Online Casinos in general: LG Munich and OLG Munich: Chargeback at online casinos not legal

In its ruling of February 28, 2018 (Case No. 27 O 11716/17), the LG München I - confirmed by the OLG München - rejected the arguments of a gambler who wanted to defend himself against the reimbursement of expenses claimed by a credit card company for credit card payments to providers of online gambling from other EU countries that were "unauthorized" from the perspective of the German federal states.
In the case decided by the LG Munich, a player had used his credit card in 2016 to participate in online casino games in the form of Roulette, slots and Poker games with two providers licensed in the EU. The player subsequently refused to be reimbursed for the payments made by the credit card company to the gambling providers, arguing that the gambling transactions he had made were "unauthorized" as they violated restrictions of the GlüÄndStV and thus a "statutory prohibition" in Snne of Section 134 of the German Civil Code (BGB). The credit card company should have recognized this without further ado.
The Regional Court did not accept this objection. It essentially justified this as follows:
It is true that Section 4 (1) sentence 2 GlüÄndStV also prohibits participation in payments in connection with "unauthorized" gambling. It is

"however, it is not the task of the credit company to verify the legality of any payments (BGH, XI ZR 96/11). Pursuant to Section 9 (1) sentence 3 no. 4 GlüStV, this is the task of the gambling supervisory authority of the respective federal state. The gambling supervisory authority must notify the cooperating credit company of any unauthorized gambling offers. Only then may the gambling supervisory authority take measures against the credit company and prohibit its involvement in unauthorized gambling. The defendant was unable to demonstrate that the gambling supervisory authority had made such a disclosure to the plaintiff. Since the requirements for participation in payments in unauthorized gambling are not met, the payment executions of the plaintiff do not violate the State Gambling Treaty and are therefore not void pursuant to Section 134 of the German Civil Code."

On this point, the Regional Court - unlike the Local Court of Munich in its judgment of 21.2.2018 (Case No. 158 C 19107/17) issued shortly before - followed the official explanatory memorandum to the GlüÄndStV and consequently viewed the prohibition of participation in Section 4 (1) Sentence 2 GlüÄndStV "in connection with the supervisory powers of the gambling supervisory authority in Section 9" (cf. LT-Drs. 16/4795 Niedersachsen, p. 76).
According to the official explanatory memorandum to the GlüÄndStV, this is because

"the provision in Section 9 (1) Sentence 3 No. 4 serves to clarify and concretize Section 4 (1) Sentence 2, according to which those involved in payment transactions, in particular credit and financial services institutions, including e-money institutions (No. 4), may be called upon as responsible interferers by way of a dynamic legal reference, provided they have previously been notified by the gambling supervisory authority of their involvement in unauthorized gambling offers. This presupposes that the organizer or intermediary of the unauthorized gambling offer has previously been held liable in vain - in particular due to a foreign connection." (cf. LT-Drs. 16/4795 Lower Saxony, p. 85)

The Regional Court also rejected an obligation on the part of the credit card company to compare the gambling offers used by its customers with the so-called "white list" of the German federal states in order to identify any illegality, as not only

"such a checking effort [goes] beyond the normal processing of payment transactions and is precisely not [incumbent] on the plaintiff,"

but also because

"the plaintiff [could] assume law-abiding conduct on the part of the defendant and [did] not have to reckon with a possible violation of § 285 StGB."

Thus, the payment service Provider cannot be accused across-the-board that online gambling is prohibited in Germany without exception. Such argumentation not only ignores, among other things, the thoroughly "diffuse" current legal situation in Schleswig-Holstein (cf. LT-Drs. 19/1343, 19/1326 Schleswig-Holstein), but also the legally complex implications arising from the lottery monopoly, which is contrary to EU law (cf. VGH Hessen, Beschl. v. 29.5.2017, Az. 8 B 2744/16 as well as VG München, Urt. v. 25.7.2017, M 16 K 12.1915). This applies all the more with regard to the Concession procedure for sports betting, which is contrary to un ion law and the constitution (cf. VG Wiesbaden, Beschl. v. 05.5.2015, Az. 5 L 1453/14.WI and 5 K 1448/14.WI as well as ECJ C-336/14, Ince). As a result of the lack of transparency, the online offers of EU-licensed sports betting providers, among others, are rightly regarded by the German federal states as legal under EU law. The situation becomes even more confusing against the background of the non-transparent and neither uniform nor unanimous regulations and authority practices in the area of gaming arcades.
A payment service provider cannot therefore be expected to keep track of this diffuse and, at the level of the federal states, divergent as well as constantly changing and therefore highly complex factual and legal situation and to implement it in such a way that it can check in real time whether a customer is engaging in "permitted" or "unpermitted" gambling at the moment of payment and, if necessary, to prevent this.
This applies all the more because - as the District Court correctly states - such a check is hardly possible for the payment service provider,

"since it is initially not recognizable from where the defendant has accepted the gambling offers and which games he has actually played. A large number of gambling offers are legal abroad. Likewise, it is unlikely to be discernible whether each individual game perceived by the defendant actually constitutes unauthorized gambling."

(for more details on this issue, see Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein (ULD), Datenschutzrechtliche Bewertung der Regelungen zum Financial Blocking zur Verhinderung illegalen Glücksspiels im Internet, ZfWG 2015, 121-125 as well as 23rd Activity Report of the State Commissioner for Data Protection of Lower Saxony, Financial Blocking nach dem Glücksspielstaatsvertrag, 2018, p. 60).
In this context, the Regional Court correctly states that

"solely from the fact that the plaintiff's list of prices and services shows different fees for gambling offers, no distinction [arises] as to whether there has been a use in illegal offers."

This consideration applies in the same way to the so-called Merchant Category Code (MCC), with which payment service providers assign a credit card payment to a specific industry. This code does not differentiate between permitted and, from the perspective of the or some German federal states, unauthorized gambling, but rather includes all sales that fall into the category of gambling.
In addition, the Regional Court took the view, which is convincing from a teleological perspective, that it would clearly contradict the protective purpose of Section 1 GlüStV if players were able to finance their activities prohibited under the GlüÄndStV at the expense of bona fide credit institutions without risk. Literally the regional court reasoned:

"Moreover, the protective purpose according to § 1 of the GlüStV is to prevent the emergence of Gambling addiction and betting addiction and to steer the natural gambling instinct of the population into orderly and supervised channels and to ensure that, among other things, the consequential and accompanying criminality associated with gambling is averted. This objective would be virtually torpedoed if it were to be assumed that the authorization of payment transactions was invalid. In this case, the bank, which is usually acting in good faith, would be left with the expenses and would give the gambler carte blanche, so to speak, because the gambled stake would immediately be refunded by the bank and the gambler would not incur any financial losses or risks. Under these circumstances, the player could carry out gambling without any financial risk. Rather, a bad faith participant in gambling, who would ultimately be liable to prosecution under Section 285 of the Criminal Code, could engage bona fide payment institutions in unlawful activities."

The Regional Court did not need to pursue the question of whether a claim by the gambler is excluded from the outset, since he violated a statutory prohibition by participating in gambling without a German license (cf. OLG Nürnberg, Urt. v. 19.1.1978, 8 U 110/77), nor to fulfill its duty under European un ion law to examine whether the German prohibition on organizing scratchcard and casino games on the Internet is justified under European un ion law "in the light of the specific modalities of application", in particular in the light of the omnipresent inciting and encouraging advertising by the German federal states for their own Games of chance (including online scratchcards and games).
The appeals filed against the judgment of the Regional Court were dismissed by the Munich Higher Regional Court in its decision of March 4, 2019 (19 U 793/18). The judgment of the Munich Regional Court is therefore final.
It remains to be noted that the business model "Playing or betting without payment", which some lawyers offer on the basis of a judgment of the AG Munich, has now been put an arguably insurmountable stop by the OLG and the LG München I. In addition, there is the wide range of un ion law arguments that the Regional Court and the OLG have not yet drawn.

This post has been translated automatically

This post has been translated automatically