AG refers the question of the consistency of German sports betting monopoly to the national court

In a very political introduction to his opinion on the Stoss case, AG Mengozzi acknowledges that “online gaming knows no borders” and that new technologies raise complex legal questions.

In the absence of harmonized legislation, Member states are developing very different legislation which makes it for the community judge hugely challenging to ensure the respect of the Freedoms provided by the Treaty (para 1 & 2, Stoss). 

The Advocate General then goes on, confirming in this specific case that: Monopoly holders can only promote the participation in games of chance in a moderate manner and cannot be intended to increase the revenue of the public purse (paragraph 61, Stoss)

It also declares that it is for the national court to examine in particular whether Oddset, the German sports betting monopoly, meets these criteria. The German Federal Constitutional Court has concluded in March 2006 that the advertising displayed by Oddset “was not intended to limit opportunities for gaming and to prevent addiction to gaming, but was intended to obtain tax revenue for the public purse”  (paragraph 64, idem).

“Consistency must always be examined from a national view point, with the result that regional differences within a Member State might render the system inconsistent” (paragraph 59, Carmen Media).

The State Treaty prohibiting online gaming and betting entered into force in 2008, but no one has gained from it. Consumers wanting to enjoy their leisure activity in a clear and transparent manner are ignored. The German State and Länder are deprived of revenue. Important sectors such as sports and the media are denied the opportunity to enter into commercial and marketing agreements with EU gaming and betting operators. 

Sigrid Ligné, Secretary General of the EGBA comments: “This is the second opinion in a short period involving a German gaming case. AG Bot in January confirmed the primacy of EU law over German law by clarifying that non EU compliant law has to be immediately dis-applied, without any transitional period." 

“Beyond the legal considerations, you have to look at the reality of the market. There is a consumer demand for online gaming in Germany. The sports community is losing out as it is not allowed to cooperate with the European gaming industry. Other EU member states are embracing the reality that online gaming is a popular leisure activity and have started regulating the sector. EGBA urges the German authorities to do likewise.”  
 
A date for the ruling of the ECJ has not yet been set.