Maltese Gaming Act provision deemed ‘inadmissible’ for review, but flagged as potentially contrary to EU law

An Advocate General’s Opinion delivered on Thursday (today) in Case C-683/24 (Spielerschutz Sigma) has added a fresh twist to the ongoing legal scrutiny surrounding Malta’s gaming framework, particularly Article 56A of the Gaming Act.

According to the Opinion, the request for a preliminary ruling submitted by an Austrian court should be declared inadmissible, as it is not necessary to resolve the dispute before it.

The underlying case in Austria centres on whether legal advice provided to a litigation funder was diligent and reasonable at the time it was given – not whether Malta’s Article 56A complies with EU law.

Advocate General Emiliou emphasised that this distinction is critical. The Court of Justice of the European Union (CJEU) is tasked with interpreting EU law, but not with assessing the quality or plausibility of legal advice under national standards.

As such, the questions referred were deemed unnecessary for resolving the Austrian proceedings, rendering the request inadmissible.

Article 56A ‘manifestly incompatible’ with EU law

Despite this procedural finding, the Advocate General proceeded to address the substance of the case “for the sake of completeness”.

In doing so, he expressed the view that Article 56A of the Maltese Gaming Act – introduced in 2023 through Bill 55 – is manifestly incompatible with EU law, specifically the Brussels I bis Regulation governing the recognition and enforcement of judgements.

The provision effectively requires Maltese courts, on public policy grounds, to refuse recognition or enforcement of foreign judgements against Maltese-licensed gaming operators where those judgements are based on the illegality of services in another Member State, even if those services are lawful under Maltese law.

However, the Advocate General underscored that, under the Regulation, judgements issued in one Member State must, in principle, be recognised and enforced across the EU.

Limits of the ‘public policy’ defence

A central issue in the Opinion is Malta’s reliance on the “public policy” exception to justify Article 56A.

Dr Emiliou rejected this argument, noting that Member State courts cannot refuse to recognise a foreign judgement simply because they believe EU law – such as the freedom to provide services – has been incorrectly applied. Substantive legal issues cannot be re-examined at the enforcement stage.

He further criticised what he described as an overly broad interpretation of the freedom to provide services. The idea that a Maltese licence allows operators to offer services freely across the EU has been “consistently rejected” by the Court.

No mutual recognition of gaming licences

The Opinion reiterates a key principle in EU gambling law: there is no harmonised framework requiring mutual recognition of gaming licences across Member States.

As a result, a licence issued in Malta is generally valid only within Malta, unless another Member State chooses to recognise it. This creates inherent legal fragmentation, where services lawful in Malta may be unlawful elsewhere without breaching EU law.

The Advocate General also pointed to the protective intent behind Article 56A, suggesting it is designed to shield Malta’s gaming sector – described as economically significant – from potentially large financial liabilities arising from player claims.

However, he stressed that even serious economic consequences for a national industry do not justify invoking the public policy exception under EU law.

Broader implications for the iGaming sector

While the Opinion is not binding on the Court of Justice, it is likely to intensify ongoing legal and regulatory debates surrounding Malta’s gaming regime and the broader “player claims” saga currently unfolding across multiple EU jurisdictions.

The case highlights persistent tensions within the EU’s fragmented approach to gambling regulation, where operators face diverging national rules despite operating in a digital, cross-border market.

For Malta’s iGaming industry, the eventual ruling by the CJEU – should it engage with the substance of the case – could have significant implications for the enforceability of foreign judgements and the legal certainty underpinning cross-border operations.

A final judgement is expected at a later stage.