Online Gambling Litigation in the EU After Wunner

Case C-77/24 arose from proceedings before the Austrian Supreme Court concerning a claim brought by a consumer seeking recovery of gambling losses incurred through an online casino operated by a Malta-registered and Malta-licensed company.

The claimant relied on Austrian gambling legislation and tort law, alleging that the operator – and its former directors – had offered gambling services without the required local authorisation.

The defendants argued that:

The operator was lawfully licensed in Malta; and

Maltese law, including legislative provisions limiting the enforceability of foreign judgments relating to lawful Maltese-regulated activity, should preclude such claims.

The Austrian Supreme Court referred questions to the CJEU on the applicability of Rome II and the determination of the place where damage occurs in cross-border online gambling disputes.

The first question concerned whether claims against company directors for offering online gambling services without local authorisation fall outside Rome II as matters “arising out of the law of companies” under Article 1(2)(d).

The Court held that they do not.

It clarified that the exclusion applies strictly to matters concerning the internal organisation and governance of a company. Where liability arises from the alleged breach of a general statutory prohibition enacted in the public interest – such as national gambling regulation – the obligation is external to company law and constitutes a non-contractual obligation governed by Rome II.

The distinction between internal corporate duties and duties owed towards third parties was central to the Court’s reasoning. As a result, director liability in this context is subject to the same applicable-law analysis as operator liability.

The core of the judgment concerns Article 4(1) of Rome II, which provides that the applicable law is the law of the country “in which the damage occurs”.

The CJEU ruled:

“In the context of an action for damages for losses incurred when participating in online games of chance … the damage sustained by a player must be deemed to have occurred in the Member State in which that player is habitually resident.”

The Court rejected alternative connecting factors, including:

• the location of the operator’s establishment;
• the place of server infrastructure;
• the location of bank accounts;
• the place where corporate decisions were taken.

These were characterised either as the event giving rise to the damage or as indirect consequences.

Given the intangible nature of online gambling, the Court considered the decisive factor to be the location where the player’s legally protected interests are affected – namely, the Member State whose gambling legislation is allegedly infringed and where the player is habitually resident.

The judgment represents a structural recalibration of cross-border gambling litigation within the EU.

Historically, operators often relied on the regulatory legitimacy conferred by their licensing Member State as a central element of legal defence. The Wunner ruling does not invalidate licensing frameworks. However, it confirms that compliance in the state of establishment does not determine the applicable law for tortious loss-recovery claims.

For Malta gaming licence holders, this entails:

• Increased exposure to the substantive gambling law of each player’s Member State of residence.
• Expanded litigation risk in jurisdictions with restrictive or monopolistic gambling regimes.
• Potential personal liability exposure for directors under foreign tort law.
• Greater scrutiny of market-access models and geo-targeting practices.

The alignment of jurisdiction and applicable law with the player’s habitual residence enhances procedural predictability for claimants and national courts.

For claimants, the judgment lowers barriers to bringing recovery actions before domestic courts under domestic law.

For operators, the ruling reinforces the importance of:

• Detailed market compliance mapping.
• Risk assessments regarding passive versus active market targeting.
• Governance frameworks addressing director oversight of cross-border operations.
• Litigation strategy recalibration across multiple Member States.

The judgment may also influence parallel regulatory enforcement approaches, particularly where Member States assert consumer-protection rationales grounded in public policy.

Case C-77/24 confirms that the Rome II framework applies robustly in digital environments and that the “place of damage” in online gambling cases is anchored to the player’s habitual residence.

The decision redefines the litigation landscape for EU online gambling and shifts the focus from the operator’s licensing jurisdiction to the consumer’s regulatory environment.

As national courts begin to apply the Wunner principles, further jurisprudence will clarify the practical boundaries of cross-border liability in the EU’s digital gambling sector.