The ruling, delivered on 27 February, supported Malta-licensed operators that conducted business in Austria’s market without holding a local license. The court found previous Austrian judgments to be contrary to Maltese public policy.
Austria’s online gambling scene is dominated by monopoly operator Casinos Austria, with its Win2Day offering being the only licensed online product in the country.
Alongside Germany, the market has encountered numerous high-profile player loss claims, where players have sought to reclaim losses from offshore operators deemed illegal in these markets.
Players who gamble outside this monopoly have found themselves either recovering losses from illegal operators or returning winnings to unlicensed operators. Many of these operators are licensed in Malta.
## Malta Judgment
The recent Maltese ruling pertains to a player who, in 2020, lost €38,325 via Malta-licensed operator European Lotto and Betting Limited, operating as Lottoland.
An Austrian court had earlier ruled that the player could recover their losses due to the operator’s illegality in the market; however, the Malta Gambling Authority (MGA) brought the case to a local court.
Malta’s courts argued that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) permits services, like online gambling, to be provided across EU states.
This article is regarded as a “primary source of community law,” 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.
Consequently, the Maltese court refused to enforce the Austrian judgments, citing their contradiction to Maltese public policy.
Representing the MGA, Davinia Cutajar, legal partner at WH Partners, noted the decision significantly impacts 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 Austria’s monopoly’s compliance with EU law has been questioned on multiple occasions.
She noted that several rulings from the Court of Justice of the European Union (CJEU) support the view 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 reinforced the operator’s previously expressed stance on the matter.
## Past Austrian Decisions
In 2021, the Austrian Supreme Court ruled that foreign igaming brands were illegally operating in the country, deeming player contracts invalid and prompting players to seek recovery of 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 exiting the market.
Another case last year saw an Austrian customer ordered to return their winnings to an unnamed unlicensed operator. The courts determined that both player and operator violated Austrian gambling laws, rendering their contract invalid.
Effectively, the decision found that both parties knowingly operated illegally, and the player was ordered to cover the operator’s court fees.
## Austrian Online Gambling Facing Liberalization
Such player disputes involving Austria and Maltese-based operators may diminish in the coming years, as Austria is likely nearing the end of the country’s online casino monopoly.
Casinos Austria was granted a 15-year license and a monopoly on online gambling, set to expire on 30 September 2027. Austrian authorities are expected to initiate 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” about the possibility of Austrian online gambling moving away from the monopoly system.
In December, European Gambling and Betting Association (EGBA) president 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 said. “It brings gambling activity into the regulated market, protects consumers, and generates significant tax revenue.”
The Maltese Civil Court has ruled not to enforce Austrian court judgments favoring players awarded refunds for gambling on sites not locally licensed.