The ruling, delivered on 27 February, supported Malta-licensed operators that had conducted business in Austria’s market without holding a local license. The court concluded that previous Austrian judgments contradicted Maltese public policy.
Austria’s online gambling sector is largely controlled by monopoly operator Casinos Austria, with its Win2Day platform currently being the only licensed online product in the country.
The market, similar to Germany, has experienced numerous high-profile claims where players have sought to reclaim losses from offshore operators deemed illegal within these regions.
Players gambling outside this monopoly have often found themselves in court, successfully reclaiming losses from illegal operators in the market, while others have been required to return winnings to unlicensed operators. Many of the operators involved in these cases hold licenses 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 initially ruled that the player could recover their losses due to the operator’s illegal status in the market, but the case was presented 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) allows services (like online gambling) to be provided across EU states.
This serves as a “primary source of community law” and is a “fundamental rule of the legal order” for both the EU and Malta.
The Maltese court further contended that Austria’s federal law on games of chance and its online gaming monopoly violate the TFEU.
Consequently, the Maltese court has declined 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 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 compliance of the Austrian monopoly with EU law has been questioned on numerous occasions.
She mentioned that multiple rulings from the Court of Justice of the European Union (CJEU) uphold the position that Austria’s monopoly model breaches 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 recoup their losses.
This decision impacted Betclic Everest subsidiary Bet-at-home, which was mandated 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 found that both the player and operator violated Austrian gambling laws, rendering the contract between them invalid.
Essentially, that ruling determined that both parties knowingly operated 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 may diminish in the upcoming years, as Austria is likely on the brink of ending the country’s online casino monopoly.
Casinos Austria was awarded a 15-year license and a monopoly on online gambling. However, its license is set to expire on 30 September 2027. 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 earlier this month that Austrian online gambling could depart from the monopoly system for the first time.
Last December, European Gambling and Betting Association (EGBA) president secretary general Maarten Haijer advocated 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 decided that it will not enforce Austrian court judgments that favored players being awarded refunds for gambling on sites not locally licensed.