What can we learn from Germany's latest hearing on illegal gambling losses?

Thousands of players, their lawyers, litigation funders and the gambling industry have waited months for this ruling. Indeed last week, the I. Civil Senate of the Bundesgerichtshof (BGH), Germany's highest court in civil matters, heard two appeals on the recovery of losses from unlicensed online gambling.

Case I ZR 216/25 and case I ZR 78/25 could shape the outcome of tens of thousands of pending lawsuits. Rechtsanwalt István Cocron, Managing Director of Rechtsanwalt Cocron GmbH & Co. KG (Munich/Berlin), attended the hearing in person. His firm represents a large number of affected players. 

A lead case for an entire litigation wave 

On 19 May 2026, the BGH designated case I ZR 216/25 as a Leitentscheidungsverfahren. This procedural tool, introduced into the German Code of Civil Procedure (§ 552b ZPO), allows the court to single out one appeal whose legal questions matter for a large number of parallel cases. The numerous other online gambling appeals pending before the Senate are to remain stayed until the lead case is resolved. 

The facts are typical of the entire litigation complex. The defendant, an operator based in Malta, offered online casino games through a German-language website. It held a Maltese licence, but no German one. The claimant played between 25 December 2020 and 3 September 2022 and now seeks the return of €10,092 ($11,583) in losses. The Regional Court of Heilbronn and the Higher Regional Court of Stuttgart both ruled in his favour. The operator's appeal to the BGH seeks dismissal of the claim. 

The second case turned on a different issue. The player won at first instance, but the appellate court dismissed the claim because he had partly played from abroad. He has now appealed to the BGH. 

The legal framework 

German law distinguishes two periods: 

• Until 30 June 2021: The Interstate Treaty on Gambling 2012 (GlüStV 2012) prohibited public online gambling without exception. 

• From 1 July 2021: The GlüStV 2021 allows online casino games in principle, but only with a German licence. Operating without one remains unlawful. 

In civil law, this has a direct consequence. A contract that violates a statutory prohibition is void under § 134 of the German Civil Code (BGB). Stakes paid under a void contract lack a legal basis and must be returned as unjust enrichment (§ 812 BGB). 

The EU law question has been answered 

The BGH had stayed the lead case in February 2026 pending a ruling of the Court of Justice of the European Union (CJEU) in case C-440/23. That judgment was delivered on 16 April 2026 and settled the core EU law question. Member States may prohibit certain forms of online gambling in order to channel gambling into controlled settings and combat black markets.

Each Member State may set its own level of protection. A licence issued by another Member State, such as Malta, does not legitimise an offer that is prohibited in Germany. Crucially, EU law does not prevent national courts from declaring such contracts void, and consumers may reclaim their lost stakes. 

This removed the operators' central line of defence. What remained for Karlsruhe were questions of German law. 

The issues on the table 

• Jurisdiction and applicable law: Do German courts remain competent, and does German law continue to apply, if the claim has been assigned to a litigation funder? 

• § 817 sentence 2 BGB: This provision bars recovery where the paying party itself acted unlawfully. Operators regularly argue that players broke the law by taking part. The appellate court rejected this argument. 

• Statute of limitations: For losses incurred before 1 January 2021, the appellate court applied the so-called residual damages claim under § 852 BGB. In simple terms, whoever has obtained something through an unlawful act must hand it over even after the ordinary damages claim is time-barred. The limitation period for this claim is ten years. 

• Protective statute: The route via § 852 BGB is open only if the licensing requirement also protects the individual player. Only then can it ground a damages claim under § 823(2) BGB. 

• Play from abroad: Can players recover losses before German courts where they occasionally played from outside Germany? 

• Litigation funding: Does it harm the claim if the player assigned it to a funder as security, while being authorised to continue the lawsuit in his own name? 

What the court indicated 

The Senate made its preliminary assessment clear in the courtroom. According to the presiding judge, the court continues to regard the licensing requirements of both the GlüStV 2012 and the GlüStV 2021 as statutory prohibitions and as protective statutes. In practice, this means that players could continue to claim losses retroactively for up to ten years, regardless of when they became aware of their claim. 

The court also indicated that operators cannot derive protection from civil claims from the so-called Umlaufbeschluss. In this resolution, the German federal states agreed on how to treat operators during the transition to the new licensing regime. Counsel for the player argued that the resolution at most assured operators that their earlier violations would not be held against them in the later licensing procedure. It could not, however, shield them from repayment claims. There is no reason, he argued, why profits from gambling offered without the required licence should remain with the operator. 

On litigation funding, the court's preliminary view was equally clear. A player who finances the case through a funder does not lose standing to sue. The same applies to the consumer's right to sue in Germany, even where the funder holds the claim as security and has authorised the player to pursue it in his own name. 

Playing on holiday does not defeat the claim 

After a short break, the Senate heard the second case. Operators have so far sometimes succeeded in arguing that players took part from holiday destinations abroad rather than from Germany. 

According to the court's preliminary assessment, the decisive factors are where the player opened the account and where he had his habitual residence during the period of play. If the account was opened in Germany and the player habitually lived there, occasional stays abroad are irrelevant. German courts may then award losses for those periods as well. 

The court reasoned that the harmful consequences of illegal online gambling, such as addiction, financial hardship and social problems, typically materialise not at the holiday resort but at home in Germany. The protective purpose of the GlüStV therefore extends to play from abroad. This approach is consistent with the CJEU's judgment of 15 January 2026 in Wunner (C-77/24), which likewise focused on the player's habitual residence rather than his physical location at the time of play. 

When will the judgment come? 

A final decision will take time. The BGH announced that it will schedule the pronouncement of its judgment only after the CJEU has ruled on the separate reference concerning online sports betting (case C-530/24). This is to avoid possible contradictions. According to the presiding judge, that CJEU ruling is expected by the end of 2026. A BGH judgment is therefore unlikely before early 2027. 

It is worth noting that online sports betting is not covered by the lead case. The BGH referred those questions to the CJEU separately in July 2024. The corresponding sports betting cases remain stayed until the CJEU rules. 

What this means for players 

• For losses at online casinos without a German licence, final clarification by the highest court is imminent. 

• Pending cases will probably remain stayed until the lead case is decided. This is no disadvantage, because the limitation period is suspended while proceedings are pending. 

• Players who have not yet brought claims should have their individual limitation periods checked promptly, before a favourable ruling comes too late for them. 

In Rechtsanwalt Cocron's assessment, the hearing sent a clear message. The BGH maintains its position that losses from online gambling offered in Germany without a licence can be recovered from operators for up to 10 years. The upcoming decisions are likely to provide significant momentum for pending claims in the lower courts.