Gaming Machine Hall Law: No toleration for gaming machine halls – the requirements are strict

Gambling State Treaty 2021: tightened requirements for toleration of gaming machine halls in North Rhine-Westphalia

With the Glücksspielstaatsvertrag 2021 (GlüStV 2021) and the North Rhine-Westphalian Ausführungsgesetz zum Glücksspielstaatsvertrag (AG GlüStV NRW) the legislature has realigned the regulation of gaming machine halls and at the same time significantly tightened it. At the centre are the licensing requirement, the minimum distance requirement as well as the quality requirements for operational management.

The operation of gaming machine halls is, pursuant to § 24 GlüStV 2021 i. V. m. § 16 AG GlüStV NRW, subject to licensing; without a licence, operation is generally prohibited. The OVG NRW makes clear that prior to commencing a licensed commercial activity, generally the complete conclusion of the licensing procedure must be awaited.

Toleration for gaming machine halls comes into question only in narrowly, strictly defined exceptional cases – for instance, if an operator obviously meets all material licensing requirements. According to the panel's view, however, this is only exceptionally conceivable.

Particularly significant: The transitional provisions (§§ 17a, 18 AG GlüStV NRW) which applied until 30.06.2022 have expired. Whoever did not fully and in a timely manner submit a licensing application by this cut-off date or – in the event of administrative inaction – sought interim legal protection irrevocably loses the grandfathering protection.

This was precisely the issue: distance conflict between two locations in S.

The subject matter of the order is a dispute between two gaming machine halls at T.-Straße 20 and T.-Straße 26 in S., the distance between which is only 82.4 m. This triggers the strict distance requirement of § 16 AG GlüStV NRW, according to which only one of the two halls may receive a licence.

The competent authority made a selection decision in favour of the operation at T.-Straße 26 and rejected the applicant's application. The applicant sought by way of interim legal protection the toleration of her gaming machine hall operation pending a fresh decision on her licensing application. The Administrative Court rejected this – and the OVG NRW confirms this decision in its order of 11.11.2025 (4 B 193/23) in full.

No interim order for toleration of gaming machine halls: Why the OVG rejects the appeal

1. No claim for an order – strict requirements for toleration of gaming machine halls

The OVG emphasizes once again that a claim to toleration for gaming machine halls exists only in strictly limited exceptional cases. Such a claim is assumed only when

• the gaming machine hall obviously meets the material licensing requirements and
• this without further detailed examination is apparent.

The Court explicitly denies both.

Moreover, according to the Court, freedom of occupation under Art. 12 GG is not violated, as the licensing requirement is constitutionally unproblematic.

2. No effective need for legal protection – delayed action by the applicant

The Court states with great clarity that the operator itself prevented the retroactive securing of its operation by a toleration permit for gaming halls:

• The applicant had submitted her application for a permit dated 25.03.2021 initially incomplete.
• Requested documents were only submitted on 24.06.2022.
• A decisive part of the application (floor plan, usable floor space calculation) was submitted on 29.06.2022 – that is, one day before the expiry of the last permit continuation (§ 18 Abs. 2 AG GlüStV NRW).

Moreover, a timely court action under § 75 VwGO (action for failure to act) was not undertaken. The court makes unambiguously clear that the applicant thereby did not exhaust her statutory options.

Consequence: No grandfather clause protection – no toleration permit for gaming halls.

The selection decision: why the other operation was rightfully preferred

1. Comparison of operation suitability – no material differences

The authority had compared the two competing operations with regard to

• quality of operation management,
• compliance with conditions imposed,
• findings from premises inspections,
• violations and administrative offences

– without finding any decision-relevant differences.

Violations at the competing operation from 2013 may not be assessed negatively in view of the passage of time, deletion from the Commercial Register and a change of management in 2015. Since 2018, there have been no more findings there. The applicant's operation also had earlier violations, so no quality advantage was apparent.

2. Non-binding undertakings are not a suitable basis for decision-making

Particularly relevant to practice:
The applicant had undertaken to increase, inter alia,

• the age of admission to 21 years and to
• the number of gaming machines on a permanent basis.

The Higher Regional Court (OVG) confirms the authority in attaching no weight to these undertakings. Declarations of intent are not reliable, as they could be withdrawn at any time and do not replace the quality of past operating practice. For the prognosis decision, only the actual conduct counts.

3. Grandfather clause and trust protection of the competing operator

Even without the earlier hardship provision, grandfather clause and trust protection may play a subordinate role in the selection decision. Here, trust clearly favoured the competing operator:

• The gaming hall at T.-Straße 26 already existed before the disclosure of the minimum distance requirement.
• The applicant only took over her location when the forthcoming minimum distance requirement was already publicly foreseeable.

This means that the competitor's trust is to be weighted significantly more heavily.

Classification and significance for gaming arcade practice in North Rhine-Westphalia

The decision illustrates the continuing strict line of the OVG NRW:

• Emergency proceedings have been hardly ever successful since the expiry of the transition periods.
• Operators must submit their application documents early, completely and demonstrably.
• Those who miss deadlines lose not only the permit – they also lose the legal possibility of obtaining a toleration for gaming arcades.
• The quality of business operations is central – declarations of intent play virtually no role.
• In distance disputes, details such as operating hours and legitimate expectation can be decisive.

For practice, this means:

Not only for a toleration for gaming arcades is a properly documented, objection-free operational practice and a strategic support required in order to be able to make use of the authorities' discretionary scope at all.

Practical note and recommendation for operators: Act strategically – obtain advice early

Operators are urgently advised to:

• submit all permit documents completely and early,
• examine inaction suits and emergency legal protection in good time,
• pursue a tactically well-considered argumentation strategy in distance disputes,
• document business operations without gaps,
• and actually implement measures to increase permit eligibility – not merely announce them.

Not only in the restrictive North Rhine-Westphalian legal framework is specialised administrative law advice decisive in order to realistically assess and make best use of one's own chances.

If you yourself are affected by a distance dispute or are seeking a permit under new law, the experienced administrative law specialists of AVANTCORE Rechtsanwälte in Stuttgart will be happy to advise you individually and comprehensively.

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