schleswig holstein gaming act_english version_oct 2011_fnl
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Schleswig-Holstein Gaming Act_English Version_October 2011_fnlTRANSCRIPT
Schleswig-Holstein Gaming Act - 20 October 2011_ (Schl.-H.) II, Vol. Nr. 2186-15
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Act
Restructuring Gaming (Gaming Act)
20 October 2011
Statute Book of Schleswig-Holstein
(Schl.-H.) II, Vol. Nr. 2186-15
The Federal State Legislative Assembly has adopted
the following Act.
Summary of contents
Section I
General provisions 2
§ 1 Aims of the Act
§ 2 Scope of application
§3 Definitions
§4 Event permit 3
§5 Sales permit
Section II
Approval Procedures 4
Subsection 1. Lotteries
Regional lotteries, Class Lotteries
§6 Regional lotteries
§7 Class Lotteries
§8 Sales permit 5
§ 9 Brokering requirements
Charitable lotteries
§10 Permits for charitable Lotteries
§11 Hosting of Charitable Lotteries; Sale of Charitable
Lotteries
§12 Lottery Schedule, Costing and conducting of Event
§13 Use of net proceeds 6
§14 Form and Content of permit
Small Lotteries and prize-linked Savings
§15 Small Lotteries
§16 Prize-linked Savings
Subsection 2. Casinos - Land-based casinos
§17 Requirements for Casinos, player exclusions,
blacklists, data processing
Online Casinos (online-casino games) 7
§18 General requirements for Online Casinos
§19 License as Operator of online-Casinos
§20 Sales permit 8
Subsection 3. Betting
§21 General Requirements for Betting
§22 Permit for Betting Companies 9
§23 Sales permit
§24 Betting Regulation and Betting Books 10
Section III
Player Protection
§25 Information Obligations
§26 Advertising
§27 Protection of Minors, Player Protection and
Declarations 11
§ 28 Corporate Social Responsibility
Section IV
Gaming supervision, Approval control and Federal
State supervision
§29 Competent Approval and Supervisory Authority
§30 Supervisory powers
§31 Advisory Committee 12
§32 Fees
§33 Enforcement
Section V
Duties
Subsection 1. Duty aims
§34 Lottery duty
Subsection 2. Gaming Duty 13
§35 Taxation duty, Object of Taxation
§36 Duty Rate, Basis of Assessment
§37 Accrual of Duty 14
§38 Debtor duty
§ 39 Registration
§ 40 Duty recovery
§41 Duty aim 15
§42 Duty revenue
§43 Responsible Tax Authority
§44 Notification obligations
§45 Notifications to competent authorities
§46 Registration and filing Obligations
§47 Inspection
Section VI
Temporary and final provisions 16
§ 48 Temporary provisions
§ 49 entry into force, expiry
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Section I
General provisions
§ 1
Aims of the Act
The aim of the Act is to set up a regulatory framework
in relation to the offer (hosting, sale and brokering) of
any of the respective forms of public gaming, and more
specifically, ensure that :
1. gaming takes place in an orderly, fair,
responsible and transparent manner,
gamblers are protected from fraudulent
practices and its related consequences and
crimes are prosecuted,
2. citizens can pursue their natural inclination
towards gaming in an orderly and supervised
way, and in particular, ensure that unlawful
gaming is curbed and only appropriate forms
of lawful gaming are permitted in an
appropriate environment,
3. effective protection of young people and
gaming itself is achieved,
4. addiction to gaming is prevented and
measures are adopted to effectively combat
addiction and precautions taken against
exploitation through gaming,
5. the integrity of sporting competitions is not
harmed by the hosting and sale of sports bets.
§ 2
Scope of application
(1)By this Act, the State regulates the offer of public
gaming falling within the remit of this Act unless
otherwise decreed by current federal legislation.
(2)As far as Casinos are concerned, and to the extent
that they are land-based (Land-based Casinos), only §§
1-5, § 17, and §§ 25-27 apply. To the extent the
regulatory framework does not fall within the scope of
this Act, the prerequisites for the authorization and
establishment of the land-based casinos shall be
governed by the applicable state law. The procedure
and prerequisites for the grant of permits for casino
games with bankers [Black Jack, Roulette, and
Baccarat] comply with the Casino Act of the State of
Schleswig-Holstein.
§3
Definitions
(1) For the purposes of this Act, “gaming” is
understood as games, lotteries, and betting, in relation
to which payment of money is required in order to
have a chance of winning. Moreover, the chance of
winning totally or predominantly depends on fortune.
Casino games, in which the chance of winning depends
on fortune and the player’s skill, are also considered as
gaming. Bets requiring payment are also considered as
gaming for the purposes of paragraph (1).
(2) “Land-based gaming” is gaming hosted and offered
on fixed premises, especially at sales outlets, and are
offered and accepted there by virtue of the physical
presence of players. Online gaming is gaming, which is
hosted and offered without the physical presence of
players either on the Internet or through other means
of distance communication according to § 312 b para.
2 German Civil Code.
(3) A “lottery” is a form of gaming in which the
majority of people are offered the chance of winning
money in accordance with a specific plan and in return
for a specific payment. The provisions on lotteries also
apply, where items or other forms of material benefits
can be won as an alternative to money. A lottery is
considered to have a high frequency of events if the
time between the decision over a win or loss of a stake
and the following decision over a win or a loss of a
subsequent stake is less than one day, which therefore
gives the lottery a high incentive to play. The
provisions for lotteries also apply to tote betting.
(4) For the purposes of this Act, “betting” is considered
as accumulator bets or single bets on the outcome of
the progress of. Accordingly, an “event” is the result or
a future or current happening of a sporting
competition; lotteries and casino games are not
considered as betting for the purposes of this Act.
(5) “Casino games” include all the games traditionally
offered in land-based casinos, namely, poker, black
jack, baccarat and roulette.
(6) For the purposes of this Act, “payment” constitutes
a significant financial sacrifice, where it produces a loss
in the absence of a win, regardless of whether the
financial sacrifice is made as payment for the game in
question. By way of derogation from (1) in connection
with regional lotteries pursuant to §6(1), all financial
sacrifices are considered to be valid payment.
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(7) For the purposes of this Act, gaming is considered
to be “public” if a large, non-exclusive group of people
can participate or where gaming is hosted on a regular
basis by clubs or other private associations.
(8) An “operator” is anyone who sets up gaming at his
own expense. The hosting location will also be the
operator’s registered office. A person who hosts public
betting will be considered to be a betting company.
(9) Gaming is “sold” by anyone who responsibly offers
or creates the opportunity to conclude gaming
contracts, in particular by maintaining sales outlets or
through distance sales. Distance sales is understood as
sales achieved by the exclusive use of distance
communication pursuant to § 312 b (2) of the German
Civil Code. The point of sale is the place where the
player has the opportunity of participating. As regards
online-gaming, it is the place where the player has
established his residence or his habitual domicile.
Gaming sales may take place through operators
themselves (self-trading) or through third parties
(agents, retailers, and lottery collectors).
(10) An “agent” is anyone who, personally or through
third parties,
1. brokers individual game contracts on behalf of
operators, or
2. introduces potential players to gaming associations
and whose participation he brokers on behalf of
operators,
and provided it is done with the intention of making
sustainable profits from such activity.
(11) “Retailers” and “lottery collectors” are agents that
are integrated into the sales organization of operators
for the purposes of § 6 (2) or § 7 (1), below, who
exclusively broker game contracts for regional lotteries
or class lotteries on behalf of operators.
(12) The hosting, sale and brokering of gaming for the
purposes of this Act are considered as gaming “offers”.
§4
Event Permit
(1)The hosting of public gaming pursuant to this Act
requires a permit from the competent authority. A
permit to host betting on the outcome or progress of
sporting competitions requires the agreement of an
expert. Any hosting, brokering or sale of gaming that is
hosted without such a permit is forbidden.
(2) A permit shall be refused if the hosting of the
gaming is contrary to the aims of § 1 or where the
operator is unreliable.
(3) A permit is initially issued for a limited period of six
years. Subsequent permits are granted for periods of
four years respectively.
(4) The permit may be subsequently modified with
additional clauses to the extent necessary for the
proper implementation of the activities and aims set
forth in §1.
(5) The permit is issued in writing. It lists the permitted
forms of gaming. It cannot be transferred or assigned
to a third party.
(6) The permit may be withdrawn in the future if
circumstances become known that they would have
resulted in a refusal of the same, had they been known
at that time.
(7) The permit can also be revoked if the operator:
1. no longer fulfils the criteria for which the permit was
issued,
2. breaches any of the collateral clauses of the issued
permit,
3. fails to perform his legal obligations arising
thereunder, or
4. contravenes other provisions of this Act.
In the event of revocation of the permit by the
competent authority pursuant to § 1(1), the operator
is granted a period in which to comply again with its
terms. Moreover, in the event of minor infringements
of § 1(2)-(4), rather than revoke the permit, the
competent authority may issue the operator with a
warning. Further still, in such cases, the provisions of
§§ 116, 117 State Administrative Act apply.
(8) The Ministry for Interior may also enact decrees
1. issuing detailed requirements with respect to the
requisite credibility, potential and knowledge on the
subject of the intended gaming operations, as well as
with regard to the permit authorization and
supervisory procedures, especially concerning the
type, scope, purpose and form, respectively, of the
required documentation.
2. Rules relating to the processing of confidential
information and disclosure of confidential data
pursuant to this Act.
(9) Claims relating to the refund of expenses or
damages, which arise in connection with changes to
European legislation, are excluded.
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§5
Sales permit
(1) Sales from lotteries with high frequencies of events
pursuant to § 6 (1) 1, betting or online-casinos in
principle require permits from the competent
authority in accordance with the provisions of this Act.
The permit shall be refused if the sale of gaming is
contrary to the aims of §1 or where the applicant is
unreliable.
(2) If the hosting of public gaming is permitted under
this Act and sales do not require a permit according to
Paragraph 1, the competent authority must be notified
of the same. The federal state legislation may also
require notification of the sale in the federal state in
question, even if such notification requirement is not
required under Paragraph 1, above.
(3) For permits according to Paragraph 1, the
provisions of §4 (3)-(9) shall apply.
(4)The sale of public gaming is forbidden unless permit
and notification obligations have been fulfilled under
this Act.
Section II
Approval Procedures
Subsection 1
Lotteries
Regional lotteries, Class Lotteries
§6
Regional lotteries
(1) Regional lotteries are lotteries,
1. which have a high frequency of events (§ 3 Para.(3),
sub.3.) or
2. which game schedule foresees that the value of the
biggest win is greater than 1 million Euro, or
3. which game schedule foresees the creation of a
jackpot, so that,
a) when, a particular a prize category is drawn and the
winnings are not claimed, they can be added to the
following draw, or
b) where parts of the payments due from the player
can be accumulated for the purpose of achieving
wins at future draws so that a biggest win of over 1
million Euro can be achieved.
(2) the organization of regional lotteries is nonetheless
subject to the attainment of the federal state’s aims
pursuant to § 1, notably, the prevention of scams and
fraud. The federal state itself may also lawfully set up
regional lotteries through legal persons under public
law or through appointed private companies.
(3) Accordingly, the Federal State of Schleswig-Holstein
has exercised its public right under Paragraph 2, above,
through the establishment of the NordwestLotto
Schleswig-Holstein GmbH & Co. KG (hereinafter
NordwestLotto Schleswig-Holstein), the quotas in
which are totally or predominantly held directly or
indirectly by the Federal State.
(4) Upon agreement with the Ministry of Interior and
Ministry of Finance, the exercise of the right can be
totally or partly entrusted to legal persons under public
law or private companies. In such cases, the Federal
State and other Federal States can own significant
quotas directly or indirectly. Moreover, the
NordwestLotto Schleswig-Holstein can host number
lotteries and “scratch-and-win/ tear-and-win” lotteries
(Losbrieflotterien), as well as additional lotteries and
other game draws.
§7
Class Lotteries
(1) §6 para.(2), sub. 1 applies to class lotteries.
(2) Where the provisions of the State Treaty for State
Class Lotteries of 26 May 1992 (SCL State Treaty) or
the regulations for the North West German Class
Lottery from the State Treaty for the North West
German Class Lottery (NWGCL State Treaty) of 1
September 2008 conflict with the provisions of this
Act, then the provisions of this Act shall prevail.
(3) By way of derogation from Art. 4 of the SCL State
Treaty and from § 9 of the NWGCL State Treaty, an
operator permit under § 4 para.(1), above, has been
issued by the competent authority for the Class
Lottery.
(4) The Federal State may host class lotteries jointly
with other federal states, or through a public law
entity established together with the other federal
states or a private company, provided in the latter case
that the federal state in question or other contracting
federal states have a significant quota, regardless of
whether they hold their quotas directly or indirectly.
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§8
Sales permit
(1) An application for a permit can be made by the
operator for sales at sales outlets,
(2) Class lotteries sales are subject to notification
obligations; the consent of the operator also has to be
demonstrated. No claims can be made subsequent to
conclusion of a sales contract.
§ 9
Brokering requirements
The following requirements shall apply to sales from
high event number lotteries by agents (lottery agents):
1. The lottery agent must forward at least two-thirds of
any sums collected from players in order to participate
in a game to the operator. Immediately after the
brokering of a game order, it must inform players in a
clear and comprehensible manner of the amount
forwarded to the operator in order to participate in
the game as well as notify the operator of any such
players.
2. Lottery agents and any third parties commissioned
either by them or by interested players within the
meaning of § 3 para.(10), above, must disclose the
brokering of any participation in a game to the
operator.
3. Upon conclusion of the contract, lottery retailers
must ensure that a trustee qualified within a legal or
tax advisory profession or a trust company that
employs such professionals is commissioned with the
safekeeping or storage of ticket receipts and the
assertion of winning claims against the operator. Upon
conclusion of the contract, the game participant shall
be granted the right to view ticket receipts that were
brokered in their order.
Charitable Lotteries
§10
Permits for charitable Lotteries
(1)Lotteries that are capable of ensuring that any net
proceeds will be used mainly for charitable purposes
shall be approved upon application if the permit
requirements are met. The competent authority shall
be responsible.
(2)The permit shall be issued if the game schedule
foresees that,
1. the draw results are not announced more than twice
a week,
2. the maximum winnings do not exceed a value of
EUR 5 million, and
3. any payments made by players are not partly
accumulated for the purpose of creating winnings
for future draws (planned jackpot).
§11
Hosting Charitable Lotteries;
Sale of Charitable Lotteries
(1) An event permit may only be issued if the operator,
1. satisfies the conditions of § 5 para. (1), sub. 9 of the
German Corporation Tax Act, and
2. is reliable, in particular by providing a guarantee
that the event is implemented properly and can be
fully understood by both game participants and the
competent authority, and that any net proceeds are
used appropriately.
Paragraph (1), sub 1, above, does not apply to
operators for the purposes of § 6 para.(2) and § 7
para.(1), lotteries operated by the public body
“Bavarian Red Cross”, or to events taking the form of
prize-linked savings (§ 16).
(2)If the event is conducted either wholly or mainly by
a third party, then the permit may only be issued if
there is no risk that the transparency and
controllability of the event may be affected, and if the
third party
1. meets with the requirements of Paragraph 1 sub.(2)
and
2. is subject to instructions from the operator with
respect to conducting the event and does not have
any significant legal or actual influence over the
operator.
(3) the holder of an event permit according to § 10
shall be entitled to sell the lottery. The operator shall
not require a special permit according to § 5 para.(1).
The notification requirements for sales activities must
comply with § 5 para.(2).
§12
Lottery Schedule, Costing and conducting of Event
(1) According to the game schedule, the net proceeds,
winnings and costs must relate proportionally to each;
the cost of the event must be kept as low as possible.
The net proceeds are the amount resulting from the
sum of any payments received after deducting any
costs, winnings and taxes. Provision should be made in
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the game schedule for at least 30 per cent of payments
received to go towards the net proceeds and winnings
and on no account should this percentage not be
reached. When an application is submitted, a cost
estimate must be compiled that is based on the
expected costs of the event, winnings, taxes and net
proceeds. After issue of the permit, if it appears that
the estimated costs are likely to be exceeded, then this
must be notified to the competent authority
immediately and a new cost estimate has then to be
prepared.
(2) With respect to lottery costs, the nature and extent
of any third party costs may only be taken into account
within the meaning of § 11 para.(2) insofar as they
meet the principles of economical management. The
remuneration of third parties should not be calculated
on the basis of the amount revenue received.
(3) The operator must submit all documentation and
information required to the competent authority in
order to verify that the lottery has been conducted
correctly. It must also provide a statement based on
the actual amounts of revenue, net proceeds, winnings
payouts and event costs.
(4) In order to verify that the lottery has been properly
planned or conducted, especially regarding the
appropriateness of costs, the competent authority
may, at the expense of the operator, commission an
auditor to provide their expert opinion or request the
operator to commission one. The costs of the expert
opinion are considered lottery costs.
§13
Use of net proceeds
(1) Any net proceeds from the event must be used for
charitable or benevolent purposes as specified in the
permit in a timely manner.
(2) If the operator wishes to use the net proceeds for a
purpose other than the one specified in the permit, or
if the intended purpose cannot be achieved either at
all or in a timely manner, then the operator must
notify the competent authority immediately thereof.
Following consultation with the operator, the former
may stipulate a new charitable or benevolent intended
purpose.
§14
Form and Content of Permit
The permit shall be issued in writing. It should state
the following:
1. the operator as well as any third parties in the case
of § 11 para.(2),
2. type, location or area as well as the start date and
duration of the event,
3. the intended purpose for use of net proceeds, the
type and method of proving use and the time in which
such proof will be provided,
4. the game schedule and
5. the sales form.
Small Lotteries and prize-linked savings
§15
Small Lotteries
The competent authority may depart from the
regulations of this Act for lotteries, in the event that
1. the sum of payments to be received does not
exceed EUR 40,000,
2. the net proceeds are used exclusively and directly
for charitable or benevolent purposes, and
3. the net proceeds and winnings amount to at least 25
per cent of payments received.
§16
Prize-linked savings
By way of derogation from § 4 para.(1), prize-linked
savings lotteries operated by a credit institution within
the meaning of § 1 para.(1) of the German Banking Act
need only notify the competent authority if a partial
amount not exceeding 30 per cent contributed by a
participant is used as the lottery ticket share for the
prize-linked savings lottery, and the net proceeds
amount to at least 25 percent of lottery ticket shares
and are used for charitable or benevolent purposes.
Subsection 2
Casinos
Land-based casinos
§17
Requirements for Casinos, player exclusion, blacklists,
data processing
(1) Land-based casinos (fixed casino operations) must
maintain a comprehensive exclusion system in order to
protect players and combat gaming addiction.
(2) Land-based casinos shall exclude individuals who
ask to be excluded (self-exclusion). Alternatively,
individuals who, on the basis of staff observations or
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other factual evidence, are assumed to have a gaming
addiction or are insolvent, fail to meet their financial
obligations or risk stakes that are disproportionate to
their income or assets are also excluded (external
exclusion). In the event of the external exclusion being
challenged by the player, the competent authority
shall decide.
(3) The exclusion is valid for at least one year. Land-
based casinos immediately notify the player in
question in writing of the exclusion.
(4) Land-based casinos must record all data required
for an exclusion onto a blacklist. The data must contain
the following:
1. family name, first name, maiden name,
2. aliases, any false names used,
3. date of birth,
4. place of birth,
5. address,
6. photographs,
7. reason for exclusion,
8. duration of exclusion, and
9. the notifying casino.
A record can also be kept, even if all data cannot be
collected. Documents leading to the exclusion must
also be kept.
(5) The cancellation of any exclusion is only possible
after one year has elapsed, and in any case only upon
written request from the player. The land-based casino
operator that ordered the exclusion shall make a
decision on this. The player’s assurance that the
reasons for his exclusion have ceased must be credible.
(6) Excluded players may not take part in any games in
land-based casinos. The ban shall be enforced by
checking the player’s ID card or by using a similar
identity check and comparing with the blacklist.
(7) Any recorded data must be transmitted as required
to the various authorities authorized to monitor any
game bans Data transmission can also be carried out
via an automated retrieval process.
(8) Data transmission to public authorities, especially
law enforcement authorities and courts, is permitted
by law.
(9) Any information issued and access to electronic
systems must be recorded.
(10) The data must be deleted six years after the
termination of the exclusion. Deletion is also permitted
at the end of the sixth year.
(11) Unless otherwise specified by this Act, the
respective provisions for the protection of personal
data shall apply.
(12) By way of derogation from § 4 para.(3) sub.(1), the
first permit issued for a land-based casino shall be for a
minimum of eight years.
Online Casinos (online-casino games)
§18
General requirements for Online Casinos
(1) Online-casinos games can only be operated within
the terms of a permit issued according to § 19 and can
only be sold for the purposes permit issued according
to § 20. The type and method of playing games shall be
defined on a case-by-case basis in the permit issued by
the competent authority.
(2) Anyone authorized to sell online casino games
according to § 20 must ensure that the General Terms
and Conditions of Business appropriately accessible to
individual players prior to the start of the game,
making mention of any valid permits and the
competent issuing authority, respectively. If the
provider is not actually an operator, it must disclose
the operator to the player prior to the start of the
game and ensure the General Terms and Conditions of
Business are appropriately accessible.
(3) Anyone already holding a permit to operate a
casino in accordance with the Federal state Casino Act
is also allowed to be an operator for the sale of online-
casino games.
(4) The sale of online casino games by third parties
requires the consent of the operator.
(5) The terms of § 17 also apply.
§19
Permit for operators of online-Casinos
(1) Operators of online-casino games may be approved
upon request if,
1. they are EU nationals under European Union law or
are legal entities whose registered office, central
administration or principal place of business falls with
the remit of European Union law or of a Signatory
State to the Agreement on the European Economic
Area, and
2. have the necessary reliability, capability and
expertise for the intended gaming activity The legal
representatives of legal entities must also satisfy the
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various requirements regarding reliability and
expertise.
(2) The permit shall be refused if there is evidence to
suggest that
1. public safety and order will be jeopardized by the
intended gaming activity, or relations between the
Federal Republic of Germany and other federal states
will be affected,
2. by collaborating with third parties, there is a risk to
the overall transparency and the ability to monitor
sales or any other brokering activity will be
prejudiced, or
3. it cannot be ensured that the game will be
implemented properly and in a way that is fully
understood by both game participants and the
competent authority in accordance with the aims of §
1.
(3) When submitting an application, the applicant shall
also provide the proposed General Terms and
Conditions of Business. Any amendments must be
notified.
§20
Sales permit
(1) The sale of online-casino games requires a permit
from the competent authority.
(2) The sales permit will be issued if the applicant fulfils
the requisite reliability and expertise criteria to
conduct sales and there are no reasons for refusal
according to Paragraph 3, below.
(3) The sales permit shall be refused if there is
sufficient evidence to suggest that
1. public safety and order will be jeopardised by the
event or sale of the event,
2. by collaborating with third parties, the overall
transparency and the ability to monitor sales or any
other brokering activity will be prejudiced, or
3. it cannot be guaranteed that the event or sale of the
event will be implemented properly and can be fully
understood by both game participants and the
competent authority in accordance with the aims of
§1.
(4) Insofar as an sales permit has been issued
according to § 19, then the reasons for refusal in
relation to the event and the operator of online casino
games under Paragraph 3 sub.1 or sub.3, above, no
longer need to be verified.
(5) The sales permit shall in particular specify the
operator, as well as the type of casino games and the
sales channels.
(6) When submitting an application, the applicant shall
also provide the proposed General Terms and
Conditions of Business. Any amendments thereto must
be notified. With respect to distance sales, the
respective sales channels and the location of the
distance sales office must be notified.
(7) The applicant under Paragraph 1, above, shall
provide insurance guarantees to protect federal state
claims and against claims for payouts and. The
applicant shall in principle provide the insurance
guarantee in the form of an absolute bank guarantee
from a major bank based in the European Union or in a
Signatory State to the Agreement on the European
Economic Area. The guarantee shall amount to EUR
1,000,000 for the sale of online casino games. It can be
adjusted by the competent authority to an amount
that corresponds to the expected average game
revenues over a period of two weeks up to a maximum
of EUR 5,000,000. The issue of the permit according to
Paragraph 1 is based on the assumption that the
insurance guarantee has been provided. If the
guarantee is not delivered notwithstanding reminders
for the same, or is inadequately guaranteed, then the
permit shall be refused.
Subsection 3
Betting
§21
General Requirements for Betting
(1) Public betting may only be operated by betting
companies permitted according to § 22. A permit is
issued by the competent authority. The type and
method of betting shall be governed individually in the
permit from the competent authority. Any form of
betting that violates moral sensitivity is banned.
(2) Public betting may only be conducted to the extent
allowed by the terms of the permit issued by the
competent authority according to § 23. Public bets
may be sold by the betting companies themselves or
by an agent.
(3) Anyone who participates in the operation of betting
events may neither bet themselves nor place a bet on
the outcome or the progress of this event, nor may
they place bets using others. Anyone who intentionally
or negligently infringes this prohibition is therefore
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acting unlawfully. The offence will be punished by a
fine of up to EUR 100,000.
(4) The hosting and sale of betting must be kept
separate from an organisational, legal, financial and
staffing perspective from the hosting or the
organisation of the betting event. The same applies for
the operation of establishments in which betting
events take place.
(5) Anyone who sells public bets (§ 23) must inform the
player of the relevant betting operator prior to the bet
being placed. Furthermore, the General Terms and
Conditions of Business of the bets offered for sale, as
well any existing permits and the competent authority
must be adequately made known to the player prior to
placing a bet.
(6) Anyone who hosts or sells bets must not grant
credit to betting clients. Bets may be paid for using
standard credit cards.
(7) The terms of §17 are applicable.
§22
Permit for Betting Companies
(1) Betting companies may be approved upon request
if:
1. they are EU nationals under European Union law or
are legal entities. In such case, the registered office,
central administration or principal place of business
must come within the scope of European Union law
or that of a Signatory State to the Agreement on the
European Economic Area, and
2. they have the necessary reliability, capability and
expertise for the intended betting activity. With
respect to legal entities, the legal representatives
must satisfy the criteria regarding reliability and
expertise.
(2) The permit shall be refused if there is sufficient
evidence to suggest that:
1. public safety and order will be jeopardized by the
intended betting activity, or relations between the
Federal Republic of Germany and other federal states
will be prejudiced,
2. there is a risk that, by collaborating with third
parties, the overall transparency and the ability to
monitor sales will be prejudiced, or
3. it cannot be guaranteed that the betting activity will
be implemented properly and can be fully understood
by both game participants and the competent
authority in accordance with the aims of § 1.
(3) When submitting an application, the applicant shall
also provide its current General Terms and Conditions
of Business. Any amendments must be notified.
§23
Sales permit
(1) The sale of public betting requires a permit from
the competent authority for both fixed as well as
distance sales. Provided the competent authority has
already issued a permit according to § 22, then a
permit for self sales may be issued to the betting
company upon request in accordance with this
provision. This provision does not apply for sales made
by third parties (agents).
(2) The sales permits are granted to applicants who:
1. are EU nationals under European Union law or are
legal entities. In such case, the registered office,
central administration or principal place of business
must come within the scope of European Union law
or that of a Signatory State to the Agreement on the
European Economic Area, and
2. have the necessary reliability and expertise to
conduct sales; as proof of expertise, the terms of §3
para.(1) of the rules implementing the Act on Horse
Betting and Lotteries shall apply accordingly, as
amended on 21 august 2002, and
3. provided there are no grounds for refusal under
para.(3), below.
(3)The sales permit shall be refused if there is sufficient
evidence to suggest that:
1. public safety and order will be jeopardized by the
event or sale of the event,
2. by collaborating with third parties, the overall
transparency and the ability to monitor sales will be
prejudiced, or
3. it cannot be guaranteed that the event or sale of the
event will be implemented properly and can be fully
understood by both game participants and the
competent authority in accordance with the objectives
of § 1.
(4) Provided there is an event permit according to § 22,
then the grounds for a refusal according to Paragraph
3, sub. 1 or sub. 3 in relation to the event and the
betting company no longer need to be verified. § 22
para.(4) applies accordingly.
(5) A sales permit shall specific the authorized to sell
bets, the type of bets and the sales channels. With
respect to fixed sales, the municipalities shall decide in
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accordance with town planning regulations on any
restrictions concerning locations for the purposes of
achieving the aims under § 1.
(6) When submitting an application, the applicant shall
also provide its current General Terms and Conditions
of Business. Any amendments must be notified.
Furthermore, it must notify the number and location of
sites for fixed sales, as well as the respective sales
channels and the location of the distance sales office
for distance sales.
(7) The applicant shall provide an insurance guarantees
to protect federal state claims and against claims for
payouts in the form of an absolute bank guarantee
from a major bank based in the European Union or in a
Signatory State to the Agreement on the European
Economic Area. For fixed sales, the guarantee
1. in each location
a) in which betting is either exclusively or mainly
sold, or
b) which has more than two betting classes or
betting terminals, shall amount to EUR 20,000
2. in every other location it shall amount to EUR
10,000.
This insurance guarantee can be adjusted by the
competent authority to an amount equivalent to the
expected average betting revenues over a period of
two weeks. The guarantee shall amount to EUR
1,000,000 for distance sales. It can be adjusted by the
competent authority to an amount equivalent to the
expected average betting revenues over a period of
two weeks up to a maximum of EUR 5,000,000. The
issue of the permit under Paragraph (1) is based on the
assumption that the guarantee has been provided. If
the guarantee is not provided despite reminders to do
so or is not adequately guaranteed, then the permit
shall be refused.
§24
Betting Regulations and Betting Books
(1) In order to ensure equal treatment of betting
customers, the hosting and sale of betting may only be
done in accordance with betting regulations that are
binding for all betting contracts from operators or
holders of sales permits. This is to be submitted with
the permit application. The betting regulations must
contain provisions on the conclusion of betting
contracts and payouts.
(2) Each betting company and each holder of a sales
permit for betting must keep an electronic betting
book in which all betting transactions are recorded in
consecutive order without any time delays. The
electronic betting book, as well as any computer
software, data processing procedures and equipment
used for hosting or brokering bets, must be specifically
protected against unauthorised interference from third
parties. All betting transactions must be recorded in
the betting book for a period of four years.
Section III
Player Protection
§25
Information Obligations
(1) The holder of a permit must ensure the following
information is made available to players:
1. all costs resulting from participation,
2. the amount of all winnings,
3. when and where any winnings are published,
4. the percentage of payouts for winnings from stakes,
5. information on the probability of winning or losing
as well as the average payouts for the different forms
of the gaming,
6. the cut-off time for participation,
7. the method for determining the winner,
8. how the winnings are distributed between multiple
winners,
9. the limitation period within which winners may
claim their winnings,
10. the name of the permit holder as well as their
contact details (address, e-mail, telephone),
11. the commercial registration number (if available),
12. how the player can make a complaint, and
13. the date the permit was issued by the competent
authority.
Both players as well as authorities must have easy
access to this information.
(2) The competent authority may grant exceptions to
these obligations if the nature of the game or other
circumstances make it unreasonably difficult to satisfy
the various conditions.
§26
Advertising
(1) The type and extent of advertising of public gaming
must be appropriate and must not be in conflict with
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the aims of § 1. The advertising must not be
misleading, nor lead to inaccurate perceptions about
the prospects of winning. Moreover, the advertising
must not be aimed at minors.
(2) The competent authority may also lay down further
criteria in the additional clauses of the permit for the
hosting and sales in relation to the composition of
permitted advertising for lotteries with a high
frequency of events, betting and casino games.
(3) The advertising of illegal gaming is not permitted.
(4) The Ministry of Interior is authorized to issue more
detailed regulations on the subject.
§27
Protection of Minors,
Player Protection and Declarations
(1) Minors are forbidden from participating in public
gaming.
(2) The providers of public gaming are responsible for
ensuring that players play responsibly. They must
inform the public on the probability of winning and
losing, the possible risks of addiction with respect to
the type of gaming offered, the opportunities for
counselling and therapy as well as the prohibition on
the participation of minors.
§ 28
Corporate Social Responsibility
(1) The providers of public gaming are responsible for
ensuring that players are discouraged from playing
pathological games and any gaming addiction is
prevented. To this end, they must develop the
appropriate social responsibility policies for relative
gaming games laying down measures for the
prevention of pathological player behaviour.
(2)The providers of public gaming shall
1. appoint representatives to develop social
responsibility,
2. train staff that employed in the hosting and sale of
public gaming on early detection of problematic
player behaviour,
3. in the context of prevention, provide easily
accessible and easily understandable information
a) on the relative risks of the games in question;
b) on assistance measures, such as player exclusions,
addresses of counsellors and self-therapy groups for
both addicted male and female players;
c) through self-help handouts,
4. allow players to assess their own risk,
5. set up a telephone counselling service that is jointly
operated by several providers,
6. report to the competent authority every two years
on the success of any measures implemented for
player protection.
(3) Every two years, in connection with the
development of assistance measures, the competent
authority shall draw up a report on the measures taken
by providers, the safety of gaming and player
protection activities.
Section IV
Gaming supervision, Permit control and Federal State
supervision
§29
Competent Approval and
Supervisory Authority
The competent Approval and Supervisory Authority for
the tasks designated under this Act shall be the
Ministry on Interior. The Ministry may appoint another
authority by enacting a regulation to this effect.
§30
Supervisory powers
(1) The competent supervisory authority shall monitor
compliance with the provisions of this Act, as well as
observance of the rules specified in the permits and
related additional clauses. Accordingly, in individual
cases it may issue orders, as appropriate. In particular,
it may:
1. prohibit the hosting and sale of illegal gaming as well
as any related advertising,
2. request information or evidence from event or sales
permit holders that are subject to its supervision in
order to fulfil its duties;
3. take decisions on any objections to external
exclusions,
4. following the prior notification of illegal gaming
offers, prohibit credit and financial services
institutions from being involved in payments for
illegal gaming and payouts from illegal gaming in a
responsible manner.
(2) Challenges to, and complaints against, orders
according to Paragraph (1), above, do not have
suspensive effect.
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(3) The supervisory authority is responsible for the
issuance and revocation or withdrawal of permits as
well as receiving notifications according to § 5 para.(2),
unless stated otherwise herein.
(4) The supervisory authority shall work together with
the responsible authorities for gaming supervision
both domestically and abroad in the performance of its
responsibilities.
§31
Advisory Committee
(1) An Advisory Committee will be set up within the
Approval and Supervisory Authority. It shall advise the
approval and supervisory authority on the
performance of their duties, especially in terms of the
legal and technical aspects of the gaming sector,
addiction prevention, crime prevention and youth and
consumer protection, as well as in relation to the
integrity of sporting competition. It may also issue
recommendations on the general development of
supervisory practices to the management of the
approval and supervisory authority.
(2) The members of the Advisory Committee shall be
appointed by the President of the Approval and
Supervisory Authority, after consultation with the
interested parties. Sports organizations are
represented and have the right to vote on the Advisory
Committee. Science and research, consumer
protection groups, addiction experts, and gaming
providers must all be adequately represented within
the Advisory Board.
(3) The Advisory Committee shall elect a chairman
from among its members. The Advisory Board shall
also adopt its Rules of Procedure.
§32
Fees
(1) For the purposes of this Act, the Approval and
Supervisory authority shall charge the following fees
for the various tasks assigned to them:
1. a fee for handling the application and issue of a
permit for the gaming operator according to § 4 or a
permit for the sale of gaming according to § 5
(handling fee),
2. an annual fee for expenditure related to supervision,
especially for the enforcement of powers according
to § 30 para.(1) (supervisory fee).
(2) The Ministry of Interior shall determine the amount
of the fees by regulation from which chargeable
services, fees by way of fixed rates or framework rates,
as well as regulations for increases, reductions, scaling
and exemptions can arise. The rates shall be measured
in such a way that so that there is an appropriate
balance between the amount taken into account for
administrative expenditure and the importance of the
economic value or other benefits arising from the
actions of the approvals and supervisory authority.
Moreover, the provisions of the Administrative Costs
Act shall apply.
§33
Enforcement
The supervisory authority may enforce any orders that
it has made under its statutory powers by way of
coercive measures according to the provisions of
administrative law, in particular pursuant to §§ 228 et
seq., and 242 of the Federal State Administrative Act.
In addition, it can threaten coercive measures in each
case of non-compliancy. The penalty of up to EUR
250,000 may be imposed. The provisions of the
Federal State Administrative Enforcement Act shall
apply.
Section V
Duties
Subsection 1
Duty aims
§34
Lottery duty
(1) By way of derogation from §35, the NordwestLotto
Schleswig-Holstein is liable to pay duty to its federal
state. Accordingly, the Ministry of Finance, together
with the Ministry of Interior, shall issue Ordinances to
determine the duty rate aims taking account of lottery
laws, business and taxation interests, as well as the
maturity date and procedures for the payment of
duties. The Ordinance may also stipulate that duty for
the NordwestLotto Schleswig-Holstein has to be fully
or partly paid over to a third party in accordance with
the duty revenue aims.
(2) The duty from the Lottery, “BINGO – Die
Umweltlotterie” (BINGO) is to be used for the purpose
of nature conservation and protection of the
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environment, as well as for development projects
defined by Agenda 21. The Federal Committee for free
Welfare Services, the German Olympic Sports
Federation and the German Heritage Foundation
receive a part of the duties from the “GlücksSpirale”
Lottery, the rate of which is stipulated in Paragraph 2,
sub. 1 of the Ordinance.
(3) After deducting the amounts referred to in
Paragraph (2), above, firstly, 8 per cent of the
remaining amount, i.e. at least 6,3 million EUR are to
be used for the promotion of sports and, secondly, 4.9
per cent for the purposes of player insolvency
counselling.
(4) The remainder is then to be used to finance
scientific research into the prevention and combating
gaming addictions. The remainder is also to be used for
the setting up and furthering of information centres
for the prevention of and combating addiction.
Research programmes can be promoted together with
other federal states. Training in counselling is to be
taught on the basis of the research findings.
(5) The remainder is then to be used for charitable
purposes in accordance with the Fiscal Code.
(6) From the amount set aside in accordance with the
first option in Paragraph (3), above, 90 per cent is to be
used for the Schleswig-Holstein State Sport Federation
e.V. (registered association) in the promotion of sport.
A further 8 per cent of the amount is to be used for the
general promotion out-of-school sports activities,
while the residual 2 per cent is to be made available
for extracurricular school sports.
(7) The aim of promoting sport is to,
1. guarantee the work of sports teams and sporting
associations and put them in a position to offer a
wide variety of representative sports throughout the
federal state, and
2. guarantee the availability of activities and projects
for schools in collaboration with sports teams and
sporting associations, as well as extracurricular sports
activities.
(8) The donation to the Schleswig-Holstein State Sport
Federation e.V. is made available in particular for the
work of federal state sporting associations, their
facilities, sports teams, sporting circles and
professional sporting associations for both competitive
and recreational sports. Sports teams that have their
registered offices in Schleswig-Holstein but are actually
members of the Hamburg Sports Association may also
benefit from its application.
Subsection 2
Gaming Duty
§35
Duty liability, Duty aims
(1) For the purposes of this Act, a gaming duty shall be
levied on individuals that sell gaming.
(2) For the purposes of this Act, gaming sales are made
by permit holders authorized under this Act, and who
have their residence or place of habitual residence in
the Federal Republic of Germany. Moreover, the
games must be conducted in accordance with the
regulations. A sale is also deemed to have taken place
for present purposes, when gaming - normally
requiring a permit – is conducted in accordance with
the law but without the requisite permit.
(3) On the contrary, a gaming duty shall not be levied
on:
1. lotteries and betting that are subject to taxation
under the Betting and Lotteries Act,
2. land-based gaming subject to casino duty,
3. game equipment and other gaming opportunities
within the meaning of §§ 33c and 33d of the Trade
and Industry Act that are subject to VAT;
4. online-gaming, provided such is subject to VAT.
(4)§ 40 of the Fiscal Code shall apply accordingly.
§36
Duty rate, Basis of Assessment
(1) The duty rate is 20 per cent of the basis of
assessment.
(2) The basis of assessment is the gross profit from
gaming that has been offered and played. The amount
by which the total of all stakes exceeds the total of all
winnings paid out shall be deemed to be gross profit.
By way of derogation from therefrom, for gaming in
which the operator does not assume any risk (games
without a banker), the amounts accruing to the gaming
provider from the game are taken as the basis of
assessment.
(3) To the extent municipalities can levy an
entertainment tax under applicable federal state
legislation, then this must be deducted from the basis
of assessment.
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(4) §§ 90 and 162 of the Fiscal Code shall apply
accordingly. If the basis of assessment according to
Paragraphs (2) and (3), above, cannot be reliably
determined even in the form of estimates, then the
respective stake shall be deemed to be the basis of
assessment.
§37
Accrual of duty
(1) The duty shall accrue upon completion of the game
contract. If the gaming provider either wholly or
partially collects the stake prior to the completion of
the game contract, then the duty shall accrue upon
collection by way of derogation from para.(1).
(2) If a game contract is withdrawn and the stake is
either wholly or partially refunded, then the duty shall
also be revoked to the same extent.
§38
Duty debtor
(1)The gaming provider is considered to be the duty
debtor. Anyone who offers gaming without the
necessary permits is also liable to pay duties.
(2)Anyone who collects payment for gaming in
connection with the performance of a game contract
shall be liable to pay duty without being a duty
debtor. Duty debtors and parties liable to pay duty are
jointly and severally liable.
§ 39
Registration
(1)Gaming providers must register with the responsible
tax authority in order to fulfil their duty obligations.
Registration must take place prior to the start of the
gaming activity.
(2) For the purposes of registration, information shall
be provided on the following items by the gaming
provider:
1.name of gaming provider,
2.the place of residence of individuals, or for legal
entities the registered office of the gaming provider,
both with full signature,
3.the names of all legal representatives and registered
office of the management for legal entities with full
signature,
4.details on the types of gaming to be offered,
5.details on whether land-based gaming, online-
gaming, or both are to be offered,
6.details on the technical equipment provided for the
calculation of stakes and pay out of winnings, and
7.details on any other registration with the tax
authorities of other federal states and other Member
States of the European Union or the European
Economic Area.
(3)A further condition for registration, in addition to
the comprehensive and accurate provision of
information under Paragraph (2), above, is that the
technical equipment according to Paragraph (2), sub.6,
above, must satisfy the requirements for duty recovery
according to § 40.
(4) Any changes to data that are relevant for
registration and duty recovery must be notified
immediately to the responsible tax authority.
§ 40
Duty recovery
(1) The gaming provider must determine the total
amount of stakes and the basis of assessment
according to § 36 of all gaming conducted separately
on a monthly basis by gaming type, and moreover,
must submit the allocated gaming duty using an
officially prescribed dataset to the responsible tax
authority in accordance with prior duty data
transmission regulations and pay the duty (advance
payment). The transmission of data and the payment
of the corresponding duty must be made no later than
the tenth day of the following month in question.
(2) The gaming provider must submit an annual
declaration for the calendar year on an official
prescribed form to the responsible tax authority no
later than 31 May of the following year. This must
include the total amount of stakes and the basis of
assessment according to § 36 of all gaming conducted
separately by gaming type, the corresponding gaming
duty levied as a result for the calendar year as well as
any advance payments made according to Paragraph
(1). Any outstanding tax payable or possible credits
from the annual declaration shall be determined and
notified officially by the responsible tax authority.
(3) For tax purposes, foreign currency values must be
converted for the calculation of duty according to
applicable VAT provisions.
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§41
Duty aim
Duty is levied for the purpose of achieving the aims set
forth in § 1. In particular, through the interaction of
the various provisions regarding permit procedures
and player protection, the gaming demand of the
general population should be guided towards lawful
and supervised gaming offerings, and stem the
excessive expansion of gaming offerings by noticeably
reducing the profit incentives to providers.
§42
Duty revenue
(1) All and any duty revenue shall accrue to the Federal
State.
(2) It must guarantee that a significant proportion of
the duty revenue serves the purpose of financing the
aim set forth in § 1, as well as objective of promoting
public and favourable tax regime within the meaning
of the Fiscal Code in accordance with federal state law.
By way of derogation from Paragraph (1), above, up to
one third of duty revenue from sports betting shall
accrue to the Sports Association of Schleswig-Holstein
for the purpose of promoting the integrity of
charitable sport. Moreover, it must also guarantee that
5 percent of the revenue from online-gaming offers is
used for the purpose of financing gaming addictions
and debt and insolvency counselling.
§43
Responsible Tax Authority
The responsible tax authority for registration under §
39 and duty recovery procedures under § 45 is the
Kiel-Nord tax office.
§44
Notification obligations
(1) The competent approval and supervisory authority
must notify the responsible tax authority of the
content (including additional clauses and
supplementary orders), modification, revocation or
withdrawal of permits as well as of the results of their
monitoring activities regarding duty recovery.
(2) Authorities that wish to obtain further information
on unauthorised gaming must also notify the
responsible tax authority thereof.
(3) The content and scope of notification requirements
are determined by an ordinance of the Ministry of
Interior.
§45
Notifications to the competent authority
(1) If the responsible tax authority investigates a party
on suspicion of a having committed a tax offence or tax
irregularities with respect to the gaming duty, then it
must notify the competent authority thereof and
inform them of the outcome of proceedings.
(2) If the responsible tax authority obtains further
information on unauthorised gaming or their
brokering, it shall also notify the competent authority
of the same.
§46
Filing and record-keeping obligations
(1) Gaming providers must keep records of all gaming
conducted within the scope of this Act which must be
independent of any accounting and recording
requirements based on other laws; the information
required for levying gaming duty can then be consulted
in the said records. In particular, as regards online-
gaming, it must ensure the origins of players can be
reliably identified and the principles for the duty
recovery for gaming in which individuals participate -
whose residence or habitual domicile falls under the
scope of this Act - can be recorded. In this respect, the
provisions on money-laundering should be borne in
mind.
(2) §§ 145 to 147 of the Fiscal Code shall apply
accordingly for the general requirements for the filing
and the storage of documents.
(3) The special requirements and technical conditions
for compulsory records, particularly those relating to
electronic records for online-gaming, shall be
determined in an ordinance by the Ministry of Interior.
§47
Inspection
(1) In order to ensure a uniform assessment and
recovery of gaming duty, the entrusted officials of the
responsible financial authority may have access to the
sites and premises of duty debtors pursuant to § 38
during business and working hours without prior
notice and not in connection with an external audit.
Such access is intended to determine any issues that
may be significant for duty recovery (inspection). Living
areas may only be entered against the will of the
owner to prevent any urgent threat to public safety
and order.
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(2) Provided such access is useful for duty recovery,
the parties concerned by the inspection shall produce
any records, books, commercial documents and other
documents related to the issues under inspection to
the entrusted officials, as well as provide information.
(3) If the findings of the inspection so require, an
external audit may then be required under § 193 of the
Fiscal Code without any prior audit arrangement (§ 196
Fiscal Code). The transition to the external audit shall
be notified in writing.
(4) If circumstances arise during the inspection that
may be relevant for the assessment and recovery of
other duties and taxes, then an assessment of the
findings shall be made, to the extent that knowledge
thereof may be of relevance to the taxation of parties
named in Paragraph (1) or other parties.
(5) The tax authority shall be empowered on the basis
of Directive 2010/24/EU, 16 March 2010, to appeal to
the responsible authorities of Member States of the
European Union for administrative assistance in the
recovery of claims relating to the gaming duty and any
related ancillary services.
Section VI
Temporary and final provisions
§ 48
Temporary provisions
Permits under this Act shall take effect from 1 March
2012. Gaming duty under this Act will be levied from 1
March 2012. Until 29 February 2012, the provisions of
the State Treaty on Gaming in Germany (GlüStV AG) of
13 December 2007 (GVOBl. Schl.-H S. 524) shall apply,
unless they are contrary to this Act. Claims and
legitimate expectations cannot be established until 29
February 2012.
§ 49
Entry into force, termination
This Act will enter into force on 1 January 2012. The
State Treaty on Gaming in Germany (GlüStV AG) of 13
December 2007 (GVOBl. Schl.-H. S. 524)*) will
terminate on 1 March 2012.
This Act is hereby executed and is to be published.
Kiel, 20 October 2011
Peter Harry Carstensen
Governor
*
Klaus Schlie Rainer Wiegard
Interior minister Finance
Minister
______________
* GS Schl.-H. II, Gl.Nr. 2186-13 (GVOBl. Schl.-H. =
Schleswig-Holstein Gazzette of Laws and Ordinances)