Lootboxes, betting on e-sports and player claims before the ECJ and Austrian courts

The first few weeks of 2026 brought mixed fortunes to protagonists in the gaming sector

Introduction

Recent decisions coming from the ECJ and the Austrian Supreme Court have clarified the landscape regarding lootboxes, betting on e-sports and tortious player claims.

First, the long-awaited decision of the European Court of Justice (ECJ) in the “Wunner-Case” concerning applicable law and consequently international jurisdiction in a tort claim against directors of a games of chance operator was published.

Second, a decision from the Austrian Supreme Court as to whether lootboxes (in this case in the game “FIFA”) should be considered games of chance, meaning that losses incurred could be reclaimed by players.

Lastly, a decision from the Austrian Supreme Court reviewed whether betting on e-sports may be considered games of chance, meaning that losses incurred could be reclaimed by players.

Development of the “Wunner-Case”

The “standard player claim” in Austria is a claim from a player against the online games of chance operator for return of their games of chance net losses. This claim is based on the understanding that the offering of such a game without an Austrian licence violates the Austrian federal monopoly on games of chance and thus the games of chance contracts are null and void. The legal basis under which any net loss can be reclaimed is the reversal under the law of unlawful enrichment, which has a 30 year statute of limitations.

In the past several years, players, their attorneys and process cost financiers have initiated claims against third parties other than the games of chance operator to reclaim their net losses. These lawsuits are based on tortious liability due to the understanding that the defendant violated a protective law (Austrian games of chance monopoly) by operating, organizing or making accessible, facilitating or participating in games of chance without an Austrian license.

In 2024, the Austrian Supreme Court heard such a tort claim for return of games of chance net losses that an Austrian player filed against the directors of a Maltese games of chance operator before the Austrian courts.

The directors of the Maltese games of chance operator advanced the argument that Austrian law did not apply in the case. They maintained that the place where the damage occurred was not in Austria, according to Rome II Regulation,[1] and consequently that Austrian law is not applicable.

As the Austrian Supreme Court was being asked to interpret EU law, it decided to file a preliminary ruling request to the ECJ where it posed the question as to how the place where the damage occurred is determined.[2]

Following this preliminary ruling request of the Austrian Supreme Court, a significant number of pending tort claims have been suspended by the Austrian courts until the decision of the ECJ.

Judgment of the ECJ dated 15.01.2026[3]

The ECJ clarified that the general rule in the Rome II Regulation is that “the law applicable to a non-contractual obligation arising out of a tort or delict is to be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.”[4] In short, this means that “the place where the damage occurred is the place where the alleged damage actually manifests itself”.[5]

Against this background, the ECJ then stated that online games of chance need to be considered to have taken place where the player is habitually resident.[6]

However, the ECJ conceded that the designation of the law where the player is habitually resident may be departed from, if it is clear from all the circumstances of the case, that the tort is manifestly more closely connected with another country.[7] Nevertheless, the ECJ expressly stated that such a departure from the general rule is an exception that is subject to strict interpretation.[8] As an example for such a deviation, the ECJ named a pre-existing contractual relationship between the parties that is closely linked to the tort claim.[9]

In conclusion, the ECJ answered the preliminary ruling request question as follows:

“[T]he Rome II Regulation must be interpreted as meaning that, in the context of an action for damages for losses incurred when participating in online games of chance offered by a company in a Member State in which that company did not hold the required licence, the damage sustained by a player must be deemed to have occurred in the Member State in which that player is habitually resident.”[10]

Impact of the ECJ ruling on tort claims in Austria

Having received the judgment from the ECJ, the Austrian Supreme Court will continue the national proceeding that was the basis for the preliminary ruling request. The Austrian Supreme Court is bound by the decision of the ECJ and has to apply the interpretation provided by the ECJ to the specific case and make its decision on the merits of the case, taking into account the preliminary ruling. However, based on the clear wording of the Wunner-Case ruling, it may be expected that the Austrian Supreme Court, and other Austrian courts, will follow the general rule applied by the ECJ and thus deem themselves internationally competent and apply Austrian law.

Furthermore, it is expected that the pending tort claims that have been suspended by the Austrian courts until the decision of the ECJ, will continue.

In addition to already pending tort claims, a rise in new tort claims against third parties other than the games of chance operator now seems likely.

It remains to be seen which other third parties may be affected by a rise in tort claims. In this regard, there is currently a preliminary ruling request pending with the ECJ from the Upper State Court Vienna, which concerns a tortious claim against an ultimate parent company whose subsidiary, as a jointly and severally liable co-perpetrator, offered online games of chance in Austria without an Austrian license.[11] As the question posed to the ECJ is consistent with the already answered question in the Wunner-Case, a decision of the ECJ will probably be made quite soon and it is expected to be in line with the above outlined answer.

Supreme Court tort claim ruling

With a recent judgment[12] the Austrian Supreme Court continued a suspended tort claim proceeding and made a decision based on the ECJ ruling.

In this case before the Austrian Supreme Court the claimant sued the Maltese based and licensed operator as well as the director of the operator for return of net losses.

The second defendant (director of the operator) especially argued the lack of international jurisdiction. The first instance court dismissed the objection of lack of international jurisdiction and granted the claim of the claimant. The second defendant filed a legal remedy against this decision and in the second instance his argument was confirmed, meaning that the second instance court dismissed the lawsuit due to a lack of international jurisdiction. The claimant filed a legal remedy to the Austrian Supreme Court against this second instance court decision.

In a first step, the Austrian Supreme Court suspended the proceeding due to the pending Wunner-case before the ECJ.

However, as the ECJ made its ruling, the proceeding before the Austrian Supreme Court was continued.

Also in this case, the claimant asserted a tortious claim for damages against the director of a Maltese based and licensed operator due to a violation of Austrian player protection regulations (protective laws). This affects the main legal questions of international jurisdiction (thereby the applicability of Austrian law) and merits of the claim.

The Austrian Supreme Court followed the Wunner-ruling of the ECJ and concluded that the damage of the claimant occurred in Austria. Therefore, the Austrian Supreme Court ruled that Austrian law is applicable to the present tort claim against the director of a Maltese based and licensed operator. Due to the applicability of Austrian law, the Austrian Supreme Court further ruled that Austrian courts are internationally competent to decide on such tortious claims.

This decision of the Austrian Supreme Court gives final clarity from Austria’s highest civil court that tort claims against third parties other than the operator (e.g. directors of operators) may be filed before Austrian courts and that Austrian courts may apply Austrian law when deciding these lawsuits.

It remains to be seen, if these decisions from the ECJ and Austrian Supreme Court will lead to an increase of tort claims against third parties other than the operator (e.g. directors of operators) in Austria. In cases where claimants, their attorneys and/or process cost financier may want to increase pressure for prompt payment of online games of chance net losses incurred with operators not holding an Austrian license, such tort claims may become a valuable mechanism to do so.

Open legal questions regarding tort claims in Austria

Apart from international jurisdiction and applicable law, tort claims face a number of case specific legal questions that will need to be evaluated by the courts in a differentiated manner.

For example, in tort claims, the question of the liability of the defendant will be of high importance and will differ on a case-by-case basis depending on the individual defendant.

Furthermore, the statute of limitation for claims for damages is generally three years. The time limit begins to run when the damage and the damaging party become known. The question of when the time limit starts will also be subject to the singular case.

Against this background, case law in this regard will need to be monitored closely, as, even though these questions are case specific, certain parameters may be developed by jurisprudence.

Lootbox decision of the Austrian Supreme Court

With its decision dated 18.12.2025, 6 Ob 228/24h, the Austrian Supreme Court had to look at the video game “FIFA” and the “Packs” used in the “Ultimate Team” mode. An Austrian player maintained that these “Packs” should be considered games of chance that are being offered without an Austrian license, and used this argument to try to claim back money spent to obtain the “Packs”.

The Austrian Supreme Court rejected the player’s claim and argued that the entire game must be considered as a whole. This means that the assessment of whether a lootbox is a game of chance must not consider the lootbox in isolation from the game, but rather the game in its entirety needs to be evaluated.

In this specific case the Austrian Supreme Court argued that, even though the lootboxes (“Packs”) in FIFA’s “Ultimate Team” may be considered a game and even though there is an element of chance in the distribution of the content of the lootbox (“Packs”), the human player can use their own skills to influence the course of the game with a probability conducive to success, thereby establishing a rational expectation of winning. The assessment of the lootbox (“Packs”) as a whole therefore shows that it may not be considered as a game of chance.

The fragmented approach of the claimant of a stand-alone assessment of individual in-game mechanics was therefore clearly rejected by the Austrian Supreme Court.

In its legal reasoning the Austrian Supreme Court cited an article published by Rapani law firm last year on the legal classification of loot boxes under gambling law,[13] and used this as a basis for its ruling.

The ruling provides legal certainty to publishers. Furthermore, the understanding of the necessity that a product must be considered as a whole may further be applied to other game plays that contain games of chance elements.

The basis of evaluation, namely the necessity of an overall assessment of the lootbox as a whole, established by the Austrian Supreme Court in this ruling will need to applied by Austrian courts in all cases where players try to reclaim losses incurred by lootboxes in video games.

While the ruling therefore gives legal certainty to publishers of “FIFA”, it also shows that a separate and individual assessment of lootboxes in other video games will need to be undertaken. Case law in this regard will need to be monitored closely, especially as the qualification of a specific lootbox as a game of chance may lead process cost financiers in particular to accept such claims and initiate lawsuits.

Betting on e-sports decision of the Austrian Supreme Court

Toward the end of 2025, the Austrian Supreme Court published a decision regarding the question of whether betting on e-sports constitutes an illegal games of chance offering.

With its decision dated 23.10.2025, 9 Ob 76/25d, the Austrian Supreme Court had to review a lawsuit of a Viennese customer reclaiming losses incurred when betting on e-sports events online.

Firstly, the Austrian Supreme Court confirmed the lower courts’ assessment that the Viennese Betting Act, which does not include explicit provisions concerning online betting offerings, does not apply to online betting offerings that the defendant is offereding from a location outside of Vienna. This assessment is in line with and further strengthens existing case law of the Austrian Supreme Court concerning the permissibility of online betting offerings from outside of the respective state territory.[14]

Secondly, the Austrian Supreme Court followed existing Supreme Administrative Court jurisprudence and ruled that betting on e-sports does not constitute a game of chance, as the outcome of a sporting event in sports betting does not depend primarily on chance, because the bettor applies his or her knowledge of the circumstances surrounding the sporting event, and this knowledge outweighs the element of chance with regard to the outcome of the respective sporting events. The Austrian Supreme Court stated that the claimant was unable to provide sufficient arguments as to why this established case law should not apply to betting on e-sports events and therefore dismissed the legal remedy.

This ruling of the Austrian Supreme Court offers further clarity concerning the differentiation between games of chance and betting offerings as well as the possibility tof offering online betting from outside the territory of a federal state without holding a license in that federal state. This provides additional legal certainty to online betting operators, especially online betting operators making their betting offering – including betting on e-sport – available from outside of Austria to Austrian customers.

Conclusion

With these three decisions, from the ECJ and the Austrian Supreme Court, clarity has been brought to the player claims environment in Austria. The ECJ ruling may release a tide of player claims that have been pending a decision. By contrast, the ruling on FIFA lootboxes is likely to see the withdrawal of a number of cases. There also remains room for operators of some lootboxes to demonstrate that their product is not a game of chance. The ruling on e-sports appears unambiguous and, in general the law within Austria is now clearer as a result of this flurry of activity.

It remains to be seen whether the courts in countries from which games not licensed in Austria are being offered, comply with rulings and enforce penalties in respect of player claims.

Christian Rapani is founding partner at Rapani and a member of IMGL