What happened?
The defendant is a legal entity under Maltese law, headquartered in Malta, and holds a valid license for online gambling there. However, it does not possess a concession for its activities in Austria pursuant to § 12a GSpG (Austrian Gambling Act). Despite this, the defendant offers online gambling (real-money poker and casino games) in Austria through its German-language website.
The plaintiff, residing in Austria, created an account with the defendant and agreed to its terms and conditions upon registration. Over the following years, the plaintiff participated in gambling activities, including real-money online poker, and incurred losses totaling EUR 10,145.54 and USD 612.21.
The plaintiff sought the recovery of EUR 10,672.25 plus interest, arguing that the gambling contracts concluded with the defendant were invalid due to the lack of a concession under the GSpG, making them void under § 879(1) ABGB (Austrian Civil Code). Consequently, the losses should be reimbursed. The defendant argued a lack of legal standing, claiming that the contracts were formed between players, not with the website operator. Additionally, the defendant claimed contributory negligence on the plaintiff’s part, as § 52(5) GSpG obligates players to verify the legality of the gambling contract before participating.
The court of first instance ruled in favor of the plaintiff. The appellate court dismissed the defendant‘s appeal, reasoning that § 52(5) GSpG aims to protect players, not gambling providers.
The defendant appealed to the Austrian Supreme Court (OGH).
How did the Supreme Court decide?
The OGH ruled that – in deliberate departure from earlier individual case decisions – it is established jurisprudence that funds paid under an unlawful and therefore void gambling contract can be recovered. Neither § 1174(1) sentence 1 ABGB (knowingly rendering a service for an unlawful purpose) nor § 1432 ABGB (knowingly paying a non-debt) prevents such recovery.
The question of whether the player violated the administrative provision of § 52(5) GSpG by participating is irrelevant in this context.
While some German district courts have excluded recovery under German law (specifically § 817 sentence 2 BGB), the OGH found no basis to deviate from its consistent case law under Austrian law.
The appeal was therefore dismissed as inadmissible.
(OGH Decision 9 Ob 54/22 i, dated July 14, 2022)
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