In London, Paris, Rome and Madrid the question was settled long ago. Anyone who bets there on football, tennis or a horse race is, in the eyes of the law, gambling. In Vienna, Graz or Linz the same conduct counts as a game of skill. Austria stands alone in the European Union with this classification. For the legal assessment of betting losses this difference is anything but academic. It decides on what basis claims can be founded in the first place.
This article explains the statutory basis, the supreme court case law and the practical consequences of the Austrian classification.
The statutory benchmark: Section 1 GSpG
The starting point is the Gambling Act (GSpG). Under Section 1 paragraph 1 GSpG, gambling is a “game in which the decision on the outcome depends exclusively or predominantly on chance.” This chance formula has stood at the core of the Act since the original 1989 version and was merely refined in wording by the 2014 amendment. The decisive words are “exclusively or predominantly”. A game governed predominantly by chance already falls under the Act; complete dependence on chance is not required.
Section 1 paragraph 2 GSpG expressly names the classic forms of play: roulette, black jack, poker, baccarat, bingo and similar games. Sports betting does not appear in this list, nor is it covered elsewhere in the Act. From this the prevailing view draws an inference by contrast. Anyone betting on a real sporting event can bring their own knowledge to bear. A team’s form and line-up, injuries, the playing surface, the weather and the most recent results can all be analysed before the bet. The bettor does not influence the outcome himself, but he can predict it better than pure chance. On this argument, the outcome therefore does not depend “predominantly on chance”.
The Administrative Court has confirmed this assessment. In decision Ra 2017/17/0895 of 24 April 2018 it held that with sports betting the personal knowledge outweighs the element of chance. A frequently overlooked subtlety should be noted here: federal law contains no separate legal definition expressly declaring sports betting to be a “game of skill”. The classification follows solely from the fact that it is not meant to fall under the definition of gambling.
The logic emerges especially clearly in one exception. Bets on virtual or pre-recorded events, that is on computer-generated races or matches, do count as gambling in Austria. Here there is no real basis of information on which expertise could be founded. As soon as there is nothing left to analyse, the legal assessment tips over.
A legacy from 1919
The reason for this path lies less in a deliberate modern decision than in a historical and constitutional accident. The root is State Act StGBl. No. 388 of 1919, which regulated bookmaker and totalisator betting for the first time. When the Federal Constitution was created in 1920, betting was not included in the federal catalogue of competences. Through the residual competence of Article 15 paragraph 1 of the Federal Constitution (B-VG) it thus fell automatically to the provinces. The Constitutional Court confirmed this distribution of competences as early as 1932 and repeatedly thereafter.
The consequence shapes the legal situation to this day. There is no uniform federal act for sports betting. Instead, nine different provincial betting acts regulate the market, without being harmonised with one another. Player protection, youth protection, licensing requirements and even stake and play limits differ from province to province. The competent authorities are the provincial bodies, in Vienna for instance Municipal Department 36, in other provinces the district administrative authority or the provincial government.
Online casino and sports betting therefore run on fundamentally different tracks in Austria. The casino is subject to the federal gambling monopoly and to central supervision. Sports betting forms a patchwork of nine sets of rules. This separation is the key to almost everything that follows.
Elsewhere in Europe the matter is clear
A look across the border makes the special path visible. In the large neighbouring markets sports betting is clearly assigned to gambling law.
In Germany the Interstate Treaty on Gambling 2021, in force since 1 July 2021, expressly defines fixed-odds sports betting as gambling. Since the beginning of 2023 supervision lies entirely with the Joint Gambling Authority of the Länder.
In the United Kingdom, that is in England, Wales and Scotland, the Gambling Act 2005 counts betting among the three core forms of gambling. The Gambling Commission is responsible.
In France the paris sportifs count as jeux d’argent et de hasard. They are governed by the Code de la sécurité intérieure on the basis of Act 2010-476, supervised by the Autorité Nationale des Jeux.
In Italy the scommesse sportive are licensed public games under state supervision and require a concession from the customs and monopoly authority ADM.
In Spain the gambling act Ley 13/2011 classifies the apuestas deportivas as a form of money gaming, supervised by the DGOJ authority.
In all the countries examined, sports betting is therefore part of the regulated gambling framework: centrally licensed, supervised and equipped with uniform protective rules. The Austrian model of nine provincial acts without a federal framework is, on the current state, unique across Europe. This assessment is supported by specialist bodies and by investigative journalism.
The statistics contradict the legal classification
The load-bearing legal argument is that skill predominates in betting. The data paint a different picture. The Ministry of Finance commissioned a study for this, carried out in 2020 by the Institute for Interdisciplinary Addiction and Drug Research in Hamburg. The researchers reviewed the international body of studies on the question of whether expertise in sports betting leads to financial success.
The result was clear. In the words of the study, “in almost all studies (8 of 9) the explicit or implicit conclusion is drawn that no robust connection exists between expertise and forecasting quality. Even where sports bettors perform better in their predictions than chance, this does not necessarily translate into (larger) monetary winnings.” Better tips therefore do not reliably lead to higher winnings, because the bookmaker’s margin eats up the advantage. The study expressly recommended classifying sports betting as gambling.
The case of live betting is especially striking. Anyone betting within seconds on the next goal during a match in progress has hardly any time for serious analysis. Scientifically, live betting is therefore regarded as particularly close to pure gambling, and individual provinces such as Carinthia, Salzburg and Tyrol restrict it. The supreme courts have not followed this line so far. In decision 8 Ob 112/23p of 13 December 2023 the Supreme Court treated live betting too as ordinary sports betting and held that the type of bet plays no role in the legal classification. A perceptible gap thus remains between the legal label and the statistical reality.
The consequences for the recovery of losses
The classification has its greatest practical significance in the recovery of losses. The special path draws a sharp line between two groups of cases.
With the online casino the Gambling Act applies, with its federal monopoly. A provider without an Austrian concession does not conclude a valid contract with the player. The gaming contract is void, and lost stakes are in principle recoverable under the settled case law of the Supreme Court, for instance under decisions 4 Ob 124/17i and 1 Ob 229/20p. A foreign licence from Malta or Gibraltar does not replace the Austrian concession.
With sports betting the situation is fundamentally different. Because it is not gambling within the meaning of the Act, the lever via the missing concession does not apply. In decisions 1 Ob 176/22x of 27 January 2023 and 8 Ob 41/25z of 28 March 2025 the Supreme Court confirmed that sports betting losses are in principle not recoverable by this route. The provincial betting acts usually do not help either, because they generally do not cover foreign online providers.
“In principle not” does not, however, mean “never”. Two narrowly defined routes remain open.
The first route is partial legal incapacity. Where a gambling addiction has suspended the free formation of will at the moment of the individual bets, those betting contracts are void and the stakes must be repaid. The hurdle is high. The Supreme Court requires concrete proof relating to the individual case, which in practice is supported by a medical expert opinion. Decision 8 Ob 41/25z of 28 March 2025 expressly confirmed this strict line: a (mild) gambling addiction alone does not yet establish nullity.
The second route runs through a concrete breach of a protective provision of a provincial betting act, for instance exceeding a statutory stake limit. Such a breach too can render a betting contract void, as the Supreme Court showed in decision 2 Ob 138/22s.
Is a turn coming?
The Austrian special path is under increasing pressure. In January 2024 a motion in the National Council brought the demand to place sports betting under the Gambling Act. It was adjourned in the Finance Committee in June 2024. Since November 2025 a reform of the Gambling Act has been under review. Whether it will change the classification of sports betting is open, as at June 2026.
No expectation for past losses can be derived from this development. Even a future reform would not automatically re-assess bets already concluded. What is decisive is the legal situation applicable at the time of the bet.
Sources and legal bases
All online sources retrieved on 23 June 2026. Decisions of the Supreme Court and the Administrative Court are available in full text via their case number in the Federal Legal Information System (ris.bka.gv.at).
Legislation and administration in Austria
- Gambling Act, Section 1, current version (RIS, statute number 10004611)
- Article 15 paragraph 1 of the Federal Constitution, general competence of the provinces (RIS)
- Federal Ministry of Finance, FAQ on the gambling monopoly: no ministry authorisation is required for classic sports betting (bmf.gv.at)
Case law in Austria
- VwGH Ra 2017/17/0895 of 24 April 2018, sports betting not federal gambling
- OGH 1 Ob 176/22x of 27 January 2023, sports betting not gambling, addiction alone does not establish nullity
- OGH 8 Ob 112/23p of 13 December 2023, live betting too does not fall under the Gambling Act
- OGH 8 Ob 41/25z of 28 March 2025, strict line on legal incapacity in addiction confirmed
- OGH 1 Ob 229/20p of 22 June 2021, online casino without Austrian concession, losses recoverable
- OGH 4 Ob 124/17i of 27 July 2017, landmark decision on the recovery of online casino losses
- OGH 2 Ob 138/22s of 27 September 2022, nullity of a betting contract on exceeding the statutory stake limit
Regulation in other European countries
- Germany, Interstate Treaty on Gambling 2021, Section 3, sports betting expressly as gambling (in force since 1 July 2021)
- Germany, Joint Gambling Authority of the Länder, competent supervision since 2023
- United Kingdom, Gambling Act 2005, Section 9, Betting
- France, Loi 2010-476 of 12 May 2010, paris sportifs as jeux d’argent
- Italy, Agenzia delle Dogane e dei Monopoli, Normativa scommesse a quota fissa
- Spain, Ley 13/2011 de regulación del juego, apuestas deportivas
Statistics and research
- Hegarty and Whelan, Estimating expected loss rates in betting markets, Applied Economics 2025
- Federal Ministry of Finance and ISD Hamburg, study on the chance character and risk potentials of sports betting, 2020
Background and political debate
- DOSSIER, investigative research “Der Sonderweg” on Austrian sports betting regulation
- Parliament, motion 3860/A(E) of 31 January 2024, sports betting under the Gambling Act