The ruling delivered on 27 February supported operators licensed in Malta that engaged in business within Austria’s market without possessing a local license. The court determined that previous Austrian judgments conflicted with Maltese public policy.
In Austria, online gambling is primarily controlled by the monopoly operator Casinos Austria, with its Win2Day offering being the only licensed online product available in the country.
The market, alongside Germany, has been the setting for several high-profile player loss claims, where players have tried to reclaim losses from offshore operators viewed as illegal within these jurisdictions.
Players gambling outside this monopoly have often found themselves in court, with some having losses refunded by illegal operators, while others have been required to return winnings to unlicensed operators. Many of the operators involved in these cases hold licenses in Malta.
## Malta Judgment
The recent Maltese ruling pertains to a player who, in 2020, lost €38,325 ($39,845/£31,653) through the Malta-licensed operator European Lotto and Betting Limited, operating as Lottoland.
An Austrian court had previously adjudicated that the player could recover these losses because the operator was deemed illegal in the local market. However, the Malta Gambling Authority (MGA) brought the case to a local court.
Maltese courts argued that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) allows services (such as online gambling) to be provided across EU states.
This article 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 argued that Austria’s federal law on games of chance and its online gambling monopoly contravene the TFEU.
Consequently, the Maltese court refused to enforce the Austrian judgments, stating that they contradicted Maltese public policy.
Representing the MGA, Davinia Cutajar, a 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 compliance of the Austrian monopoly with EU law has been questioned on several occasions.
She mentioned that numerous rulings from the Court of Justice of the European Union (CJEU) supported the stance that Austria’s monopoly model infringes upon 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, stating it reinforced the operator’s previously expressed position on the matter.
## Past Austrian Decisions
In 2021, the Austrian Supreme Court ruled that foreign igaming brands were operating illegally in the country, deeming player contracts invalid and prompting players to seek reimbursement for their losses.
That decision impacted Betclic Everest subsidiary Bet-at-home, which was ordered to refund €2.8m in player losses almost three years after withdrawing from the market.
In another recent case, an Austrian customer was ordered to return their winnings to an unnamed unlicensed operator in the market. The courts found that both the player and operator had violated Austrian gambling laws, rendering their contract invalid.
Essentially, that decision concluded that both parties knowingly conducted operations illegally, with the player being ordered to cover the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
Such player disputes involving Austria and Maltese-based operators may decrease in coming years, as Austria is likely nearing the end of its online casino monopoly.
Casinos Austria was awarded 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 anticipated to begin the process of issuing new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism earlier this month that Austrian online gambling could move away from the monopoly system.
In 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 stated. “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 favoring players being awarded refunds for gambling on sites not locally licensed.