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Germany – Ban on opening betting shops in Saxony-Anhalt temporarily suspended

By - 6 December 2020

The 3rd Senate of the Higher Administrative Court of the State of Saxony-Anhalt has ruled that the closure of betting offices in the region has been provisionally suspended.

The applicant operates several betting shops in Saxony-Anhalt, where it brokers sports bets to a betting company based in Malta. Among other things, she objects to the closure of betting shops in the period from November 2 to 30, 2020 that it is incompatible with higher-ranking law that the state government, as the legislator, completely prohibits the operation of leisure, gaming and entertainment facilities without to differentiate according to how high the risk of infection is in the individual companies, while at the same time still enabling activities that are socially recognised as useful, although there is sometimes a significantly higher risk of infection than in the prohibited areas. In betting shops, the mere possibility of customers staying is associated with an increased risk of infection. The associated dangers can be countered by restricting the stay in betting shops to the period necessary for placing the bet. In addition, in addition to goods and / or services, sports, result and selection bets would continue to be offered in the country’s lottery retailers.

Higher Administrative Court of the State of Saxony-Anhalt said: “The application was successful after the summary examination required in the preliminary injunction procedure in accordance with Section 47 (6) Administrative Court Regulations (VwGO). According to the opinion of the 3rd Senate of the Higher Administrative Court, there is currently predominant evidence that the prohibition of opening betting offices regulated in Section 4a (3) sentence 1 no. 7 of the 8th SARS -CoV-2-EindV is not compatible with higher-ranking law and because of the associated violation of the applicant’s rights will be declared ineffective. The interference in the freedom of the operators of betting shops protected by Article 12 (1) of the Basic Law, which is connected with the opening ban, would probably not meet the principle of proportionality.”

“Admittedly, in the current epidemic situation, which is characterised by numerous uncertainties, when assessing the question of which measures it may consider suitable, necessary and appropriate, the legislator comes to the legitimate goal of avoiding new chains of infection and the associated containment of the further spread of the coronavirus SARS-CoV-2 to protect the life and health of the population, a wider scope for assessment and prognosis. It is therefore unlikely to be objectionable from a legal point of view if, when deciding which areas of life must be closed as a matter of urgency for the purpose of health protection, he was guided by the priority of maintaining economic life and the educational sector and also in these areas existing infection risks to a certain extent accept. However, the specific protective measure at issue must fit in with the overall concept with which the legislature is countering the infection process. This is currently not the case with regard to betting shops.”

“The closure of betting shops is part of a package of measures according to which numerous cultural, leisure, gaming and entertainment facilities are to be closed in order to regulate or essentially stop leisure-oriented movement of the population and thus the risk of infection associated with social contacts in these areas to reduce significantly. The state lottery acceptance points are still open. Due to the options for placing bets opened there – in addition to a range of goods and / or services – customers are given at least an additional incentive to visit these acceptance points themselves or to stay there for the duration of the betting process before or after consuming goods or services . However, it is precisely the increased social contacts created by such incentives that the legislature wants to reduce by closing leisure and entertainment facilities such as betting shops. It therefore does not appear to be free of contradictions if, on the one hand, the legislator determines the full closure of private betting shops, but on the other hand, despite the additional social contacts associated with it, accepts that customers are allowed to place bets in shops of state-owned companies. The declared aim of effectively limiting the number of infections by reducing personal contacts in the leisure and entertainment sector is not being consistently pursued in this current situation with regard to the customer incentives emanating from betting shops.”

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