The legal landscape surrounding gambling and sports betting in Austria has recently experienced significant developments, primarily through rulings from the Austrian Supreme Court (Oberster Gerichtshof – ‘OGH‘). These rulings have clarified key aspects of the regulatory framework, particularly in relation to laws of the Austrian provinces on sports betting and their interaction with federal gambling law.
This article, prepared for Advennt by our Austrian contributor, Arthur Stadler of Stadler Völkel Attorneys at Law, provides an expert overview of the most recent legal decisions and regulatory updates, shedding light on their implications for operators, and the overall market.
Supreme Court ruling on online betting under provincial sports betting laws (1 Ob 176/22x)
In a notable decision (1 Ob 176/22x), the Austrian Supreme Court addressed the issue of whether online sports betting falls within the regulatory scope of provincial betting laws. The case, referencing the Austrian province Styria, involved a player seeking to recover losses incurred through online sports betting. The Austrian Supreme Court ruled that Styria’s betting law does not regulate online betting, which is not to be considered an oversight but an intentional legislative choice by the provincial authorities. Consequently, the court determined that offering online sports betting from outside the province, such as through a Malta-based operator, does not violate Styria’s betting laws. Hence, losses are not recoverable.
This decision highlights a legal loophole in Austrian provincial betting laws, particularly in provinces like Styria, where online sports betting remains unregulated. As a result, operators without physical ties to such province (such as by means of a server location) are generally not subject to the respective provincial licensing regime. This loophole has significant implications with respect to the provinces Styria, Burgenland, Carinthia, and Vienna, which all currently do not explicitly regulate online betting.
Over/Under betting and provincial competence (8 Ob 112/23p)
Another crucial ruling (8 Ob 112/23p) involved a dispute in terms of over/under bets, where the Austrian Supreme Court further clarified the provincial jurisdiction over betting activities. The court ruled that the type of betting product is not the decisive factor to draw a line between betting and gambling offerings. Instead, the regulation of betting itself falls under provincial jurisdiction, which is separate from federal control over online casino games under the Austrian Gambling Act 1989 (‘GSpG’). This decision emphasizes the segmentation of legislative competence in Austria, where betting (including over/under bets) is regulated by the provinces, while online casinos and other games of chance (i.e. gambling) fall under federal authority.
Consequently, (mathematical) expert evidence commonly requested by claimants is not considered relevant in such context.
The upcoming lottery licence renewal
On the regulatory front, the Austrian Gambling Authority is preparing for the upcoming single lottery licence tender, as the current licence, held by Österreichische Lotterien Gesellschaft m.b.H, will expire on 30 September 2027. It is expected that the system of a combined licence, which also covers the provision of online gambling, will remain unchanged. This de facto monopoly has raised major concerns, but no major restructuring is anticipated.
Impending amendments to provincial betting laws
Several Austrian provinces are expected to amend their betting laws in the near future, following federal and provincial elections in 2024 and 2025. For instance, Burgenland is preparing to overhaul its outdated law, which dates back to 1919, while Tyrol is reviewing minor amendments to its betting law as of September 2024. Carinthia has publicly announced its intention to amend its law, potentially incorporating specific provisions for online betting.
This patchwork of provincial regulations continues to create challenges for operators, especially regarding the requirement for a physical presence (such as a server) in certain provinces as a precondition for licensing. This stipulation renders many online operators ineligible for licenses, further complicating compliance.
International implications: Malta and Bill 55
International developments also play a critical role in the Austrian gambling market. In 2023, Malta, popular base for online gambling operators offering into Austria, passed “Bill 55”, which obligates Maltese courts to refuse recognition of foreign judgments related to gambling disputes if they infringe the Maltese “ordre public”.
This has created challenges for Austrian players attempting to reclaim losses from Malta-based operators. In response, the Austrian Supreme Court (10 Ob 56/22s) ruled that tort jurisdiction applies in Austria, allowing players to hold the directors of foreign gambling operators personally liable under Austrian law. This liability could extend to the directors’ private assets, marking a significant shift in the enforcement of gambling laws.
Additionally, a preliminary ruling request (C-77/24, Wunner) is currently pending before the Court of Justice of the European Union (CJEU), which could further clarify the legal framework surrounding liability and applicable laws for foreign operators offering services in Austria.
Liability for joint website operation (1 Ob 52/24i)
In another recent case (1 Ob 52/24i), the Austrian Supreme Court extended liability for gambling losses to operators who jointly operate a website with another operator (who offers online gambling). Even if the other operators do not directly offer the gambling product in question. In this case, the court ruled that an operator offering sports betting could be held liable for losses incurred from online casino games offered on the same website by a different operator. However, it must be stressed that the respective website was established in a manner that users could register once to access any offered product (i.e., sports betting as well as gambling services). This ruling emphasises the potential for extended liability in cases where multiple operators collaborate or share digital infrastructure.
Operators reclaiming winnings (8 Ob 21/24g)
Finally, the Austrian Supreme Court also ruled on the possibility to reclaim winnings, confirming that gambling operators without an Austrian licence can demand the return of winnings paid to players, as gambling contracts are considered void under Austrian law. This landmark decision (8 Ob 21/24g) significantly strengthens the position of operators dealing with player claims or risks of insolvency in Austria, evincing a resolute regulatory stance on unlicensed gambling operations.
Conclusion
The Austrian gambling and sports betting market is undergoing significant legal and regulatory changes, with recent court rulings and upcoming legislative amendments poised to reshape the landscape. While provincial authorities continue to hold competence over sports betting, the federal government maintains control over online casino operations. The evolving legal environment presents challenges as well as opportunities for operators, particularly as the Austrian Supreme Court continues to clarify liability and enforceability in this complex sector.
ABOUT THE AUTHOR
Arthur Stadler
Arthur Stadler, Founding Partner, has two decades of specialised experience in the betting and gaming sector. His areas of expertise include advising clients in gambling, betting, crypto assets, NFTs, IP rights, data protection, e-commerce, and European law. Arthur completed his legal studies in Vienna and Madrid and has gained considerable experience in notable institutions such as the Court of Justice of the European Union, the General Court of the EU, and the European Institute of Public Administration (EIPA) in Luxembourg. He is a prolific author and regularly shares his expertise as a lecturer, panelist and keynote speaker.
Stadler Volkel
STADLER VÖLKEL is a leading law firm, known for guiding clients through intricate legal challenges with exceptional precision. The law firm specializes in Betting, Gaming, Esports, Litigation, Cryptocurrencies and more. Further details of the firm’s practice areas can be found here.
