The ruling, delivered on 27 February, supported Malta-licensed operators that had engaged in business in Austria’s market without a local license. The court determined that previous Austrian judgments contradicted Maltese public policy.
Austria’s online gambling landscape is dominated by monopoly operator Casinos Austria. Its Win2Day initiative is currently the sole licensed online product in the country.
The market, similar to Germany, has encountered several high-profile player loss claims where players have tried to claim back losses from offshore operators deemed illegal within these markets.
Players who gamble outside this monopoly have sometimes found themselves in court, recovering losses from illegal operators, while others have been required to return winnings to unlicensed operators. In many cases, the operators involved are licensed in Malta.
## Malta Judgment
The recent Maltese ruling concerns a player who gambled in 2020 and lost €38,325 via Malta-licensed operator European Lotto and Betting Limited, operating as Lottoland.
An Austrian court had earlier ruled that the betting party could reclaim 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 contended that the EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) allows for services (like online gambling) to be offered across EU states. This acts as a “primary source of community law,” which is a “fundamental rule of the legal order” for both the EU and Malta.
Malta’s court also argued that Austria’s federal law on games of chance and its online gaming monopoly contravenes the TFEU.
Consequently, the Maltese court has refused to enforce the Austrian judgments, asserting that they are 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 noted that the Austrian monopoly’s compliance with EU law has been questioned multiple times. She remarked 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 Treaty on the Functioning of the European Union (TFEU).
In a statement, Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, noting that it reinforced the operator’s previously expressed stance 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.
That 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.
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 violated Austrian gambling laws, rendering the contract between them invalid. Essentially, that decision indicated that both parties knowingly operated illegally, and the player was ordered to pay the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
This type of player dispute involving Austria and Maltese-based operators could decrease in the coming years as Austria is likely nearing the end of 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 initiate the tendering process for new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism that Austrian online gambling could transition away from the monopoly system.
This past 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 decided not to enforce Austrian court judgments that favored players receiving refunds for gambling on sites that were not locally licensed.