IGB: Germany player losses cases remain in limbo as ECJ opinion fails to address German law uncertainties

By Nicole Macedo, published at https://igamingbusiness.com/

A new case opinion about ECJ player losses has ruled cases brought against operators without local licences are not an abuse of EU law.

Hundreds of player losses cases in Germany face further delays after an opinion released by the European Court of Justice (ECJ) has failed to determine whether Germany’s gambling treaty was compatible with EU law.

However, the opinion deemed the court had been provided with sufficient information to assess the compatibility of German law with EU law.

It also ruled that courts of EU member states are allowed to review the compatibility of the law of another member state with EU law.

The opinion relates to a case brought before the ECJ in April by a civil court in Malta (C‑440/23). Opinions are typically delivered by an advocate general during the final part of the oral stage of proceedings. Although it is not a formal ruling on a case, it analyses the legal aspects and provides answers to questions posed by a case.

In this instance, the opinion concluded that a number of questions brought by the Maltese court were valid, including whether it was reasonable for locally regulated markets (like Germany) to prohibit online casinos licensed only in Malta.

Another question raised was “whether European courts had jurisdiction to review the compatibility of the law of another member state with EU law”.

Players can bring losses cases against Malta-licensed operators 

However, the opinion did rule that a player bringing a civil claim against an operator without a local licence to operate does not constitute an abuse of EU law.

This point clearly addressed the core question of whether EU law supports player losses claims made against Malta-licensed operators by players in Germany and Austria.

In this case the advocate general agreed with the claimant that the contract between a player and operator in this case was deemed void under contract law.

This point could have huge implications for the hundreds of similar player losses cases being addressed in regional courts across Germany and Austria.

These were put on hold when four prominent litigations, including case C‑440/23 were progressed to the ECJ, as regional courts were unable to resolve complex questions around German gambling law and the sector’s interpretation of European laws.

Sector looks to Tipico case for clarity on Germany’s gambling laws

However, Claus Hambach, managing partner at German law firm Hambach & Hambach, tells iGB that cases will remain on hold until the ECJ addresses the core question of whether Germany’s previous State Treaty, which placed a total ban on internet games of chance, was compatible with EU law.

“Such as anticipated from the hearing, the advocate general mainly dealt with procedural questions. This was an explicit request by the ECJ. The advocate general did not address the key question of whether the internet ban in Germany is compatible with EU law,” Hambach says.

He says the sector will now look to the next player losses case to be heard by the ECJ on 24 September, for clarity on whether German gambling laws are in line with the EU’s Treaty on the Functioning of the European Union (TFEU).

Case 530/24 involves prominent German betting operator Tipico and was referred to the ECJ in May by the Federal Court of Justice of Germany (BGH).

“The focus now shifts to the Tipico case. The first in-depth legal examination of the German Interstate Treaty Gambling (ITG) by the ECJ will now concern a sports betting case and not betting on lotteries and casino,” says Hambach.

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