The ruling, delivered on 27 February, backed Malta-licensed operators that had done business in Austria’s market without a local licence. The court ruled that previous Austrian judgments were contrary to Maltese public policy.
Austria’s online gambling landscape is dominated by monopoly operator Casinos Austria. Its Win2Day offering is currently the only licensed online product in the country.
The market, alongside Germany, has faced a number of high-profile player losses claims whereby players have attempted to claim back losses from offshore operators as they are deemed illegal within these markets.
Players that gamble outside this monopoly have found themselves in court being returned losses from illegal operators in the market, while others have found themselves paying back winnings to unlicensed operators. In many instances the operators caught up in these cases are licensed in Malta.
Malta judgement
The Maltese ruling this week is in relation to a player who gambled in 2020 and lost €38,325 ($39,845/$31,653) via Malta-licensed operator European Lotto and Betting Limited, operating as Lottoland.
An Austrian court had previously ruled that the betting party could recover their losses due to the illegality of the operator in the market but the case was brought to a local court by the Malta Gambling Authority (MGA).
Malta’s courts have argued that the EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) gives provision for services (like online gambling) to be provided across EU states.
It acts as a “primary source of community law” which is a “fundamental rule of the legal order” for both the EU and Malta.
Malta’s court also argued that Austria’s federal law on games of chance and its online gaming monopoly goes against the TFEU.
As such, the Maltese court has refused to enforce the Austrian judgments, stating that they are contrary to Maltese public policy.
Acting on behalf of the MGA, Davinia Cutajar, legal partner at WH Partners, said the decision has significant implications for the gambling industry, as it “reinforces the autonomy of Maltese regulatory authorities and the jurisdiction of Maltese courts over gambling-related matters.”
Cutajar also flagged that the Austrian monopoly’s compliance with EU law has come into question on a number of occasions.
She said in a post on the firm’s website that numerous rulings from the Court of Justice of the European Union (CJEU) supported the position that Austria’s monopoly model violates Article 56 of the Treaty on the Functioning of the European Union (TFEU).
In a statement to iGB, Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta as he said it reinforced the operator’s previously expressed position on the matter.
Past Austrian decisions
In 2021, when the Austrian Supreme Court ruled that foreign igaming brands were illegally operating in the country, player contracts were deemed invalid and players sought to recoup their losses.
That decision had an impact on Betclic Everest subsidiary Bet-at-home, which was ordered to pay €2.8m in player losses almost three years after its market withdrawal (in August 2024).
In another case last year, an Austrian customer was ordered to return their winnings to an unnamed unlicensed operator in the market. The courts found that both player and operator had violated Austrian gambling laws and that the contract between them was therefore invalid.
Essentially, that decision ruled that both parties knowingly operated illegally and the player was ordered to pay the operator’s court fees
Austrian online gambling facing liberalisation
This type of player dispute involving Austria and Maltese-based operators could be reduced in the coming years as Austria is likely on the verge of ending the country’s online casino monopoly.
Casinos Austria was given a 15-year licence and a monopoly on online gambling. However, its licence is due to expire on 30 September 2027. Austrian authorities are expected to begin the tendering process for new licences this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader told iGB earlier this month that he was “optimistic for the first time ever” that Austrian online gambling could move away from the monopoly system.
This past December, European Gambling and Betting Association (EGBA) president secretary general Maarten Haije made a call for Austria to open up online gambling.
“The evidence from across Europe is clear and compelling: multi-licensing works,” Haijer said. “It brings gambling activity into the regulated market, protects consumers and generates significant tax revenue.”
Original article: https://igamingbusiness.com/legal-compliance/malta-court-rules-it-will-not-enforce-austrian-player-losses-judgements/
