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 prior Austrian judgments were contrary to Maltese public policy.
Austria’s online gambling landscape is dominated by monopoly operator Casinos Austria, with its Win2Day offering being the only licensed online product in the country.
The market, along with Germany, has seen numerous high-profile player loss claims where players attempted to reclaim losses from offshore operators deemed illegal within these markets.
Players gambling outside this monopoly have found themselves in court, with some receiving returns from illegal operators while others have been required to pay back winnings to unlicensed operators. Many of the operators involved in these cases are licensed in Malta.
## Malta Judgment
The Maltese ruling this week pertains to a player who, in 2020, lost €38,325 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 operator’s illegality in the market, prompting the Malta Gambling Authority (MGA) to bring 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) allows for services (like online gambling) to be provided across EU states.
It is considered 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 contended that Austria’s federal law on games of chance and its online gaming monopoly contravenes the TFEU.
As such, the Maltese court refused to enforce the Austrian judgments, stating that they oppose Maltese public policy.
Acting on behalf of the MGA, Davinia Cutajar, legal partner at WH Partners, noted the decision has significant implications for the gambling industry, reinforcing the autonomy of Maltese regulatory authorities and the jurisdiction of Maltese courts over gambling-related matters.
Cutajar also highlighted that the compliance of Austria’s monopoly with EU law has been questioned multiple times.
She mentioned that several rulings from the Court of Justice of the European Union (CJEU) supported the view 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 stance on the issue.
## Past Austrian Decisions
In 2021, when the Austrian Supreme Court ruled that foreign igaming brands were operating illegally in the country, player contracts were deemed invalid and players sought to recoup their losses.
This decision affected 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 unspecified unlicensed operator in the market. The courts found that both player and operator violated Austrian gambling laws, rendering the contract between them invalid.
That ruling determined that both parties knowingly operated illegally, and the player was ordered to pay the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
Such player disputes involving Austria and Maltese-based operators could diminish as Austria is likely on the verge of ending the country’s online casino monopoly.
Casinos Austria was granted a 15-year license and monopoly on online gambling, but its license is set to expire on 30 September 2027. Austrian authorities are expected to start the tendering process for new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism for the first time that Austrian online gambling could 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, asserting that “multi-licensing works” by bringing gambling activity into the regulated market, protecting consumers, and generating 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.