Austrian Supreme Court says unlicensed operator can claim back player's winning

An online gambling operator will be able to reclaim winnings paid out to an Austrian player despite not having the required licence to operate in the country, according to the Austrian Supreme Court.

The unlicensed plaintiff, based in Malta, offered gambling services that were played by the defendant in Austria between 22 May 2020 and 27 July 2020. In that time frame, she deposited €21,928, receiving a total of €29,090.71 from the operator.

While the gambling sessions generated a profit of €7,152.71 for the defendant, they will be required to pay that amount back to the operator, after the firm looked to reclaim the money based on the argument that the player’s winnings were void due to the company’s lack of licence.

An argument posed by the defendant is that only she can invoke the invalidity of the winnings and that by asking her to repay the monies, the operator is breaking the law given it was already aware of the illegality of operating without a licence.

However, the Austrian Supreme Court has upheld the decision first made by the Court of Appeal that sides with the operator. 

The reasoning behind the appeal court’s original verdict stemmed from the fact “the gambling monopoly not only aims to prevent financial losses for the player, but also to remove the incentive to take part in a prohibited game”.

The Supreme Court added that the monopoly does not constitute “protective provisions that exist exclusively for the benefit of one partner, but every partner can invoke the illegality and nullity of the contract”.

As a result of the contract being invalid, the court ruled the player could not claim the profit and that, in principle, a reversal of the transfer of assets between the unlicensed operator and customer needed to be actioned.

By permitting operators to claim back winnings that were paid out under illegal contracts, the deterrent to engage with illegal offerings from the player’s perspective is much greater, according to the Supreme Court.

Under the new law of unjust enrichment in Austria, the gambling provider is able to claim for a return of the winnings, despite the fact it knowingly offered an illegal service.

The debate surrounding player reimbursements is one that has rumbled on for months. In July, the German Federal Court of Justice (BGH) referred questions it had over a customer’s refund request to the European Court of Justice (ECJ).

In that instance, a player is seeking reparations in relation to losses accrued with a grey-market operator before the German market was regulated in 2021. The plaintiff involved has cited losses of €3,719.26.

The case remains with the ECJ which is assessing whether, given the operator offered gambling services without the required licence, the player is entitled to a refund, or because the operator applied for a licence at a time when the licence-granting procedure in play was subsequently deemed in breach of EU law that the plaintiff’s claim should be rejected.