OGH: Gaming Operators Can Claim Back Payouts

Aug 30, 2024 Benn-Ibler Rechtsanwälte

Whether a contract is null and void in absolute or relative terms depends on the purpose of the prohibition rule that was violated. The purpose of a prohibition enacted in the public interest requires absolute nullity within the meaning of Section 879(1) of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) of a transaction concluded in violation of a prohibition.

Through its company website, the claimant offers gambling services in Austria through its registered office in Malta. The company is not licensed in Austria under Austrian gaming laws. In the case at hand, the defendant had played online games of chance offered by the plaintiff in Austria and won more than EUR 7,000.

The plaintiff sought to recover this sum, arguing that the contracts constituted absolute nullities.

The claim was dismissed by the court of first instance. The court of appeal overturned the decision in favour of the plaintiff. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to clarify whether the plaintiff gaming operator could successfully rely on the resulting nullity and demand the return of the winnings that had been paid to the defendant.

In creating a gambling monopoly, lawmakers intended not only to protect gamblers but also to prohibit gambling outside the monopoly. The absolute invalidity of contracts contrary to Section 2(4) of the Austrian Gambling Act (Glücksspielgesetz, hereinafter GSpG) and the possibility for gaming providers to demand the return of winnings paid out meet the regulatory purpose of the GSpG, which is to prevent unlicensed gambling.

According to OGH case law, contracts concluded for the purpose of conducting a prohibited game of chance are void within the meaning of Section 879(1) of the ABGB. The plaintiff is therefore indeed entitled to claim restitution of the winnings under the law of unjust enrichment, without this being precluded by the provisions of Section 1174(1) first sentence of the ABGB or Section 1432 of the ABGB, because the funds were not used ‘for the performance’ of a prohibited act, but as a ‘wager’.

The assertion of the claim for restitution is not abusive based on the deliberate inadmissibility of the plaintiff’s gaming services.

OGH 8 Ob 21/24g (26 June 2024)