AUSTRIAN UPDATE
customer always carried out his betting activities in Styria. With his lawsuit, the betting customer now demanded the repayment of his sports betting losses. The betting customer justified the claim for repayment in particular as follows: 1. The Maltese provider had offered the online bets without a valid licence and thereby violated the provisions of the Styrian Betting Act, which is why the betting contracts were unlawful and void. 2. The Maltese provider was also accused of a breach of protective duties, as it had violated individual (player protection) provisions of the Styrian Betting Act, for example, as live sports betting was prohibited under the Styrian Betting Act. The Maltese provider essentially countered that the Styrian Betting Act was not applicable because it did not regulate online betting, which is why there could be no violation of its protective provisions. The court of first instance dismissed the claim because the Styrian Betting Act did not regulate online betting and there was also no unintended loophole. The Court of Appeal confirmed the decision of the court of first instance and stated that online betting was not regulated by the Styrian Betting Act. Furthermore, the obligation to obtain a licence and to notify under the Styrian Betting Act requires a betting shop, which is a fixed place of business that can be entered by betting customers. “A betting operator who, like [the Maltese provider], has no physical presence in Styria is therefore not subject to the Styrian Betting Act”. The betting customer appealed to the Supreme Court, which deemed the appeal admissible because it had not yet issued an opinion on the Styrian Betting Act in connection with online betting. Legal assessment of the Supreme Court In legal terms, the Supreme Court considered the following in particular when assessing the betting customer’s appeal: At the outset, the Supreme Court clarified that sports betting is not covered by the federal monopoly on gambling, but falls
within the competence of the nine states in terms of legislation and enforcement. The Supreme Court then found that neither the Styrian State Betting Act itself nor the materials refer to online betting or specify the territorial scope of application. With regard to a licensing requirement, the Styrian State Betting Act stipulates that the activity as a betting operator may only be carried out after a licence has been granted and that every betting operator must permanently operate at least one betting shop. According to the definition in the Styrian Betting Act, a betting shop is a place of business where bets are offered, betting offers are accepted, bets are placed or brokered, or betting customers are referred. The Supreme Court also found that the state betting laws of all states have been amended or revised in recent years and that Styria (as well as Burgenland, Carinthia and Vienna) is one of the states that do not explicitly provide for online betting. The other federal states, however, contain provisions on online betting and cover it if the server is located in the respective state, “so that only then is a licensing obligation given”. In the next step, the Supreme Court analysed a multitude of literature, including the commentary by the two authors, and dealt intensively with the interpretation of the term “exercise” in order to be able to assess which activity is subject to a licensing requirement under the Styrian Betting Act. In this context, the Supreme Court stated that a broad interpretation of the term “exercise” does not correspond to the will of the legislator and that enforcement would not be possible in practice if the term were understood in a broader sense. Nor can the state legislator be presumed that its state betting law is intended to regulate conduct outside its state territory, i.e. in other federal states or in other member states of the EU or in other third countries, solely because of possible effects in its state territory. The Supreme Court then came to the interim conclusion that “the Styrian Betting Act only regulates the offering, conclusion and brokering of bets by means of conduct within the state territory. Sports bets offered by a betting company from a location outside the state territory via the internet are not covered by this, because this does not constitute a betting activity in the sense of the law. It follows that the law does not
PAGE 8
IMGL MAGAZINE | OCTOBER 2023
Made with FlippingBook flipbook maker