Advocate General of the CJEU Issues Opinion on Claims for Gambling Losses

The Advocate General of the European Court of Justice (CJEU) issued its opinion on claims for gambling losses in Case C-440/23, FB v. European Lotto and Betting Ltd and Deutsche Lotto Und Sportwetten Ltd, holding that consumers may bring actions to recover gambling losses under national law.

He further concluded that national courts can examine whether another Member State’s gambling restrictions are compatible with EU law, and that such restitution claims do not amount to an abuse of EU law.

The case on gambling losses and cross-border operators

The case stems from a German consumer who lost money playing online slot machines and “secondary lotteries” on the gambling website run by Maltese companies licensed in Malta but not in Germany. After sustaining considerable gambling losses, the consumer assigned his restitution claim to a German lawyer, FB, who brought the action before the Maltese Civil Court.

The claim was based on German law, which – according to the Advocate General – voids contracts for unlicensed gambling, entitling the consumer to reimbursement of his losses.

The operators opposed the claim, arguing:

1. Their services were validly provided under Maltese law and protected by Article 56 TFEU (freedom to provide services); and

2. The restitution claim was abusive, since the consumer knowingly participated in the games and only sought repayment after losing.

Advocate General of the CJEU: claims for gambling losses are legitimate

The Advocate General Emiliou’s opinion clarified the EU law framework governing claims for gambling losses:

1. National courts may review another Member State’s law for EU compatibility
   The Advocate General of the European Court of Justice held that Maltese courts can assess whether German gambling law is compatible with EU law. However, such foreign laws should only be disapplied if they are manifestly incompatible with EU law, respecting mutual trust among Member States.

2. Restitution claims are not an abuse of EU law
   The Advocate General stressed that consumers’ claims for gambling losses are grounded in national civil law (nullity of contract and unjust enrichment). By contrast, it is the operators who invoke EU law (Article 56 TFEU). Therefore, according to the Advocate General, consumers cannot be accused of abusing EU law when seeking restitution.

3. The Maltese proceedings are admissible
   Although some governments argued that the dispute was contrived, the Advocate General of the European Court of Justice held that a genuine legal controversy existed and that the reference for a preliminary ruling was valid.

Why the opinion matters for the gambling industry

The Advocate General of the European Court of Justice’s opinion carries significant implications:

• Increased litigation risks: If the Court follows this reasoning, consumers across the EU may continue to recover gambling losses from operators lacking local licences.

• Limits to Malta’s protective law (Bill 55): Malta’s attempt to shield its licensed operators from restitution claims may not survive EU scrutiny if courts are empowered to assess compatibility.

• Consumer rights reinforced: The opinion holds that consumers retain the right to reclaim gambling losses, even in cross-border situations, without being labelled as abusing EU law.

Conclusion

The opinion of the Advocate General of the European Court of Justice on claims for gambling losses in Case C-440/23 highlights the delicate balance between national gambling restrictions, consumer protection, and the EU principle of free movement of services. While Member States retain discretion in regulating gambling, operators  cannot invoke EU freedoms as a blanket defence to bypass host state licensing rules according to the AG’s opinion.

If the Court of Justice endorses this opinion, it will establish an important precedent: consumers might be able to claim back their gambling losses when contracts are unlawful, and national courts must be ready to review another Member State’s laws for compliance with EU law.

On the topic, you can read DLA Piper’s Gambling Laws of the World guide HERE and other articles on gambling law matters HERE.