Mr. Nicholas Aquilina
Partner

Nicholas Aquilina is a partner at BRANDL TALOS specialising in, international gaming, betting and entertainment law, EU law as well as new gaming products including loot boxes, social, skill and fantasy gaming and e-sports.

Nicholas provides regulatory, corporate and transactional advice, and regularly represents clients before national courts and regulators, European associations, EU institutions and the CJEU. He has assisted clients in several licensing procedures across Europe and the US and advised on large-scale transactions in the gaming and betting sector. He is a co-author of Social Gaming in Europe, and frequently contributes to legal publications and international conferences.

Chambers Global ranks Nicholas as a leading gaming lawyer: “Nicholas Aquilina has played significant roles in corporate and regulatory mandates relating to high-profile transactions and international online sports betting.”

“Nicholas is a first-class legal and regulatory professional.”

Ms. Angela Yonkova-Markov
Attorney

Angela Yonkova-Markov is an attorney at BRANL TALOS. She specialises in international gaming, betting and entertainment law, EU law and gaming litigation.

Angela provides regulatory and compliance advice, including on EU law aspects, and advises and represents leading international companies before the courts in high-profile gaming litigation.

ONLINE GAMBLING IN AUSTRIA – BETWEEN MASS LITIGATION AND POTENTIAL MARKET LIBERALISATION

It is hard to believe: while the Austrian online gambling market is still heavily impacted by the player refund claims discussed in our previous article, a lot has changed in the past year and there are further changes on the horizon.

The new Austrian coalition government that commenced its term in spring 2025 claims to have big plans for the gambling sector. The question is: will this lead to liberalising the online gambling market for Austria to finally come up to speed with the level of modern-day gambling regulation established in the vast majority of other EU Member States?

The new government planned a broad reform of the gambling sector, ranging from introducing higher taxes, which already happened, to adopting new enforcement measures.

However, the expiry of the single lottery license that also covers online gambling and is currently held by Austrian Lotteries (Österreichische Lotterien GmbH) in 2027 has led to a degree of urgency for a reform of the Austrian gambling market, in particular with regard to the online gambling market, which arguably is indeed most urgently needed.

And, finally, what are the developments with regard to the major topic of the past years, being the player refund claims? After years of vigorous battles before the Austrian civil courts, Malta is now increasingly in the spotlight, as Austrian players have started enforcement proceedings there. The litigation funders continue searching for alternative ways to maintain their business model, keeping operators and courts on their toes.

New regulation as a light in the tunnel for foreign online casino operators?

As a new federal government having started its term in spring 2025, the current Austrian government published its governmental program (Regierungsprogramm) for the years 2025-2029.

The governmental program refers to a broad reform of the gambling sector, aiming at increasing tax revenue by introducing higher taxes, enhancing regulatory oversight by creating a new independent regulatory authority instead of pooling competences within the federal Ministry of Finance (Bundesministerium für Finanzen), strengthening player protection, combatting illegal gambling by introducing new enforcement measures, and modernising the current licensing system.

Tax-related measures are central to the program, with gambling-related revenue proposed to rise from EUR 50 million in 2025 to EUR 240 million by 2031. This shall be driven, inter alia, by an increase in the betting and online gambling taxes. The betting tax based on turnover has been increased from 2% to 5% as of April 2025, and the online gambling tax from 40% to 45% as of July 2025. Further tax increases, in force as of July 2025, include increase of the tax applicable to the operation of Video Lottery Terminals (VLTs, currently operated exclusively by the holder of the single lottery license) from 10% to 11% and the introduction of a new tax of 7.5% on the administrative fee (Verwaltungskostenbeitrag), which forms a part of the stake and is stipulated for each product (i.e., separate tax on the administrative fee itself).

Another change that has been proposed but never implemented in the past is establishing a new independent authority, to take over from the Ministry of Finance, which currently serves as a supervisory and licensing authority, but at the same time holds a stake in the monopoly operator via the Austrian State Holding Company ÖBAG. The government’s objective is to eliminate the conflict of interest and improve transparency through formal reporting and compliance obligations.

The governmental program also talks about introducing new player protection measures, such as limits on slot machine gambling and establishing a legal framework for loot boxes. In order to combat illegal gambling, the new government plans to expand enforcement measures by, inter alia, increasing penalties and introducing payment and internet blocking. However, the document does not include a lot of substance on any of these objectives.

The governmental program also refers to envisaged changes as regards the regulation of VLTs, which are currently part of the single lottery license and, thus, the de facto monopoly. According to the governmental program, the current license shall be left to expire and not be renewed, in order to eliminate any overlaps with the regulation of land-based slot machines offers, which falls in the competence of the Austrian Federal States (Bundesländer).

Further, there are increasing indications that the new government may take a step to finally liberalise the Austrian gambling market by introducing online gambling licenses.

In practical terms, now would be the perfect time to undertake such a significant reform. As the single lottery license that also covers online gambling expires on 30 September 2027, the license tender is expected to commence either in late 2025 or early 2026.

Separating online gambling from lotteries and making available online gambling licenses would be a significant step towards a reform of the Austrian gambling market and bring Austria in line with the vast majority of other EU Member States and, in fact, many other jurisdictions around the globe, which have moved from state monopolies to liberal licensing regimes for online gambling over the last decade.

Reshaping the current system in a broader way would require a change in the legislation. To date, there has been no concrete proposal from the new government in this regard, but a lot of speculation. The key question as regards the Austrian gambling market these days is whether Austria will follow Finland in its attempt to move from a monopoly to a licensing system and, thus, one of the last standing European online gambling monopolies indeed will finally be removed.

We cannot miss to mention that the Austrian retail market is also expanding. As of January 2026, the Austrian Federal State of Salzburg will allow the operation of 472 retail slot machines, opening a new retail market in Austria. The operation of retail slot machines in the Federal Sate of Salzburg will be subject to a local licensing procedure, whereby three licenses will be available. Retail slot machine gambling in Austria is regulated at the level of the Austrian Federal States with Salzburg being the sixth Federal State to allow retail slot machine gambling outside of fully-licensed casinos and VLT outlets.

Online casino player claims: Enforcement in Malta and Austria and CJEU referrals

If you have read our previous article, you know that for the past few years Austrian players have successfully argued that online casino losses with EU-licensed online gambling operators are refundable because such operators violate the Austrian gambling monopoly by offering without a license issued pursuant to the Austrian Gambling Act (Glücksspielgesetz).

In addition, some operators have stopped providing information following data subject access requests that players have filed. The operators argue that the sole purpose of requesting such information is that the players are preparing a legal suit concerning the refund of losses and, thus, the operators are not obliged to provide the data according to the GDPR. For this reason, Austrian players who have not received the requested information have brought civil claims requesting operators to provide transactional data. Austrian courts seem to largely maintain their player-friendly approach also in proceedings concerning the provision of data, inter alia referring to a decision rendered by the Austrian Supreme Court (Oberster Gerichtshof), in which the Supreme Court ruled that a request for information also serves a legitimate purpose under the GDPR if it is aimed at obtaining evidence for a legal suit.

However, whether Austrian judgements can actually be enforced will ultimately depend on the success of the subsequent enforcement proceedings. In general, final Austrian court judgements can be enforced in any EU Member State. Based on this principle of mutual recognition of judgments throughout the EU, Austrian players have initiated enforcement proceedings in Malta, where many EU-based online casino operators are licensed.

In 2023 Malta amended its Gaming Act (by means of the so-called “Bill 55”) and introduced Article 56A of the Gaming Act, according to which Maltese courts may refuse the recognition of foreign judgements against Malta-licensed operators, if they consider such judgements to infringe Maltese public order. This national provision reflects Article 45 of the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Regulation (EU) 1215/2012”), directly applicable in each EU Member State, according to which the recognition of a judgment shall be refused, inter alia if such recognition is manifestly contrary to public policy in the Member State addressed.

While Maltese courts have recently refused the recognition of Austrian judgements based on Art 45 of Regulation (EU) 1215/2012 (rather than on Article 56A of the Gaming Act) taking the view that the Austrian judgments violated Maltese public order, players, their lawyers and, in particular, litigation funders, have not yet given up the fight.

Already in 2023, shortly after Bill 55 had been introduced, the EU Commission was prompted to commence investigations following complaints claiming that the amendment to the Maltese Gaming Act violates overriding EU law.

The EU Commission decided to act on this matter only in June 2025, by opening an infringement procedure against Malta. In its letter of formal notice, the Commission argues that Malta has failed to comply with the Regulation (EU) 1215/2012 by obliging its courts to refuse the recognition and enforcement of foreign judgements against Malta-licensed gaming companies and discouraging foreign litigants from pursuing legal action before Maltese courts.

Malta will address the concerns raised by the Commission by means of a formal response. In case the Commission does not consider Malta’s reply satisfactory, the Commission may issue a reasoned opinion and, ultimately, even refer the matter to the CJEU. In parallel, the aforementioned judgments in Malta refusing the enforcement of Austrian judgments against operators that have their corporate seat (or at least assets) in Malta, have been appealed and a decision by the Malta Court of Appeals will be direction-setting when it comes to the future of enforcement in Malta more generally, but also the future of Article 56A of the Maltese Gaming Act.

The success of enforcement in Malta (or any other EU Member State) remains closely linked to assessing and choosing the best litigation strategy before Austrian courts. In other words, everything starts in Austria where, luckily, we can provide legal advice based on our vast experience with gaming litigation.

In October 2024, the Commercial Court in Vienna (Handelsgericht Wien) filed a request for a preliminary ruling to the CJEU, inter alia tackling the justification of Bill 55 in light of EU law and, in particular, the EU’s principle of mutual recognition and enforcement of judgements rendered in other EU Member States (case number C-683/24, Spielerschutz Sigma). The case is currently pending before the CJEU and it is likely that an oral hearing before the judges in Luxembourg will be scheduled as a next step.

In light of the enforcement of Austrian judgments in Malta currently being “on hold”, players, lawyers and litigation funders have been looking into enforcement in other EU jurisdictions. As a general principle, a national court is considered to have jurisdiction in case the assets subject to enforcement are located in the respective jurisdiction. As many EU-licensed operators do not have significant assets in Austria, enforcement attempts in Austria do not seem to lead to the desired results. But is it possible that Austrian courts assume jurisdiction in connection with assets located outside of Austria?

Under Austrian law, an Austrian creditor seeking enforcement of an Austrian judgment can file an ex parte request to the Supreme Court to establish jurisdiction of Austrian courts for enforcement proceedings which would otherwise have to be initiated in another jurisdiction. The so-called ordination request (Ordinationsantrag) can be made if (i) the plaintiff is an Austrian citizen and/or has a domicile/habitual residence in Austria and (ii) the enforcement abroad would not be possible or unreasonably cumbersome.

The first Austrian players have indeed made use of this legal tool and requested the Supreme Court to establish jurisdiction of national courts for enforcement proceedings concerning, inter alia, online casino operators’ Maltese bank accounts and internet domains, arguing that Maltese courts are currently refusing to recognise Austrian judgements due to Bill 55.

In a landmark decision published in February 2025 (case number 3 Nc 72/24d) the Supreme Court granted an ordination request in connection with the enforcement against assets held in an operator’s bank account with a bank in Malta.

However, it currently remains unclear whether a potential decision of an Austrian enforcement court granting enforcement against funds held in a Maltese bank account would result in factual satisfaction of the creditor (i.e., the player whose claim for the refund of online casino losses was granted). One of the reasons for this is that, technically, there is no legal basis for the mutual recognition of enforcement decisions within the EU. Based on this, a court order by an Austrian court granting enforcement in Malta would not be recognised in Malta.

We have been handling player claims since the emergence of this “phenomenon” and advise operators on every step on the way: from the service of the initial court claim to enforcement attempts in various EU jurisdictions, and also in proceedings before the CJEU.

After many years of silence, Austrian courts have recently been more active in referring questions of EU law that are relevant for local proceedings to the EU’s highest judicial instance in Luxembourg, the CJEU.

While these referrals have been made in the context of player claims litigation and the same is true for Germany, the referrals made by German courts are seeking clarifications on questions around the merits of the former German online gambling ban and certain parts of the German online gambling regulation, such as the strict limit regime in place in Germany (Read more). Unlike in Germany, however, the Austrian referrals only deal with procedural questions. Nevertheless, questions around the compatibility of the current Austrian de facto monopoly for online gambling were heatedly discussed during the oral hearings that have taken place before the CJEU in April and June 2025 in the Wunner (C-77/24) and Mr. Green (C- 198/24) cases respectively.

The Wunner (C-77/24) case deals with damages claims filed against directors of online casino operators. In such claims as well as damages claims against holding companies (instead of the entities that have actually offered online gambling into Austria) players argue that the directors/group companies should also be held liable for the incurred online casino losses. Undoubtedly, the reason for such claims being filed is to increase the pressure on operators. Austrian courts have raised doubts concerning the applicability of Austrian law to such damages claims and filed requests for a preliminary ruling to the CJEU in the cases C-77/24, Wunner, and C-574/24, Flutter Entertainment.

In the Wunner case, the oral hearing took place on 1 February 2025. Advocate General Emiliou published his Opinion on 12 June 2025. As regards the main question, namely on the place of the occurrence of the alleged damages, the Advocate General concludes that the damage occurred in Austria, where the player took part in the online gambling offer. It remains to be seen whether the CJEU will follow the Advocate General’s Opinion. The Flutter Entertainment case is suspended, until the CJEU renders its decision in the Wunner case.

The CJEU decisions will be used as guidance by Austrian courts for the assessment of applicable law. Thus, the view taken by the CJEU is expected to “make or break” the damages claims business model currently used as a tool to put additional pressure on foreign operators.

New “trends” in player litigation

In the past two years, videogames with loot box features and other features and mechanisms allowing for in-game purchases and spending have been subject to an increasing number of civil claims in Austria. In such proceedings, which are also largely financed by commercial litigation funders, the players argue that the features allowing in-game purchases (such as via purchasing in-game currency, loot boxes and skin betting) are considered games of chance. As the videogames are offered without a license pursuant to the Austrian Gambling Act, players claim that any real money paid is refundable as the underlying contract must be considered null and void. Insofar, they use the same argument as for online casino claims. However, the relevant legal questions are quite different: unlike in online casino player claims litigation, the relevant legal question regarding videogames is whether these games and the features described above actually qualify as games of chance pursuant to Austrian law.

While initially some Austrian courts declared certain loot box features to qualify as games of chance under Austrian law, in the past months the majority of first and second instance courts have largely dismissed such claims. However, it is impossible to give a general answer to this question as there are several different business models for using in-game currency, making in-game purchases, opening loot boxes and other gambling-like elements in videogames.

Several proceedings concerning loot box features are currently pending before the Austrian Supreme Court, which is yet to give a judgment on these questions.

One thing is clear: the situation in Austria remains dynamic and complex. We are looking forward to the upcoming changes and challenges.