SPOTLIGHT AUSTRIA
losses. These lawsuits are based on tortious liability due to the understanding that the defendant violated a protective law (Austrian games of chance monopoly) by operating, organizing or making accessible, facilitating or participating in games of chance without an Austrian license. In 2024, the Austrian Supreme Court heard such a tort claim for return of games of chance net losses that an Austrian player filed against the directors of a Maltese games of chance operator before the Austrian courts. The directors of the Maltese games of chance operator advanced the argument that Austrian law did not apply in the case. They maintained that the place where the damage occurred was not in Austria, according to Rome II Regulation, 1 and consequently that Austrian law is not applicable. As the Austrian Supreme Court was being asked to interpret EU law, it decided to file a preliminary ruling request to the ECJ where it posed the question as to how the place where the damage occurred is determined. 2 Following this preliminary ruling request of the Austrian Supreme Court, a significant number of pending tort claims have been suspended by the Austrian courts until the decision of the ECJ. Judgment of the ECJ dated 15.01.2026 3 The ECJ clarified that the general rule in the Rome II Regulation is that “the law applicable to a non-contractual obligation arising out of a tort or delict is to be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.” 4 In short, this
Introduction Recent decisions coming from the ECJ and the Austrian Supreme Court have clarified the landscape regarding lootboxes, betting on e-sports and tortious player claims. First, the long-awaited decision of the European Court of Justice (ECJ) in the “Wunner-Case” concerning applicable law and consequently international jurisdiction in a tort claim against directors of a games of chance operator was published. Second, a decision from the Austrian Supreme Court as to whether lootboxes (in this case in the game “FIFA”) should be considered games of chance, meaning that losses incurred could be reclaimed by players. Lastly, a decision from the Austrian Supreme Court reviewed whether betting on e-sports may be considered games of chance, meaning that losses incurred could be reclaimed by players. Development of the “Wunner-Case” The “standard player claim” in Austria is a claim from a player against the online games of chance operator for return of their games of chance net losses. This claim is based on the understanding that the offering of such a game without an Austrian licence violates the Austrian federal monopoly on games of chance and thus the games of chance contracts are null and void. The legal basis under which any net loss can be reclaimed is the reversal under the law of unlawful enrichment, which has a 30 year statute of limitations. In the past several years, players, their attorneys and process cost financiers have initiated claims against third parties other than the games of chance operator to reclaim their net
1 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). 2 Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 1 February 2024 (Case C-77/24, Wunner). 3 Full text of the judgment available under: https://infocuria.curia.europa.eu/tabs/document/C/2024/C-0077-24-00000000RP-01-P-01/AR- RET/314252-EN-1-html. 4 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 36.
IMGL MAGAZINE | MARCH 2026
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