The ruling, delivered on 27 February, supported Malta-licensed operators that had conducted business in Austria’s market without a local license. The court determined that previous Austrian judgments were against Maltese public policy.
Austria’s online gambling landscape is dominated by the monopoly operator Casinos Austria. Its Win2Day product is currently the only licensed online option in the country.
The market, alongside Germany, has faced several high-profile player loss claims where players have sought to reclaim losses from offshore operators considered illegal within these markets.
Players who gamble outside this monopoly have found themselves in court, either receiving returned losses from illegal operators in the market or, in other cases, being required to pay back winnings to unlicensed operators. Many of the operators involved in these cases are licensed in Malta.
## Malta Judgement
The Maltese ruling this week pertains to a player who gambled in 2020 and lost €38,325 ($39,845/£31,653) through the 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 operator’s illegality in the market. However, the case was brought to a local court by the Malta Gambling Authority (MGA).
Malta’s courts have argued that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) provides 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 contradicts the TFEU.
As such, the Maltese court has refused to enforce the Austrian judgments, stating that they are contrary to Maltese public policy.
Representing 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 highlighted that the Austrian monopoly’s compliance with EU law has been questionable on several occasions.
She stated 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).
Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, stating 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 reclaim 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 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, rendering their contract invalid.
Essentially, that decision determined 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 decrease in the coming years as Austria is likely on the verge of ending the country’s online casino monopoly.
Casinos Austria was granted a 15-year license and a monopoly on online gambling. However, its license is due to expire on 30 September 2027. Austrian authorities are expected to begin the tendering process for new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism earlier this month about the potential for Austrian online gambling to move away from the monopoly system.
In December, European Gambling and Betting Association (EGBA) President Secretary General Maarten Haijer called 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.”
The Maltese Civil Court has ruled that it will not enforce Austrian court judgments that favored players being awarded refunds for gambling on sites not locally licensed.