GERMANY Law and Practice Contributed by: Jörg Hofmann, Matthias Spitz and Michelle Hembury, Melchers
ships and all owners of at least 5% of share capital or voting rights of capital companies must be disclosed. 10.2 Change of Corporate Control Triggers Provisions on corporate control triggers are usually very abstract, mostly lacking specification – eg, with regard to the exact percentages and timings. More specific guidance may sometimes be included in the relevant licences and some requirements can be derived from corporate law. 10.3 Passive Investor Requirements Even indirect changes of corporate control (eg, pas- sive investors) may require notification in certain situ- ations, but these will depend on the relevant state provisions and product in question, which is why no general statements can be made and a case-by-case assessment is required. Gambling regulators are empowered under the admin- istrative law or administrative offence law with respect to the territory of their state, unless they have been authorised to act on behalf of other German states as well. Criminal enforcement falls within the competen- cy of the state prosecutors. Usually, the place where the alleged violation took place will determine which state prosecutor may assume responsibility. Enforce- ment in a gambling context has been focused on administrative enforcement in the past. In the mean- time, however, a few criminal proceedings have been initiated against major operators and there seems to be a tendency on the part of the authorities to take a more rigorous approach towards unauthorised gam- bling. Enforcement was already transferred to the new 11. Enforcement 11.1 Powers Historically, enforcement has been focused on admin- istrative law. In line with general principles under Ger- man administrative law, licensed and unlicensed oper- ators will usually be approached first by the regulator by means of a hearing letter, to give them the chance to comment on the allegations. If the alleged infringe- ment cannot be rectified or the authority continues GGL in July 2022. 11.2 Sanctions
to believe that there is a violation, the regulator will issue an order interdicting the alleged infringement. This interdiction letter will usually threaten a fine, but regulators tend to actually impose fines at a later stage. In most cases, fines are only imposed after the court proceedings – initiated by the operator to chal- lenge the interdiction – have ended and the operator has lost. Apart from this, criminal enforcement will generally focus on the respective persons representing the legal entity, who are equipped with the power of rep- resentation. Criminal enforcement measures range from monetary fines to imprisonment and, due to the European arrest warrant, these prospects appear to be possible and enforceable, even if the operators or their managing directors are not themselves domiciled in Germany. 11.3 Financial Penalties Enforcement has become one of the pillars to help end the black market. Hence, aside from licensing, it is the biggest responsibility of the GGL. Up until 30 June 2022, its predecessor, the Federal Administra- tive Authority, had begun to take action against illegal operators and affiliates. The GGL has adopted this approach. The Interstate Treaty foresees using several measures to ensure effective enforcement against the black market – namely: • payment blocking; • IP (internet protocol) address blocking; • cease-and-desist orders; and • penalties of up to several thousand euros, as well as criminal prosecution.
12. Tax 12.1 Tax Rate by Sector
The types of taxes imposed on gambling operators are determined by the specific gambling product and the respective state legislation. Land-based casino operators are exempted from cor- porate taxation, but are taxed on the basis of GGR or a combination of GGR and profit tax. Tax rates between 20% and 80% apply. The applicable tax rate depends
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