OGH: International Jurisdiction for Gambling Claims

Aug 25, 2023 Benn-Ibler Rechtsanwälte

Austrian courts may have jurisdiction to hear claims against Maltese gambling companies, even if consumers have assigned their claims for enforcement.

In the original case, a Maltese company (the defendant) had offered online gambling in Austria without having the necessary Austrian gambling licence. A player suffered losses and assigned his claims to the plaintiff (a German company) who then sued in Austria, relying on the law of unjust enrichment and damages. The defendant contested the international jurisdiction of Austrian courts. The general terms and conditions of the gambling contract conferred jurisdiction on Maltese courts.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) partially upheld the jurisdiction of Austrian courts:

The agreement on jurisdiction was invalid under Article 19 of the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter Brussels Ia Regulation).

The plaintiff as assignee cannot, however, invoke an Austrian place of jurisdiction for the place of performance (Article 7(1) of the Brussels Ia Regulation): Claims for unjust enrichment on the basis of a void contract are also covered by the term ‘contract’ in Article 7(1) of the Brussels Ia Regulation. The gaming contract is a contract for the provision of services within the meaning of Article 7(1)(b) of the Brussels Ia Regulation. The place of jurisdiction is the place where the service was provided. In the case of the gaming contract, however, this is Malta because the games themselves were made available by the defendant on their website. It does not matter that the player’s involvement was also necessary.

The plaintiff may, however, invoke the place of jurisdiction in matters of tort (Article 7(2) Brussels Ia Regulation). As the defendant had infringed Austrian public law regulations on gambling, claims for damages in tort were also possible. The damage also occurred in Austria. Although the stakes are paid into a Maltese account, the damage only occurs when the final gambling loss is reflected in the form of a shortfall in the player’s Austrian bank account. The Maltese account is merely a clearing account.

 OGH 10 Ob 56/22s (22 June 2023)