The ruling, delivered on 27 February, supported Malta-licensed operators that had engaged with Austria’s market without a local license. The court decided that previous Austrian judgments were against 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, along with Germany, has seen numerous high-profile player losses claims, with players attempting to reclaim losses from offshore operators, as these are deemed illegal within these markets.
Players gambling outside the monopoly have found themselves in court, with some having losses returned from illegal operators, while others have been ordered to repay winnings to unlicensed operators. Many of these operators involved are licensed in Malta.
## Malta Judgment
The Maltese ruling this week pertains to a player who gambled in 2020, losing €38,325 ($39,845/£31,653) with Malta-licensed operator European Lotto and Betting Limited, operating 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 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) allows 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 violate the TFEU.
As a result, the Maltese court 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 pointed out that the Austrian monopoly’s compliance with EU law has been questioned on several occasions.
She noted that numerous 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).
In a statement, Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, saying 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 invalidated, and players sought to recover their losses.
That 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 unnamed unlicensed operator. The courts found that both the player and operator had breached Austrian gambling laws, rendering their contract 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 Liberalization
Such player disputes involving Austria and Maltese-based operators could reduce in the coming years as Austria moves towards ending its online casino monopoly.
Casinos Austria was granted a 15-year license and a monopoly on online gambling. However, this license is set to expire on 30 September 2027, and Austrian authorities are expected to commence the tendering process for new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism that Austrian online gambling could transition away from the monopoly system.
In December, European Gambling and Betting Association (EGBA) 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 stated, noting that 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 player refunds for gambling on unlicensed sites.