Germany’s Interstate Treaty on Gambling is unconstitutional and contravenes European Union law, according to two legal experts.
Prof. Dr. Hans Dieter Jarass and Prof. Dr. Gregor Kirchhof wrote independent legal opinions on the Treaty and the Gambling Council.
Jarass, a Münster-based constitutional law expert, claimed that the 2012 Treaty not only violates EU law but also fails to achieve its own objectives.
The creation of a lottery monopoly is subject to “increased justification requirements” under the Treaty. However, Jarass does not believe these requirements have been met in Germany.
“The state lottery companies spent around 50 percent more on advertising in 2013 than in the previous year,” Jarass said. “The objective of reducing gambling addiction has thus clearly not been achieved.”
He added: “As the lottery monopoly in its present form violates EU law, the relevant provisions of the Interstate Treaty on Gambling are not applicable.”
Augsburg-based law professor Kirchhof examined the regulatory body Glücksspielkollegium, which was set up by the federal states following the introduction of the Treaty.
Kirchhof concluded that the Council is unconstitutional and must be abolished or completely restructured.
The Council – on which each of Germany’s 16 federal states has one seat – adopts resolutions with a two-thirds majority on permits, licences and guidelines, giving it extensive decision-making powers in the field of security and economic law.
However, Kirchhof said that these rights are not based on a sufficient democratic level of legitimisation.
The requirement of a democratic state governed by law to clearly allocate responsibilities, regulate administrative processes in a proper manner and ensure effective legal protection “calls for a revision of the existing gaming legislation,” Kirchhof said.
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