The Austrian Supreme Court has handed a hot potato of a legal decision to the Court of Justice of the European Union (CJEU), an issue that demands an explicit ruling on whether “gray” market operators in nationally regulated EU markets are acting legally.
The case concerns an Austrian gambler who lost €950k playing roulette on two sites which hold remote gaming licenses granted by Malta’s Lotteries and Gaming Authority (LGA).
Austria operates a monopoly licensing system for online gambling, and the player argued that—because the sites where he played were not licensed in Austria—they were operating illegally and therefore he had the right to the return of the money. The unnamed gambler had embezzled the money from his employer.
The operator, who is not named in the public court documents, but described as being a multi-national headquartered in Dusseldorf, argued that the Austrian gaming law breached the EU treaties and that it has the right to offer services, and therefore the right to keep the money.
The Austrian Supreme Court has asked the CJEU to clarify a number of points before it can make a final judgment, including whether the Austrian gambling laws are compliant with EU Treaties.
In a second case from Austria currently before the CJEU, a legal opinion by one of the EU’s Advocate Generals made similar points to those raised by the Austrian Court of Appeal when it ruled in favor of the operator in this case.
Judge Eleanor Sharpston wrote that Austrian national courts “must ascertain whether criminal and fraudulent activities as well as addiction to gambling might have been a problem in Austria … and whether expansion of authorised and regulated activities might have solved that problem.”
Commenting on that opinion, the European Gaming and Betting Association (EGBA) Secretary General Maarten Haijer said: “It becomes clear from today’s opinion that the Advocate General does not consider the Austrian gambling legislation as fulfilling the consistency requirement in order to comply with EU legislation and existing jurisprudence.”