The problem: the operating company is often out of reach
The starting point is settled under the case law of the Supreme Court. Anyone who loses money at an online casino without an Austrian licence has concluded a void gaming contract and can reclaim the losses. The difficulty often lies not in the claim itself but in enforcing it.
The operating companies are usually based in Malta and avoid repayment by every means available. In the Wunner case, the Maltese company was driven into insolvency. On top of that comes the controversial Maltese Bill 55, a statutory block against the recognition and enforcement of foreign gambling judgments, against which the European Commission has already opened infringement proceedings. A player can end up holding a final judgment without ever seeing the money.
The Wunner case
This is exactly where the case begins. The affected consumer did not sue the company that was no longer within reach, but the managing directors of the insolvent operating company personally. The basis of the claim was tortious damages: the player-protection provisions of the Austrian Gambling Act are protective statutes, and anyone who, as a managing director, takes part in breaching them can be personally liable under Section 1311 ABGB.
The court of first instance dismissed the action for lack of international jurisdiction; the Vienna Higher Regional Court set that decision aside. The Supreme Court then referred two questions on the European Rome II Regulation, which governs the law applicable to such claims, to the ECJ.
What the ECJ clarified
The managing directors can be personally liable. The managing directors argued that their liability was a company-law question excluded from the Rome II Regulation. The ECJ did not follow this. That exclusion covers only the organisational, internal affairs of a company. The prohibition on unlicensed gambling, however, applies towards everyone. Any resulting liability of the managing directors is therefore to be assessed independently of their appointment as a corporate body. This opens the way to personal liability under general damages law.
The claim is brought at the player’s place of residence, under Austrian law. On the question of where the damage occurred, the ECJ relied on the player’s habitual residence. Online gambling cannot be tied to any other place, and for reasons of foreseeability the damage is located at the player’s place of residence. The mere fact that the operating company has its seat in Malta does not establish a closer connection to Maltese law. For those affected in Austria this means: they sue before a court near them, and the case is judged under Austrian law.
What the Austrian courts make of it
The Supreme Court has already implemented the ECJ’s findings, in decisions 9 Ob 8/26 f and 5 Ob 8/26 a. It affirmed international jurisdiction and held that asserting tortious damages claims against a managing director on the basis of Austrian damages law is not unarguable. A parallel strand of proceedings concerns the liability of parent companies for the unlicensed offerings of their subsidiaries.
What remains open
With Wunner, the first major hurdle on the road to personal liability of the managing directors has been cleared. Some questions still await clarification at supreme-court level, above all on limitation and fault. On fault, a reversal of the burden of proof applies: the managing directors must exonerate themselves, which is likely to be difficult given the clear legal position. Even so, managing-director liability is no automatic win. It requires its own presentation of facts and must be assessed carefully in each case.
How this avenue of liability fits strategically into a refund, when it is worthwhile and what evidentiary questions it raises, we discuss in detail in our article on managing-director liability at online casino operators.
The full article in the Journal for Consumer Law (MANZ)
The detailed legal analysis of the decision, with all references, its classification within the existing ECJ case law and an outlook on the open questions, has been published by MANZ Verlag:
Ibl/Peschel, EuGH C-77/24 (Wunner), “Rien ne va plus” für Online-Casino-Geschäftsführer?, VbR 2026/33 (Zeitschrift für Verbraucherrecht, issue 2/2026, MANZ).
You can obtain the full article directly via the MANZ legal database: rdb.manz.at/document/rdb.tso.LIvbr20260204
What you can do now
Even if the operating company of an online casino is insolvent or out of reach, there may be further liable persons. The claim is brought in Austria, as a rule at the player’s place of residence, under Austrian law. Whether a claim exists in your case, we assess free of charge and without obligation. For the initial assessment, the provider concerned and the approximate total loss are enough. Send us a non-binding enquiry.