In recent times, Germany’s Glücksspiel (GGL), the Joint Gambling Authority of the Federal States, has intensified its crackdown on the black market. This enforcement effort has involved sending multiple hearing letters to operators of unauthorised gambling activities. The letters also target their contractual partners, including affiliates, payment service providers, and comparison portals. Throughout these communications, a central term gains prominence: the “white list.” The white list serves as a register of licensed gambling operators in Germany and plays a crucial role in determining the legality of gambling offers, particularly in the online gambling sector.
The Importance of the White List:
When assessing the legality of a gambling offer, the gambling supervisory authority refers to the inclusion or exclusion of the operator in the white list. Operators listed on the white list are considered legal, while those absent from it are deemed illegal. The implications of this distinction are significant. The white list operates as a publicly accessible source of information, available for download from the GGL’s website. It categorizes licensed sports betting operators, licensed virtual slot machine game operators, and permitted online poker rooms. This list serves as a binding reference for authorities, courts, and all stakeholders involved in legal transactions, including payment service providers, software developers, affiliates, advertisers, and players. It enables broadcasters, publishers, radio stations, and social media platforms to determine which operators they can safely advertise for.
Challenges and Restrictions:
While the white list appears to simplify matters, there are complexities and restrictions associated with advertising for permitted gambling offers. The Interstate Treaty on Gambling and the licenses themselves impose numerous constraints on advertising that must be adhered to. However, the interpretation and application of regulatory provisions often leave room for doubt regarding what is permissible. For example, even licensed operators face a prohibition on collaborating with influencers in gambling advertising. This particular restriction has been criticized for its lack of differentiation and questionable legality.
The Grey Area: Transitional Regime:
In addition to the binary categorization of the black market and white list, a third category—grey—has emerged within the context of the transitional regime. This regime was established to accommodate online casinos operating before the current Interstate Treaty on Gambling came into effect. Under specific conditions, these operators were allowed to continue their gambling services and transition to the licensed market for virtual slot machine games seamlessly. This de facto tolerance was facilitated by the suspension of enforcement measures against these operators. To qualify for this transitional regime, operators had to participate in the licensing procedure for virtual slot machine games and, if applicable, online poker. Operators meeting these requirements could operate in the German gambling market without fearing regulatory enforcement.
Limitations of the White List:
The white list does not provide assistance to operators falling under the transitional regime. It solely indicates which operators are officially licensed, without considering the unique compliance status conveyed by the transitional regime. The gambling supervisory authorities recognized the need for the principles of the transitional regime to extend to the B2B partners and customers of these operators, even if they are not listed on the white list. This ensures that the transitional regime remains meaningful and effective. However, until all pending licensing procedures are finalized, payment service providers and software suppliers cannot solely rely on the white list to determine whether they should cooperate with such operators. In such cases, the specific status of the ongoing licensing procedure must be investigated.
The enforcement actions against unauthorised gambling in Germany have gained momentum, with the Glücksspiel overseeing the process through the issuance of hearing letters. The white list, serving as a register of licensed operators, plays a pivotal role in determining the legality of gambling offers. However, complexities and restrictions surrounding advertising and the existence of a transitional regime add layers of nuance to the enforcement landscape. As pending licensing procedures are concluded, the white list’s spectrum will ultimately be reduced to a binary categorization of legal and illegal operators. This ongoing process aims to ensure a regulated and transparent gambling market in Germany, while addressing the challenges and uncertainties faced by operators, affiliates, payment service providers, and other stakeholders involved in the industry.