PLAYER CLAIMS
this. They continue to require claimants to establish specific grounds of liability, going beyond the mere fact of holding a managerial position in a company offering gambling services without a local licence 2 . In this sense, Wunner does not fundamentally change the procedural position of players, but rather provides an additional, potential avenue for pursuing their claims. Freedom to provide services vs national gambling restrictions: the C-440/23 judgment The CJEU’s judgment of 16 April 2026 in Case C-440/23 3 (Lottoland) provides another example of the growing tension between players in Member States and online gambling operators based in Malta. The case arose from a situation that has become increasingly common in recent years: a German consumer used online slot machines and so-called secondary lotteries offered by companies holding a Maltese licence, but lacking the authorisation required under the law of the country to which they were effectively directing their services. After incurring financial losses, the claim for recovery was assigned to a specialised entity, which chose to pursue the claim not before the player’s national courts, but before a Maltese court. The dispute centred on two classic lines of defence used by operators. First, they relied on the freedom to provide services, arguing that activity licensed in Malta should also be allowed in other Member States. Second, they raised an abuse of rights argument, claiming that the player had knowingly participated in the games and only sought recovery after losing. The Court did not accept either argument in a way that would significantly alter the existing legal landscape. It confirmed that Member States retain a broad margin of discretion in regulating gambling and may prohibit certain forms of online gaming, even where the operator is lawfully established in another Member State. Equally important, the Court acknowledged the civil law consequences of such prohibitions. Where a gambling contract breaches mandatory provisions of the applicable law, it may be considered invalid, and a claim for the recovery of stakes may, in principle, be based on national rules on unjust enrichment. From a practical perspective, the Court’s approach to the abuse of rights argument is particularly important. It did not
establish an autonomous EU mechanism to limit such claims. Instead, it left the assessment of the player’s conduct to the law applicable to the relationship. In other words, it is for national courts, applying their own standards of good faith, awareness of risk, or possible contributory fault, to decide whether, and to what extent, a player may successfully recover lost funds. For players within the European Union, the judgment is therefore mainly confirmatory. It strengthens arguments already used in disputes against Malta-based operators and limits the effectiveness of defences based on Article 56 TFEU. At the same time, it does not make the path to recovery any easier in practice. These disputes remain largely rooted in national law, and their outcome depends on how each legal system approaches contract invalidity and restitution. Moreover, the judgment does not resolve the most problematic aspect of the entire model, which is the enforcement stage. In practice, this means that while obtaining a favourable judgment against an operator may be becoming easier, its actual enforcement, particularly in light of Malta’s so-called Bill 55, remains uncertain. No breakthrough, but clear direction: implications of the C-530/24 opinion Advocate General Emiliou’s Opinion (Opinion) in Case C-530/24 4 (Tipico) marks a further step in clarifying the limits within which operators from one Member State can rely on EU law against restrictions imposed in the player’s country. The direction outlined in the Opinion suggests continuity with the existing case law: the freedom to provide services is not absolute in the gambling sector, and Member States retain a broad margin of discretion to restrict such activities on grounds of consumer protection and public policy. At the same time, the Opinion appears to reinforce the role of private international law as a practical tool for player protection. In particular, it supports the consistent application of the law of the player’s habitual residence and the possibility of drawing civil law consequences from breaches of national prohibitions. If the Court follows this approach, restitution claims may become further consolidated as a standard mechanism for players seeking to recover losses. That said, this would not amount to a practical breakthrough. As in Case C-440/23, any future judgment is more likely to confirm the existing framework rather than fundamentally
2 https://globalgaminginsider.com/magazine/176/the-wunner-ruling-why-personal-liability-isnt-the-new-normal-for-gaming-execs 3 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62023CJ0440 4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62024CC0530
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IMGL MAGAZINE | JUNE 2026
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