Blind zeal – Prof. Dr. K. Schelter on the sport betting judgment of the German Federal Constitutional Court of 20th March 2009

An article by attorney Prof. Dr. Kurt Schelter (Minister a.D.)

During the last few days, the former judge at the Federal Constitutional Court, Professor Dr. Paul Kirchhof said the following in a newspaper interview about the causes of the financial crisis.

“Investors and asset managers no longer bet on interests and dividends, but on gambling and chance”

And what about the state? The behaviour of some of those responsible for gambling in the German Länder who are involved in the controversy over the monopoly or controlled liberalisation of sports betting, have given the fatal impression over the years that tough fiscal interests are pursued under the cover of the fight against gambling addiction. The income for the German Länder from Oddset is only the secondary concern. The major issue is the preservation of the billions paid for decades by the state lottery companies to the treasury. The lottery company strategists and gambling advisers to the Länder ministries are afraid of the domino effect: If the monopoly for sports betting comes to an end, then the lottery monopoly is not tenable. Under constitutional law, this is not automatic, but there is no guarantee of perpetuity for the lotto monopoly.

With this Damocles sword hanging over them, some of those responsible abandon their inhibitions during their daily efforts to strengthen the sports betting monopoly. The end justifies the means – even the audacious attempt to quite simply reinterpret a decision of the Federal Constitutional Court and deceive the public:

On 20th March 2009, the 3rd chamber of the first senate did not accept the constitutional complaint filed by a foreign sports betting broker. The constitutional complaint was directed against the decision of the Higher Administrative Court of Lower Saxony, which rejected the interim legal protection against the immediate enforcement of a prohibition order.

In a detailed explanatory memorandum, the chamber
  • denied the fundamental constitutional importance of the complaint and
  • did not hold its acceptance as appropriate concerning the implementation of the rights of the complainant.
The fundamental constitutional importance is denied, amongst other things, with reference to the fact that “ the Länder have created…a uniform nationwide framework for the necessary legal reorganisation of the sports betting sector” “ and thus – subject to a constitutional evaluation of the new legal situationhave drawn the necessary conclusions from the sports betting judgment at Länder legislation level” (Page 6 and 7 of the decision1).

Regarding the fundamental rights invoked by the complainant, the chamber points out that in this case the only question arising is, whether “the denial of interim legal protection … is objectionable in view of a breach of the fundamental rights under Art..12 (1) and Art. 19 (4) GG (German Constitution) as invoked by the complainant ”.

The chamber answered in the negative, thereby following the considerations of the Higher Administrative Court which stated that “upon approximate examination” the regulations of the Inter-State Treaty on Gambling, in force since 01.01.2008, and the gambling law of Lower Saxony could “be assessed in such a way”, “as to ensure sufficient addiction prevention policy”, and notes:

Pending an exhaustive constitutional examination of the new regulatory situation and the configuration of the state sports betting offers ensured through this, within the framework of constitutional complaints against decisions by the specialised courts in the main proceedings, it is to be noted that the lack of fundamental regulations, which was the hallmark of the old state law, can be regarded as rectified“ (P. 11 of the decision2)

Reading these parts of the decision, one can only be surprised about headlines such as “Federal Constitutional Court confirms Inter-State Treaty on Gambling” (news aktuell online of 7th April 2009) and the assessment of the responsible minister, who is quoted as saying, that the highest German Court stressed the constitutional validity of the Inter-State Treaty on Gambling (isa-casinos.de and Ministry for the Interior, Sport and Integration of Lower Saxony of 7th April 2009). Highly irritating and dubious is, that the managing director of a state lottery company who is also responsible for Oddset on the Federal level, claims: “The Federal Constitutional Court emphatically confirms the German gambling regulation in its decision” (news aktuell online on 7th April 2009).

In these difficult times the preservation of assets prevails over natural virtues. Officials in politics and administration and captains of the economy rightfully deplore this too. But they should abide by this themselves first. It wouldn’t take much in this case:
  • He who comments on a decision of the Federal Constitutional Court, should have read it first.
  • He who invokes the highest German judges in support of his own opinion, may not simply ignore the most important message of its decision, as hard as it may seem.
Some people concerned will see the repeated advice of the court that the new legal situation has not yet undergone detailed constitutional examination as an invitation to be taken up in due time.

Moreover:

The defenders of the monopoly should remember that we live in the European Union, in which there are basic freedoms, which are in principle anti-monopolistic. The European Court of Justice has not yet dealt with the new German law…

(1) Accentuation by the author

(2) Accentuation by the author

Source: TIME LAW NEWS 1/2009 (www.timelaw.de) by Law Firm Hambach & Hambach