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A recent preliminary ruling by the European Court of Justice (CJEU) has reignited debate around cross-border liability in online gambling disputes, particularly those involving Austrian players and Malta-licensed operators. While some commentators have been quick to frame the ruling as a challenge to Malta’s controversial Article 56A, legal and industry experts caution that the judgment does no such thing. –
Instead, the ruling largely confirms established principles under the EU’s Rome II Regulation, leaving the real flashpoints – including the enforceability of foreign judgments in Malta – unresolved.
What the CJEU actually ruled
At its core, the CJEU was asked to interpret Rome II Regulation (EC) No 864/2007, which governs the law applicable to non-contractual obligations in civil and commercial matters. The Court confirmed that service providers – including directors – may be subject to the laws of the country where the alleged harm occurs, even if they are established elsewhere.
According to Terence Cassar, Partner at GTG Legal, this outcome was neither surprising nor revolutionary.
“The preliminary ruling doesn’t relate to Article 56A at all,” Dr Cassar said. “It simply confirms that the law applicable to a non-contractual claim is the law of the country where the damage is alleged to have occurred. In that sense, it’s entirely consistent with what Rome II is meant to achieve.”
In practical terms, this means that directors of gaming companies could, in principle, be found liable under foreign law – such as Austrian law – if a court there assumes jurisdiction and applies its domestic rules.
Where Article 56A comes in – and where it doesn’t
Much of the political and industry attention has focused on whether this ruling undermines Article 56A of Malta’s Gaming Act, which limits the recognition and enforcement in Malta of certain foreign judgments relating to gaming activities licensed by the Malta Gaming Authority (MGA).
Dr Cassar is unequivocal on this point.
“Article 56A would only ever come into play at the point where a foreign judgment is presented for recognition and enforcement in Malta,” he explained. “At that stage, the Maltese legal position is that such a judgment would simply not be recognised.”
In other words, the CJEU ruling does not assess – or even touch – the legality of Article 56A. Any challenge to the provision would only arise later, and procedurally, if and when a Maltese court is asked to enforce a foreign judgment and decides to make a further reference to the CJEU.
“Nobody can really say whether a Maltese court would agree to make such a referral,” Cassar added. “That decision ultimately rests with the national courts.”
A familiar legal grey zone
From an industry perspective, the ruling does little to resolve what operators have long described as a structural contradiction between national gambling laws and EU internal market principles.
Enrico Bradamante, CEO of EGT Digital and Chairman of industry trade body iGEN, describes the decision as technically dense but substantively inconclusive.
“This is not a final judgment on Article 56A,” Mr Bradamante said. “It’s an interpretation of Rome II, and it confirms that courts retain discretion. The net effect is not conclusive – it’s neither favourable nor unfavourable.”
Mr Bradamante points to the underlying reality faced by operators for more than a decade: players in restrictive jurisdictions signing up with Malta-licensed operators under EU freedom of services, only to later seek restitution through domestic courts.
“You have an Austrian player who knowingly signs up with a Maltese operator, accepts the terms and conditions protected by European law, plays for years, and then – much later – tries to reclaim losses opportunistically,” he said.
Such claims have appeared repeatedly before Austrian and German courts, often supported by law firms actively marketing recovery services to players.
Discretion remains the key issue
One paragraph of the CJEU’s ruling stands out in particular, according to Bradamante – the Court’s confirmation that national judges may depart from the general Rome II rule where a case is “manifestly more closely connected” to another country.
“That paragraph confirms discretion,” he said. “And discretion is exactly why this debate remains unresolved. The Court has not pronounced itself definitively one way or another.”
As a result, the fundamental tension remains: national courts applying domestic gambling prohibitions on one hand, and Malta relying on EU law principles – including public policy protections embedded in Article 56A – on the other.
No breakthrough – for now
Both legal and industry voices agree on one thing: despite the headlines, the CJEU’s preliminary ruling changes little in practice.
“In my view, it was not novel or unexpected at all,” Dr Cassar said. “It simply restates the general logic of Rome II.”
For operators and regulators alike, the ruling underscores that the real battleground is not applicable law, but enforcement – and whether Malta’s courts will ever be compelled to revisit Article 56A under EU scrutiny.
Until then, the legal stalemate continues.
