The right to operate games of chance in Austria is generally reserved to the federal government (Section 3 „Federal Act of 28 November 1989 on the Regulation of Gambling“ [Federal Law Gazette 620/1989 as amended by Federal Law Gazette I 50/2025; „GSpG“]) and is therefore monopolised. Only the holder of the lottery licence (currently: Österreichische Lotterien GmbH) may therefore offer games of chance. This monopoly is currently qualified by case law as compliant with EU law (VfSlg 20.201).

Gambling operators based abroad often offer online gambling in Austria despite the ban. Against this backdrop, numerous lawsuits have been filed for around ten years to reclaim gambling losses based on the violation of this monopoly.

In practice, however, these reclaims are difficult to enforce abroad. Malta, for example, prevents the enforcement of these judgements with its „Bill 55“. Previous attempts to enforce claims from gambling losses against illegal providers have therefore often failed. As a new approach, a claim for damages was therefore brought against the two managing directors of an insolvent gambling provider. In this legal dispute, the ECJ made two key statements in its recent „Wunner“ judgement of 15 January 2026:

• The interpretation of Article 1(2)(d) of „Regulation 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations“ („Rome II Regulation“) was essential for the first question referred. This provision excludes non-contractual obligations „arising under company law ...“ from the scope of application. It was therefore questionable whether actions for damages under gambling law against the managing directors of companies fall into this category and are therefore excluded from the scope of the Rome II Regulation. In this regard, the ECJ found that the action in question regarding prohibited online gambling does not concern the relationship between the company and its managing directors and is therefore not a non-contractual obligation relating to company law. The Rome II Regulation is therefore applicable.
• The second question referred concerned the place of damage in the case of losses from online gambling and the interpretation of Art. 4 para. 1 of the Rome II Regulation. Specifically, the question was whether the loss occurred in the Member State in which the player has his habitual residence. The ECJ stated that it is in the nature of the case that it is not possible to easily pinpoint the location of online gambling. This suggests that these games take place at the player's habitual residence. Ultimately, Article 4(1) of the Rome II Regulation must therefore be interpreted as meaning that, in the case of these gambling law actions against companies in other Member States, the damage suffered by the player is deemed to have occurred in the Member State in which the player has his habitual residence.

The ECJ has thus made two clarifications that extend the possibility of reclaiming gambling losses from gambling providers abroad. This judgement has opened the door to personal claims against managing directors, even in cases where these managing directors were not the first to be responsible for offering illegal gambling by this company in Austria („subsequent liability“). This means that managing directors will actually become targets in the future. The shift of liability risk to the management is considerable ....