Restitution of Online Gaming Losses: Potential Return of Stolen Funds for Austrian Player from Bank
Going After the Bank: An Austrian Gambler's Quest for Justice* A Gambling Calamity in Austria and a Battle for Refund* Malta's Law Shields Operators, but the Highest Court Strikes a Blow* Taking the Fight to the Bank: A New Approach in a Tangled Web of Laws
A Gamble Gone Awry in the Heart of Austria
In the heated realm of online gaming, an Austrian gambler stands at the forefront of a high-stakes conflict that recently captivated Der Standard. This ordinary player lost an eye-watering €27,000 at a clandestine Austrian-based online casino.
The glaring illegality of the casino, a common issue in such cases, seems incontrovertible. ButMaltese operators, protected by a controversial law known as Bill No. 55, often evade foreign lawsuits. This legal loophole has been a thorny topic, under investigation by the EU Commission for about two years, but it currently remains in effect.
The Supreme Court's Groundbreaking Decision
In a precedent-setting move, Austria's Supreme Court (OGH) ruled in December 2024, under case number 3 Nc 72/24d, that such losses can indeed be reclaimed in Austria. However, it's doubtful that the operator of this particular illegal casino will yield.
The game plan for the unyielding player has shifted to filing a lawsuit against the bank where the ill-gotten gains are deposited. Such a move, known as a third-party liability claim, aims to hold indirectly involved companies accountable for their roles in illegal activities, an approach increasingly employed by German lawyers.
The Great Freedom Debate: Operating in the EU
The future of cross-border gambling lies in the balance. On April 9, 2025, the European Court of Justice was poised to decide whether foreign online casinos could legally operate in Germany without a local license, relying on the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union (TFEU). This decision, though pertaining to Germany, could have pan-European implications.
The question at hand: Do national gambling laws overshadow the freedom to provide services within the EU? The final verdict, yet to be delivered until July 10, 2025, could establish significant precedents. Noteworthy, this case refers to the past, so its ramifications for the future are uncertain.
A Long and Winding Road to Justice
If the lawsuit against the bank fails or payment is delayed, the player intends to claim bank deposits held at the European Central Bank (ECB). However, the path ahead may be fraught with complications, as legal professionals predict the proceedings could extend for years.
Given that such cases have statutes of limitation of 30 years in Austria, there appears to be no urgency for a swift resolution. Shedding some light on the situation, the player has assigned her claim to litigation funder Jufina, potentially placing some funds in her hands already.
Legal Insights: The Nuts and Bolts of a Banking Tussle
When pursuing a third-party liability claim against a bank, several factors must be considered:
- Jurisdictional Considerations: The legality and jurisdiction of such claims often hinge on local laws and the specific circumstances of each case. In the Austrian example, the context would involve Austrian and possibly EU law on illegal gambling and third-party liability.
- EU Cross-Border Regulations: The EU's rules on cross-border services and the principle of freedom to provide services could influence the claim's viability. However, in cases involving illegal activities, these principles might not apply if the gambling is deemed unlawful in the jurisdiction where the claim is made.
- Third-Party Funding (TPF): TPF can aid claims like these by covering legal costs in exchange for a portion of potential damages. Recent investigations by the European Commission highlight its role in facilitating access to justice for those who may not be able to afford litigation costs[1].
- Bank's Liability: Proving a bank's complicity or negligence in facilitating illegal gambling transactions is essential to establish its liability. Banks usually have obligations under anti-money laundering (AML) regulations to monitor and prevent such activities[3].
- Illegality of Gambling Activities: If the gambling enterprise is illegal in the jurisdiction where the claim is made (e.g., Austria), this could significantly impact the claim's viability against a bank involved in transactions with that enterprise.
- Malta's Role: The regulations governing Maltese gambling operators and their experience in navigating other EU countries' laws could play a crucial role in the proceedings. A recent development has involved a Maltese court refusing to enforce judgments from Austrian courts regarding player losses, citing Malta's public policy[2].
- The Austrian gambler, who lost €27,000 at an online casino in Austria, intends to file a lawsuit against the bank where the ill-gotten gains are deposited, employing a third-party liability claim.
- The Supreme Court of Austria ruled that such losses can be reclaimed in Austria, but the operator of the illegal casino may not yield, making the bank the next target.
- In the future, foreign online casinos could legally operate in Germany without a local license, depending on a decision by the European Court of Justice regarding the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union (TFEU).
- If the lawsuit against the bank fails or payment is delayed, the player plans to claim bank deposits held at the European Central Bank (ECB), but the proceedings could extend for years with complications.
- Pursuing a third-party liability claim against a bank involves jurisdictional considerations, EU cross-border regulations, third-party funding, proving the bank's liability, understanding Malta's role, and taking into account the illegality of the gambling activities in the jurisdiction.
