Section 8 Paragraph 3 Sentence 1 No. 3 of the Lower Saxony Gambling Act provides for a distance of at least 200 m for sports betting agencies from facilities and places that are predominantly and regularly visited by children and young people unaccompanied by legal guardians or educational staff. In the opinion of the Lower Saxony Higher Administrative Court, the interventions associated with the regulation, particularly in the freedom to practice a profession and the European freedom of service and establishment, are justified in favor of addiction prevention.
In the two cases decided here by the Lower Saxony Higher Administrative Court, the sports betting agency, for which both the betting operator and the operator of the agency are seeking permission to be granted, is located less than 200 m away from a primary school. As a result of the regulation of Section 8 Paragraph 3 NGlüSpG, the affected operator of the betting agency and the sports betting operator behind it felt that their fundamental freedoms guaranteed under constitutional and EU law had been violated and took legal action before the administrative courts.
In the first instance, the Hanover Administrative Court dismissed the lawsuit brought by the betting organizer and the betting agent ((VG Hannover, judgment of March 14, 2023 – 10 A 4968/21), as the permit was contradicted by the distance regulations and this distance requirement of Section 8 Paragraph 3 that applies to betting agencies NGlüSpG was compatible with constitutional and Union law. The Lower Saxony Higher Administrative Court now saw this in the same way and also rejected the appeals of the betting agent and the sports betting operator – which were approved by the administrative court due to the fundamental importance of the case:
The granting of permission is prevented by the fact that the minimum distance to the primary school that serves to protect children and young people is not met.
The distance regulation does not violate constitutional law and is also compatible with Union law. In particular, the regulation is coherent because the legal requirements for betting agencies and arcades pursue the same objective (protection of players and minors).
This does not stand in the way of the fact that there are no corresponding distance requirements for arcades or LOTTO/TOTO acceptance points. Neither the general principle of equality, freedom of occupation nor EU law prevents the legislature from making different regulations for addiction prevention and player protection for different forms of gambling, provided that – as here – these are proportionate and do not contradict each other in such a way that the suitability of one the regulations for achieving goals would be repealed.
Furthermore, the plaintiffs could not rely on protection of existing rights or legitimate expectations because the betting agency had been tolerated at times in previous years. Tolerating a betting agency operating without the necessary permission cannot legalize it or create rights worth protecting.
Lower Saxony Higher Administrative Court, judgments of November 5, 2024 – 10 LC 13/24 and 10 LC 14/24
