Why the ECJ Has Stepped Back from Europe’s Player-Losses Disputes

For years, Europe’s gambling operators, investors, and litigators looked to the European Court of Justice for a decisive ruling on whether players could recover losses from operators licensed in one EU member state but not authorised in another. Instead, over the last 12 months the court has delivered a series of rulings, opinions, and referrals focused on German and Austrian claims that clarify certain legal principles but avoid the bigger questions.

The result is a paradox. The industry now has more guidance than before, yet faces greater uncertainty. That uncertainty is shaping Germany’s player-losses market, Austria’s restitution claims, and Malta’s efforts to shield locally licensed operators from foreign judgments. It is also reviving debate about whether Europe’s fragmented gambling regime can function without some degree of harmonisation.

As someone who has spent decades observing the evolution of regulated gambling markets, I see this judicial restraint as a structural shift that places the burden squarely back on national courts and legislators. For operators with multi-jurisdictional footprints, the message is clear: legal exposure will continue to be assessed locally, and risk management must adapt accordingly.

The Answer That Never Came

Many operators hoped a strong ECJ position on the compatibility of historic gambling restrictions with EU law would settle whether players could recover pre-licensing losses. The court has instead exercised judicial restraint.

Claus Hambach of German legal firm Hambach & Hambach captured the frustration: “Although the ECJ has been dealing with a series of requests for preliminary rulings for several years, we have had little clarity so far. There remains considerable legal uncertainty and unresolved questions.”

The ECJ has repeatedly affirmed that member states retain significant freedom to regulate gambling. Questions of contract validity, civil liability, and restitution remain matters of national law. In effect, the court has told national courts: this is ultimately your problem to solve.

This pattern appears in proceedings involving Austrian player claims, Germany’s historic online gambling regime, and the ongoing Tipico sports-betting case (Case C-530/24). European judges clarify the framework but stop short of dictating outcomes.

Why Luxembourg Remains Reluctant

Gambling has never been comprehensively harmonised across the EU, unlike financial services or telecommunications. National governments retain control over licensing, taxation, player protection, and market structure. Political attitudes and economic interests differ sharply between member states.

Hambach notes: “The ECJ is often cautious when national regulatory frameworks are fragmented and politically very sensitive – and German gambling regulation is precisely that.”

Soeren Alborn of Bird & Bird’s German office points out that the court has provided guidance within the limits of the questions referred. In the European Lotto and Betting case (C-77/24), the ECJ confirmed that member states retain broad discretion to prohibit online gambling to serve objectives such as channelisation and consumer protection.

Yet key areas remain untouched. Neither Germany’s former sports betting regime nor the online casino framework under the 2021 State Treaty was directly at issue. Further referrals from German courts are likely, meaning the litigation saga will continue.

Germany Remains the Main Battlefield

Without a unifying ECJ ruling, German courts will keep producing divergent outcomes. Hambach believes this fragmentation actually favours defendants. Operators can challenge claims on procedural grounds such as limitation periods, jurisdiction, pleading deficiencies, and where the gambling activity took place.

Claimant law firms are already marketing recent ECJ rulings to potential customers. Suspended online casino proceedings are expected to resume. In sports betting disputes, however, the advocate general’s opinion in the Tipico case offers operators a potential defence where authorities gave sufficiently clear assurances during transitional licensing periods.

Alborn emphasises that such assurances “must have been given in a precise, unconditional and consistent manner.” Whether any operator meets that standard remains a question for German courts.

One risk here is that continued fragmentation encourages more player-losses lawsuits even as it creates defence opportunities. The litigation environment rewards persistence on both sides, raising costs and unpredictability for operators active in the market.

The Rise of a Litigation Industry and Malta’s Experiment

Legal uncertainty has fuelled a growing ecosystem of litigation funders, claims management firms, and specialist practices. Michelle Hembury from Melchers Rechtsanwaelte expects player litigation to continue in volume, fragmenting along two axes: historic licensing disputes and newer claims based on alleged regulatory breaches or failures in responsible gambling obligations.

Third-party funding has transformed what began as a niche argument into a cross-border industry. Yet funders prefer predictability. The absence of definitive ECJ answers, combined with enforcement questions, may make mass litigation less attractive than assumed.

Nowhere is the uncertainty more visible than in Malta. Article 56A of its Gaming Act restricts recognition and enforcement of certain foreign gambling judgments against Malta-licensed operators. The measure is controversial: supporters see it as protection against inconsistent rulings, while critics argue it undermines mutual recognition of judgments.

Terence Cassar of GTG argues the resolution should be political rather than purely legal. He believes Malta remains on solid ground on the enforcement angle. Thomas Bugeja of Fenech & Fenech Law notes that Maltese courts have generally refused enforcement on public-policy grounds, though recent advocate general opinions highlight tensions with the European principle of mutual trust.

Exposure Grows Beyond Malta

Even if Article 56A survives, recent ECJ developments have increased pressure on operators across multiple jurisdictions. Cassar is explicit: “Where an operator does not hold a licence from the target jurisdiction, there is no doubt that risk has increased.”

Bugeja sees a broader trend. Rulings increasingly assess player claims according to the law of the player’s home jurisdiction rather than the operator’s place of establishment. “The centre of gravity has shifted decisively towards the consumer’s jurisdiction, but recognition and enforcement remain a ‘Malta’ issue.”

The Mr Green proceedings further illustrate that enforcement battles—such as European Account Preservation Orders—now matter as much as liability itself. Creditors must show a concrete risk that assets may be concealed or dissipated; they cannot rely solely on Malta’s law.

The Bottom Line

The ECJ has made clear it will not impose a uniform European solution on player-losses disputes. By deferring to national courts, it has underscored that gambling’s fragmented regulatory landscape remains a matter for member states. For operators this means sustained litigation risk, higher compliance costs, and the need to treat regulatory history and local assurances as core risk factors in every jurisdiction.

The litigation industry will persist, and enforcement fights will grow more sophisticated. Yet the deeper signal is that courts alone cannot bridge the gap between an integrated digital market and incompatible national rules. Greater harmonisation or a passporting model may ultimately prove necessary, but political realities make that a long-term prospect at best.

Industry executives should plan on continued fragmentation while pressing policymakers for clearer, more consistent frameworks. In my experience across regulated markets, those who treat regulatory ambiguity as a planning input rather than a grievance are best positioned to navigate the next phase. The task of bridging Europe’s gambling divide may soon fall to politicians. Operators would be wise to engage that conversation constructively now.