to the current set of facts and that the current prohibition of internet gambling does not violate EU law

Additional notes on the decision

Impact on legislation/policy

Initially, commentators deemed that this line of case law would have little impact because Schleswig Holstein gave out licences starting in 2012. Those licenses, however, expired in the recent years. Now, no casino has a valid license in Germany. This evolution in administrative practice might be traced back to German courts consistently prohibition online casinos. For example, the Federal Administrative Court continues to stress that the prohibition of online casinos does not violate EU law.

External links

Case author

Mareike Hoffmann, University of Passau

Published by Gianmatteo Sabatino on 29 January 2020