In the decision with the docket no. 1 Ob 176/22x, the Supreme Court dismissed the claimant's extraordinary appeal. The Supreme Court fully upheld the decisions of the lower courts that there is no right to reclaim losses from online sports betting by a betting customer from Styria ("claimant") against a betting company based in the EU ("defendant") that does not have a national license. The defendant has now won in all three court instances. SV.LAW has legally represented the defendant from the very beginning to the end of the court proceeding. The following "rule of law", which the Supreme Court stated in its decision, is significant and constitutes a landmark: "The Styrian Betting Act 2018 only regulates the offering, conclusion and brokering of bets and the referral of betting customers through conduct of the betting company set in the territory of the federal state. Sports betting offered by a betting operator from a location outside the national territory via the Internet is not covered by this." The Supreme Court announced this "rule of law" after the following thoughtful consideration: the Supreme Court decided to follow a narrow interpretation of the Styrian Betting Act ("StWttG") in light of the constitutional principle of territoriality. In our opinion, this interpretation will in principle also have an impact on other comparable cases as well as on the Austrian federal states regarding betting laws. After a detailed discussion of legal doctrine and comparative law, the Supreme Court comes to the conclusion that the StWttG is only applicable to Styria and exclusively to an activity as a betting operator in physical presence. According to the Supreme Court, the StWttG does not explicitly regulate online betting; it cannot be assumed that the law has any other content. In the Supreme Court's opinion, there is "not the slightest indication" for a different intention of the legislator beyond the wording of the law. According to the Supreme Court, the StWttG only regulates the offering, conclusion and brokering of bets through conduct set within the territory of the federal state. Sports betting offered by a betting company from a location outside the national territory via the Internet is not covered; this does not constitute the performance of a betting activity "within the meaning of the law". These considerations result in the non-applicability of the StWttG to this form of activity as a betting operator. The Supreme Court correctly came to the following conclusion: "The offering and acceptance of online sports betting by the defendant without a license pursuant to these provisions does not result in nullity of the betting contract within the meaning of Section 879 (1) ABGB (Austrian Civil Code)." In conclusion, the Supreme Court further denies the applicability of legal analogy of the StWttG or of any protective and due diligence obligations. In contrast to gambling (where there is a gambling monopoly pursuant to Section 3 of the Austrian Gambling Act), there is no uniform federal regulation of betting. Rather, the respective federal state law must be observed. If online betting is involved and the betting operator does not have a physical presence in the federal state, then – as in the case at hand – this circumstance does not fall within the scope of application of the federal state law (in this case: StWttG). Neither the StWttG itself nor the materials refer to online betting or specify the geographical scope of this law. We absolutely agree with the legal opinion of the Supreme Court and the lower courts in this regard. Feel free to contact us regarding this decision. We and our team, who handled the case, are happy to assist you!
