**The Ruling**
The decision, announced on 27 February, supported operators licensed in Malta who were conducting business in Austria’s market without a local license. The court determined that previous Austrian judgments were contrary to Maltese public policy.
Austria’s online gambling is dominated by the monopoly operator Casinos Austria, with its Win2Day offering being the only licensed online product in the country. The market, similar to Germany, has encountered several high-profile claims where players have attempted to recover losses from offshore operators deemed illegal within these regions.
Players who have engaged in gambling outside the monopoly have often found themselves in court, either retrieving losses from illegal operators or refunding winnings to unlicensed operators. Frequently, the operators in these cases are licensed in Malta.
**Malta Judgment**
The Maltese ruling this week concerned a player who gambled in 2020, losing €38,325 ($39,845/$31,653) through Malta-licensed operator European Lotto and Betting Limited, known as Lottoland. An Austrian court previously ruled that the player could recover their losses due to the operator’s illegality in the market, but the Malta Gambling Authority (MGA) brought the case to a local court.
Malta’s courts argued that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) permits services, such as online gambling, to be provided across EU states. It serves 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 contradicted the TFEU. Consequently, the Maltese court refused to enforce the Austrian judgments, as they were against Maltese public policy.
Representing the MGA, Davinia Cutajar, legal partner at WH Partners, stated that 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 noted that Austria’s monopoly’s compliance with EU law has been questioned multiple times.
She mentioned that numerous rulings from the Court of Justice of the European Union (CJEU) have 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 Maltese decision, noting that it reinforced the operator’s previously stated position on the matter.
**Past Austrian Decisions**
In 2021, the Austrian Supreme Court determined that foreign igaming brands were operating illegally in the country, invalidating player contracts and permitting players to attempt to recover their losses. This decision impacted Betclic Everest subsidiary Bet-at-home, which was ordered to pay €2.8m in player losses nearly 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. The courts found that both the player and operator had violated Austrian gambling laws, rendering their contract invalid. That decision essentially determined that both parties knowingly operated illegally, and the player was required to pay the operator’s court fees.
**Austrian Online Gambling Facing Liberalization**
The frequency of such player disputes involving Austria and Maltese-based operators could decrease in the near future, as Austria is likely nearing the end of its online casino monopoly. Casinos Austria was granted a 15-year license and a monopoly on online gambling, but this license is set to expire on 30 September 2027. Austrian authorities are expected to initiate the tendering process for new licenses this year.
Austrian Betting and Gaming Association Vice President Simon Priglinger-Simader expressed optimism about a potential shift away from the monopoly system within Austrian online gambling. In December, European Gambling and Betting Association (EGBA) president secretary general Maarten Haijer encouraged Austria to open up online gambling. “The evidence from across Europe is clear and compelling: multi-licensing works,” Haijer stated. “It brings gambling activity into the regulated market, protects consumers, and generates significant tax revenue.”
The Maltese Civil Court has ruled it will not enforce Austrian court judgments that favor players seeking refunds for gambling on sites not licensed locally.