GER: Illegal gambling: No Claim against Bank

Nov 25, 2022 Benn-Ibler Rechtsanwälte

Anyone who authorises credit card payments to foreign providers when gambling illegally does not have a claim for reimbursement against their bank. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), the legal question of the validity of such authorisations based on violation of the illegal gambling ban does not constitute grounds for appeal.

In the case at hand, the plaintiff had demanded reimbursement from the defendant bank for payments that the bank had debited from his account for credit card payments in an online gambling game. Between the parties, a credit card contract had existed for a Gold credit card. In the period from September to December 2015, the plaintiff made payments to foreign gambling providers on online casino sites whose servers were located abroad by using his Gold credit card. The plaintiff claimed that the authorisations for the credit card payments made by him, with which he participated in illegal online gambling, were void pursuant to Section 134 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) in conjunction with section 4 (1) sentence 2 of the German State Treaty on Gambling (Glücksspielstaatsvertrag) and that the defendant bank was therefore not entitled to any claims for reimbursement of expenses in the absence of an effective authorisation for the payments.

The action was unsuccessful in the lower courts. The BGH also rejected a claim for reimbursement under 675u sentence 2 BGB, as the authorisation was not void. Section 4 (1) sentence 2 of the State Gambling Treaty contains a unilateral prohibition to payment service providers to participate in payments in connection with unauthorised gambling. Payment service users who effect payments by authorisation but do not participate in performing them are not the main target population of this provision.

The court also emphasised that the legal question concerning validity of the authorisations due to violation of the gambling ban did not constitute grounds for a review. Uniform case law exists. Those courts that have dealt with this legal question were unanimous in their opinion that any payments to gambling providers are to be considered effectively authorised by the payer and are not null and void.

BGH, XI ZR 515/21 (13 September 2022)