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Germany States Treaty on Gambling – anti-constitutional and anti-european. And it can’t be implemented

January 3, 2008 2008

published on bet-sport.org

This is the result of a TÜV Rheinland and Hambach & Hambach law firm panel that met in Koln on 3 December to discuss about the initiatives of the drafters of a German States Treaty on gambling.

Online-casions.com covers the main subjects discussed :

Many past reports held that the State Treaty on Gambling violates constitutional and European law; for instance, EU Commissioner Charlie McCreevy is at present preparing proceedings against Germany based on the violation by the State Treaty of European law – even before the Treaty has come into effect.

Up to now, however, the legislator and the public conversation have neglected to involve technical experts in the debate. This is almost inconceivable, as a regulation which cannot be implemented in practice cannot be upheld from the legal point of view either, as Dr. Wulf Hambach stated.

This neglected technical discussion has now been addressed by an expert panel under the auspices of the TÜV Rheinland. Rolf vom Stein (COO TÜV Rheinland Secure iT GmbH) described the technical limits of Internet censorship, while Prof. Dr. Thomas Harmann-Wendels (managing director of the Institute for Banking Economy and Banking Law at the University of Cologne) provided information on the economic and technical obstacles connected with the interruption of payment streams (so-called financial blocking) which is an intention of the Treaty if it is signed.

Prof. Michael Rotert (Chairman of the Board of ECO; President of EuroLSPA) and Lawyers Dr. Michael Hettich and Susanna Münstermann (Hambach & Hambach Law Firm) supplemented these technical details with explanations on Internet service providers, on the legal consequences of the technical impossibility of implementing the requirements stipulated in the State Treaty on Gambling, and on an alternative model for regulating the subject. The detailed results of the expert panel were as follows:

* It is not possible to completely block an internet site (as requested, for instance, for the implementation of the draft State Treaty on Gambling).

* Financial streams and individual payment transactions in connection with gambling cannot be controlled by credit institutions based in Germany without the danger of damages for the German banking industry amounting to billions.

* Measures by the legislator intended to block free Internet trade and financial streams are problematic, not only because of the question of legislative competence. Rather, they are disproportionate and not sufficiently specific. The lack of a debate with regard to the technical and economic problems involved results in the factual impossibility of implementing the legal requirements. Thus, the internet service providers and banks affected by potential prohibition orders will be able to claim unlawfulness of the provision and request payment of damages amounting to millions.

Internet expert Rolf vom Stein put it in a nutshell:

“The attempt to block the Internet contradicts technical reality. The Internet treats any form of censorship as an error, and will find ways to bypass it.”

Wulf Hambach

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