The ruling, delivered on 27 February, backed Malta-licensed operators that had engaged in business in Austria’s market without a local license. The court determined that previous Austrian judgments were contrary to Maltese public policy.
Austria’s online gambling landscape is dominated by the monopoly operator Casinos Austria. Currently, its Win2Day offering is the sole licensed online product in the country.
The market, along with Germany, has seen numerous high-profile player loss claims, where players have tried to reclaim losses from offshore operators as these are considered illegal within these markets.
Players gambling outside the monopoly have sometimes received court-ordered refunds from illegal operators, while others have had to repay winnings to unlicensed operators. Many operators involved in these cases hold licenses in Malta.
## Malta judgment
The Maltese ruling relates to a player who, in 2020, gambled and lost €38,325 ($39,845/£31,653) with Malta-licensed operator European Lotto and Betting Limited, operating as Lottoland.
An Austrian court had initially decided that the bettor could recover losses due to the illegality of the operator 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) allows services (such as online gambling) to be provided across EU states.
It acts 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 conflict with the TFEU.
Therefore, the Maltese court has refused to enforce the Austrian judgments, stating they are contrary to Maltese public policy.
Davinia Cutajar, acting on behalf of the MGA and 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 pointed out that the compliance of the Austrian monopoly with EU law has been questioned several times.
She mentioned in a post on the firm’s website that various 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, saying 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, thus invalidating player contracts 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 withdrawing from the market.
In a separate case last year, an Austrian customer was ordered to return winnings to an unnamed unlicensed operator. The courts found that both the player and the operator violated Austrian gambling laws, rendering their contract void.
The decision stated that both parties knowingly operated illegally, resulting in the player being required to pay the operator’s court fees.
## Austrian online gambling facing liberalization
This type of player dispute involving Austria and Maltese-based operators could diminish as Austria is likely nearing the end of its online casino monopoly.
Casinos Austria holds a 15-year license and monopoly on online gambling. However, its license is set to expire on 30 September 2027. Austrian authorities are expected to start 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 transition away from the monopoly system.
In December, European Gambling and Betting Association (EGBA) president and 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 against enforcing Austrian court judgments favoring players awarded refunds for gambling on sites without a local license.