SPOTLIGHT AUSTRIA
means that “the place where the damage occurred is the place where the alleged damage actually manifests itself”. 5 Against this background, the ECJ then stated that online games of chance need to be considered to have taken place where the player is habitually resident. 6 However, the ECJ conceded that the designation of the law where the player is habitually resident may be departed from, if it is clear from all the circumstances of the case, that the tort is manifestly more closely connected with another country. 7 Nevertheless, the ECJ expressly stated that such a departure from the general rule is an exception that is subject to strict interpretation. 8 As an example for such a deviation, the ECJ named a pre-existing contractual relationship between the parties that is closely linked to the tort claim. 9 In conclusion, the ECJ answered the preliminary ruling request question as follows: “[T]he Rome II Regulation must be interpreted as meaning that, in the context of an action for damages for losses incurred when participating in online games of chance offered by a company in a Member State in which that company did not hold the required licence, the damage sustained by a player must be deemed to have occurred in the Member State in which that player is habitually resident.” 10 Impact of the ECJ ruling on tort claims in Austria Having received the judgment from the ECJ, the Austrian Supreme Court will continue the national proceeding that was the basis for the preliminary ruling request. The Austrian Supreme Court is bound by the decision of the ECJ and has to apply the interpretation provided by the ECJ to the specific case and make its decision on the merits of the case, taking into account the preliminary ruling. However, based on the 5 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 41. 6 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 44. 7 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 52. 8 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 54. 9 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 55. 10 ECJ dated 15.01.2026, C-77/24 (Wunner), Rz 56. 11 ECJ preliminary ruling request C-574/24 (Flutter Entertainment plc). 12 Supreme Court dated 19.02.2026, 9 Ob 8/26f.
clear wording of the Wunner-Case ruling, it may be expected that the Austrian Supreme Court, and other Austrian courts, will follow the general rule applied by the ECJ and thus deem themselves internationally competent and apply Austrian law. Furthermore, it is expected that the pending tort claims that have been suspended by the Austrian courts until the decision of the ECJ, will continue. In addition to already pending tort claims, a rise in new tort claims against third parties other than the games of chance operator now seems likely. It remains to be seen which other third parties may be affected by a rise in tort claims. In this regard, there is currently a preliminary ruling request pending with the ECJ from the Upper State Court Vienna, which concerns a tortious claim against an ultimate parent company whose subsidiary, as a jointly and severally liable co-perpetrator, offered online games of chance in Austria without an Austrian license. 11 As the question posed to the ECJ is consistent with the already answered question in the Wunner-Case, a decision of the ECJ will probably be made quite soon and it is expected to be in line with the above outlined answer.. Supreme Court tort claim ruling With a recent judgment 12 the Austrian Supreme Court continued a suspended tort claim proceeding and made a decision based on the ECJ ruling. In this case before the Austrian Supreme Court the claimant sued the Maltese based and licensed operator as well as the director of the operator for return of net losses. The second defendant (director of the operator) especially argued the lack of international jurisdiction. The first instance court dismissed the objection of lack of international jurisdiction and granted the claim of the claimant. The second
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IMGL MAGAZINE | MARCH 2026
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