Austria’s Supreme Court, also known as Oberster Gerichtshof (OGH) has ruled that company directors may be held personally liable for player losses in online gambling disputes if breaches of tort law are established. The decision introduces a new legal risk for operators, especially those based outside Austria, and signals a shift in the country’s approach to cross-border enforcement.
The judgment follows a recent legal opinion by the Advocate General of the Court of Justice of the European Union (CJEU), Nicholas Emiliou, issued in connection with the long-running Wunner case, which has been central to disputes over player compensation and cross-border enforcement.
The advocate concluded that gambling losses could be treated as a tort, i.e., a branch of civil law. This places them within the scope of civil harm, allowing claims for financial damage rather than limiting disputes to contractual obligations.
Relief for Wunner compensation applicants
At the centre of the issue is a long-running series of cases, often referred to as the Wunner dispute, in which Austrian players have sought compensation from operators that did not hold domestic licences. Austrian courts have repeatedly found that such operators breach the country’s monopoly-based framework, rendering player contracts void and opening the door to repayment claims.
Recent rulings suggest the courts are now willing to go further. By extending liability to directors, judges are attempting to bypass the practical limits of cross-border enforcement, where corporate entities may be difficult to pursue. The move weakens the traditional separation between a company and its management, making individuals a direct target for claims.
Conflict with Malta’s Bill 55
This ruling may put Austria on a direct collision course with Malta, where a large number of online gambling firms are licenced. In 2023, Malta enacted Bill 55, adding Article 56A to its Gaming Act, which allows local courts to refuse to enforce foreign judgments if they are deemed to conflict with national public policy.
Maltese authorities say the law is there to protect their regulatory framework and is consistent with EU rules on the free movement of services. In practice, courts in Malta have already used it to block Austrian rulings, including a case earlier this year where a player sought a significant refund.
However, Austria sees it differently. The Supreme Court of Austria has argued that such refusals go against the EU’s principle of mutual recognition. It has referred parts of the issue to the Court of Justice of the European Union, questioning whether Malta’s position is compatible with the Brussels Ia Regulation on cross-border enforcement.
At the core, this comes down to how each country regulates the sector. Austria follows a state-backed monopoly model, while Malta has developed a licencing system used by operators across Europe. Critics of Malta’s position argue that it limits players’ ability to recover losses, while supporters say Austria is applying its rules retrospectively to businesses that acted within EU law.
If the ruling holds, executives involved in cross-border operations could face personal legal exposure in markets where their companies do not hold licences. How this will be enforced in practice remains unclear. With further referrals pending before European courts, the dispute is still ongoing. Both Austria and Malta continue to maintain their positions as the matter moves through the EU legal process.
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