Will players soon be reimbursed?

For the first time, thousands of players could be reimbursed for their losses on illegal gambling sites, whilst national and European courts clash over the validity of these contracts. 

A legal battle with huge stakes

For several years, one question has fuelled a complex legal battle in Europe: can players who have lost money on online gambling platforms without a national licence recover their losses? 

In several European countries, including the Netherlands and Germany, hundreds of thousands of players have taken part in online gambling offered by operators without a local licence. Legislative documents themselves refer to massive participation, long before the introduction of strict regulatory systems. 

The Tipico case in Germany

In Germany, a court recently referred a case involving the operator Tipico to the Court of Justice of the European Union (CJEU). A player is claiming reimbursement of his losses, arguing that the bets placed were legally invalid in the absence of a national licence.

The German court raises the following questions: can a state declare a gambling contract void if the operator does not hold a national licence? And, above all, is this mechanism compatible with the European principle of the free movement of services?

The German judge also highlights major shortcomings in the national licensing system. In his view, the German procedure has been criticised for its lack of transparency, breaches of the principle of equality and even administrative delays.

The weight of European law against national laws

Article 56 of the Treaty on the Functioning of the European Union guarantees the freedom to provide services. Judges must determine whether national restrictions, such as the requirement for a local licence, are justified.

Member States generally put forward three arguments: consumer protection, the fight against fraud and the prevention of addiction. These objectives are recognised as legitimate by European case law.

Towards a right to reimbursement of losses?

In his recent opinion, an Advocate General of the CJEU considered that an unlicensed operator could, in principle, be required to return the sums received.

This position is not absolute. An exception might apply if the operator was unable to obtain a licence due to failures in the administrative system and if the authorities gave the impression that no penalties would be imposed.

It is not merely a question of determining the legality of the contracts, but also of assessing the conduct of the public authorities and the operators.

The responsibility of the players themselves is now under scrutiny. The German court is considering a possible abuse of rights. Can a player claim reimbursement of their losses whilst retaining their winnings when they win? Some see this as an opportunistic strategy, others as a logical consequence of an illegal system.

A penalty sometimes deemed disproportionate

The principle of contract nullity is also being called into question. Declaring a contract entirely void may seem excessive, particularly when the irregularity is minor.

The German judge cites, for example, technical infringements, such as the use of prohibited links, which would not be directly linked to the losses suffered by the player.

A patchwork of decisions and interpretations

This issue is not limited to a single case. It forms part of a broader context of judicial divergences across Europe. In the Netherlands, courts have already referred similar questions to their Supreme Court because court decisions were not consistent.

This fragmentation of the law underscores the importance of a clear ruling from the CJEU. A uniform interpretation could harmonise practices and provide legal certainty for both players and operators.

A highly anticipated decision

The ruling by the Court of Justice of the European Union is being awaited with great interest. It could be delivered in the coming days and mark a turning point in the regulation of online gambling.