Recent European rulings have brought player loss claims back into focus, including potential personal liability for managing directors of unlicensed online casinos, and questions surrounding the recognition of gambling licences across EU Member States.
Global Gaming Insider caught up with gaming law expert István Cocron, who brings over 20 years of experience and numerous cases handled across Germany and Europe. You can also read Dr Joerg Hofmann's analysis on the topic in Global Gaming Insider magazine here.
Would you characterise the ruling by the Austrian Supreme Court (OGH), after the European Court of Justice’s decision in the Wunner case, as a shift toward personal accountability in EU gambling enforcement, or is it still a case-specific development?
It is definitely a shift towards personal liability for directors of unlicensed online gambling businesses. It is also a sign that the Austrian court reacted very quickly after the ECJ's Wunner decision.
The ECJ clearly stated that directors can be held liable if they are involved in providing illegal online gambling within the EU, particularly where companies operate without a local licence and instead rely on licences from other jurisdictions, such as Malta.
Do you expect courts in other jurisdictions – such as Germany under its 2021 State Treaty on Gambling – to follow this reasoning?
There are not many claims brought directly against directors in Germany, but the civil law system is similar to Austria’s and both fall under EU law and the jurisdiction of the European Court of Justice. We are already seeing some claims in Germany being prepared against directors, although, as far as I know, no final rulings have been issued yet. But the lawyers representing players are now looking very closely at the Austrian decision, and they have also reviewed the ECJ decision.
Could this ruling have a signalling effect? Could we see more cases?
Yes, definitely. We are already seeing this at our law firm, where players are reacting to the decisions and sending us press releases asking about them. Many player loss cases in Germany are currently on hold due to ongoing ECJ proceedings, and everyone is waiting for the verdict in case C-440 on 16 April.
We also now have the Advocate General's final opinion in the Tipico case, and some courts are saying they need to wait until the ECJ delivers its final decision. Once that happens, more claims are expected to follow.
Clients are looking for another way to proceed with their damage claims. The next step could be to introduce actions in Germany that focus on directors' personal liability.
If we are seeing a broader trend toward individual liability in the industry. Could that serve as an effective deterrent to unlicensed or black-market operations?
Black-market operators are highly skilled at hiding, and they are even better at hiding their directors. It is very difficult to identify directors or locate addresses. Under German law, you must know the full name and address of the person you wish to sue. Without access to an official register, it becomes extremely challenging to pursue legal action.
It is very hard, in a practical sense, to sue them. But from a legal perspective, I think it's getting much easier now. The black market is likely to persist. This is more of a practical problem than a legal one.
Companies lose in court, but the verdicts are not enforced because of Bill 55. This is really hard to explain to a player living in the European Union, where we have a system that allows the enforcement of court verdicts between member states
Could you share your thoughts on the Tipico case currently before the ECJ?
The Advocate General has now issued an opinion. There was a lawyer from Tipico who said this is in their favour, but I think that was the only lawyer who said that, of course, protecting his client's interests. If you read the press release and the wording from the Advocate General, the direction is very clear in my view. It states that a licence from outside Germany is not enough to offer online gambling or online sports betting to German customers.
The Advocate General said that if an online sports betting company has clear permission from the relevant authority to operate, even without a licence, then there may be no liability. However, in Germany, there is a gambling authority, but there is no declaration that allows operators to offer online sports betting without a licence. So I think the ECJ will follow the Advocate General's opinion.
If Malta's Bill 55 is struck down, what immediate consequences could this have on Malta-based operators facing foreign judgments?
I think Malta will immediately introduce something like “Bill 56,” so that is likely the outcome. But if not, then enforcement proceedings will start almost immediately. There are thousands of judgments from Germany and Austria. I know of one operator facing claims of around €30m ($34.7m) from Austria alone.
German players, together with their lawyers, will try to freeze assets in Maltese banks, because most online providers hold accounts there. Lawyers have already tried to seize or freeze these funds. It would also be interesting to see whether Malta might try to bypass an ECJ decision by relying on other legal arguments. They could say, for example, that instead of using Bill 55, they rely on Ordre Public and argue that the judgments are against Maltese law anyway, so Bill 55 is not needed.
From my perspective, there is no lawyer in the European Union who believes Bill 55 will remain in place, as it is such a clear breach of European law. However, Malta has not taken this into account so far, and I think it will try to find another way to protect its main interests.
Thank you for your time! Do you have any final messages you'd like to get across?
The black market is a big problem, as discussed before. Companies lose in court, but the verdicts are not enforced because of Bill 55. This is really hard to explain to a player living in the European Union, where we have a system that allows the enforcement of court verdicts between member states. Most of these Maltese companies now have licences in Germany, so we are dealing mostly with old cases from the time when they didn't have any licence.
