Despite years of referrals and rulings, the EU’s top court continues to defer to national judges, leaving operator liability and player-loss claims unresolved across Germany, Austria and beyond.
For years, Europe’s gambling industry looked towards Luxembourg in the hope that the European Court of Justice (ECJ) could deliver a decisive answer to one of the sector’s most expensive and politically charged disputes: whether players should be entitled to recover losses incurred with operators that were licensed in one EU member state but lacked authorisation in another.
Instead, over the course of the last 12 months the court has largely avoided answering the bigger questions operators, investors and litigators hoped would finally be settled. Through a succession of rulings, opinions and referrals concerning German and Austrian player-losses claims the ECJ has only clarified certain legal principles.
Rather than imposing a uniform European solution, the ECJ has repeatedly deferred to national and regional courts, effectively telling them to interpret their own gambling laws to determine the consequences of these cases.
The result is a paradox. After years of litigation and multiple referrals to Europe’s highest court, the industry may have more guidance than before – but not necessarily more certainty.
That uncertainty is now shaping everything from Germany’s player-losses market and Austria’s restitution claims, to Malta’s controversial efforts to shield locally licensed operators from foreign judgments. It is also reviving a debate about whether Europe’s fragmented gambling regime can continue to function without some degree of harmonisation?
The answer that never came
The original hope among many operators was straightforward. If the ECJ ruled decisively on the compatibility of historic gambling restrictions with EU law, it might finally settle whether players could recover losses incurred before newer licensing frameworks emerged. Instead, the court has largely chosen judicial restraint.
“Although the ECJ has been dealing with a series of requests for preliminary rulings for several years, we have had little clarity so far,” says Claus Hambach of German legal firm Hambach & Hambach. “There remains considerable legal uncertainty and unresolved questions.”
The court has often said that member states still have a lot of freedom to regulate gambling. Questions surrounding the validity of gambling contracts, civil liability and restitution largely remain matters of national law. As Hambach puts it, the ECJ’s message to national courts has effectively been: “This is ultimately your problem to solve.”
That message has become increasingly clear through recent proceedings involving Austrian player claims, Germany’s historic online gambling regime and the ongoing Tipico sports-betting case (Case C‑530/24 at the ECJ). While European judges have clarified the legal framework, they have consistently stopped short of dictating outcomes.
For lawyers seeking certainty, it has been an exercise in frustration. For national courts, it has been an invitation to continue fighting the battles themselves.
Why Luxembourg is reluctant to rule on player-losses cases
The court’s caution reflects a deeper reality. Unlike financial services, telecommunications or aviation, gambling has never been comprehensively harmonised across the European Union. National governments have retained control over licensing systems, taxation, player-protection rules and market structures. Political attitudes toward gambling differ dramatically between member states, as do the economic interests attached to gambling revenues.
“The ECJ is often cautious when national regulatory frameworks are fragmented and politically very sensitive – and German gambling regulation is precisely that,” Hambach says.
The complexity of Germany’s pre-2021 regime illustrates the problem. Different gambling verticals operated under different rules, licensing arrangements evolved over time and courts frequently disagreed on how those frameworks interacted with European law.
Soeren Alborn of law firm Bird & Bird´s German office argues that the ECJ has nevertheless provided some guidance within the limits of the questions referred to it. In the Austrian-linked European Lotto and Betting case (C-77/24) he notes, the court confirmed that member states retain broad discretion to prohibit online gambling activities if doing so serves objectives such as channelisation and consumer protection.
But even there, the ruling left important questions unresolved. Neither Germany’s former sports betting regime nor the online casino framework established under the 2021 State Treaty was directly at issue. Consequently, significant areas of uncertainty remain untouched.
In Alborn’s view, further clarification may yet emerge. Germany’s Federal Court of Justice has already designated an online casino dispute as a leading decision case, while additional referrals from lower courts could return unresolved questions to Luxembourg. In other words, Europe’s gambling litigation saga is unlikely to end any time soon.
Germany remains the main battlefield
Hambach believes we will see continued fragmentation. Without a definitive ECJ ruling capable of unifying legal approaches, German courts will continue producing divergent outcomes based on differing interpretations and factual circumstances. That fragmentation works both ways.
For claimants, favourable rulings can encourage further player-losses lawsuits. For operators, inconsistencies create opportunities to challenge claims on procedural and evidential grounds. “Fragmentation actually favours defendants,” Hambach argues.
German courts continue to dismiss claims for reasons extending beyond European law, including questions concerning limitation periods, jurisdiction, pleading deficiencies and where gambling activity actually took place. As long as those issues remain active, outcomes will remain difficult to predict.
Alborn similarly expects suspended online casino proceedings to resume following recent developments. Claimant law firms have already begun marketing ECJ rulings aggressively to potential customers.
Yet he also sees opportunities for operators, particularly in sports betting disputes. The advocate general’s opinion in the Tipico case suggested that repayment obligations may be disproportionate where operators received sufficiently clear assurances from authorities during transitional licensing periods.
As Alborn notes: “Such assurances must have been given in a precise, unconditional and consistent manner.” Whether any operator can successfully satisfy that standard remains a question for German courts.
The rise of a litigation industry
Legal uncertainty has also created fertile ground for a rapidly growing ecosystem of player-losses litigation funders, claims management firms and specialist law practices. Michelle Hembury from law firm Melchers Rechtsanwaelte expects player-losses cases to remain active regardless of individual ECJ decisions.
“Player litigation against online gambling operators is expected to at least continue in volume and to fragment along two principal axes,” she says, pointing to a growing divide between historic licensing disputes and newer claims based on alleged regulatory breaches and failures to implement responsible gambling obligations.
Third-party litigation funding plays a crucial role. Many claims would never reach court without external financing. Litigation funders thrive on the possibility of large-scale recoveries and have helped transform what began as a niche legal argument into a substantial cross-border industry.
This uncertainty, again, works both ways. Hambach notes that funders generally prefer predictability. The continued absence of definitive answers, coupled with unresolved questions surrounding enforcement, may make speculative mass litigation less attractive than many assume. A new wave of player claims cannot be ruled out. Equally, neither can a prolonged period of legal stalemate.
Malta’s experiment
Nowhere are the consequences of this uncertainty more visible than in Malta. As player claims became widespread across Europe, Malta introduced Article 56A of its Gaming Act to restrict the recognition and enforcement of certain foreign gambling judgments against Malta-licensed operators. The legislation immediately became one of the industry’s most controversial legal innovations.
Supporters argue it protects operators from what they see as inconsistent or extraterritorial rulings. Critics contend that it undermines fundamental European principles concerning the mutual recognition of judgments. Recent ECJ developments have done little to settle the dispute.
“The key issue is ultimately one of enforcement,” says Maltese lawyer and partner at GTG Terence Cassar. He argues that the debate has become too focused on litigation and not enough on politics.
“I believe the resolution to this entire situation should be political rather than purely legal,” Cassar argues. He remains relatively confident about Malta’s position. “Quite honestly, on the enforcement angle, I do believe Malta is on solid ground.”
Thomas Bugeja of Fenech & Fenech Law adopts a more nuanced perspective. He emphasises that Article 56A operates within a distinct legal sphere concerned with recognition and enforcement under the Brussels regulations.
National courts remain entirely free to apply their own gambling laws. The more difficult question is whether resulting player-losses case judgments can subsequently be enforced in Malta. To date, Maltese courts have generally refused enforcement on public-policy grounds. But Bugeja notes that the non-binding Advocate General’s Opinion in the recent Spielerschutz Sigma case has highlighted growing tensions between domestic protections and the European principle of mutual trust.
Accordingly, while Article 56A presently remains on the Maltese statute books, its future will ultimately depend on further clarification at CJEU level or clarity from the Maltese courts.
Exposure grows beyond Malta
Even if Article 56A survives, recent developments have increased pressure on operators active across multiple jurisdictions. Cassar is explicit on this point. “Where an operator does not hold a licence from the target jurisdiction, there is no doubt that risk has increased.”
The current direction of ECJ rulings, he argues, can be interpreted as increasing legal exposure outside Malta. Bugeja sees a broader trend. Recent rulings have reinforced the principle that player claims should increasingly be assessed according to the law of the player’s home jurisdiction rather than the operator’s place of establishment.
“The centre of gravity has shifted decisively towards the consumer’s jurisdiction, but recognition and enforcement remain a ‘Malta’ issue,” he says. That shift may prove more significant than any individual ruling. It places players, rather than operators, at the centre of the legal analysis and reinforces the tendency for disputes to be litigated locally.
“That said, whether judgments are enforced in a member state, remains within the remit of that member state’s courts,” Bugeja notes. Yet exposure remains uneven.
Differences in prescription periods, regulatory histories and national legal doctrines mean outcomes continue to vary considerably between jurisdictions. Europe’s player-losses landscape remains highly fragmented despite the increasingly cross-border nature of online gambling itself.
Enforcement without borders
The ECJ’s Mr Green proceedings illustrated how enforcement questions are becoming almost as important as liability itself. Hembury notes that the ECJ’s ruling clarified the conditions required for a European Account Preservation Order, establishing that creditors must demonstrate a concrete and present risk that assets may be concealed or dissipated.
The significance lies in what the ruling did not do. According to Hembury, creditors cannot rely solely on Malta’s law to justify freezing accounts elsewhere in Europe. The decisive factor remains evidence of intentional conduct aimed at frustrating enforcement.
In practical terms, this means that disputes are increasingly moving beyond questions of gambling legality and into broader battles concerning asset preservation, judgment enforcement and cross-border civil procedure. That evolution reflects the maturity of the litigation market itself. What began as disputes about gambling contracts has increasingly become a contest over how European judicial systems interact.
The case for harmonisation in Europe
Amid the complexity, one area of surprising consensus has emerged. Most lawyers involved in these disputes acknowledge that the current framework generates significant uncertainty. “What these cases illustrate is that a single European market governed by incompatible national rules – some quasi-prohibitionist or restrictive, some liberal – creates exactly the kind of legal uncertainty that we should have overcome in a unified Europe,” says Hambach.
Cassar goes further: “These cases demonstrate that the tension between EU law and online gambling regulation is not sustainable in the long term.” He points to the EU’s successful introduction of the Markets in Crypto-Assets regulation (MiCA) and questions why gambling remains untouched by comparable harmonisation efforts. While he considers tax harmonisation politically unrealistic, he sees potential for regulatory convergence or even a passporting model.
Bugeja reaches a similar conclusion from a different angle. The European Commission’s decision in 2017 to deprioritise gambling-related infringement proceedings left national courts to resolve many disputes themselves. The resulting patchwork of outcomes, he suggests, has only intensified tensions between free movement principles and national restrictions.
Yet few observers expect sweeping reform. Alborn notes that member states continue to hold fundamentally different views on gambling regulation. Hembury similarly argues that greater harmonisation may be desirable but that it currently appears politically unrealistic.
The obstacles are obvious. Gambling remains fiscally important, politically sensitive and culturally controversial. For now, national sovereignty continues to trump European uniformity.
Will politicians inherit the problem?
The irony of the player-losses cases saga is that years of litigation have clarified one thing above all else: Europe’s courts cannot fully solve Europe’s gambling fragmentation. The ECJ has not endorsed a blanket restitution regime. Neither has it delivered operators the decisive protection many sought. Instead, it has repeatedly returned responsibility to national courts and national legislators.
For operators, it means continued litigation risk. For claimant firms, it means continued opportunity. For Malta, it means uncertainty over the future of Article 56A. And for policymakers, it raises increasingly difficult questions about whether a genuine cross-border digital industry can continue operating indefinitely under fundamentally national rules.
Simon Priglinger-Simader, vice-president of the German Online Casino Association (DOCV), warns that “continuous player losses litigation will only help the offshore black market that is not interested in a licensed product and will neither pay for any of the player claims nor protect players”.
Whether or not regulators accept that argument, the broader point is becoming harder to ignore. Europe’s gambling market has become increasingly integrated. Its legal framework has not. The ECJ has now made clear that it does not intend to bridge that gap alone. Eventually, experts agree, the task may fall to politicians.
