Online casino: OLG Brandenburg rejects contributory negligence defence

Have you played for years at an online casino without a German licence and want to reclaim your losses? In such cases, providers often respond with a seemingly convincing argument: “You yourself violated gambling law. Under Section 817(2) BGB, you therefore have no claim for repayment.” However, this argument does not hold. In its landmark judgment of 16 June 2025 (case no. 2 U 24/25), the Higher Regional Court (OLG) of Brandenburg made it clear that this defence is inadmissible.

Key points at a glance:

• Section 817(2) of the German Civil Code (BGB) does not protect the provider but the player.
• The OLG Brandenburg expressly ruled this (judgment of 16 June 2025).
• Players can reclaim their losses in full – even if they themselves violated gambling law.
• The decision strengthens the position of many affected players throughout Germany.
• The ten-year limitation period (Section 852 BGB) makes 2026 particularly decisive for claims from 2016 onwards.

The case in detail:
Between 2014 and 2020, a player had gambled with a provider based in Malta without a German licence and suffered considerable losses. Only years later did he demand full repayment of his stakes.

The provider defended itself by pointing out that the player had himself violated Section 4(4) of the Interstate Treaty on Gambling 2012 (GlüStV 2012). Section 817(2) BGB (“contributory negligence”) therefore applied, so that any repayment was excluded.

The decision of the OLG Brandenburg
The court did not follow this reasoning and made it clear that:

• Section 4(4) GlüStV 2012 is a statutory prohibition within the meaning of Section 134 BGB.
• Contracts with unlicensed providers are therefore void.
• This gives rise to a claim for repayment under Section 812 BGB.
• Section 817(2) BGB does not protect the provider but must be interpreted in favour of the player (teleological reduction).

Result: The claimant got his losses back in full.

Why Section 817 BGB protects the player – not the provider

The so-called contributory negligence argument
Section 817(2) BGB is intended to prevent anyone from benefiting from their own breach of the law. Providers therefore argue: anyone who knowingly gambled illegally cannot reclaim anything.

This argument seems plausible, but it is legally incorrect.

The teleological reduction
The OLG Brandenburg emphasises that the purpose of the gambling ban is to protect consumers. The provision is meant to protect players from unregulated offers – not to relieve providers of liability.

It follows that:

• The player can rely on the invalidity of the contract.
• The provider cannot use Section 817(2) BGB to refuse repayment.

The legal position at a glance

1. No effective performance:
   As the contract is void, there is legally no effective performance by the player.
2. Repayment under Section 812 BGB:
   Amounts paid can be reclaimed because there was no legal basis for them.
3. Section 817(2) BGB does not apply:
   The court applies the provision in favour of the player and excludes its application in favour of the provider.
4. Full repayment possible:
   Claims still exist provided they have not become time-barred – particularly relevant for losses from 2014 onwards.

Practical consequences for those affected

The judgment completely undermines the providers’ most common argument. Their previous line of defence – that the player himself broke the law – is therefore largely ineffective.

For players, this means:

• Repayment claims can be enforced.
• Section 817(2) BGB is no longer an obstacle.
• Even large losses are, in principle, recoverable.

Context: support from the BGH and the CJEU

The decision is in line with current case law:

• The Federal Court of Justice (BGH) (indicative order of 22 March 2024, case no. I ZR 88/23) confirmed repayment claims in principle.
• The Court of Justice of the European Union (CJEU) provided additional clarity with its judgment of 16 April 2026 (C-440/23).
• Other proceedings (e.g. C-530/24) also point to a consumer-friendly development.

The limitation problem: why 2026 is decisive

Time plays a central role for many of those affected. The ten-year limitation period under Section 852 BGB applies.

Specifically:

• Losses from 2014 become time-barred at the end of 2024
• Losses from 2015 become time-barred at the end of 2025
• Losses from 2016 become time-barred at the end of 2026

If you are affected, you should therefore act promptly.

Our recommendation

If you suffered losses between 2014 and 2016:

• Secure your documents (bank statements, transactions)
• Have your claims legally reviewed
• Consider filing a lawsuit to suspend the limitation period

The judgment of the OLG Brandenburg significantly improves your position – but only within the periods that are still running.

FAQ – frequently asked questions

Does the judgment only apply in Brandenburg?
No. It concerns a fundamental legal question and is taken into account throughout Germany.

Do I have to prove intent on the part of the provider?
No. The lack of a licence is sufficient for the contract to be considered void.

Will I also receive interest and costs?
That depends on the individual case. In principle, ancillary claims can also be asserted.

What happens if the provider becomes insolvent?
In that case, claims must be filed in the insolvency proceedings.

Lawsuit or out-of-court settlement?
Both are possible. Negotiations often come first, followed by a lawsuit if necessary.

Conclusion

The judgment of the OLG Brandenburg (case no. 2 U 24/25) makes it clear: Section 817(2) BGB serves to protect players, not providers. Repayment claims remain valid even if the player violated gambling law.

This gives those affected a clear opportunity to recover their losses – especially as long as the limitation periods have not yet expired.