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Over the past years, online gambling operators active in Austria and Germany have been swamped by litigation started by tens of thousands of gamblers who demand restitution of their gambling losses, and the wave of disputes might now expand to the Netherlands.
Indeed, encouraged by their success, entrepreneurial lawyers and litigation funders have now brought gambling litigation to the Netherlands where in 2018 it was estimated that 1.9 million consumers participated in online gambling, a little over 10% of the total population. This article by my Dutch colleague Tom Hautvast from DLA Piper Amsterdam describes the legal background, the current situation and expected future developments of gambling litigation in the Netherlands.
The Current Legal Situation on Gambling Litigation in the Netherlands
Gambling in the Netherlands is regulated through the 1964 Dutch Gambling Act (Wet op de kansspelen, Wok). The Wok prohibits the offering of gambling without a prior license. Until 1 October 2021, the Wok did not provide for the possibility of licensing online gambling, thus implicitly prohibiting it altogether.
The legal background has triggered a surge of lawsuits from dozens of individuals who contend that online gambling agreements concluded without proper licensing violated Dutch law, rendering them null and void. Consequently, these individuals claim they are entitled to a restitution of their gambling losses. Furthermore, they frequently allege a violation of a duty of care to claim damages.
Case law by the Dutch district courts has been inconsistent. Whilst a majority of courts have awarded gamblers’ claims, some have rejected them. Courts rejecting the claims rule that the statutory prohibition of online gambling had lost its relevance due to societal developments. Those courts point out that the Wok was introduced in 1964, long before the invention of the internet, and note the significant participation of consumers in online gambling. Further, according to those courts, the Dutch Gambling Authority (Kansspelautoriteit, Ksa) did not consistently enforce the prohibition of online gambling. The Ksa adopted a policy of prioritization, where operators that did not actively target Dutch players (e.g., by maintaining a website in Dutch) were not pursued. In practice, operators adhering to these prioritization criteria were effectively allowed to offer online gambling services in the Netherlands. Finally, courts rejecting gamblers’ claims cite that the Dutch legislator had already adopted a bill in 2016 to enable the licensing of online gambling, although it did not come into force until 1 October 2021.
To further unity of case law, two district courts asked prejudicial questions to the Dutch Supreme Court. They essentially ask the Supreme Court to rule whether online gambling agreements concluded prior to 1 October 2021 are null and void , and, if so, what the consequences would be, such as a full refund of any gambling losses suffered. The Supreme Court is expected to issue its judgment in Q1 2026.
Expected Developments on Dutch gambling claims
Irrespective of the outcome of the Supreme Court case, more litigation seems to be inevitable. Several well-funded claim organizations and claim lawyers have made a business model out of gambling litigation. They are actively bookbuilding: enticing gamblers to trust them with their claims and to litigate on their behalf. As compensation for their services, those parties expect success fees of up to 36% of the damages that the gamblers are entitled to. Claim organizations report to already have gathered thousands of claims and stand ready to pull the trigger on gambling operators.
If the Supreme Court rules that the online gambling agreements are indeed null and void, claim organizations will initiate litigation to seek restitution of gambling losses. Even if the Supreme Court confirms the validity of the online gambling agreements, the claim organizations are likely to litigate based on alleged violations of duties of care. To prepare for such litigation, claim organizations, on behalf of the thousands of individual gamblers they represent, are now flooding gambling operators with Data Subject Access Requests (DSARs) under the EU General Data Protection Regulation (GDPR) to obtain information about gamblers’ losses and gambling history. Consumers have this right under the GDPR to verify whether their personal data is processed appropriately but claim organizations try to deploy this data privacy tool to substantiate claims for a refund of losses and violations of duties of care.
The Netherlands is particularly interesting for claim organizations due to its liberal class action regime. The Dutch regime, unlike other European jurisdictions such as Austria and Germany, is based on an opt-out system. This means that all Dutch members of the represented class are bound by the outcome of the class action unless they actively opt-out. If possible, considering the upcoming Supreme Court judgment, claim organizations will surely initiate class actions to seek the collective nullity of online gambling agreements and collective restitution of gambling losses. Unlike Austria and Germany, that does not require tens of thousands of individual cases but rather a few class actions, one for each gambling operator. The stakes in the Dutch class actions will thus be colossal.
Conclusion
We have only just seen the beginning of gambling litigation in the Netherlands. Whether it is a powder keg that is about to explode remains to be seen. The Supreme Court case will determine the course and extent of future gambling litigation. But that litigation will follow, seems to be inevitable.
If you need legal support or advice on any issues related to gambling litigation in the Netherlands, I will be glad to introduce you to my Dutch gambling law colleagues Marnix Holtzer, Richard van Schaik and Tom Hautvast. Also, you can have an outline on the Dutch gambling law regime in DLA Piper’s Gambling Laws of the World Guide available HERE and access further gambling law news HERE.