Distance collision among betting intermediaries: legislative gap in the selection procedure criticized

Decision of the OVG Saarland against administrative order addresses deficiencies in the statutory criteria for the selection procedure in the event of a distance collision among betting intermediaries

With decision of 11.02.2026 (Az. 1 B 127/25) the Higher Administrative Court of Saarland (OVG Saarland) has issued an interesting decision on the minimum distance requirement and on the selection procedure between competing betting intermediaries.

The 1st Senate makes clear: If statutory criteria for selecting between two locations that collide due to the minimum distance are absent, the administrative decision violates the principle of legal reservation (Gesetzesvorbehalt). The selection decision is then unlawful.

The decision is final and has considerable significance for operators of betting intermediaries, sports betting providers and licensing authorities.

Legal framework: minimum distance, freedom of occupation and legal reservation

The decision is based in particular on § 11 AG GlüStV Saarland as well as the provisions of the Glücksspielstaatsvertrag 2021.

According to § 11 Abs. 9 Satz 1 AG GlüStV-Saar, betting intermediaries must not fall below a certain minimum distance from each other. If a so-called distance collision among betting intermediaries occurs, only one of the competing businesses can receive a permit.

This is regularly associated with a serious interference with freedom of occupation (Art. 12 Abs. 1 GG). In the case of cross-border involvement – as here with an organizer based in Malta – the freedom to provide services and right of establishment under EU law are also affected.

According to established case law of the Federal Constitutional Court, the principle of legal reservation requires that the legislature itself regulate the essential matters in areas relevant to fundamental rights. This includes in particular the criteria for selection decisions, where multiple applicants compete for limited state authorization.

This was precisely the issue: two betting intermediaries at the minimum distance

In the concrete case, two betting intermediaries stood facing each other in D-Stadt, which were located merely 29 meters apart. Due to the statutory minimum distance requirement, both locations could not be approved. Thus, there is a distance collision among betting intermediaries between the two locations.

The applicant – a Maltese sports betting organizer – applied for an operating permit for a location on D-Straße. An application for a competing location on E-Straße was also pending.

The authority decided in favour of the competition and denied the applicant the permit. At the same time, it required her to ensure that no sports bets were anymore brokered to her at that location.

The authority based the selection decision essentially on:

• the time of complete application submission (priority principle),
• an alleged "better willingness to cooperate" of the competitor,
• qualitative aspects.

The Administrative Court granted interim legal protection. Against this, the authority filed an appeal – without success.

The decision of the OVG: no selection procedure without statutory criteria

The OVG Saarland confirmed the decision of the lower court and dismissed the appeal.

Missing statutory regulation for a "new" distance collision among betting intermediaries

• § 11 Abs. 10 AG GlüStV-Saar does contain regulations for selection between competing locations – however, only for applications that were completely submitted by the statutorily prescribed deadline of 21 August 2021.

For applications submitted later or which only become ripe for decision later, the law contains no selection criteria.

The court makes clear:
Such a gap must not be filled by administrative improvisation. Neither the priority principle ("first-come-first-served principle") nor a value-based comparison of alleged "lawfulness" can be soundly derived from the law in the case of a distance collision among betting intermediaries.

Violation of the principle of legal reservation

According to the opinion of the Senate, the state legislature should itself have determined:

• according to which criteria competing locations are to be selected in the event of a distance collision among betting intermediaries,
• whether a lottery procedure,
• qualitative criteria,
• investment protection aspects,
• or other standards shall apply.

Precisely because the selection decision against the unsuccessful applicant factually constitutes aprofessional ban at the specific location, it is a material matter within the meaning of the constitutional doctrine of essentiality.

The OVG furthermore emphasises the connection betweenstatutory reservation and principle of determinacy:
The norm must be framed in such a way that state action remains foreseeable and subject to judicial review. The administrative reasoning practised here in deciding on a distance collision at betting intermediaries – sometimes the priority principle, sometimes qualitative criteria – illustrates the existing legal uncertainty.

Court does not fill legislative gap

The OVG makes this particularly clear:

It is neither the task of the administration nor of the courts to replace a regulation omitted by the legislature with their own selection criteria.

Such "filling out" would violate the separation of powers.

Practical significance for operators and organisers

The decision has far-reaching consequences forgambling law, in particular for betting intermediaries and sports betting organisers:

• Distance collisions without clear statutory selection criteria are challengeable.
• Administrative selection decisions must be clearly based on a statutory foundation.
• The priority principle or qualitative assessments are insufficient without statutory anchorage.
• In preliminary relief proceedings, effective legal protection may be afforded even where the underlying norm has constitutional deficiencies.

For operators this means: a rejection decision due to minimum distance in the event of a distance collision at betting intermediaries is by no means automatically lawful.

Our recommendation: early review and strategic litigation management

A distance collision at betting intermediaries is one of the legally most complex constellations in gambling law. It affects:

• freedom of profession (Art. 12 GG),
• Union law fundamental freedoms,
• thestatutory reservation,
• administrative procedure law participation obligations,
• and questions of effective legal protection under Art. 19 Abs. 4 GG.

If you have applied foran operating licence for a betting intermediary, are confronted with arefusalor acompetitive situation due to minimum distanceexists, early legal analysis is imperative.

As a law firm specialising inter alia inadministrative law,the experts atAVANTCORE Rechtsanwältein Stuttgart represent organisers and operators nationwide in licensing procedures as well as in administrative court preliminary relief and merits proceedings.

We examine the statutory foundation of the selection decision, analyse constitutional points of attack and develop a sound litigation strategy.

Contact us early – particularly in gambling law, the correct strategy in preliminary relief proceedings frequently determines the economic success of a location.

Further articles on the subjectminimum distance to betting intermediariescan be found here:

100-metre minimum distance for betting intermediaries: VG Düsseldorf consistently confirms the regulation of betting offices

Minimum distance to betting offices in NRW decided stringently by VG Düsseldorf on 07.05.2025