CJEU Clarifies Applicable Law For Online Gambling Torts

Online Gambling Torts - Rome II Regulation

On 15 January 2026, the Court of Justice of the European Union (“CJEU”) delivered its Preliminary Ruling in Wunner, Case C-77/24, a significant judgment concerning the interpretation of the law applicable to non-contractual disputes relating to online gambling. The ruling is with regards to the interpretation of Articles 1(2)(d) and 4(1) of EU Regulation No 864/2007 on the law applicable to non-contractual obligations (“Rome II”).

1. Facts Of The Case

An Austrian-resident player participated in online gambling offered by Titanium Brace Marketing (“Titanium”), a Maltese-incorporated provider of games of chance currently in liquidation. The player brought proceedings before the Austrian courts against Titanium's two directors to recover losses incurred through such gambling.

Titanium held a valid Maltese gambling licence but no licence in Austria, where gambling is reserved to the state monopoly. The player argued that the gambling contract was null and void under Austrian law and that Titanium's directors were personally jointly and severally liable for Titanium's offering of illegal online gambling services in Austria.

The directors disputed Austrian jurisdiction, asserting that both the event giving rise to the alleged damage and the damage itself occurred in Malta.

Note: All names in this case are fictitious and do not correspond to any real party.

2. Questions Referred

The Austrian Supreme Court referred two questions to the CJEU regarding Rome II:

1. Does Article 1(2)(d) cover claims for damages brought by a creditor of a company against its organs for tortious liability due to violations of protective laws (e.g., gambling legislation)?
2. If not, how should Article 4(1) be interpreted in determining the place of damage in tort claims for losses suffered from online gambling offered by a company without the required licence in Austria? Specifically, is the place of damage:
3. where the player makes bank transfers to the player account,
4. where the company manages the player account,
5. where the player places bets leading to a loss,
6. the player's domicile as the location of the right to payment, or
7. where the player's main assets are situated?

3. The CJEU's Ruling

3.1 Article 1(2)(D)

Rome II generally applies to non-contractual obligations in civil and commercial matters (Article 1[1]). However, Article 1(2)(d) excludes obligations arising essentially from company law, including matters related to company formation, organisation, winding-up, or the personal liability of directors or auditors for obligations tied to the company.

The CJEU was asked whether tort claims against directors for breaches of national prohibitions on offering unlicensed gambling fall under this exclusion.

The Court clarified that the exclusion applies only to obligations arising from company law-specific reasons connected to the management, operation, and functioning of the company. By contrast, liability arising from obligations outside the company's operation, such as violations of national protective laws, falls outside Article 1(2)(d).

Thus, in the present case, the CJEU ruled that the directors' alleged liability arose from offering illegal gambling, not from duties linked to company governance. Therefore, the Article 1(2)(d) exclusion did not apply.

3.2 Article 4(1)

The second question concerned how to determine the place of damage under Article 4(1) in tort claims related to unlicensed online gambling. Article 4(1) establishes that the applicable law is that of the country where the damage occurs, regardless of where the event causing it or its indirect consequences occur. The place of damage is where the harm actually manifests.

The CJEU held that the alleged tort consisted of interference with the player's legally protected interests due to the breach of Austria's prohibition on unlicensed gambling. The harm manifested when the player participated in online gambling from Austria. Consequently, the damage occurred in Austria.

The Court emphasized the nature of online gambling, which lacks a fixed physical location. Therefore, for legal purposes, online gambling harm occurs where the player is habitually resident.

4. Conclusion

The Wunner ruling clarifies the law applicable to non-contractual obligations arising from online gambling: the applicable law is that of the player's habitual residence. This outcome is likely unwelcome to gambling operators who may now face claims in multiple jurisdictions.

The Preliminary Ruling does not however address whether Member States may refuse enforcement of foreign judgments on public policy grounds, nor the EU law compatibility of national gaming legislation such as Article 56A of the Gaming Act. These questions remain open for future EU-level determination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.