Yesterday, Advocate General Emiliou delivered his Opinion in C-683/24, Spielerschutz Sigma. The original case in the Viennese court was about a professional negligence claim, about whether a lawyer providing a legal opinion about the applicability of Bill 55 can be held liable if that opinion is later proved to be wrong. A great sigh of relief could be heard from law offices across Europe when the AG opined that the lawyer would only be liable if their reasoning was negligent.
The additional questions the CJEU received from the Viennese courts about the compatibility of Bill 55 with EU law the AG said were irrelevant to the Viennese case, therefore the request for judgement on those issues from the CJEU was inadmissible. However, the Advocate General gave his opinion about Bill 55 anyway.
Bill 55 is Malta’s attempt to legislate its way out of a growing problem. Austrian and German courts have, for some time, been issuing judgments against Maltese-licensed operators in favour of players seeking restitution of losses from online gambling services those players were not lawfully permitted to use; the operators either lacked a local licence or provided services before the activity was regulated.
Bill 55 instructs Maltese courts to refuse recognition and enforcement of such judgments on public policy grounds. As legislative devices go, it was about as subtle as a brick through a window.
AG Emiliou in disallowing the professional negligence case nevertheless dismantled Bill 55 on three levels, each of which will be familiar to anyone who has followed the EU case law.
First, the public policy exception in Brussels I bis allowing a court to ignore a foreign court’s judgment is narrow. It exists to allow Member States to refuse recognition of individual foreign judgments that offend their legal order in some fundamental way. But, and it is a big but, it does not permit a Member State to legislate a category of foreign judgments out of existence en bloc.
A rule directing domestic courts to refuse recognition of any judgment from any Member State against a Maltese-licensed operator is not a public policy exception; it is the creation of a parallel, unilateral regime, and EU law does not allow that.
Second, Malta cannot invoke the freedom to provide services under Article 56 TFEU as a shield. EU freedoms are there to ensure operators can trade across borders on an equal footing, not to protect operators from the civil consequences of trading in markets where they do not hold the local licence they need. The AG’s reasoning here is almost weary; the argument that Article 56 somehow immunises MGA licensed operators from the laws of the markets in which their customers actually place their bets has had a long run, but it has been running on fumes for some time.
Third, and most pointedly for Malta’s position, the AG held that even if a foreign court had misapplied EU law in its underlying decision, that would still not justify a refusal of recognition of that decision. The remedy for an erroneous application of EU law is a reference to the Court of Justice. It is not for a Member State’s legislature to appoint itself as judge over the courts of its neighbours, to determine whether they had incorrectly applied EU law.
Advocate General Opinions are, of course, not binding. The CJEU may depart from them. In practice it does so in a minority of cases, and rarely where the analysis rests on settled principle. This Opinion rests on about as settled a principle as Brussels I bis contains, namely that the system of mutual recognition depends on Member States not writing their own exclusions. I would not place much money on the Court taking a different view, should they give it.
As I said, this is a case about professional negligence and if that opinion is upheld by the CJEU, which I believe is very likely, they are unlikely to rule one way or the other on the Bill 55 point — it was a tangential point. In this case, a ruling on Bill 55 will be left for another case.
What This Means for Operators
That brings me to what this means for operators holding MGA licences and relying on the Malta-only enforcement model.
Taken on its own, the Opinion is not yet a judgment. Bill 55 is still on the statute book, and Maltese courts are still applying it. An operator defending enforcement proceedings in Vienna today may still find, in six or twelve months’ time, that the Austrian judgment cannot be enforced against its Maltese assets. The practical shield, for the moment, remains.
But the Opinion does three things that change the calculation.
It tells claimants, funders, and the lawyers behind them that the legal architecture is holding together. C-440/23, handed down only the week before, confirmed that Member States may prohibit cross-border online gambling and attach civil consequences to those prohibitions. C-683/24, if and when the Court follows the AG, it would remove the practical ability of Malta to insulate its operators from those civil consequences. Between them, the liability question is settled and the enforcement question is about to be. The business case for continuing to fund these claims gets stronger, not weaker.
It tells the European Commission that its infringement proceedings against Malta in INFR(2025)2100 are on firm ground. I have been sceptical about the Commission’s appetite for pursuing this particular fight; the Commission is after all a political organisation. But an AG Opinion this forthright makes it harder for the Commission to walk away and easier for it to escalate.
And it tells the Maltese government, and by extension the MGA, that the export-licence model is facing a structural rather than a political problem. Political problems can be negotiated, delayed, and occasionally ignored. Structural problems, of the kind that arise when a CJEU Advocate General says your law is completely incompatible with a core EU Regulation, tend not to respond to political massaging.
None of this is the end of the Malta model. Malta’s licensing regime has real strengths, and operators who hold Maltese licences alongside the local authorisations they need in their target markets are not the subject of this article. The subject of this article is operators who have been relying on the Maltese licence to do work it was perhaps never designed to do, and who have been relying on Bill 55 to paper over the gap.
“The AG Opinion does not, by itself, remove that paper. The Court’s judgment, when it comes, may well do. And by then, one suspects, a good number of operators will have quietly stopped pretending the paper was ever load-bearing in the first place and assets will have been transported well beyond the reach of the claimants.”
The AG Opinion does not, by itself, remove that paper. The Court’s judgment, when it comes, may well do. And by then, one suspects, a good number of operators will have quietly stopped pretending the paper was ever load-bearing in the first place and assets will have been transported well beyond the reach of the claimants.