The Court of Justice of the European Union has handed down a landmark judgment in the C-77/24 Wunner case that involved a Maltese-regulated company operating in Austria.
The Court ruled that: “A player may, as a general rule, rely on the law of his or her country of residence when bringing an action to establish liability in tort or delict on the part of the directors of a foreign provider that does not hold the required licence.
“The damage sustained by the player is deemed to have occurred in the country in which that player resides.”
The case was filed by a resident in Austria who played games of chance from Titanium Brace Marketing and was seeking to recover his losses from the directors of the company.
Titanium based its offices and servers in Malta, but offered these games of chance to several countries, including Austria, through its website DrueckGlueck.
Titanium held a gambling licence in Malta, but did not hold one in Austria.
According to the Austrian Law on Gambling, this meant Titanium was offering illegal games of chance in Austria, but the company disagreed.
The two directors at Titanium argued that the damage occurred in Malta, so the Austrian law could not apply here; but Maltese law could, which does not provide for liability on the part of company’s officers vis-à-vis the company’s creditors.
The Court of Justice continued: “According to the Rome II Regulation, 5 the law applicable to a non-contractual obligation arising out of a tort or delict is, as a general rule, the law of the country in which the damage occurs.”
As the online casino industry becomes more globalised each year, it can be difficult to point a finger at where a particular company ‘operates’.
Many companies are headquartered in Malta but offer online casinos across Europe, either through a Malta licence or individual licences from the countries in question.
As more countries welcome gambling operators, or fight against those who may not have the necessary licensing, this case will likely serve as an example of player protection and company accountability.
Finally: “According to the Court, in the context of an action for damages for losses incurred when participating in online games of chance offered by a company in a Member State where that company did not hold the licence required by law, the damage sustained by a player must be deemed to have occurred in the Member State in which that player is habitually resident (in the present case Austria, with the result that, according to the general rule, Austrian law would be
applicable).”
Malta itself tried to submit Article 56A of Malta's Gaming Act, commonly known as Bill 55, which would allow Maltese courts to refuse recognition of foreign court judgments against MGA-licensed gambling companies, protecting them from foreign legal actions that conflict with Maltese public policy or Maltese gaming law.
This was met with immediate criticism by the European Commission, which opened infringement proceedings against Malta for non-compliance with EU law.
While Titanium Brace Marketing has since filed for bankruptcy, DrueckGlueck is still operational and is regulated in the UK under Skill On Net, account number 39326
