In the default judgment, the Traunstein Regional Court states that Section 4 (4) of the GlüStV 2012 is a protective law and the violation of it leads to damages:
Pursuant to Section 823 (2) of the German Civil Code (BGB), the defendant must compensate the plaintiff for damages and, to this end, repay the payments received pursuant to Section 249 (1) of the German Civil Code (BGB). The defendant violated § (4) of the 1st Interstate Treaty Amending the Interstate Treaty on Gambling in Germany (1st Interstate Treaty Amending the Interstate Treaty on Gambling), according to which organizing and brokering public Games of chance on the Internet is prohibited. The State Treaty was a protective law within the meaning of Section 823 (2) of the German Civil Code (see Palandt/Sprau, BGB, 79th ed. 2020, Section 823 no. 75).
In addition, the repayment claim arises from the law of enrichment pursuant to § 812 (1) sentence 1 BGB, as the payments by players are made without a legal basis.
We quote from the judgment:
In addition, the plaintiff can also base his claim on Section 812 (1) sentence 1 BGB, as his payments to the defendant were made without legal basis. The contract on the practice of gambling on the defendant's Internet domain is void pursuant to Section 134 of the German Civil Code (BGB), as the organization of a public game of chance on the Internet is prohibited under Section 4 (4) of the 1st State Treaty on Gambling. Whether this gambling is permitted at the defendant's registered office is irrelevant, as German law is applicable. Since it is a prohibited game of chance, Section 762 (1) sentence 1 of the German Civil Code, according to which, in principle, what has been paid on the basis of a game of chance cannot be reclaimed, is not applicable (see Palandt/Sprau, BGB, 79th ed. 2020, Section 763 margin 3).
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