The ruling, delivered on 27 February, backed Malta-licensed operators that had conducted business in Austria’s market without holding a local license. The court determined that previous Austrian judgments were contrary to Maltese public policy.
Austria’s online gambling landscape is controlled by the monopoly operator Casinos Austria, with its Win2Day offering currently being the only licensed online product in the country.
Alongside Germany, the market has seen several high-profile player loss claims, where players have attempted to reclaim losses from offshore operators, which are considered illegal in these markets.
Players who gamble outside this monopoly have found themselves in court, some having their losses returned from illegal operators, while others have had to repay winnings to unlicensed operators. Many of the operators involved in these cases hold licenses in Malta.
## Malta Judgment
The recent Maltese ruling relates 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. However, the case was brought to a local court by the Malta Gambling Authority (MGA).
Malta’s courts argued that the 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.
This acts as a “primary source of community law,” serving as 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 contravene the TFEU.
Therefore, the Maltese court decided not to enforce the Austrian judgments, stating they contradict Maltese public policy.
Representing the MGA, Davinia Cutajar, legal partner at WH Partners, stated 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 questioned multiple times.
She stated in a post on the firm’s website that various 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 TFEU.
In a statement, Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, noting it reinforced the operator’s previously stated 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, prompting players to seek recovery of 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 the contract between them invalid.
Essentially, the decision declared that both parties knowingly acted illegally, and the player was ordered to cover the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
This type of player dispute involving Austria and Maltese-based operators might decrease in coming years as Austria moves toward ending its online casino monopoly.
Casinos Austria was granted a 15-year license and a monopoly on online gambling, but this is set to expire on 30 September 2027. Austrian authorities are expected to begin the process of tendering for new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism that Austrian online gambling may shift away from the monopoly system.
Last December, European Gambling and Betting Association (EGBA) president and secretary general Maarten Haijer urged 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 that it will not enforce Austrian court judgments favoring players being awarded refunds for gambling on sites without a local license.