The legal starting point, the Austrian gambling monopoly
The Austrian Gambling Act subjects the offering of games of chance to a licence-based monopoly. Anyone offering online gambling in Austria requires a corresponding licence. That licence is, in practice, granted to a single operator only. Foreign providers who target their platforms at the Austrian market do not hold such a licence.
The central civil law consequence follows from this constellation. A gambling contract concluded with an unlicensed provider is void. Stakes paid in have been transferred without legal cause. They can be reclaimed under the rules of unjust enrichment, specifically under § 1174 ABGB in conjunction with the general rules on restitution.
This line is not new. It has developed over more than a decade, supported by decisions of several senates of the Supreme Court. In recent years, the court has summarised and consolidated the reasoning in several decisions. The leading decision in this strand is OGH 6 Ob 31/24p, which builds on earlier rulings and develops them systematically.
What the case law concretely establishes
The OGH line can be reduced to a few core principles.
Nullity of the gambling contract. Anyone offering online gambling to Austrian consumers without an Austrian licence concludes a void contract. The nullity also extends to bonus arrangements, withdrawal restrictions and other ancillary terms of the casino.
Application of Austrian law. The contracts are to be assessed under Austrian consumer law as a matter of civil law. The choice of Maltese or other foreign law in the general terms and conditions of the casino operators does not prevent this. Consumer protection and the protection of the Austrian gambling monopoly are mandatory law here.
Consumer forum in Austria. Players may file their action in Austria, at the court of their domicile. This follows from the Brussels Ia Regulation and the position of the player as a consumer within the meaning of EU law.
Full recovery of losses. What the player has transferred to the casino over the entire period is nominally to be refunded, reduced by amounts paid out. A bonus credited to the player account by the casino does not reduce the recovery claim across the board, but only to the extent it was actually withdrawn by the player.
Limitation under general rules. The recovery claim is an unjust enrichment claim and falls under the general 30-year limitation period of § 1478 of the Austrian Civil Code (ABGB). Losses incurred within the last 30 years are therefore in principle actionable. A fact-specific assessment remains necessary, no general statement on limitation in the individual case is possible.
Unjust enrichment as the load-bearing argument
The civil law construction relies on the law of unjust enrichment. §§ 1431 ff ABGB govern the recovery of performances rendered without legal cause. Because the gambling contract is void in the absence of a licence, the legal cause is missing. The stakes can be reclaimed.
The Pokerstars judgment of 2022 as an illustration
In August 2022, a concrete application of this line became known to the Austrian public. An Austrian player obtained a judgment for around 1.6 million euros against the Maltese operating company of the Pokerstars casino before a Vienna court. The decision was reported simultaneously in several Austrian media outlets, including Der Standard, the Tiroler Tageszeitung, Vienna.at, Salzburg24 and an accompanying OTS announcement.
The case illustrates the line of case law. The operator was unlicensed, the gambling programme was targeted at Austrian consumers, the action was filed in Austria. The gambling contract was held to be void, the stakes were awarded. Generalising this decision to other cases is not appropriate, because every situation must be assessed independently. The legal anchors, however, are the same.
What this means for affected players
A player who lost money at an online casino without an Austrian licence regularly has a recovery claim under the law of unjust enrichment. This claim requires careful preparation of the documentation, a review of the limitation situation and an action before the competent Austrian court.
The legal basis today is significantly more stable than five years ago. Several casino operators have shown willingness to settle in the past when the documentation was clear. Others fight the case through all instances. Both must be factored into the assessment. The loss of time is real, the outcome in the individual case is not guaranteed. The robustness of the OGH line is independent of this.
Frequently asked questions
Which OGH decision is the current leading authority? OGH 6 Ob 31/24p, with references to the preceding senate decisions.
Does the case law also apply to crypto casinos and smaller platforms? What matters is the absence of an Austrian licence and the targeting of the offer at Austrian players. Size or fame of the operator is irrelevant to the line of argument. In individual cases practical problems may arise with enforcement, which should be examined in advance.
What is the effect of a choice of Maltese or British law in the casino’s terms and conditions? In the consumer relationship it is largely irrelevant. Austrian consumer law and the protection of the gambling monopoly are mandatory law and cannot be contracted out of.
Can a player also bring the recovery claim against banks or payment service providers? This must be examined case by case. The principal action is in principle directed against the casino. Duties of payment service providers are a separate, developing area.