The ruling delivered on 27 February supported Malta-licensed operators that conducted business in Austria’s market without a local license. The court determined that earlier Austrian judgments conflicted with Maltese public policy.
Austria’s online gambling market is dominated by the monopoly operator Casinos Austria, whose Win2Day offering is currently the sole licensed online product in the country.
Alongside Germany, the market has faced several high-profile claims from players attempting to recover losses from offshore operators, which are considered illegal in these markets.
Players gambling outside the monopoly have found themselves in court, receiving refunds for losses from illegal operators, while others have had to return winnings to unlicensed operators. In many cases, the operators involved were 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 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 for services (like online gambling) to be offered across EU states.
This article acts as a “primary source of community law,” which serves 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 contradict the TFEU.
Therefore, the Maltese court refused to enforce the Austrian judgments, declaring them contrary to Maltese public policy.
Representing the MGA, Davinia Cutajar, legal partner at WH Partners, stated that the decision has important 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 the legality of Austria’s monopoly under EU law has been questioned on multiple occasions.
She mentioned 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 TFEU.
In a statement, Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, stating it confirmed the operator’s previously expressed stance on the matter.
## Past Austrian Decisions
In 2021, 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 impacted Betclic Everest subsidiary Bet-at-home, which was ordered to pay €2.8 million 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 player and operator violated Austrian gambling laws, rendering the contract between them invalid.
The decision essentially ruled that both parties knowingly operated illegally, with the player being ordered to pay the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
Such player disputes involving Austria and Maltese-based operators could decrease in the coming years as Austria is likely to end the country’s online casino monopoly.
Casinos Austria was granted a 15-year license and a monopoly on online gambling. However, its license is set to expire on 30 September 2027, and Austrian authorities are expected to start the process of tendering new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism earlier this month for the potential shift 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. “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 awarded refunds for gambling on sites that were not locally licensed.