Germany’s long-standing dispute over historic online betting losses has been given a new twist. On 19 March, Advocate General Nicholas Emiliou proposed that a bookmaker that operated on a national market without holding a local licence may be obliged to refund the stakes collected from players.
The opinion was issued in the Tipico case, which involved a German consumer looking to recover losses incurred between 2013 and 9 October 2020. During that period, Tipico held a Maltese licence but not a German one, which was then a requirement for operating in that market. Under German law, unauthorised offering of sports betting renders the contracts null and void and constitutes a tort.
Why This Opinion Matters
Emiliou did not accept the broad argument that defects in Germany’s old system of licensing should necessarily protect operators from civil actions. His argument sounds more restrained: if a member state is allowed to require a local gambling license, as provided by EU law, national courts may still enforce that rule and impose the civil consequences of breaching it. That implies that the lack of a German license can matter in player lawsuits, even if the licensing system itself was defective.
The earlier sports betting regime in Germany was rather complex. According to the court press release, the old system only permitted 20 licences. However, the previous process never produced a final outcome after legal challenges from unsuccessful applicants, like Tipico.
Germany has since moved on to a new system of licensing, under which Tipico was granted a sports betting license on 9 October 2020. The broader modern framework for sports betting was established by the Interstate Treaty on Gambling, which came into force on 1 July 2021.
The Narrow Exception Operators Will Focus On
Emiliou, however, leaves operators one possible line of defence. If a company was unable to obtain a licence due to procedural flaws and was told by the authorities that the licensing rule would not be enforced for a time, then civil penalties could be viewed as disproportionate. In such a case, German courts could exempt the operator from repayment, and liability could fall on the shoulders of the public authorities.
This narrow case makes a distinction between unlawful market entry and state-created legal reliance.
What to Watch Next
The opinion is not binding, and the decision will be made later by the Court of Justice. However, it follows a wider trend in recent EU gambling litigation. In January, the Court held in a separate cross-border online gambling case that, for tort claims, the damage is deemed to occur where the player habitually resides. This does not resolve the German refund cases, but it adds to the legal reasoning behind player-side claims brought from the consumer’s home market.
The new opinion, therefore, could make it harder for the bookmakers to use the old licensing regime as a defence. The likely area of contention now will be around whether the operator was simply not licensed, or whether it was told by the German authorities that business could continue anyway.
