OGH: Multistage Action Permissible in Void Gaming Contracts

Jul 12, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has made it clear that providers of illegal online gaming services can be obliged to provide certain information. Whether or not the request for information is justified depends, among other things, on whether or not players were able to view all the deposits and withdrawals made on their gaming account.

The defendant, based in Malta, offers online gaming and sports betting on its website which also targets Austria. The company has no licence to operate electronic lottery games in Austria. The plaintiff, a resident of Austria, had played various online games of chance on the defendant’s website.

In his multistage action, the plaintiff sought disclosure of all sums paid to the defendant and subsequently used for gaming, as well as all pay-outs from winnings and the loss calculated as the difference between deposits and withdrawals. He did not have an overview of all his transactions, as he was only able to look back on a few months of his virtual gaming account with the defendant.

The defendant argued that the multistage action was inadmissible because no valid contract had been concluded with the plaintiff and no obligation to account could be derived from it.

The court of first instance and the court of appeal granted the request for a statement of account.

The OGH provided the following clarification:

According to the established case law, prohibited games of chance do not even give rise to a natural obligation and the loser can reclaim the wager and the gambling debt paid. A contractual obligation to provide information is not excluded by the fact that the gambling contract is void.

On the other hand, it was very much disputed in the proceedings as to whether the plaintiff, as he claimed, had only been able to view the deposits and withdrawals of the last few months via his player account with the defendant. On the contrary, the defendant expressly stated that the plaintiff had been able access to all deposits and withdrawals up to the time that his account was frozen.

This question must now be clarified by the court of first instance.

OGH 3 Ob 59/24h (23 May 2024)