The ruling delivered on 27 February supported Malta-licensed operators that had engaged in business within Austria’s market without holding a local license. The court determined that prior Austrian judgments contradicted Maltese public policy.
Austria’s online gambling landscape is primarily dominated by the monopoly operator Casinos Austria. Its Win2Day platform is currently the sole licensed online product in the country.
Both Austria and Germany have encountered numerous high-profile player loss claims, where players have attempted to reclaim losses from offshore operators that are considered illegal within these markets. Players who gamble outside of this monopoly have sometimes received their losses back from illegal operators in the market, while others have been required to return winnings to unlicensed operators. Many of these operators involved in such cases hold licenses in Malta.
## Malta Judgment
This week’s Maltese ruling pertains to a player who gambled in 2020 and lost €38,325 ($39,845/£31,653) via the Malta-licensed operator European Lotto and Betting Limited, operating as Lottoland. An Austrian court had previously decided that the betting party could recover their losses due to the operator’s illegality in the market, but the case was escalated to a local court by the Malta Gaming Authority (MGA).
Malta’s courts have contended that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) allows for services (such as online gambling) to be offered 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. The Maltese court also argued that Austria’s federal law on games of chance and its online gaming monopoly conflict with the TFEU. Consequently, the Maltese court has declined to enforce the Austrian judgments, declaring them contrary to Maltese public policy.
Davinia Cutajar, legal partner at WH Partners, representing the MGA, noted that the decision has far-reaching 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 several occasions. She indicated that numerous rulings from the Court of Justice of the European Union (CJEU) support the position that Austria’s monopoly model breaches Article 56 of the TFEU.
Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, stating that it supported the operator’s previously expressed stance on the matter.
## Past Austrian Decisions
In 2021, the Austrian Supreme Court determined that foreign igaming brands were illegally operating in the country, which led to player contracts being declared invalid, and players sought to reclaim their losses. This decision impacted Betclic Everest subsidiary Bet-at-home, which was mandated to pay €2.8 million in player losses almost three years after its market withdrawal in August 2020.
In another case last year, an Austrian customer was ordered to return their winnings to an unnamed unlicensed operator in the market. The courts determined that both the player and operator had contravened Austrian gambling laws, rendering their contract invalid. Essentially, that ruling found that both parties were knowingly operating illegally, and the player was required to pay the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
Such player disputes involving Austria and Maltese-based operators may become less frequent in the future as Austria is likely nearing an end to the country’s online casino monopoly. Casinos Austria holds a 15-year license and a monopoly on online gambling, which is set to expire on 30 September 2027. Austrian authorities are expected to start the tendering process for new licenses this year.
Vice President of the Austrian Betting and Gaming Association, Simon Priglinger-Simader, expressed optimism for the first time that Austrian online gambling could shift away from the monopoly system. This past December, Maarten Haijer, Secretary General of the European Gambling and Betting Association (EGBA), called for Austria to open up online gambling. He stated, “The evidence from across Europe is clear and compelling: multi-licensing works. 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.