The ruling, delivered on 27 February, supported Malta-licensed operators that had conducted business in Austria’s market without a local license. The court found that previous Austrian judgments were contrary to Maltese public policy.
Austria’s online gambling market is primarily controlled by the monopoly operator Casinos Austria. Its Win2Day platform is the only licensed online product in the country.
The market, along with Germany, has encountered several high-profile claims where players have attempted to reclaim losses from offshore operators, as these operators are considered illegal within these markets.
Players gambling outside this monopoly have sometimes gone to court, recovering losses from illegal operators in the market, while others have had to return winnings to unlicensed operators. Often, the operators involved in these cases are licensed in Malta.
## Malta Judgment
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, known as Lottoland.
An Austrian court had previously ruled that the bettor could recover their losses due to the operator’s illegality in the market, but the case was presented to a local court by the Malta Gaming Authority (MGA).
Malta’s courts have argued that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) allows for services (such as online gambling) to be provided across EU states.
It serves as a “primary source of community law” and 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 violate the TFEU.
Therefore, the Maltese court has refused to enforce the Austrian judgments, declaring them contrary to Maltese public policy.
Davinia Cutajar, acting on behalf of the MGA and a 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 noted that Austria’s monopoly 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 stance 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 viewpoint 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 recover their losses.
This decision affected 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 required to return their winnings to an unnamed unlicensed operator in the market. The courts concluded that both player and operator had violated Austrian gambling laws, rendering the contract between them invalid.
Essentially, that decision determined that both parties knowingly operated illegally, and the player was ordered to cover the operator’s legal fees.
## Austrian Online Gambling Facing Liberalisation
This type of player dispute involving Austria and Maltese-based operators might decrease in the coming years, as Austria is likely on the brink of ending the country’s 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 earlier this month that he was “optimistic for the first time ever” that Austrian online gambling might move away from the monopoly system.
This past December, European Gambling and Betting Association (EGBA) president secretary general Maarten Haijer urged Austria to open up online gambling.
“The evidence from across Europe is clear and compelling: multi-licensing works,” Haijer said. “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 that favored players being awarded refunds for gambling on sites that were not locally licensed.