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A daily podcast delving into the biggest stories of the day throughout the sports betting and igaming sector.
Fernando Noodt (00:02.87)
The legal conflict between Austria and Malta courts over the enforcement of gambling judgments has evolved over a 20-year period. What began as an isolated dispute has escalated into a legal test of Europe's fragmented gambling framework culminating in a landmark ruling from the European Court of Justice at the start of 2026. Today, we break down what the ECJ's decision means for player losses claims
Malta's controversial Article 56A and the broader question of how European gambling conflicts can be determined. Welcome to iGaming Daily brought to you by Optimove, the creator of positionless marketing and number one player engagement solution for iGaming and sports betting operators.
I'm Fernando Nott, Media Manager for SBC and your host for today. And joining the iGaming Daily podcast is Christian Rappani of Rappani, Rextam Valti and member of the International Masters of Gaming Law, IMGL to unpack the legal, political and commercial consequences of European gambling biggest legal exposure. So Christian, how are you today?
Christian Rapani (01:09.019)
Thank you. Thank you for having me. Thank you for the invitation and I hope I can answer all your questions within this short introduction today.
Fernando Noodt (01:21.084)
wait for that ambulance to go by and I'm not sure if it's picking up but it's quite noisy out there. No? Okay then let me... And also with us is editor-at-large Ted Memmure. Ted, how are you today?
Ted Menmuir (01:38.958)
Very well fun and glad to be joined by Christian because I'm afraid I'm going tell the audience, I'm going to be quite honest, this is an article that, or this is a subject math that is just dreaded by all journalists and editors. It's a very conflicting case for the industry. Let's just put it that way.
Fernando Noodt (02:02.038)
Yes, definitely something that everyone wants to hear more about and get some clarification about the ins and outs of the case. So Christian, why don't we start by refreshing our audience on this legal conflict, which has evolved, like we said, over two decades through both domestic and European courts. Can you summarize the proceedings to date as clearly as possible for our audience?
Christian Rapani (02:28.0)
Absolutely. As Austrian lawyer, we used to be the guys bringing the bad news, but I hope that today's explanations will also have some positive impact and help a little bit in managing this issue. To make sure everyone's on the same page, I would like to start with what is a typical player claim? What are we talking about? Claimants, and I will get to the historic roots of that.
normally claim, that's the typical player claim against an operator, the operator is working and offering without a local legal license for his offering and therefore the contract between player and operator is illegal and the contract nil and void and as a consequence the player can claim back his losses based on unlawful enrichment. This is how the typical standard straightforward player claim works.
Operators, as one of their main defenses, claimed in the past and still claim that their offering is legitimate based on the freedom to provide services granted by EU law and that the Austrian Games of Chance monopoly is violating EU law. However, in 2016, for the first time, all three Austrian Supreme Courts, Constitutional, Administrative and the Civil Supreme Court, anonymously stated
that the Austrian Games of Chance monopoly is in line with EU law. After that, it still took some years for this first big wave of player claims to pick up pace. And over the years, in numerous proceedings, issues like proportionality, coherence of the monopoly, advertising practices of the monopolist and so on were discussed in depth and Austrian courts produced
tons of case law in this regard. The more recent discussion, and this is what Ted, I think, referenced right at the beginning, is the discussion about tort claims. This is to be seen separate from the civil contractual claims I just talked before. And here, the main questions were regarding international jurisdictions and applicable law. These cases are mainly addressed the ones we've
Christian Rapani (04:53.834)
we are seeing now against directors or group companies of Malta-based and licensed operators. Many, many of these cases were suspended in the past because there was an uncertainty, especially regarding applicable law and international jurisdiction of Austrian courts. And now, very recently, now we arrived in the present, the Bunna case was decided by the ECJ, telling us that the place of damage
that is decisive for applicable law, for the question of applicable law is where the habitual residence of the player is. So, and this obviously gives clarification and is strengthening the position of Austrian claimants in these regards.
Ted Menmuir (05:43.931)
Okay, from your legal perspective, how unique is this type of conflict within European member states? How often does the ECJ have to intervene in cases like these, where you have one determination by local state versus another, and it needs this determined?
Christian Rapani (06:02.239)
Yeah.
Christian Rapani (06:06.496)
So ECJ preliminary ruling requests like the Wunna case is one that one state court asked the ECJ how is this regulation to be understood and to be interpreted. This happens on a regular basis. Gaming law for some reason over the last 10, 15 years produced many, many preliminary ruling requests. This is nothing too concerning or strange. What you might...
Ted Menmuir (06:29.485)
Mm-hmm.
Christian Rapani (06:35.6)
reference and want to address is the question regarding questioning national law of another member state like the request placed at the ECJ and that in the past was addressed to the European Commission about the legality of Bill 55. That's a different discussion. That is something that is not that common. Preliminary ruling request as we've seen it now with the Bunda case is nothing too surprising or extraordinary.
Fernando Noodt (07:06.838)
And of course this conflict has been over there for the past 20 years where we've seen significant regulatory reforms for iGaming laws across individual member states. So has the legal and regulatory context surrounding this claim materially changed over time?
Christian Rapani (07:27.124)
I could now say, unfortunately, the legal framework in Austria has not changed that much, not significantly. we are still, I give it also a kind of a negative touch, stuck with a monopoly as one of the last EU member states. However, there's no, even if there's no harmonization on an EU level, as you perfectly stated, many, many EU countries
Ted Menmuir (07:52.664)
Mm-hmm.
Christian Rapani (07:57.589)
changed into more or less open regulatory regimes allowing to apply for licenses with limited, unlimited numbers, whatever. we are almost the last movers now and there is some hope and some initiative. I'm confident that the monopoly, the current system will significantly change by end of this year.
Ted Menmuir (08:21.388)
Can I just interject here? Let's look at the language here. And one of the phrases you mentioned is applicable law. Now, as Fernando mentioned, 20 years of changes that have to be considered and evaluated here, yet Austria hasn't moved. Shouldn't European Court of Justice favor Malta in this discipline? Because at least it is kind of integrating in there.
that fair play or that kind non-restriction of commercial services within the EU framework.
Christian Rapani (08:55.36)
What the EU does in these preliminary ruling requests, and there have been several in regards of the Austrian Games of Chance monopoly, is you will not hear from the ECJ the Austrian Games of Chance monopoly is or is not in line with EU law. What the ECJ does, it tells us certain parameters the national courts in the next step need to consider when evaluating
the EU conformity of the Austrian games of chance monopoly. I'm perfectly aware that this is not the answer you wanted to hear, but this is the... that's the current...
Ted Menmuir (09:29.038)
It's not about what I want to hear. I mean, I'm just making kind of these observations, but even, I mean, I know that even in Austria, there's kind of frustration at the regulatory framework that it has. mean, couldn't this be a catalyst for Austria to revamp or to actually look to kind of enforce something new?
Christian Rapani (09:49.535)
Absolutely, No, think this is such a complex issue and it has so many layers. We'll maybe get to this a little bit later. The problem here is there's so many interests, political, regulatory, financial, commercial, player protection, AML. All this is coming together and no need to tell you how hard it is to get
compromise on one single question and now if I tell you that we have this multi-layer issue then it gets even harder. maybe how could I say that without being too partial. 55 added another dynamic to this entire system that is already quite complex and maybe provoked some reactions and some
pressure in different directions then. I'm sure it gave a new momentum to the entire situation. I can't tell at the end of the day if it will be favorable at the end of the day for Malta or not. For now, I can understand that the intention is to codify a long-standing political policy, as I understand it, to protect the industry. Maybe just food for thought.
a move of the Austrian politicians and a change in Austrian law could also make necessary a change in Maltese law, because maybe there is no need to defend yourself if maybe the motivation for your defense is gone. So maybe this will again change the situation and then we will see how this develops.
Ted Menmuir (11:30.551)
Mm-hmm.
Christian Rapani (11:44.808)
Unfortunately, there's no straightforward yes and no black and white answer.
Fernando Noodt (11:50.934)
And of course, there's a lot of cross border fallout to this case. Do you think it's unique to gambling or have we seen similar jurisdictional conflicts emerge in other high risk or heavily regulated sectors?
Christian Rapani (12:04.736)
The issue here is that the sectors that are regulated in a comparable intensity, for instance, insurances, banks, financial sector and so on, they are at least to a certain extent harmonized on European level and therefore there is a far, far bigger degree of legal certainty.
we have this phenomenon of a highly regulated industry that is not harmonized at all here. This for sure is part of the problem.
Fernando Noodt (12:42.08)
And given that same thing you're mentioning right now, that the EU has no intention of harmonizing gambling regulation, do think in the wider EU context, should gambling disputes ultimately be determined by the domestic loss of individual member states?
Christian Rapani (13:02.048)
The very, from a historic point of view, gambling is very, very closely connected to fiscal interest. The first state lotteries were purely to collect funds for the states, to finance wars, to help after big catastrophes whatsoever. there is a strong national tradition to regulate gambling law.
Furthermore, it's a social issue of player protection, of how you want these type of products to be present in your everyday life. however, like every other phenomenon that is taking place online, it's purely, you can see very, very clear the limitation of national laws, of national jurisdiction, of national jurisprudence when it comes to a phenomenon that is taking place.
in the internet. That's simply not working. That's my personal point of view. So unless you have a certain degree at least of harmonization and a market that is per se due to mechanisms like competition and so on regulating itself, it's almost impossible to fight or whatever a big black market. This is not going to happen.
in such an environment as we have it here in Austria.
Ted Menmuir (14:33.454)
Before we head into the break, I'm going to end this part one. Sorry, Fernando. But from a legal perspective, aren't we just in an eternal kind of catch 22 where if there's no basis of harmonization in European gambling, how can anything be determined at a higher level? I mean, is there any road to settlement here?
Christian Rapani (14:53.76)
If you regulate in a way that eliminates per se from inside out the black market by having, for instance, licensing more or less open licensing regime, it's competitive stakeholders in the market, why should the player opt to play with a black market operator if he has a competitive offer?
offering of a perfectly legal competitive offering. Everyone's happy, player protection is in place, AML can be executed. Everything as you wish it. we've seen it, for instance, in Denmark, the remaining black market is minimal and can be defeated. If you have such a situation or a comparable situation arriving or managing to get to such a high degree of
of generalization. Maybe you don't need harmonization anymore because everyone's happy in his own jurisdiction because he himself found a way to handle and to tackle all the big issues to be addressed. If you don't have such a system in place that is handling these issues properly, then you get to these limitations I just mentioned before.
Fernando Noodt (16:19.258)
Cristian you have given us a lot to process so we're gonna do a very quick ad break so everyone can just take a sip of water and organize their thoughts before we continue discussing this case on iGamingDaily and we will be right
Ted Menmuir (16:33.646)
you
Fernando Noodt (16:40.46)
and you want to take a sip what? Yeah.
Ted Menmuir (16:40.91)
good stuff.
Fernando Noodt (16:50.082)
you ready?
Fernando Noodt (16:57.108)
And we're back with more iGaming Daily. Today joining us is Christian Rapani of Rapani, Rekstan Valti and a member of the International Masters of Gaming Law. We were discussing the legal conflict between Austria and Malta courts over the enforcement of gambling judgments. Christian, were you surprised by Malta's rejection of the CJEU determination?
particularly given the historic nature of the case and the possibility of the settlement.
Christian Rapani (17:29.504)
The BUNA ruling is definitely significant. However, at the end of the day, it answers the question of applicable law as we discussed before. This is regarding purely tort claims against third parties other than the operator. So this is the BUNA ruling, the very recent one. This has certainly impact on the tort claims and we'll add another chapter to this long
I call it maybe tradition of litigation in Austria. The conflict between national monopolies and cross-border services and EU law is still unsolved. It's not solved just because of this one WUNA ruling. Apart from that, and this is something I can only give a very, very high level expertise, is
how Bill 55, Article 56A of the Maltese Gaming Act is working. Obviously, it prohibits enforcement of foreign rulings against Malta-based and licensed operators, their directors and so on in Malta. And as I'm fully aware, there's, I think, two or three even quite recent Maltese judgments confirming
the unenforceability of Austrian rulings in Inmok.
Ted Menmuir (18:55.692)
Mm-hmm.
Fernando Noodt (18:57.708)
To what extent is the Maltese government justified in arguing that foreign enforcement demands threaten the regulatory jurisdiction of the Malta Gaming Authority?
Christian Rapani (19:09.396)
Yeah, as I said, I'm quite aware of Maltese law, but I'm not a Maltese lawyer. As I said before, from my understanding, this is how it was explained to me. This is purely the codification of something that has been there. That's Maltese public policy that has been there long standing. now it's just, so the law essentially did not change. It's just that it's now codified.
Ted Menmuir (19:16.974)
Mm-hmm.
Christian Rapani (19:39.077)
and stating this.
Ted Menmuir (19:41.742)
Can I put the question in another term that's a bit more blunt? Does Malta have a right to defend itself when it views bigger EU nations that may be bullying their way to settlement with the EU, i.e. not only Austria but Germany and the Netherlands?
Christian Rapani (20:01.984)
I have a personal view. Do they have the right? I'm not competent to tell you. Do I think it's efficient in a certain way? Yes. Because it actually really prohibits enforcement of Austrian rulings for more than one year now. Thus this.
Ted Menmuir (20:04.334)
I know it's more. Yeah.
Christian Rapani (20:30.728)
Maybe I don't want to make a judgment on if it's justified, justifiable whatsoever. Maybe it could help to give momentum to a discussion that is to be held for a long time. Maybe this was the pressure that was necessary to initiate this discussion and to lead to a solution. And as I said before, maybe...
Ted Menmuir (20:48.289)
Mm-hmm.
Christian Rapani (21:00.128)
an upcoming change of the Austrian monopoly system and introduction of a licensing regime could be the necessary move of Austria to make Malta react to that and give up this defence position.
Ted Menmuir (21:21.144)
Thank you.
Fernando Noodt (21:22.624)
And given its position as the leading European iGaming hub, do you think Malto can realistically afford either to lose this dispute or to settle it?
Christian Rapani (21:33.793)
I don't know if they can afford it, but what I know is everyone within the European Union, also all the operators, Malta as an economy, guess, everyone is interested in a solution at the end of the day. This is a problem that needs to be fixed. And maybe the situation and this confrontation we are seeing now is the first step of a solution.
Fernando Noodt (22:02.366)
And we'd to hashtag wait and see how things unfold in the future. having you here, Christian, how do you see proceedings unfolding from this point? And is there a realistic pathway to finally closing this difficult chapter in European gambling regulation?
Christian Rapani (22:21.728)
I would hope so. And from an Austrian perspective, what I really hope to happen in the near future is a change in the current legal framework we have here in Austria. As I said before, in end of 2027, major licenses in Austria, including the one allowing online games of chance, is expiring. There is a very broad public discussion.
And there's full awareness that continuing the way we are doing now is not the best way forward from a player protection, from an AML, from an economic, from a fiscal, from all points of view, that's not the best way forward. And this is why very optimistic that things will change in Austria by end of year.
Ted Menmuir (23:04.749)
Mm-hmm.
Fernando Noodt (23:18.146)
That is Cristian Rapani of Rapani Rekstan Valti, a member of the International Masters of Gaming Log. Cristian, thank you very much for joining us today to discuss a very key subject, a very key legal conflict for the gaming industry in Europe. I hope you had a good time. Did you enjoy your participation in the podcast?
Christian Rapani (23:40.512)
Yeah, great, thank you. It was quite a new format for me. I really enjoyed it. I hope I could give some useful information and I'm more than happy to join again. Just feel free to reach out and we'll be there.
Fernando Noodt (23:55.764)
Absolutely. We will definitely reach out to Christian and of course reach out to him if you want to learn more about this and more about gaming regulation. Thank you very much Ted Memir as well for joining us and A. MacDonald for producing this episode. I'm Fernando Nott and to our listeners out there we'll see you in the next one.
Ted Menmuir (23:55.843)
Thank you.