Tensions in Europe over player claims

Short summary

• Growing CJEU case law and pro-player trend: disputes between players and gambling operators are increasingly reaching the CJEU, which has so far adopted a broadly player-friendly approach, especially in recognizing the application of the player’s home law and facilitating cross-border claims for recovery of losses;
• Enforcement challenges linked to Malta’s Bill 55: the introduction of Bill 55 creates significant practical obstacles to enforcing foreign judgments in Malta, as it aims to block both the admissibility of certain claims and the recognition of judgments ordering repayment of gambling losses;
• Uncertain future of Bill 55 and market implications: given the growing criticism from other Member States and potential tensions with EU law, the long-term viability of Bill 55 remains unclear; its repeal or weakening could, in turn, incentivize operators to relocate outside the EU to mitigate litigation and enforcement risks.

Online gambling, by its nature, operates across borders and has from the outset existed at the intersection of different legal systems within the European Union. Here we examine the growing wave of disputes between players and online gambling operators, focusing on claims for the recovery of losses where the operator’s activity was unlawful under the law of the player’s country. In particular, we explore the tension between the principle of freedom to provide services and the regulatory autonomy of Member States, as well as the role of the Court of Justice of the European Union in shaping the admissibility of such claims.

Introduction

Online gambling does not fit easily within traditional regulatory frameworks, which for decades were designed primarily for land-based activities. In the digital environment, geographic boundaries lose much of their relevance. An operator can run its business from one Member State while targeting players across the European Union, often without any physical presence in those jurisdictions. This cross-border business model, built on the provision of services across the internal market, inevitably comes into tension with national gambling regimes, which differ significantly in their level of restrictiveness.

Member States have long maintained different regulatory models, ranging from state monopolies, through limited licensing systems, to more liberal regimes. At the same time, operators rely on the principle of freedom to provide services and seek to use licences obtained in one Member State as a basis for operating in others. This tension between national regulatory autonomy and the foundations of the internal market has, in recent years, become one of the central legal challenges in the online gambling sector.

Against this background, a new category of disputes has begun to emerge. These cases involve players seeking to recover losses incurred in games offered without the required national licence. What initially appeared in a limited number of jurisdictions has now developed into a broader trend affecting an increasing number of Member States. At their core, these disputes raise a fundamental question: can an operator’s activity, lawful in its country of establishment, produce legal effects in the player’s country if it breaches mandatory local rules? And if not, does the player have a right to recover the funds that were lost?

Answers to these questions have gradually taken shape in the case law of the Court of Justice of the European Union. The Court has been defining the limits of cross-border gambling activity and its civil law consequences. This article looks at that development through recent cases and related legislative changes, showing how EU law and national law together are shaping a new framework for operator liability and player protection.

The Wunner case, director liability and applicable law

One of the most recent and widely discussed cases in this area is C-77/24 (Wunner)[1], which illustrates how player claims for the recovery of losses may evolve. In typical disputes, consumers bring claims directly against gambling operators, relying on the invalidity of the gambling contract and unjust enrichment. In Wunner, however, the Austrian player went a step further. Instead of suing the operator itself, he brought a claim against the members of the board of a Malta-based company. This approach was driven by economic reality: the operator was insolvent, making a standard restitution claim largely ineffective. The claimant therefore relied on tort-based liability, arguing that a breach of Austrian gambling rules of a protective nature could give rise to personal liability on the part of those managing the company.

The CJEU’s judgment of 15 January 2026 did not decide on the existence of such liability. Instead, it clarified key conflict-of-law issues. The Court held that claims of this kind do not fall within the company law exclusion under the Rome II Regulation, since they are not based on corporate duties but on the breach of rules of general application, binding erga omnes. At the same time, the Court confirmed that the place where the damage occurs, relevant for determining the applicable law, is the country from which the player participated in the game. In practice, this leads to the application of the law of the consumer’s country. While this generally strengthens the player’s position, it does not remove the need to establish the elements of tort liability under that law.

The Wunner case settles an important principle. It opens the door to claims being brought against company directors, which may be particularly relevant where operators are insolvent. At the same time, it does not create any form of automatic liability for management. Early reactions from national courts confirm this. They continue to require claimants to establish specific grounds of liability, going beyond the mere fact of holding a managerial position in a company offering gambling services without a local licence[2] . In this sense, Wunner does not fundamentally change the procedural position of players, but rather provides an additional, potential avenue for pursuing their claims.

Freedom to provide services vs national gambling restrictions: the C-440/23 judgment

The CJEU’s judgment of 16 April 2026 in Case C-440/23[3] provides another example of the growing tension between players in Member States and online gambling operators based in Malta. The case arose from a situation that has become increasingly common in recent years: a German consumer used online slot machines and so-called secondary lotteries offered by companies holding a Maltese licence, but lacking the authorisation required under the law of the country to which they were effectively directing their services. After incurring financial losses, the claim for recovery was assigned to a specialised entity, which chose to pursue the claim not before the player’s national courts, but before a Maltese court.

The dispute centred on two classic lines of defence used by operators. First, they relied on the freedom to provide services, arguing that activity licensed in Malta should also be allowed in other Member States. Second, they raised an abuse of rights argument, claiming that the player had knowingly participated in the games and only sought recovery after losing. The Court did not accept either argument in a way that would significantly alter the existing legal landscape. It confirmed that Member States retain a broad margin of discretion in regulating gambling and may prohibit certain forms of online gaming, even where the operator is lawfully established in another Member State. Equally important, the Court acknowledged the civil law consequences of such prohibitions. Where a gambling contract breaches mandatory provisions of the applicable law, it may be considered invalid, and a claim for the recovery of stakes may, in principle, be based on national rules on unjust enrichment.

From a practical perspective, the Court’s approach to the abuse of rights argument is particularly important. It did not establish an autonomous EU mechanism to limit such claims. Instead, it left the assessment of the player’s conduct to the law applicable to the relationship. In other words, it is for national courts, applying their own standards of good faith, awareness of risk, or possible contributory fault, to decide whether, and to what extent, a player may successfully recover lost funds.

For players within the European Union, the judgment is therefore mainly confirmatory. It strengthens arguments already used in disputes against Malta-based operators and limits the effectiveness of defences based on Article 56 TFEU. At the same time, it does not make the path to recovery any easier in practice. These disputes remain largely rooted in national law, and their outcome depends on how each legal system approaches contract invalidity and restitution. Moreover, the judgment does not resolve the most problematic aspect of the entire model, which is the enforcement stage. In practice, this means that while obtaining a favourable judgment against an operator may be becoming easier, its actual enforcement, particularly in light of Malta’s so-called Bill 55, remains uncertain.

No breakthrough, but clear direction: implications of the C-530/24 opinion

Advocate General Emiliou’s Opinion (Opinion) in Case C-530/24[4 (Tipico) marks a further step in clarifying the limits within which operators from one Member State can rely on EU law against restrictions imposed in the player’s country. The direction outlined in the Opinion suggests continuity with the existing case law: the freedom to provide services is not absolute in the gambling sector, and Member States retain a broad margin of discretion to restrict such activities on grounds of consumer protection and public policy. At the same time, the Opinion appears to reinforce the role of private international law as a practical tool for player protection. In particular, it supports the consistent application of the law of the player’s habitual residence and the possibility of drawing civil law consequences from breaches of national prohibitions. If the Court follows this approach, restitution claims may become further consolidated as a standard mechanism for players seeking to recover losses. That said, this would not amount to a practical breakthrough. As in Case C-440/23, any future judgment is more likely to confirm the existing framework rather than fundamentally reshape it. For players, this means a stronger position at the stage of establishing liability, but without removing the key obstacle, effective enforcement against operators based in jurisdictions such as Malta. As a result, litigation strategies may increasingly focus on forum selection and on identifying operator assets outside the country of establishment, where enforcement remains realistically possible.

Bill 55 and the limits of mutual recognition in gambling disputes

A separate piece of the puzzle is Malta’s legislative response to the growing number of claims brought by players from other Member States. Known as ‘Bill 55’, this reform introduced a new Article 56A into the Malta Gaming Act in 2023. The measure is designed as a systemic defence against restitution claims pursued against Malta-based operators. Its core lies in two closely linked mechanisms. First, it renders inadmissible before Maltese courts any claims that challenge the legality of activities carried out by operators licensed in Malta. Second, it creates a basis for refusing the recognition and enforcement of foreign judgments ordering the repayment of gambling losses, where those judgments rely on the application of another Member State’s law to activities conducted from Malta.

The significance of Bill 55 goes beyond its literal wording. In a broader sense, it is a legislative response to a very specific trend: the wave of mass litigation in Austria and Germany, where courts have held that the absence of a local licence renders gambling contracts invalid and triggers an obligation to repay stakes. Malta, as one of the key European licensing hubs for online gambling operators, has long played an important role in providing a legal framework for conducting such activities in a compliant manner. In this context, the effects of these judgments began to pose a real challenge to the stability of the sector. Bill 55 can therefore be seen as an attempt to address uncertainty in private law relationships through the use of public law instruments.

From the player’s perspective, the consequences are significant. While Bill 55 does not prevent obtaining a favourable judgment, it substantially complicates its enforcement. In practice, this means that litigation strategy must take additional factors into account. It becomes important not only where to bring the claim, but also where the operator’s assets are located and can be effectively enforced against. Increasing attention may therefore be given to issues such as corporate structures, the location of bank accounts, the role of payment service providers, and connections with jurisdictions that do not apply similar restrictions. In other words, disputes over the recovery of gambling losses may evolve beyond questions of contract validity and begin to include elements typical of cross-border enforcement proceedings.

A recent illustration of how claimants may seek to overcome the obstacles created by Bill 55 is the CJEU’s judgment in TQ v Mr Green Limited in Case C-198/24. The case concerned the use of a European Account Preservation Order (EAPO), a cross-border instrument that allows creditors to freeze funds held in bank accounts located in other Member States before enforcement is frustrated. The Court confirmed that, when assessing whether such a preservation order is justified, national courts may take into account not only the debtor’s past conduct but also the existence of legislation capable of hindering enforcement, including Malta’s Bill 55. As a result, the judgment strengthens the ability of successful claimants to secure assets located outside Malta at an early stage of enforcement proceedings and demonstrates that attempts to shield operators from foreign judgments may be countered through EU-wide procedural mechanisms. The case therefore highlights how disputes over gambling losses are increasingly shifting from questions of substantive gambling law towards sophisticated strategies of cross-border asset tracing, preservation and enforcement.

Difficulties with the enforcement of judgments are likely to persist as long as Bill 55 remains in force and continues to be applied by Maltese courts. The regulation has raised concerns among other Member States regarding its compatibility with EU law, in particular with the principle of sincere cooperation and the mechanisms established under the Brussels I bis Regulation, which are based on mutual trust and the automatic recognition of judgments across the Union. These concerns are no longer purely theoretical. The issue has recently been addressed, at least indirectly, in the Opinion of the Advocate General in Case C-683/24 of 23 April 2026[5], which considered the permissibility of national rules limiting the recognition of foreign judgments in gambling-related disputes. Although such an opinion is not binding, it provides an important indication of the possible direction of future case law and often signals how the Court may balance competing principles, in this context, the regulatory autonomy of Member States and the integrity of the EU system for the recognition of judgments.

From this perspective, Bill 55 can be seen as a measure operating at the edge of what may be justified under the public policy exception. If the Court follows the logic outlined in the Advocate General’s Opinion, it may more clearly challenge solutions that, in a general and systematic way, exclude entire categories of judgments from the EU recognition regime. This, in turn, could limit the practical effectiveness of the Maltese ‘shield’ and restore greater predictability to cross-border enforcement of claims. Until such clarification is provided, however, Bill 55 remains a real litigation risk in actions brought against Malta-based operators.

Conclusion

The emerging line of CJEU case law paints a relatively coherent, though not entirely clear-cut, picture of disputes between players and Malta-based online gambling operators. The Court strengthens the position of players at the stage of determining liability in principle: it confirms the application of the law of the consumer’s country, accepts the civil law consequences of breaching national gambling restrictions, and limits the effectiveness of defences based on the freedom to provide services. At the same time, it does not create a uniform EU framework for pursuing such claims. Key elements, such as the grounds for contract invalidity or the scope of restitution, remain governed by national law. As a result, these disputes continue to develop in a decentralised yet increasingly predictable way: they are largely built around unjust enrichment claims, while their outcome depends on domestic standards of consumer protection.

In this context, a further increase in such disputes can reasonably be expected, not only in Austria and Germany, which have so far been the main epicentres, but also in other Member States. Particular attention should be paid to the Polish market, which, due to its size and relatively restrictive regulatory model, may become one of the key areas for future claims. Polish law, including the concept of invalidity of acts contrary to statutory provisions and claims based on unjust enrichment, provides a legal framework similar to that seen in Austria and Germany. Combined with growing legal awareness among players and the activity of specialized entities pursuing such claims, this may lead to a gradual spread of this type of litigation across additional jurisdictions.

This does not, however, change the fundamental limitation shaping the entire phenomenon, which is Malta’s Bill 55. While the measure does not prevent players from obtaining a favourable judgment, it significantly undermines its enforceability in practice. As a result, the effectiveness of player claims depends less on their legal merits and more on factors such as the location of the operator’s assets or the possibility of enforcing judgments outside Malta. In this sense, these disputes are no longer purely consumer claims. Instead, they increasingly resemble complex, multi-layered cross-border proceedings, where substantive law and enforcement are closely intertwined.

It is also worth noting a more long-term effect of this trend. The growing risk of civil liability, combined with uncertainty around enforcement, may begin to influence the behaviour of operators themselves. A Maltese licence, once seen as a stable and predictable foundation for operating within Europe, may no longer serve as a ‘safe harbour’. As a result, some operators may consider relocating their activities to non-EU jurisdictions, such as Curaçao, where the risk of cross-border claims and, importantly, their effective enforcement, is significantly lower. Paradoxically, therefore, the rise of restitution claims within the European Union, while strengthening consumer protection, may in the longer term weaken the ability of Member States to exercise effective control over the online gambling market, by pushing part of that market outside the EU regulatory framework.

[1] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:62024CJ0077

[2] https://globalgaminginsider.com/magazine/176/the-wunner-ruling-why-personal-liability-isnt-the-new-normal-for-gaming-execs

[3] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62023CJ0440

[4] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62024CC0530

[5] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62024CC0683