AUSTRIAN UPDATE
apply to this form of activity as a betting operator. The offering and acceptance of online sports bets by [the Maltese provider] without a licence in accordance with these provisions does not therefore constitute nullity”. With regard to the alleged violation of protective obligations, the Supreme Court then stated that an analogous application of individual provisions of the Styrian Betting Act requires the existence of a genuine (unplanned) legal loophole. The Supreme Court further concluded that the “state legislator [had to be] aware of the offering of online betting at the time of the enactment of the Styrian Betting Act 2018 and nevertheless decided against the inclusion of a regulation of betting offered via the internet”, which is why an unplanned loophole is excluded. Consequently, an (analogous) application of individual provisions of the Styrian Betting Act is ruled out and the betting customer cannot invoke individual (protective) provisions. Consequently, the appeal of the betting customer was not upheld by the Supreme Court. Decision of the Austrian Constitutional Court – Vorarlberg Betting Act Only recently, the Austrian Constitutional Court dealt with the constitutionality of the provision of Section 1 (4) second sentence of the Vorarlberg Betting Act in the context of a party application for a judicial review. This provision states that the place of business for online betting is “the place from which the betting operator provides the data for the medium”. In accordance with the legal materials, this place is regularly understood to be the server location. The applicant claimed that the definition of the place of business for online betting in the Vorarlberg State Betting Act was unconstitutional, as “the Vorarlberg Betting Act does not apply if the server from which the data for the electronic
medium is provided is not located in Vorarlberg”.
The Constitutional Court refused to deal with the application due to a lack of prospects of success, as in particular the state legislator is not to be opposed “if, in the case of enabling betting activities via an electronic medium, it defines as a place of business that place from which the betting operator provides the data for the medium”. The Austrian Constitutional Court thus clarified that the connecting factor to the server location (location “from which the betting operator provides the data for the medium”), which is common to the five state betting laws that provide for explicit online regulations, is constitutional. Conclusion The above described jurisprudence affects integral questions for gaming operatory in Austria. The first step for director cases, namely the competence of Austrian courts, is still undecided, but reasoning applied to comparable cases based on tort may already now indicate the line of argumentation that the Supreme Court may apply. This could lead to the competence of Austrian courts for claims against directors directly, which, in light of existing Supreme Court case law and general attitude of Austrian courts towards games of chance operators, being taken into consideration by all stakeholders. Nevertheless, specific areas such as lootboxes are still dynamic and are to be monitored closely. Furthermore, the latest Supreme Court and Constitutional Court rulings have led to a welcome increase in legal certainty for online sports betting operators. The legal assessment of the High Courts may also be used for arguing the legality of online sports betting offerings in the other Austrian states. At the end of the day, every specific set up will need to be evaluated.
DR. CHRISTIAN RAPANI Attorney at Law Rapani For information contact +43 316 839045 c.rapani@rapani.at
JULIA KOTANKO Senior Legal Associate
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IMGL MAGAZINE | OCTOBER 2023
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