ECJ Advocate General: Gambling refund claims do not “abuse” EU law

Advocate General Nicholas Emiliou has concluded that gamblers seeking reimbursement of losses from foreign operators are not abusing European Union law, even when their claims challenge another member state’s gambling regime.

In his opinion delivered on 4 September in case C-440/23, Emiliou told the European Court of Justice (ECJ) that the principle of abuse of EU law “does not preclude” consumers from pursuing civil claims to recover stakes wagered in unlicensed games of chance.

Restitution claims, he said, are governed by national contract law, not EU freedoms, and therefore fall outside the doctrine of abuse.

Malta/Germany dispute reaches Luxembourg

The case originated when a German player sued Malta-based and licensed secondary lottery operator Lottoland, to recover gambling losses in Germany.

Under German law, those contracts were illegal and void. The player assigned his repayment claim to a plaintiff who is now suing the Maltese operator in Malta.

The company argued that Germany’s gambling restrictions violate Article 56 TFEU, the freedom to provide services, and that refund claims constitute an abuse of EU law.

Maltese lawmakers have gone further, adopting Bill 55 in June 2023 to block similar claims in Maltese courts and to prevent recognition of foreign rulings that seek repayment of gambling losses.

Emiliou’s opinion, while non-binding, still carries weight.

The ECJ often follows the guidance of its Advocates General, meaning Emiliou’s view could shape a landmark ruling on the intersection of national gambling restrictions, EU market freedoms, and cross-border private litigation.

Member states may review each other’s legislation

The Advocate General also addressed whether Maltese courts can review German gambling laws for conformity with EU law.

Italy had questioned whether one member state’s courts may scrutinise another member state’s legislation at all.

“However, those courts must show restraint when exercising that jurisdiction,” he said.

National courts may test foreign law against EU law where it arises as a preliminary issue, but only where clear indications of incompatibility exist should they review it.

Such findings, he stressed, apply only to the parties involved, not as a general annulment of foreign law.

The ECJ had asked Emiliou not to address the substance of whether Germany’s gambling restrictions breach EU law, limiting him to procedural admissibility and the abuse-of-law defence.

That selective focus has led some observers to speculate that the court may already be leaning toward its own substantive conclusions.

The ECJ’s judgment, expected later this year, will help define the boundaries between national gambling autonomy, EU internal market freedoms, and the rights of consumers to seek redress when things go wrong online.

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