AUSTRIAN UPDATE
of the damaging act is not in Austria. The Austrian Supreme Court – in a nutshell – did not follow this reasoning and stated that the place of damage is in Austria and thus Austrian courts do have jurisdiction. This case law is highly likely to affect the reasoning applied in cases of directors ( Geschäftsführer ) and the cases regarding directors that are currently pending at the Austrian Supreme Court will need to be monitored closely. Lootboxes The authors are aware of two first instance civil court rulings regarding “lootboxes” in Austria. Two judgments of courts of first instance dealt with the question of whether lootboxes are to be considered games of chance. A game of chance according to the Austrian Gaming Act is a game in which the decision on the outcome of the game depends exclusively or predominantly on chance. The two courts (Hermagor and Floridsdorf) came to dissenting results: • the District Court Hermagor ruled that the lootbox under review there was to be qualified as a game of chance; however • the District Court Floridsdorf ruled that the lootbox under review there was not to be qualified as a game of chance. At the District Court Hermagor, the main consideration of the court concerned the question of whether the stake was matched by a winning. Here the court especially focused on whether the content of the lootbox was tradable as an economic good in the ordinary course of business and thus whether a profit can be made. Legally, the court considered that – despite the prohibition contained in the terms of use – there is nevertheless an actual market that is used by game participants to trade in the content of the lootbox. For this reason, the court came to the conclusion that the digital contents of the lootbox have an economic value. The court of first instance considered the fact that the operator does not offer the prospect of winning the prize itself to be irrelevant, “since according to the wording of the law it is also sufficient if someone else does so”.
Consequently, the court ruled that the lootbox in question constituted a game of chance for which there was no licence under the Austrian Gaming Act. Therefore, the contracts concluded between the parties were deemed null and void, which is why the claim was granted to the extent of the amount actually spent on lootboxes. However, in the course of the reversal, the player has to hand over the contents acquired with the lootbox. Both judgments are not published. The decision of the District Court Hermagor in favour of the player has become legally binding. However, the decision of the District Court Floridsdorf was appealed by the claimant and the court of second instance reversed the decision of the court of first instance. Whether a legal remedy was also filed against the second instance ruling is unknown at the time of submission of this article. New cases regarding lootboxes are already pending and will need to be followed closely.
Online sports betting Legal framework of online sports betting
The Austrian legal system differentiates between games of chance, which are primarily subject to the Gaming Act and the monopoly on gambling established therein, and betting, which is regulated at the state level by nine state betting laws. In the absence of a nationwide betting regulation and the resulting fragmentation into nine state betting laws, the regulation of online betting has developed differently in the individual states. At the time of writing, only five state betting laws 1 contain explicit provisions for online betting. The remaining four state betting laws do not contain explicit provisions for online betting, although they have all been amended or rewritten in recent years. Judgment of the Austrian Supreme Court – Styria Betting Act
The Supreme Court dealt with the following facts and questions:
Between October 2019 and April 2020, a Styrian betting customer placed online bets via his smartphone with a licensed provider domiciled in Malta on its website. The betting
1 Vorarlberger, Tyrol, Salzburg, Upper Austria and Lower Austria.
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IMGL MAGAZINE | OCTOBER 2023
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