OLG Frankfurt am Main - 6 U 17 / 19
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| OLG Frankfurt - 6 U 17 / 19 | |
|---|---|
 | |
| Court: | OLG Frankfurt (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(e) GDPR Article 6(2) GDPR Article 6(3) GDPR § 6(1) of the Hessian gambling law |
| Decided: | 02.07.2020 |
| Published: | |
| Parties: | Gambling hall operator Interest grouping for gambling machines production companies |
| National Case Number/Name: | 6 U 17 / 19 |
| European Case Law Identifier: | ECLI:DE:OLGHE:2020:0702.6U17.19.00 |
| Appeal from: | LG Frankfurt (Germany) 3-8 O 42/17 |
| Appeal to: | Not appealed |
| Original Language(s): | German |
| Original Source: | Bürgerservice Hessenrecht (in German) |
| Initial Contributor: | Maïlys Lemaître |
The Higher Regional Court of Frankfurt held that it is not contrary to the provisions of the GDPR for gambling hall operators to verify the identity of non-banned players at their entries.
English Summary
Facts
The plaintiff, an interest grouping for gambling machines production companies, had noticed that on several occasions the defendant, a gambling hall operator, had not verified the identity of players at their entries. As a result, there was no alignement with the Hessian system OASIS listing of all banned players. Among other things, the defendant argued that it would be contrary to the GDPR to verify the identity of all players, especially if they turned out not to be banned, making the processing of data unlawful.
Dispute
Is it contrary to the provisions of the GDPR for gambling hall operators to verify the identity of non-banned players at their entries?
Holding
The Higher Regional Court of Frankfurt points out that, according to Article 6(1)(e) GDPR, a data processing is to be considered lawful if it is necessary for the performance of a task carried out in the public interest. As articles 6(2) and 6(3) GDPR allow the Member States to introduce more specific provisions to adapt the application of the rules of Article 6(1)(e) GDPR, the Hessian legislator made use of this possibility through § 6(1) of the Hessian gambling law. As such, the processing of data for protection of players and combating gambling addiction is lawful because it is carried out in public interest. Beyond that, a gambling hall operator can and even must verify all identities at their entries, not only those of the banned players, in order to fulfill the primary purpose of the data processing.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
Violation of competition law against the regulations for entrance control in amusement arcades according to the Hessian gambling law
guiding principle
The Hessian Gambling Law regulates in § 5 paragraph 2 and § 6 paragraph 2 directly the access control to gaming halls.
2. the regulations on access control of the Hessian Gambling Law do not violate higher-ranking law.
3. it does not violate the GDPR that the arcade operators must also establish the identity of players who are not blocked.
Procedure
for the time being LG Frankfurt am Main, December 12, 2018, 3-8 O 42/17, Judgment
Tenor
The appeal of the defendants against the judgment of the 8th Chamber for Commercial Matters of the Regional Court of Frankfurt am Main, which was pronounced on December 12, 2018, is dismissed, unless the action has been partially withdrawn.
The costs of the appeal proceedings shall be borne by the defendant.
This judgment and the contested judgment are provisionally enforceable. The defendant may avert enforcement by providing security in the amount of € 30,000 unless the plaintiff provides security in the amount of € 30,000 prior to enforcement.
Reasons
I.
The plaintiff takes action against the defendant for a violation of regulations on entrance control in gambling halls.
The plaintiff is an interest group of the automat entrepreneurs. It has approximately 2,000 members and is organized in eleven regional organizations and two professional associations. To its tasks the promotion of the economic interests of the exhibitors of maintenance automats with and without profit play possibilities, commercially active in Germany, belongs as well as the monitoring of the fair competition.
The defendant operates three gaming halls in Street1 in Town1. It is connected to the blocking file OASIS. The amusement arcades can each be entered separately via three outside doors. They are opened after pressing a bell. On 1.6.2017, the plaintiff had a private investigator carry out an inspection. The investigator was able to establish that no identity check was carried out on ten guests. A comparison with the blocking system OASIS did not take place.
The plaintiff claimed that witness A had already visited the defendant's arcades on December 4, 2016 in the time between 2:20 p.m. and 2:30 p.m. and found that no access control had been exercised.
For further details of the facts of the case and the applications filed at first instance, reference is made to the factual findings in the contested judgment in accordance with Section 540 (1) No. 1 of the German Code of Civil Procedure (ZPO).
The Regional Court sentenced the defendant - with regard to the alleged incident of December 4, 2016 - after taking evidence,
1. to refrain from allowing gambling in their gambling halls in Town1, Street1, without entrance controls by presenting a photo identification of the player and comparing it with the ban file according to § 11 Hess. SpielhG or to have them carried out;
2. to pay the plaintiff € 70.16 plus interest at 5 percentage points above the prime rate of the ECB.
The defendant is appealing against this assessment and is pursuing its motion to dismiss the case. The defendant considers the assessment of evidence carried out by the Regional Court to be incorrect. It also raises the objection of the statute of limitations. For the rest, it considers the "design of the blocking system" in Hesse to be unconstitutional and void. In this context, it submits the public-law contract for the use of the blocking system as well as the terms of use and the price list (Annexes B1 - B4).
The defendant requests,
set aside the judgment of the Regional Court of Frankfurt am Main of December 12, 2018 (Case No.: 3-8 O 42/17) and dismiss the action
At the hearing, the plaintiff withdrew the complaint with regard to the initially claimed detective costs of €54.16 with the consent of the defendant.
The plaintiff now applies,
dismiss the appeal of the defendant, with the proviso that the action be withdrawn on account of the detective costs in the amount of 54.16
The plaintiff defends the contested judgment.
Because of the further party submissions, reference is made to the exchanged pleadings together with their annexes.
II.
The admissible appeal has no success in the case.
1. the application for an injunction is sufficiently specified (§ 253 (2) no. 2 ZPO). It describes in sufficiently concrete terms the conduct to be refrained from, namely allowing gambling without prior entry control by presenting a photo ID and without comparison with the blocking file. The prohibition refers to the gambling halls in Straße1 in Stadt1. A reference to a specific incident, which is determined by day and time, was dispensable, since such a reference would not contribute to concretizing the prohibited conduct.
2. the plaintiff has a claim for injunction against the defendant from §§ 8 para. 1, 3, 3a UWG in connection with §§ 5 exp. 2, 6 exp. 2 hessian play hall law (hessian play house law).
a) The plaintiff is entitled to sue according to § 8 para. 3 No. 2 UWG. It is a legally responsible association for the promotion of commercial or independent professional interests of its members. It represents as Federal association after its - to that extent unopposed - data the interests of 2.000 automat setting up enterprises. It is the umbrella organization of eleven regional associations and two professional associations. According to § 2 of its statutes, its purpose includes the task of representing the economic interests of the vending machine operators and monitoring fair competition. Doubts about its material, financial and personnel resources have not been raised and are not apparent in any other way.
b) Contrary to the opinion of the Regional Court, the Hessian Gaming Hall Act indirectly regulates access control. According to § 5 para. 2, minors and blocked persons may only be admitted for the purpose of age determination and status check according to § 6 para. 2. Pursuant to § 6 par. 1, a blocking system shall be maintained to protect players and to combat gambling addiction. Pursuant to § 6 (2), the holder of the arcade license shall be obliged to check whether a person has been barred by comparing him/her with the barring system upon entry into the arcade (status check). A recourse to the general clause after § 3 UWG and the statute of competition-legal traffic obligations does not need it therefore. Gambling law is a final regulation (see BGH GRUR 2011, 440 marginal no. 18 - Spiel mit).
c) The aforementioned regulations do not violate higher-ranking law.
c) The regulations mentioned do not violate higher-ranking law.
aa) The defendant rebukes without success that the regulations violated the reservation of the law because the state legislator should have regulated the scope of the access controls itself. This had not been done sufficiently in the Gaming Hall Act. The defendant did not sufficiently justify this objection. The hessian gaming hall law statutes a sufficiently concretely arranged control system. The administrative court Wiesbaden explained with judgement of 15.7.2015 comprehensibly that the regulations of the hessian gaming hall law do not offend against higher-ranking right (VG Wiesbaden, judgement of 15.7.2015 - 5 K 127/13.WI - Rn 33, juris). The BVerfG has rejected a temporary injunction against regulations of the Hessian Gaming Hall Act (BVerfG, decision of 5.7.2013 - 1 BvR 1014/13, juris) and a constitutional complaint against the player blocking system according to § 6 para. 1 in connection with § 6 para. 1. § 11 Hess. SpielhG was not accepted (BVerfG, decision of 16.7.2015 - 1 BvR 1014/13, juris). The Senate agrees with the opinion of the Wiesbaden Administrative Court and the BVerfG.
bb) The Defendant asserts without success that it is not compatible with the private autonomy protected in Art. 2 para. 1 of the German Constitution (GG) that, for participation in the blocking system pursuant to § 6 para. 1 sentence 2 Hess. SpielhG the conclusion of a public law contract is prescribed and fees are charged for this without legal basis. The obligation of the arcade operator to contractually connect to the blocking system is an encroachment on private autonomy that is justified for reasons of combating gambling addiction and is suitable, appropriate and proportionate. The Hessian blocking system is considered exemplary and is - as is shown by the number of blocking measures taken - suitable to counteract the risk of gambling addiction (VG Wiesbaden, loc.cit., para. 39). Whether the levying of a fee for the use of the blocking system is lawful is not relevant to the decision in the present case. It is solely a question of access control.
cc) Contrary to the view of the defendant, it is not a violation of the (higher-ranking) DSGVO that arcade operators must also establish the identity of players who are not blocked. If one sees in the prescribed determination of identity a collection and processing of personal data, §§ 6, 11 Hess. SpielhG contain a sufficient legal basis for this collection. According to Art. 6, Par. 1 DSGVO, the processing is lawful if it is necessary for the performance of a task that is in the public interest. According to Art. 6 para. 2, para. 3 DSGVO, the member states can create the necessary legal basis for this. The purpose of the processing must be defined in this legal basis. According to §§ 6, 11 Hess. SpielhG, the data required for blocking must be processed. The purpose of this data processing is defined in § 6 para. 1 p. 1 Hess. SpielhG. Accordingly, the blocking system is maintained to protect the players and to combat gambling addiction.
d) The above-mentioned regulations serve to regulate market behavior in the interest of market participants, namely consumers. The express legal purpose of § 6 is to combat gambling addiction, and that of § 5 is to protect minors. The regulations are intended to help limit the range of gambling and to steer it in an orderly and supervised direction, thereby ensuring the protection of minors and players (cf. Köhler in Köhler/Bornkamm/Feddersen, 38th Edition 2020, UWG, § 3a marginal no. 1,332; marginal no. 1,244).
e) The defendant partially failed to implement the prescribed access control and thus violated Sections 5 (2), 6 (2) Hess. SpielhG.
aa) It can be left open whether there are sufficient indications that could give rise to doubts as to the correctness and completeness of the assessment of evidence by the Regional Court (§ 529 (1) No. 2 ZPO). The Regional Court has determined that witness A entered one of the three gambling halls of the defendant on 4.12.2016 at about 14.20 hrs and gambled away € 5,- without prior inspection. The defendant reprimands that a confrontation of the mutually named and questioned witnesses was necessary, which did not take place.
bb) In the end, this does not matter, since the plaintiff unchallengedly presented a further violation in his written pleadings dated July 31, 2017 (sheet 70, loc. cit.) and October 24, 2017 (sheet 103, loc. cit.). He had a follow-up inspection carried out on 1 June 2017. The investigator had been able to establish that ten guests had not been checked for identity documents. A comparison with the OASIS locking system had not taken place. This undisputed act of infringement bears the requested ban. The Senate pointed this out in a letter dated 13.2.2020. The judicial reference was also the subject of the telephone conversation of 16.3.2020 with the original defendant's representative, which was noted in the file (p. 210 of the annex). With this submission, the plaintiff has permissibly presented an alternative set of facts which does not contradict the main submission (see BGH WM 2019, 1441 marginal no. 27). A party is not prevented from supplementing its submission in the course of the lawsuit (BGH, decision of 16.4.2015 - IX ZR 195/14, juris).
f) The right to injunctive relief is not time-barred. The objection raised for the first time in the appeal proceedings is procedurally admissible, since the facts on which it is based have remained undisputed. However, it is void.
aa) The Defendant refers to the fact that the plaintiff modified his motion for an injunction originally announced in the statement of claim of March 20, 2017, in the oral hearing of September 20, 2017 - probably on judicial advice (p. 84 of the annex). While the original request was to permit playing without access control according to § 5 (1) No. 1, No. 5 Hess. SpielhG, the new application referred to permitting playing without access control by presenting a photo ID and comparing it with the blocking file. Contrary to the defendant's opinion, this does not change the subject matter of the dispute. According to the merits of the case, both applications were intended to prohibit entry to the gaming library without access control. The grounds for the lawsuit show that the original application was intended to pursue the failure to compare the data with the blocking file (p. 6).
bb) In any case, the infringement of June 1, 2017 would not be time-barred even if the amendment to the application was intended to change the subject matter of the dispute. The six-month limitation period had not yet expired at the time of the amendment to the application on 20 September 2017.
3. the plaintiff is also entitled to reimbursement of the costs of information regarding the operator of the amusement arcades in the amount of 16 € (§ 9 UWG).
4. the decision on costs is based on §§ 97, 92 para. 2 ZPO. The additional claim of the plaintiff with regard to the partial withdrawal of the action was relatively minor and did not cause higher costs.
The decision on provisional enforceability is based on §§ 708 No. 10, 711 ZPO.
5. the requirements for an admission of the appeal (§ 543 (2) ZPO) are not met.
