Is it legal to offer gambling for residents in EU jurisdictions in which an operator does not hold a license, yet is authorized in another – this is the issue that is about to find an answer after an Austria-based litigation financing firm filed legal claims against gaming companies licensed elsewhere including Malta.
EU Law vs. Local Law
Advofin is looking to recoup in excess of €40 million on behalf of Austrian players who lost money online, but Ola Wiklund, a Swedish lawyer dealing with iGaming issues who was contacted for advice from lawyers in Malta representing implicated operators, firmly believes these attempts represent a “jurisdictional overreach”.
The group of implicated operators includes some industry-leading names such as Bet365, PokerStars, William Hill, Bwin, Leo Vegas, 888, and Interwetten, according to EGR’s earlier report.
The claims reside on the text of Austrian law which states that online casino gambling can be offered only by a licensed operator in the country, which currently is only Casinos Austria, and according to the law, any other firm which targeted Austrian players have done that illegally.
Any Austrian resident who played online is deemed by the law to have signed a legal contract with the gambling operator, which enforces the local law, claims Advofin, which processed more than 2,000 claims from players who lost money to more than 60 websites owned by 71 operators, and is now looking to recover their net losses.
According to Article 4 of the Treaty for the Functioning of the EU, a member state cannot interfere in the market of another member state in areas of research and technology development. And besides, the claims contradict with World Trade Organisation (WTO) rules which prohibit unnecessary trade barrier between EU members.
“The Maltese gaming operators are relying on the fundamental EU law principles of freedom of establishment and the freedom to provide services. The Maltese marketplace is also constitutionally protected by WTO-law and the Maltese constitution.”
Ola Wiklund, Wiklund Law
Maltese and EU law state that disputes of this kind should be decided according to the law of the member state in which the issue arises. Further, conflict-of-laws rules in Malta place governance on commercial contracts on local law.
“An enforcement attempt invoking the Brussels regulation in Malta will meet formidable obstacles in the form of jurisdictional, procedural and constitutional legal principles. The Maltese judiciary would be justified to refuse enforcement on a number of valid legal grounds.”
Ola Wiklund, Wiklund Law
Public Health Imperative
However, the historical protection for international operators provided under Article 56 of the Treaty for Functioning of the EU, which establishes freedom to promote and deliver goods and services across the EU, may not be enough this time, as the treaty can be overridden in cases involving public health.
According to Advofin, this is exactly the case as potential problem gamblers were targeted by the operators’ unethical practices, involving repeated offers of bonuses and gifts, and even private messaging via WhatsApp to encourage them to gamble, besides not observing mandatory online gambling limits.
Last month, the litigation company expanded its reach to Germany and is currently having around 50 customer cases going through courts.