19.12.2016
[Berlin, ] In a two-day oral appeal hearing, the Federal Administrative Court has conducted an examination of amusement arcade law for its compliance with the German constitution and with European law.
In a series of leading judgments on 16 December 2016, the Federal Administrative Court affirmed the law on amusement arcades currently in force in the state of Berlin, as judgments in the lower courts had already done, and rejected the appeals from amusement arcade operators against the judgments by the court of appeal. Contrary to the views of the amusement hall industry and of some highly reputable legal writers, the Court regarded the legal provisions as compatible with the constitution both in form and in substance. This means that the states do have legislative competence with regard to the existing provisions. The Court also found that such provisions did not infringe the occupational freedom nor the freedom of ownership of amusement arcade operators; there is therefore no contravention of the general principle of equality before the law. Moreover, the provisions do not contravene the freedom to provide services or the requirement of coherence underlying European law; nor did they require notification. The statutory selection process for existing amusement arcades also complies with constitutional and European law, as is evident from a press release issued by the Federal Administrative Court on 16 December 2016 (no. 108/2016).
These leading judgments by the Federal Administrative Court are highly significant for the entire body of German law on amusement arcades, which has been a controversial subject for discussion in legal literature. Almost all of the provisions examined by the Federal Administrative Court also have equivalent content in all of the other German federal states. The rulings therefore provide secure standards against which the provisions in the other states can be assessed: those provisions are likely to be similarly compatible with constitutional and European law. In this respect, all of the federal states will benefit from these decisions on fundamental issues. The decisions handed down by the Federal Administrative Court constitute the last level of review by the non-constitutional courts; experience shows that the administrative and higher administrative courts will now follow these landmark judgments.
In the proceedings before the Federal Administrative Court, as in those before the lower courts, the state of Berlin was represented by GÖRG. In countless other cases, too, GÖRG has successfully represented the state of Berlin, as well as other federal states and authorities, for many years in the matter of amusement arcade law and more broadly of the law on games of chance. These include the constitutional complaints that are currently still pending before the Federal Constitutional Court against the amusement hall laws of individual federal states.
Federal Administrative Court, judgments of 16 December 2016 – BverwG 8 C 6.15/7.15/8.15/5.16/8.16
Representatives of the state of Berlin
GÖRG Partnerschaft von Rechtsanwälten mbB
Dr. Marc Schüffner, associated partner, Berlin (lead advisor)
Dr. Julian Asmus Nebel, associated partner, Berlin
Dr. Andrea Kirsch, associated partner, Berlin
Dr. Henning Wendt, associate, Hamburg
Operator of the amusement arcade
u. a.
Gleiss Lutz, Stuttgart
GSK Stockmann & Kollegen, Berlin
