A Decisive ECJ Answer Has Yet to Arrive
For years, Europe’s gambling industry has looked to Luxembourg in the hope that the European Court of Justice (ECJ) would settle one of the sector’s most costly and politically sensitive disputes: whether players can recover losses from operators licensed in one EU member state but not authorised in another.
Over the past 12 months, however, the court has largely avoided answering the broader questions operators, investors and litigators had hoped would finally be resolved. Through a series of rulings, opinions and referrals involving German and Austrian player-loss claims, the ECJ has clarified certain legal principles but stopped short of imposing a uniform European solution.
Instead, it has repeatedly deferred to national and regional courts, effectively leaving them to interpret domestic gambling law and determine the consequences of each case. The result is a paradox: after years of litigation and multiple referrals, the industry has more guidance than before, but not necessarily more certainty.
That uncertainty now shapes Germany’s player-losses market, Austria’s restitution claims and Malta’s efforts to shield locally licensed operators from foreign judgments. It has also revived debate over whether Europe’s fragmented gambling regime can function without greater harmonisation.
Judicial Restraint Rather Than a Final Ruling
Many operators had hoped a decisive ECJ ruling on the compatibility of historic gambling restrictions with EU law might finally settle whether players could recover losses incurred before newer licensing frameworks emerged. Instead, the court has largely chosen restraint.
Claus Hambach of German legal firm Hambach & Hambach said: “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.”
The court has often stressed that member states retain significant freedom to regulate gambling. Questions over 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 clearer through recent proceedings involving Austrian player claims, Germany’s historic online gambling regime and the ongoing Tipico sports-betting case (Case C‑530/24). While European judges have clarified the legal framework, they have consistently avoided dictating outcomes.
Why Luxembourg Is Reluctant to Rule
The court’s caution reflects a deeper reality. Unlike financial services, telecommunications or aviation, gambling has never been comprehensively harmonised across the EU. National governments retain control over licensing, taxation, player-protection rules and market structures, while political attitudes and fiscal interests vary sharply between member states.
“The ECJ is often cautious when national regulatory frameworks are fragmented and politically very sensitive – and German gambling regulation is precisely that,” Hambach said.
Germany’s pre-2021 regime illustrates the difficulty. Different 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 Bird & Bird’s German office argues the ECJ has still provided 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 where that supports objectives such as channelisation and consumer protection.
But even there, important questions remained open. Neither Germany’s former sports betting regime nor the online casino framework under the 2021 State Treaty was directly at issue, leaving major areas of uncertainty untouched.
Alborn believes further clarification may still emerge. Germany’s Federal Court of Justice has designated an online casino dispute as a leading decision case, while additional referrals from lower courts could return unresolved questions to Luxembourg.
Germany Remains the Main Battlefield
Hambach expects continued fragmentation. Without a definitive ECJ ruling capable of unifying legal approaches, German courts are likely to keep producing divergent outcomes based on differing interpretations and factual circumstances.
That fragmentation works both ways. Favourable rulings can encourage further player-losses lawsuits, while inconsistencies create opportunities for operators 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 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, with claimant law firms already marketing ECJ rulings 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 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 meet that standard remains for German courts to decide.
A Growing Litigation Industry
Legal uncertainty has also fuelled a rapidly expanding ecosystem of player-losses litigation funders, claims management firms and specialist law practices.
Michelle Hembury of 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 said, pointing to a 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, and funders have helped transform what began as a niche legal argument into a substantial cross-border industry.
Yet uncertainty cuts both ways. Hambach notes that funders generally prefer predictability. The continued absence of definitive answers, coupled with unresolved enforcement questions, may make speculative mass litigation less attractive than many assume. A new wave of player claims cannot be ruled out; neither can a prolonged legal stalemate.
Malta’s Article 56A Experiment
Nowhere are the consequences more visible than in Malta. As player claims spread across Europe, Malta introduced Article 56A of its Gaming Act to restrict recognition and enforcement of certain foreign gambling judgments against Malta-licensed operators. The measure quickly became one of the industry’s most contested legal innovations.
Supporters argue it protects operators from inconsistent or extraterritorial rulings. Critics contend it undermines European principles on mutual recognition of judgments. Recent ECJ developments have done little to settle the dispute.
“The key issue is ultimately one of enforcement,” said Maltese lawyer Terence Cassar, partner at GTG. He argues 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,” he said, adding that on enforcement Malta is on solid ground.
Thomas Bugeja of Fenech & Fenech Law takes a more nuanced view. He emphasises that Article 56A operates within a distinct legal sphere concerned with recognition and enforcement under the Brussels regulations. National courts remain free to apply their own gambling laws; the harder question is whether resulting player-loss judgments can subsequently be enforced in Malta.
To date, Maltese courts have generally refused enforcement on public-policy grounds. But Bugeja notes 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. While Article 56A remains on the statute books, its future will depend on further CJEU clarification or rulings from 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: “Where an operator does not hold a licence from the target jurisdiction, there is no doubt that risk has increased.”
He argues the current direction of ECJ rulings 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 under 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 said. That shift may prove more significant than any individual ruling, placing players rather than operators at the centre of the legal analysis and reinforcing 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 added. Exposure remains uneven. Differences in prescription periods, regulatory histories and national legal doctrines mean outcomes continue to vary considerably between jurisdictions.
Enforcement Without Borders
The ECJ’s Mr Green proceedings illustrated how enforcement questions are becoming almost as important as liability itself. Hembury noted the 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 partly 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, disputes are increasingly moving beyond gambling legality into asset preservation, judgment enforcement and cross-border civil procedure. What began as contract disputes has become a contest over how European judicial systems interact.
The Case for Harmonisation
Amid the complexity, one area of surprising consensus has emerged. Most lawyers involved 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,” Hambach said.
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 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 2017 decision to deprioritise gambling-related infringement proceedings left national courts to resolve many disputes themselves, intensifying 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 currently appears politically unrealistic. 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 saga is that years of litigation have clarified one thing above all: 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, that 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 difficult questions about whether a cross-border digital industry can continue operating indefinitely under fundamentally national rules.
Simon Priglinger-Simader, vice-president of the German Online Casino Association (DOCV), warned 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.