Definition and Concept of Illegal Gambling
In German law, the term ‘illegal gambling’ refers to gambling that is organized, mediated, or conducted without the required official permit. In Germany, gambling generally requires a license, with the legal requirements and consequences governed by the Interstate Treaty on Gambling (GlüStV), the Criminal Code (StGB), as well as other ancillary laws. Illegal gambling is of significant importance both administratively and criminally.
Legal Basis of Illegal Gambling
Interstate Treaty on Gambling (GlüStV)
The Interstate Treaty on Gambling uniformly regulates the legality of gambling in Germany. According to § 4 GlüStV, gambling may only be offered if official authorization is in place. Further details are found in state implementation laws, which in particular regulate responsibilities.
For the purposes of the GlüStV, gambling is defined as a game in which a payment is required to obtain a chance of winning and the decision on the win depends wholly or predominantly on chance. Typical forms of gambling include lotteries, sports betting, casinos, and online gambling.
Criminal Code (StGB)
The Criminal Code contains, in particular, key criminal provisions in § 284 StGB (‘Illegal organization of gambling’) and § 285 StGB (‘Participation in illegal gambling’). § 284 StGB criminalizes the organization, holding, management, or mediation of gambling without official authorization. Participation may also be punishable under § 285 StGB.
Other Legal Provisions
In addition to the GlüStV and the StGB, there are further special laws, including the Race Betting and Lottery Act (RennwLottG), trade law (GewO), and provisions in the Civil Code (BGB), especially with respect to the nullity of gambling contracts (§ 762 BGB).
Characteristics and Requirements of Illegal Gambling
Definition of Gambling
According to § 3 GlüStV, gambling exists if
- a payment is required to participate,
- the decision regarding winning or losing depends wholly or predominantly on chance,
- a prize in money or monetary value is offered.
Difference from Permitted Gambling
Permitted gambling is present if the competent state authority has issued a license in accordance with the criteria of the GlüStV. In contrast, illegal gambling is any gambling offer without a separate, proper, and explicit official permit. This includes, in particular, online gambling that has not been licensed in Germany.
Form and Execution
Illegal gambling occurs in various forms, such as unapproved poker games, online casinos from abroad, or unlicensed betting shops. Organizing sweepstakes and lotteries may also be considered illegal gambling under certain circumstances, provided the requirements are met.
Criminal Law Aspects of Illegal Gambling
§ 284 StGB: Illegal Organization of Gambling
Organizing, managing, or mediating a public game of chance without official authorization is a criminal offense. The penalty ranges up to two years’ imprisonment or a fine, and in particularly serious cases, up to five years.
Elements of the Offense
- Publicity: Only public gambling, which is accessible to an indeterminate number of people, is punishable.
- Intent: Intent regarding the lack of official authorization is required.
- Acts: This encompasses any act that contributes to the execution or promotion of gambling (e.g., advertising, ancillary services).
§ 285 StGB: Participation in Illegal Gambling
Participation in illegal public gambling is subject to up to six months’ imprisonment or a fine.
Attempt and Preparation
Even the attempt is punishable. Preparatory acts may also be prosecuted if they are specifically aimed at illegal gambling.
Administrative Consequences and Sanctions
Regulatory Offenses
In addition to criminal sanctions, significant fines as well as prohibition and confiscation measures may be imposed under § 9 GlüStV and state provisions.
Confiscation and Skimming Off Illicit Profits
Proceeds from illegal gambling can be confiscated under § 73 StGB. This applies to both organizers and participants.
Blocking and Network Blocks
The gambling supervisory authority may, under § 9 (1) sentence 3 no. 5 GlüStV, require internet service providers to block access to illegal online gambling offerings (‘network blocks’).
Civil Law Effects of Illegal Gambling
Nullity of Gambling Contracts
According to § 762 BGB, contracts for participation in illegal gambling are null and void, so there are no civil claims for payment of won prizes.
Reclaim and Reversal
Participants generally cannot demand reimbursement of stakes. In exceptional cases (e.g., in the case of error regarding prohibition or immoral enrichment), a right to reclaim may exist, which is decided by the courts on a case-by-case basis.
International and European Legal Aspects
Cross-border offering of (online) gambling raises complex legal questions, particularly in relation to the European internal market law. Courts such as the European Court of Justice (ECJ) have emphasized that national restrictions for the purposes of player protection and crime prevention are generally permissible. Nevertheless, many areas remain controversial and are regulated differently at the international level.
Special Features in Online Gambling
Online offerings from other EU countries, in particular online casinos or online sports betting, occupy a special position in the area of illegal gambling. Without explicit permission from German federal states, these offerings are regularly illegal in Germany. Regulation—especially through the GlüStV 2021—has been developed further and provides for strict licensing procedures, technical monitoring, and blocking mechanisms.
Prevention, Controls, and Legal Policy Debate
To combat illegal gambling, not only criminal prosecution and administrative controls are used, but also preventive and educational measures, such as player and youth protection programs. The legal policy debate over unifying and amending the regulations in line with digital developments continues.
References and Further Sources
- Interstate Treaty on Gambling 2021 (GlüStV 2021)
- Criminal Code (StGB), in particular §§ 284, 285
- Civil Code (BGB), in particular § 762
- Decisions of the Federal Court of Justice (BGH) and the European Court of Justice (ECJ) on gambling law
Note: This article does not constitute legal advice and serves solely to provide factual information about the subject of illegal gambling under German law.
Frequently Asked Questions
What are the legal consequences of participating in illegal gambling?
Participation in illegal gambling is punishable in Germany according to § 285 of the Criminal Code (StGB). This includes participation as a player in public gambling operated without official authorization. The consequences range from fines to imprisonment of up to six months. It is especially relevant that not only the organizer but also the playersmay be prosecuted under criminal law. Furthermore, winnings can be confiscated as so-called ‘illegally obtained assets’ (§ 73 StGB). In certain cases, the equipment used (e.g., computers, mobile phones) may also be seized and confiscated. In addition, civil law consequences (e.g., reclaiming gambling losses) are possible. The identification and prosecution of participants is carried out by the law enforcement authorities, supported by financial transaction monitoring and operator information.
When is gambling considered ‘illegal’ under the law?
Gambling is considered illegal if it is organized or mediated without the necessary official license. According to § 4 (4) of the Interstate Treaty on Gambling (GlüStV 2021), only offerings that are explicitly permitted are allowed. This applies to both organizers and intermediaries, regardless of whether the offer is terrestrial (on-site) or online. Only expressly named exceptions and minor social events are exempt from the licensing requirement. A missing or defective license renders the relevant gambling offer illegal. It is also crucial that the license is valid in the respective federal state in which the gambling is offered.
What role do foreign licenses play in online gambling?
Online gambling providers often advertise with licenses from countries such as Malta, Gibraltar, or Curaçao. However, these licenses in no way automatically permit legal offerings in Germany. The German legislator recognizes only permits from German states if the provider fulfills all the criteria of the German Interstate Treaty on Gambling. Holding a foreign license does not protect against criminal prosecution or civil claims. Anyone who plays on such a website as a player also commits a regulatory offense or criminal act, as the gambling is illegal under German law.
Can losses from illegal gambling be reclaimed?
Yes, according to prevailing case law, playersmay reclaim losses from illegal gambling under § 812 (1) sentence 1 of the Civil Code (BGB) as a ‘payment without legal basis’ from the provider. Numerous courts have ruled in favor of consumers in this regard. It is decisive that the provider operated without a valid license and the gaming contract was therefore void from the beginning (§ 134 BGB in conjunction with § 4 GlüStV 2021). Enforcement of the claim is usually through civil proceedings and may sometimes be hampered by difficulties in collecting abroad.
Are criminal and reimbursement claims for illegal gambling subject to limitation periods?
The criminal prosecution of illegal gambling is subject to the general limitation periods of the StGB. For offenses under § 284 and § 285 StGB, the period of limitation is generally five years (§ 78 (3) No. 4 StGB). Civil law reimbursement claims arising from unjust enrichment (§ 812 BGB) generally become time-barred after three years, starting at the end of the year in which the claim arose and the creditor became aware of it or ought to have become aware without gross negligence (§ 195, § 199 BGB). In the case of continued gambling, the period may be extended, as a separate limitation period commences for each individual transaction.
Is there a difference in criminal liability between organizers and players?
Yes, there is a significant difference between organizers and players in terms of the nature and severity of the penalty. Organizers, intermediaries, and operators of illegal gambling are generally subject to harsher penalties under § 284 StGB; penalties include up to two years’ imprisonment or a fine, and in particularly serious cases, up to five years. Players, on the other hand, are subject to potential penalties of up to six months’ imprisonment or a fine under § 285 StGB. Nonetheless, participation as a player can also lead to a criminal record entry and civil consequences (e.g., obligation to repay winnings).
What are typical signs of an illegal gambling offer?
Typical indicators of an illegal gambling offer include the absence of a clearly visible German license notice, aggressive advertising for games with high winning chances and quick payouts, and payment service providers based outside the EU. Further suspicion should arise if the operators provide no German contact addresses or customer service or if the offer is available in several languages but not in German. The use of VPNs, cryptocurrencies, or non-transparent payment methods often indicates an illegal operator. The lack of player protection measures, youth protection checks, or early loss limits should also be considered warning signs.
