The question of whether losses from online gambling can be reclaimed has occupied courts for years. In its judgment of March 25, 2025 (Case No. 15 O 109/24), the Regional Court of Aachen took a clear stance: contracts for online casino games that violate the total ban under Germany’s 2012 Interstate Treaty on Gambling (GlüStV) are void – and players can demand the return of their stakes.
The decision aligns with a series of recent rulings that explore the tension between national gambling law, EU law, and consumer protection. Notably, the court saw no reason to stay the proceedings despite uncertainties regarding the compatibility of Germany’s total ban with EU law. Instead, it emphasized the need to protect players and the necessity of imposing civil law sanctions on unauthorized gambling offerings.
As a lawyer, I advise and represent only gambling providers and not individuals seeking to reclaim losses. This analysis focuses on the legal framework and its implications for operators in the industry.
High Losses and the Question of Legality
The plaintiff had wagered a total of over €236,000 between 2014 and 2020 on two online casinos operated by the defendant, a Gibraltar-based company. After accounting for payouts, the net loss amounted to around €35,000. While the defendant held a Gibraltar license, it lacked the required German permit. The plaintiff demanded reimbursement of his losses and coverage of his legal fees. The defendant argued that the plaintiff had been aware or should have been aware of the illegality of the offering. Additionally, it invoked the § 817 Sentence 2 of the German Civil Code (BGB), which bars the recovery of performances if the claimant also violated a statutory prohibition.
The court rejected these defenses and ordered the defendant to repay the losses and cover the legal costs. The decision rests on three key points:
- The nullity of gambling contracts under § 134 BGB,
- The irrelevance of the Gibraltar license under German law,
- The rejection of a condictio ob turpem vel iniustam causam (exclusion of restitution) despite the player’s potential criminal liability under § 285 of the German Criminal Code (StGB).
Player Protection as Primary Objective
The Regional Court of Aachen followed the established case law of the German Federal Court of Justice (BGH), which holds that contracts for online casino games violating § 4(1) and (4) of the 2012 GlüStV are void. The decisive factor was that German law, at the time of participation, imposed a total ban on online gambling with the exception of sports betting, which was subject to a licensing reserve. While the defendant had applied for a sports betting license, it had not done so for the casino games in question. Even if the ban were questionable under EU law, this would not affect its civil law consequences unless the European Court of Justice (ECJ) ruled otherwise.
A notable aspect of the court’s reasoning was its refusal to stay the proceedings under § 148 of the German Code of Civil Procedure (ZPO). Even if the GlüStV’s total ban were found to violate EU law, the defendant could not derive any rights from this, as its offering did not comply with German player protection standards particularly the monthly deposit limit of €1,000 per player under § 4(5) GlüStV 2012. The court referred to ECJ jurisprudence, which grants member states broad discretion in regulating gambling. While the ECJ has yet to rule definitively on the compatibility of § 4(4) GlüStV 2012 with EU law (Case C-440/23), the absence of such a ruling did not justify suspending the case.
Limits of the Freedom to Provide Services
The defendant argued that the German total ban violated the freedom to provide services under Article 56 TFEU. The court dismissed this objection, citing ECJ rulings that allow member states significant leeway in gambling regulation. Although the legality of § 4(4) GlüStV 2012 under EU law remains unresolved, the defendant could not rely on EU law because its offering would not have been approvable even in a hypothetical licensing procedure. The protective objectives of the GlüStV preventing gambling addiction, ensuring youth protection, and combating associated crime justified the nullity of the contracts.
The court emphasized that the defendant had deliberately targeted the German market, using German-language websites and advertising. A stay of proceedings was unnecessary because the contracts would remain void even if the total ban were found to be incompatible with EU law.
No Exclusion of Restitution Despite Potential Criminal Liability
A central dispute was whether the plaintiff could reclaim his stakes despite potentially violating § 285 StGB, which criminalizes participation in unauthorized gambling. The court rejected an exclusion of restitution under § 817 Sentence 2 BGB, reasoning that the plaintiff had not knowingly violated the prohibition. While § 285 StGB qualifies as a prohibitory law, § 817 Sentence 2 BGB requires that the claimant knew or recklessly ignored the illegality. Mere knowledge of the facts underlying the prohibition was insufficient.
The defendant had claimed that the illegality of online gambling was common knowledge, citing media reports and player forums. The court found this unconvincing, stating that the plaintiff had plausibly denied awareness of the ban. Moreover, the court placed the burden on the operator to transparently inform customers, what is a duty the defendant had failed to fulfill. There was no evidence that the plaintiff had willfully ignored the legal situation.
Tort Claims as a Fallback
In addition to the unjust enrichment claim, the court recognized a damages claim under § 823(2) BGB in conjunction with § 4(4) GlüStV 2012 and § 284 StGB. Both provisions qualify as protective laws, designed not only to safeguard the public but also to shield individual players from the dangers of gambling. The defendant had acted intentionally or negligently by offering gambling without a German license. The plaintiff had suffered compensable harm, as he would not have placed bets without the illegal offering.
The defendant could not successfully invoke the statute of limitations. While some enrichment claims were time-barred, the plaintiff retained an equivalent claim under § 852 BGB in conjunction with § 823(2) BGB, as the defendant had been aware of the lack of legal basis (§ 819 BGB).
Players Can Reclaim Losses … with Limitations
The ruling confirms the judicial trend of protecting online gambling players, even when they themselves violate legal prohibitions. However, the legal landscape remains complex:
- Foreign operators without a German license risk not only regulatory action but also civil liability for restitution claims.
- Players can reclaim losses from unauthorized gambling – unless they knew of the illegality.
- The burden of proof for operators to establish a bar to restitution is high.
At the same time, the decision leaves open key EU law questions. If the ECJ rules against the German total ban, this could influence future civil assessments but only if operators comply with German player protection rules.
A Victory for Player Protection, But No Final Clarity
The Aachen Regional Court’s judgment is a significant step in the debate over online gambling regulation. It reinforces that the German legislator’s objectives in the GlüStV are legitimate and that civil sanctions are an effective means of curbing unauthorized offerings. However, the ECJ’s pending decision on the compatibility of the total ban with EU law may yet reshape the legal landscape.
For now, the message to unlicensed operators is clear: targeting the German market without approval carries substantial risks. Players, meanwhile, can reclaim losses if they were unaware of the legal violations. The decision strengthens consumer protection but does not resolve the broader EU-level regulatory questions.
One thing remains certain: Gambling providers operating without a German license do so at their own peril. Whether Germany’s total ban will withstand EU scrutiny in the long term remains an open question – but for now, the Aachen court has drawn a clear line. Operators should take note: compliance with German gambling law is not optional.
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Our law firm specializes in criminal defense, cybercrime, commercial criminal law including criminal tax law as well as IT law and manager liability. We only take on criminal defense cases for consumers—we are based in the Aachen area and operate nationwide.
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