In my article on the Wunner judgment in January, I described the Advocate General Opinions that had preceded it as “a raised eyebrow, not a verdict.” Persuasive, pointed, and genuinely ominous for the export-licence model, but still advisory. The Court, I noted, was not bound by them, though it departs from AG recommendations considerably less often than online gaming operators tend to hope.
The Court has now delivered its verdict in C-440/23, and the eyebrow has become a ruling.
In FB v European Lotto and Betting Ltd (Lottoland) and Deutsche Lotto und Sportwetten GmbH, the Court of Justice confirmed three things of consequence. First, that EU law does not prevent a Member State from prohibiting online casino games, virtual slots, and secondary lottery betting, even where the operator holds a valid Maltese licence. Second, that where such a prohibition is lawful, the civil-law consequences under national law are equally permissible: contracts concluded in breach of the prohibition are void, and players may bring claims to recover their losses. Third, and this is the detail worth dwelling on, that Germany’s decision to replace its blanket ban with a licensing regime in July 2021 does not retroactively validate contracts entered into during the period of prohibition. You operated illegally; the clock does not run backwards.
None of that is especially surprising if you have been following the AG Opinions over the past year. What is significant is the nature of the ruling. Until yesterday, the legal weight behind player restitution claims came primarily from AG Opinions: obviously influential, widely cited, and pointing firmly in one direction, but not binding on national courts.
Wunner in January was binding, but on a private international law question, namely which law applies, rather than the underlying substantive one of whether the claims are valid in the first place. C-440/23 is now binding CJEU authority for the proposition that player restitution claims against unlicensed Maltese-licensed operators are legally sustainable under EU law. EU member states’ national courts adjudicating these claims can now cite the Court itself rather than merely the Court’s learned advisers. That is a material step up.
For operators who have spent years arguing (and praying) that their Maltese licence, combined with the EU’s freedom to provide services under Article 56 TFEU, renders the host state’s civil consequences impermissible, the argument is now formally exhausted. The Court has considered it and declined to accept it. It is, as legal doors go, firmly closed.
And yet Germany has rather inconveniently declined to cooperate fully with the logic.
On 28 January 2026, thirteen days after Wunner, the Dresden Regional Court (Ref. 3 O 832/24) dismissed a player’s claim against the managing director of an online sports betting operator. Wunner had established that directors could be pursued personally under the player’s home country law. One might have expected Dresden to apply that principle with some enthusiasm. Dresden, it turns out, had other ideas.
German tort law sets a demanding threshold for personal director liability in the absence of a contract. Since no contract exists between a player and a director, the claim has to be framed as a civil wrong rather than a breach of agreement. To pierce the corporate veil, German law sets a demanding standard for that: not merely a breach of duty causing financial loss but conduct of particular reprehensibility; something approaching intentional wrongdoing of a serious moral character.
The Dresden court found that simply holding an executive title at a company offering online services without a German licence fell well short of that standard. More pointedly, and with a logic that is awkward rather than dishonest, the court noted that German courts themselves had referred preliminary questions to the CJEU on precisely these issues. If the courts did not know about the legal position to ask Luxembourg, a director who thought his Maltese licence entitled him to operate across the EU could not easily be characterised as having acted with deliberate bad faith.
The irony deserves a moment’s appreciation. The legal uncertainty that gave German operators cover was created, in considerable part, by German judges asking questions they did not yet know the answer to. Those questions have now been answered. But the answers arrive too late to attach personal liability for conduct during the period of acknowledged uncertainty.
Wunner may well assist claimants pursuing directors for conduct after January 2026; for everything before, Germany’s courts appear to have a procedural escape hatch of their own construction. I find myself in the unusual position of thinking the Dresden court reached a defensible conclusion, even as I note how convenient it is for the people it protects.
Austria does not have a comparable escape route. Austrian courts established as long ago as 2016 that Austria’s games of chance monopoly is compatible with EU law. An operator directing services at Austrian players has had no credible basis since that date to claim honest uncertainty about the legality of its position. The window was shut; the operator chose to operate through it anyway. Wunner combined with C-440/23 provides Austrian claimants with a considerably firmer platform than their German counterparts. The gap between the two jurisdictions is not a legal technicality; it is the difference between a claim that looks attractive to a litigation funder and one that does not.
What we are watching, taken as a whole, is the construction of an EU legal architecture in stages. Wunner laid the jurisdictional foundations: the applicable law is the player’s home state; directors can be pursued personally. FB v Lottoland provides the structural confirmation: the claims are valid in principle under EU law; national prohibitions stand; contracts are void. Case C-198/24, the Mr Green EAPO matter, addresses the mechanism for freezing assets before they can be relocated out of reach, with the AG Opinion favouring claimants and a judgment still pending. Case C-530/24, in which AG Emiliou delivered his Opinion in March, extends the analysis to the substantive refund obligation.
He acknowledged a narrow exception: where operators were structurally prevented from obtaining a licence by deficiencies in the national regime, and national authorities gave assurances that were, in his precise formulation, ‘precise, unconditional and consistent’ that enforcement would not be pursued, the refund obligation may not arise. He was, however, careful to set the bar high; a low enforcement rate or the collection of tax from unlicensed operators does not suffice. Whether Germany’s notoriously ambiguous regulatory communications during that period come close to the required standard is something the courts will now need to determine. My own instinct, which I set out in more detail in my March article on Tipico, is that most operators will find the bar considerably higher than they hoped.
I should add, in case this reads like a press release for the litigation funding industry, that the construction of a legal architecture does not guarantee that the building stands up. Each of these pillars is subject to challenge at the judgment stage; AG Opinions are followed, not automatically stamped. But the consistency of direction across multiple cases, multiple Advocates General, and now a binding judgment, is not something that operators can reasonably dismiss as a passing judicial fashion.
Which brings me, inevitably, to Bill 55, and to a date that strikes me as the most consequential in the Bill 55 saga since Wunner: 23 April 2026, next Thursday, when Advocate General Emiliou delivers his Opinion in Case C-683/24 (with the wonderful title, Spielerschutz Sigma Prozessfinanzierungs GmbH v Geissler Heilbock Hopf Ferox Legal Partnerschaft von Rechtsanwälten mbB). The Vienna Commercial Court has asked the CJEU to rule directly on whether Article 56A of Malta’s Gaming Act, the provision that instructs Maltese courts to refuse recognition and enforcement of certain foreign gambling judgments, is compatible with EU law. If the AG Opinion concludes that it is not, and that Malta is obliged to repeal it, the effect will be to remove the primary enforcement shield that has given the export-licence model its residual commercial logic.
I observed in my Wunner article that Bill 55 resembles the Maginot Line of gaming regulation: formidable in the direction it was designed to face, and rather less useful against an enemy that has found other routes. That observation has only become more accurate since January. The litigation strategy being assembled around operators does not depend on confronting Malta head-on. It freezes assets through the EAPO before they reach Valletta; it enforces judgments in Germany, Austria, the Netherlands and elsewhere, where operators maintain accounts, receivables, and group structures; it pursues directors as individuals rather than companies as entities. Bill 55, even if it survives C-683/24 intact, is being outflanked rather than stormed.
I have spoken to a number of lawyers, and their opinions differ on which way the AG will opine on the Bill 55 matter. My own reading, and I accept this is a layman’s view rather than a certainty, is that the AG Opinion on 23 April will be deeply uncomfortable reading for Malta and Maltese licensed operators. The volume and consistency of the preliminary references, the direction of the judgments and Opinions to date, the Commission’s infringement proceedings (still pending, still watchful), and the political embarrassment of a Member State whose flagship industry is built on a model the Court appears to be systematically dismantling; all of these point in the same direction.
Whether the Opinion is followed as closely as Wunner followed its own AG, and whether the eventual judgment narrows or widens the reasoning, are matters of genuine uncertainty. But the broader trajectory is clear enough that operators making business decisions on the assumption that the shield will hold indefinitely are taking a risk that their legal advisers should be flagging explicitly.
For now, the map reads as follows. The right to claim has been confirmed (C-440/23, binding, as of yesterday). The applicable law is the player’s home state (Wunner). The mechanism for asset preservation is being constructed (C-198/24, pending). The substantive refund obligation is being extended with nuance (C-530/24, Opinion pending a judgment). The enforcement shield is under direct attack (C-683/24, Opinion in seven days). In Germany, director liability is harder to establish than Wunner implied, because the law was genuinely unclear before Wunner said it clearly. In Austria, it is not.
The cost of operating without a local licence in each market where your customers play is no longer measured in regulatory warnings and compliance costs. It is being measured in CJEU rulings. And the invoice, as of yesterday, carries the Court’s own signature rather than merely the advice of its Advocates General. That, as a matter of legal weight, is a different document entirely.
Andrew Tottenham is an independent consultant to the international gambling industry.