Higher Regional Court Hamm sees claims for the recovery of losses against online casinos as well-founded

With the Higher Regional Court of Hamm, a higher regional court has for the first time made a nationwide statement on the essential legal issues that arise when recovering losses suffered in online casinos.

With a decision dated November 12, 2021, the Hamm Higher Regional Court granted our client, who had lost almost €300,000 in an online casino over the years, legal aid to assert his claims through legal action. The Higher Regional Court of Hamm positioned itself clearly and unequivocally in favor of the injured players on the essential legal issues that have not yet been clarified by the highest court.

What happened?

Within a period of almost three years, our client had lost almost €300,000 in one of the largest online casinos based in Malta and operating in Germany, without having been aware of the illegality of online gambling.

Our client took part in games while the State Treaty on Gambling 2012 (GlüStV 2012) was still in effect.

What is the legal situation?

According to Section 4 (4) of the 2012 State Treaty on Gambling, it was forbidden in Germany, with the exception of the federal state of Schleswig-Holstein, to organize and broker online gambling. The protective purpose of the State Treaty on Gambling and thus also the ban on online gambling is primarily aimed at preventing the emergence of gambling addiction, ensuring the protection of minors and players and counteracting the spread of illegal gambling. The player is to be protected from the development of the inherent dangers of addiction and financial over-indebtedness.

The injured party can therefore reclaim the losses suffered in online casinos. Because the gaming contract concluded between the online casino and the player is void due to the violation of the legal prohibition of online casinos according to § 134 BGB in conjunction with § 4 Para. 4 GlüStV, the legal basis of the contract no longer applies, so that the online casino has to hand over the stakes. A claim for damages by the player due to the violation of a protective law according to § 823 Para. 2 BGB in conjunction with § 284 StGB is also possible.

With such a clear legal situation, why do we have to take legal action?

In our experience, online casinos in most cases do not agree to pay out-of-court requests for gambling losses suffered in online casinos.

This attitude of refusal may also be related to the fact that numerous regional courts have now awarded players who have been harmed by online casinos reimbursement claims against these casinos. However, so far no higher regional court has made a decision on such a case and a decision by the Federal Court of Justice on these cases is still pending.

Since in the present case the online casino had also refused out of court to reimburse our client's gambling losses, the only way to go was to go to court and we applied to the district court for our client's legal aid.

The decision by the Higher Regional Court of Hamm

Since the regional court first called upon refused to grant our client legal aid, we lodged an appeal against this decision with the Hamm Higher Regional Court.

The Higher Regional Court of Hamm has granted legal aid and has positioned itself in favor of injured players on the key legal issues discussed in the recovery of gaming losses in online casinos.

First of all, it confirmed that the ban on online gambling according to § 4 Para. 4 GlüStV 2012 is in accordance with European Union law and that the so-called consumer place of jurisdiction is based in Germany and German law is applicable.

In its decision, the Higher Regional Court of Hamm further commented on the very controversial question of whether an injured player should be refused reimbursement in accordance with § 817 S. 2 BGB because he himself participated in illegal online gambling. The court points out that the Federal Court of Justice had previously denied such a ban on reimbursement (so-called condition ban) if the organizers of the games were allowed to keep the funds obtained with immoral methods.

In the same way, we have also argued and asserted in the present case that it is not compatible with the protective purpose of the ban on online gambling regulated in the GlüStV 2012 to maintain the transfer of assets created in violation of this ban at the expense of the player and thus to give the providers no reason to stop offering such prohibited online gambling, but rather to encourage them to continue their game.

The Hamm Higher Regional Court also assumes that our client's claim for repayment cannot be raised against the objection of legal abuse, as was still assumed by the regional court. The court happily points out clearly that providers of illegal online gambling cannot rely on being allowed to keep the illegally obtained payments because of their own illegal actions. The Hamm Higher Regional Court does not consider the interests of the provider of online gambling to be primarily worthy of protection, so that the claim for reimbursement of the injured player cannot be raised with the objection that the right has been abused.

What does this mean for injured players?

In addition to the now numerous regional court decisions, with which players have been awarded the reimbursement of losses suffered by online casinos, the decision of the Hamm Higher Regional Court is certainly another important milestone in the enforcement of claims against online casinos.

We recommend that people who have suffered losses at online casinos have their right to a refund legally reviewed.

We would also like to point out that claims for reimbursement of losses suffered in online casinos are subject to the statute of limitations. Since the regular statute of limitations generally threatens to end at the end of a year, we recommend that you review the claims in good time.

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Due to our cooperation with the national gambling addiction association, we are happy to provide you with an initial free consultation.