Jurisdictional clarity for online gaming operators: Advocate General Emiliou on cross-border liability and gambling law

 On June 12 2025, Advocate General N. Emiliou issued a significant opinion in Case C-77/24 (Wunner), addressing a crucial legal issue for online gambling operators in the EU.The case involves a situation where a consumer from one EU member state sues the directors of an online gambling company based in another member state for offering unlicensed online gambling services. The central question is which national law applies in such a liability claim.

Background of the case?

The case revolves around an Austrian resident (TE) who suffered financial losses by participating in online gambling offered by a Maltese company, Titanium Brace Marketing Ltd, through the website www.drueckglueck.com. The company was licensed in Malta but did not hold a gambling license in Austria. The player filed a civil liability claim, not against the company (which is now bankrupt), but directly against its former directors.

Rome II Regulation: Application and Scope

The Austrian court requested clarification under the Rome II Regulation (Regulation (EC)No. 864/2007). Two key issues were raised:

1. Whether the director's liability falls outside the Rome II scope due to the exclusion for "non-contractual obligations arising out of company law" (Article 1(2)(d)).
2. If Rome II does apply, under Article 4(1): where did the "damage" occur? In Austria (where the consumer played) or Malta (where the operator is based)?

Key Findings from the Advocate General

Rome II Applies to Director Liability

Advocate General Emiliou concluded that the Rome II Regulation does apply. The claim against the directors does not arise from company law duties but from the violation of a general legal prohibition (offering gamblingservices in Austria without a national license). This type of public law violation falls under non-contractual obligations and thus within the scope of Rome II.

 Key takeaway: Online gambling operators and their directors cannot rely on company law exemptions to avoid liability under Rome II when national gambling laws are violated.

 The Place of Damage is the Player's Country

Emiliou further found that under Article4(1) of Rome II, the place where the damage occurred is the country from which the player participated. In this case, it is Austria. Even though the technical operations and infrastructure were based in Malta, the damage (the gambling loss) occurred in Austria, where the player placed the bets.

 Key takeaway: The applicable law will likely be that of the player's country, not the operator's licensing jurisdiction. Therefore, a deep understanding of target markets is crucial for operators.

Implications for Online Gambling Operators

 While this conclusion is not a final judgment, it provides valuable insights for the iGaming industry:

• National gambling laws matter: even if licensed in Malta or Curaçao, operators must comply with local laws when offering games to consumers in regulated EU markets such as Austria or Germany.
• Directors can be held liable: players may pursue claims against individuals behind the company, especially if the operator is insolvent or shielded from liability.
• Consumer protection laws take priority: operators must adhere to local consumer protection laws (such as the Austrian Glücksspielgesetz). Breaching these laws may lead to damage claims, regardless of the operator’s corporate structure or terms and conditions.
• Location of gambling dictates applicable law: operators must account for the consumer’s jurisdictin when assessing legal exposure, not just the location of their license or servers.

The Curaçao Perspective

Operators licensed or seeking licensing in Curaçao should monitor these developments closely. While Curaçao’s licensing regime is broad, international legal exposure remains a significant risk. Although Curaçao is reforming its licensing standards to align with higher international requirements, as highlighted in previous blogs on Responsible Gaming and AML Compliance, this case shows that cross-border legal risks are real and growing.

 Being compliant with Curaçao’s regulations is necessary but may not be enough. Operators must also ensure they respect the legal frameworks of the markets they target, especially in the EU. This requires serious deep diving in and understanding of the legal framework of targeted jurisdictions, amplifying the importance of experts in the legal field.

Conclusion

The Advocate General’s opinion underscores a broader legal trend toward stronger consumer protection, stricter enforcement of national gambling laws,and transnational liability for unlicensed gambling operations. For online gambling operators, legal due diligence and exclusively localized compliance strategies are no longer optional. They are critical to maintaining sustainable market access in Europe.

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