SPOTLIGHT AUSTRIA
defendant filed a legal remedy against this decision and in the second instance his argument was confirmed, meaning that the second instance court dismissed the lawsuit due to a lack of international jurisdiction. The claimant filed a legal remedy to the Austrian Supreme Court against this second instance court decision. In a first step, the Austrian Supreme Court suspended the proceeding due to the pending Wunner-case before the ECJ. However, as the ECJ made its ruling, the proceeding before the Austrian Supreme Court was continued. Also in this case, the claimant asserted a tortious claim for damages against the director of a Maltese based and licensed operator due to a violation of Austrian player protection regulations (protective laws). This affects the main legal questions of international jurisdiction (thereby the applicability of Austrian law) and merits of the claim. The Austrian Supreme Court followed the Wunner-ruling of the ECJ and concluded that the damage of the claimant occurred in Austria. Therefore, the Austrian Supreme Court ruled that Austrian law is applicable to the present tort claim against the director of a Maltese based and licensed operator. Due to the applicability of Austrian law, the Austrian Supreme Court further ruled that Austrian courts are internationally competent to decide on such tortious claims. This decision of the Austrian Supreme Court gives final clarity from Austria’s highest civil court that tort claims against third parties other than the operator (e.g. directors of operators) may be filed before Austrian courts and that Austrian courts may apply Austrian law when deciding these lawsuits. It remains to be seen, if these decisions from the ECJ and Austrian Supreme Court will lead to an increase of tort claims against third parties other than the operator (e.g. directors of operators) in Austria. In cases where claimants, their attorneys and/or process cost financier may want to increase pressure for prompt payment of online games of chance net losses incurred with operators not holding an Austrian license, such tort claims may become a valuable mechanism to do so.
Open legal questions regarding tort claims in Austria Apart from international jurisdiction and applicable law, tort claims face a number of case specific legal questions that will need to be evaluated by the courts in a differentiated manner. For example, in tort claims, the question of the liability of the defendant will be of high importance and will differ on a case- by-case basis depending on the individual defendant. Furthermore, the statute of limitation for claims for damages is generally three years. The time limit begins to run when the damage and the damaging party become known. The question of when the time limit starts will also be subject to the singular case. Against this background, case law in this regard will need to be monitored closely, as, even though these questions are case specific, certain parameters may be developed by jurisprudence. Lootbox decision of the Austrian Supreme Court With its decision dated 18.12.2025, 6 Ob 228/24h, the Austrian Supreme Court had to look at the video game “FIFA” and the “Packs” used in the “Ultimate Team” mode. An Austrian player maintained that these “Packs” should be considered games of chance that are being offered without an Austrian license, and used this argument to try to claim back money spent to obtain the “Packs”. The Austrian Supreme Court rejected the player’s claim and argued that the entire game must be considered as a whole. This means that the assessment of whether a lootbox is a game of chance must not consider the lootbox in isolation from the game, but rather the game in its entirety needs to be evaluated. In this specific case the Austrian Supreme Court argued that, even though the lootboxes (“Packs”) in FIFA’s “Ultimate Team” may be considered a game and even though there is an element of chance in the distribution of the content of the lootbox (“Packs”), the human player can use their own skills to influence the course of the game with a probability conducive
IMGL MAGAZINE | MARCH 2026
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