The Supreme Court of the Netherlands has issued a significant ruling regarding player losses associated with unlicensed gambling operators. The court determined that cases involving player losses from before the Netherlands introduced regulations on iGaming in 2021 are not automatically invalid. This ruling means that players are not guaranteed reimbursement for losses incurred before the legalization of online gambling in the country.
The ruling was prompted by inquiries from the District Court of Amsterdam and the District Court of North Holland, concerning two cases involving players who lost money gambling through operators licensed in Malta prior to the establishment of Dutch online gambling laws.
One of the players reported a loss of $139,464.58 on PokerStars, operated by TSG Interactive Gaming Europe Ltd, between the years 2006 and 2021. The other player lost €135,137 while gambling with PartyCasino, managed by ElectraWorks Europe Ltd, during a period from August 2020 to July 2021.
Both players sought to have their contracts with these gambling operators declared void in order to recover their lost funds from those times.
The Supreme Court's examination focused on Article 3:40 of the Dutch Civil Code, which could render contracts void if they conflict with public order or legal provisions. The court concluded that the Dutch Games of Chance Act, which oversees and prohibits unlicensed gambling, does not nullify contracts in civil law, nor does it imply that the contracts made with unlicensed operators are invalid.
An Entain representative welcomed the ruling, stating, “Bwin, PartyCasino and PartyPoker welcome the Supreme Court’s ruling. It confirms the position they have consistently maintained, which is that gambling agreements entered into before 1 October 2021 are valid, and that any historic gambling losses incurred cannot be recovered on the basis that those agreements were void. In light of the court's decision, any attempt to pursue such claims, whether individually or collectively, is no longer tenable.”
In the wider European context, similar cases regarding player losses have emerged, with the European Court of Justice (ECJ) recently sending some of these matters back to national courts for further consideration. Regional courts in Germany and Austria have sought guidance on the legality of player contracts preceding formal gambling regulations.
The ECJ's responses have indicated that local licensing rules take precedence over EU regulations concerning gaming. For instance, in a January ruling (C-77/24) involving Austria’s gambling monopoly, the court stipulated that player-loss cases must be governed by local laws. Later, in March, another ECJ decision involving German operator Tipico reiterated the necessity for operators to comply with national regulations, provided they align with EU rules concerning free movement.
Legal experts have expressed frustration over the ambiguity from the ECJ regarding these player loss issues. Claus Hambach, from German law firm Hambach & Hambach, remarked, "Although the ECJ has been dealing with a series of requests for preliminary rulings for several years, we have had little clarity so far. There remains considerable legal uncertainty and unresolved questions."
