25 October We don t need no toleration Local tolerations for sports betting operators to solve the sports betting licensing dilemma?
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1 25 October We don t need no toleration Local tolerations for sports betting operators to solve the sports betting licensing dilemma? Speak up! German Online Casino Association launched at EiG as a new voice of the industry DFS in Germany? Be prepared to take a close look at your product We don t need no toleration Local tolerations for sports betting operators to solve the sports betting licensing dilemma? Over the summer months, a number of German states, among them Bavaria, Rhineland Palatinate, Hamburg and Hesse announced that they will tolerate i.e. not enforce against sports betting operators that apply for a so called formal toleration and comply with certain conditions. In Hesse such tolerations are available not only for land-based betting shops but also online operations. In Hesse, operators have been requested to submit an application for toleration before 15 November 2016 or otherwise risk enforcement action being taken against them.
2 A devil in disguise As sweet as tolerations may sound at first, they come with strings attached. Not only does the preparation of application documents involve a significant amount of work, effort and costs, formal tolerations also unlike licences only act as a promise of the regulator not to take enforcement action if its conditions are complied with. They do not entitle an operator to a future licence or guarantee a future licence. To put it in the words of famed German poet Johann Wolfgang von Goethe: Tolerance should be a temporary state of mind; it must lead to recognition. To tolerate means to insult. What happened to Ince? In the context of German sports betting regulation where operators remain without licences due to a failed licensing process and the Interstate Treaty (restrictions) cannot fully apply, tolerations raise a number of legal questions, not least as they lack a legal basis. Further, they are introduced in a situation in which an unlawful de facto-monopoly has been confirmed to unlawfully persist by the Court of Justice of the European Union (CJEU). The Ince-decision (C-336/114), effectively, prevents the prosecution of sports betting operators for operating without a licence in such a situation. Seeing as no reforms have so far taken effect and also judging by a recent ruling of the Higher Administrative Court of Hesse of August 2016 the persisting unlawful de-facto-monopoly must still be assumed. The need for tolerations, therefore, must seriously be questioned and it is understandable if operators ask themselves: Why buy a cow when the milk is free? Operators already confirmed to have a claim towards a licence as a result of having demonstrated that they qualify for a licence in the sports betting licensing process will have even more reason to question the formal toleration approach. Reactions in the market The overwhelming majority of sports betting operators for the time being is maintaining a watching brief of the situation and intend to point out the legal questions that arise in the context of the formal tolerations in interactions with the regulators. Some are considering taking legal action and in two cases have already filed lawsuits. At the moment things are still very much in flux and many aspects of the formal tolerations remain unclear, e.g. how online casinos will be dealt with in the context of the formal tolerations. Increased lobbying activities and strategic considerations therefore are in order. In case formal
3 tolerations were to involve online casino, guarantee a viable product range in sports betting and were subjected to reasonable conditions with a prospect of a workable future gambling regulation, formal tolerations would stand a chance to be welcomed by the industry. Home & Away Team September/October publications joint articles of Matthias and Jessica on Daily Fantasy Sports (DFS) (published in the latest edition of the European Gaming Lawyer, see and on the formal toleration approach pursued by some German states (published in the latest edition of the Online Gambling Law Report formerly known as World Online Gambling Law Report). October Joerg spoke at EiG (Excellence in Gaming) in Berlin which was also attended by Jessica. Joerg, Matthias and Jessica attended the IMGL Autumn Conference in Dublin and will be participating in the IMGL Post-Conference Tour. November Meet us at MiGS Matthias and Jessica will be attending. Joerg will be moderating panels at the IMGL Masterclasses at OFXG TLV & GO GAMING International Summit in Tel Aviv and the Eastern European Gaming Summit in Sofia. Jessica will be speaking on DFS at the Eastern European Gaming Summit.
4 November/December Matthias will be speaking at the C5 International Online Gaming Forum US Edition in New York City Coming soon: We are proud to announce that we have again been asked to contribute chapters on German regulation to the Gaming Law Global Guide (formerly Gaming Law: Jurisdictional Comparisons) published by The European Lawyer Reference Series (Thomson Reuters) and to the International Comparative Legal Guide to: Gambling 2017 published by Global Legal Group. They are expected to be published towards the end of the year. Speak up! German Online Casino Association launched at EiG as a new voice of the industry On 19 October 2016, the German Online Casino Association ( Deutscher Online Casinoverband ) was publically launched at EiG in Berlin. The Association is a voluntary alliance of various companies operating and manufacturing online casino games. Purpose of the Association is to represent the interests of its members towards policymakers, regulators and other institutions. The founding members are confident that giving the industry a new voice will greatly benefit and influence on the regulatory development of the German gaming sector and sharpen/increase political awareness towards the needs of the gaming industry. Dr. Dirk Quermann, the President of the Association commented as follows on the launch and future plans of the Association: "This is why we have set ourselves the goal to define clear rules in order to enable fair competition and ensure consumer protection effectively in the digital age and together with policy-makers."
5 Any legal entity or partnership of legal capacity under German or foreign law operating in the development and/or operation of online casinos and/or land-based casinos and either itself holds or has applied for a licence to operate or broker casino games in Germany or a German state, or holds a licence or other gambling-law related authorisation in Europe or is affiliated with such enterprises can apply for regular membership. If you are interested in becoming a member, please do not hesitate to contact us for further information. MELCHERS was strongly involved and assisted in the foundation of the Association. DFS in Germany? Be prepared to take a close look at your product Daily Fantasy Sports ( DFS ), now that more and more U.S. states have moved to regulate DFS in some way or another (albeit in various variations and inconsistently) and operators are looking to seek alternative or new markets, is becoming an increasingly hot topic all over Europe. Some countries such as Malta introduced specific regulation, others such as Germany remain unregulated in this context. This unregulated situation may be tempting but operators have to be aware of the legal pitfalls that await and how to navigate around them. The main navigation tool in this context is the design of the product an operator intends to offer on the German market. In order to avoid the unnecessary risk of being accused of operating unlawful gambling, the product will have to be designed in a way that it does not qualify as gambling under German law. This will either mean making the skill element the predominant factor in the game, or rather when determining the outcome of the game, or (re-)designing the product so as to ensure that the payments made by player can be understood not to be made in order to acquire a chance to win but merely in order to play. In particular with regard to the latter, German jurisprudence provides some guidance on how this can be achieved. In addition, DFS operators interested in the German market are well advised to consider tax implications when assessing the viability of the offer.
6 igaming Headlines Our newsletter s editors: Dr. Joerg Hofmann Dr. Matthias Spitz Jessica Maier, LL.M. Contact us at: gaming@melchers-law.com This newsletter intends to highlight certain issues but makes no claim to completeness. It may not be construed as legal advice. Should you have any questions in connection with this newsletter or its content, please feel free to contact our editors. We currently hold your contact details and personal data which we use to send you this newsletter and for business communications. We use your contact details for our own internal purposes only and do not distribute them or make them otherwise available to third parties. If your contact details are incorrect, have recently changed, or if you no longer wish to receive this newsletter, please let us know by ing us at gaming@melchers-law.com. MELCHERS Rechtsanwälte Partnerschaftsgesellschaft mbb. All rights reserved.
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