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Online Casinos in general: Berlin Regional Court: Chargeback at online casino inadmissible

Topic created on 29th Jun. 2019 | Page: 1 of 1 | Answers: 1 | Views: 2,765
Icw_2019

Berlin Regional Court: Chargeback at online casino inadmissible

29th Jun. 2019, at 09:29 am CEST#1
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Just read this article, I do not want to withhold from you. Is there actually a higher court in the meantime, which has decided in favor of chargeback?

https://www.isa-guide.de/isa-law/articles/196789.html


Also LG Berlin confirms reimbursement of expenses by banks for payments for online gambling

A contribution of attorney Rolf Karpenstein

Various law firms and Internet platforms operating on a commission basis are advertising on the basis of two judgments of the local courts to reclaim losses from online gambling. PR articles are even placed in the BILD newspaper with the headline "Gambling without the Risk of loss!

However it is faded out that the local courts designated stand in the legal offside. In addition to the recent decisions of the OLG Munich and LG Munich (see "LG Munich and OLG Munich confirm reimbursement of expenses of the bank for credit card payments for online gambling"), the LG Berlin had already confirmed the reimbursement of expenses of the bank for credit card payments to providers of online gambling not licensed in Germany in the reference decision of 19.06.2017 (Az. 4 S 1/17). The business model of "gambling without the risk of loss" is therefore likely to fail regularly in the second instance and therefore has little future.

As in the case dealt with by the OLG and LG Munich, a player had used his credit card to participate in online casino and Poker games with several EU providers in the proceedings decided for the credit institution by LG Berlin. The charges were made by the e-money institution Skrill as well as the providers themselves. The player then took the position that the Games of chance were "unauthorized" since they violated restrictions of the GlüÄndStV and thus a "statutory prohibition" within the meaning of Section 134 of the German Civil Code. The bank should have recognized this, as the transactions in dispute were identified as gambling transactions with the merchant category code (MCC) 7995.

The Berlin-Mitte Local Court had already dismissed the claim for repayment of initiated credit card transactions in its judgment of December 7, 2016 (17 C 203/16).

With reference to a ruling of the Federal Court of Justice (BGH) of 24.11.2002 (Ref. XI ZR 420/01), the local court had clarified that the credit company must in principle consider a payment to be necessary without checking whether a valid claim exists in the value date relationship. Any complaints or objections were to be clarified directly between the contracting company and the cardholder - as also provided for in the GTC in the present case - and did not affect the cardholder's payment obligation to the bank.

It was also by no means obvious to the bank that the player had participated in games that were "unauthorized" under German law. MCC Code 7995 did not distinguish between "permitted" and, in the view of some German federal states, "unauthorized" gambling. According to the court's findings, the gaming providers selected by the player in question also arranged sports betting on a large scale that was permitted or tolerated by the German federal states as legal under EU law. Thus, neither an alleged "illegality" of the relevant offer was recognizable from the MCC Code, nor whether the player, after triggering the payment on the relevant offer, will participate in legal or, from the perspective of the German federal states, "illegal" games. On both of the aforementioned points, the Local Court had shared the convincing view of the OLG and the LG Munich.

In a reference order dated June 19, 2017 (Case No. 4 S 1/17), the Berlin Regional Court then made it clear that it did not consider the appeal against the judgment of the Local Court to have any chance of success for several reasons

The Regional Court not only concurred with the opinion of the Local Court on the two aforementioned points, but also justified its decision as follows:

On the part of the bank, there is in principle "no obligation to check the licensing or legality of the providers, especially since this is not always likely to be apparent to the defendant when processing via so-called e-money institutions." This task is "primarily in the hands of the plaintiff himself".

Nor could the provision of Section 9d of the German Money Laundering Act (GwG) be interpreted as imposing any obligation on the part of the bank to filter out or prevent gambling that is "unauthorized" from the perspective of the German federal states. According to the explanatory memorandum (BT-Drs. 17/10745, p. 17), the obligated party, if any, is the credit or payment Provider commissioned by the gambling provider.

The gambler and his business partner had subsequently abandoned the appeal. The judgment of the Local Court is therefore final.

It should therefore be noted that the "gambling without the risk of loss!" business model propagated by some lawyers and Internet platforms is not covered by the case law of the higher courts and is in any case untenable from an EU law perspective. It hardly seems conceivable that higher courts or even the ECJ will give players carte blanche to gamble online at the expense of banks or providers.

This post has been translated automatically

MisterL
Expert

Berlin Regional Court: Chargeback at online casino inadmissible

30th Jun. 2019, at 03:30 pm CEST#2
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yes dat knows everyone

This post has been translated automatically

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