June 2025 at the Court of Justice of the European Union
An opinion and two hearings are scheduled in June 2025 in relation to requests for preliminary rulings on private international law instruments.
On Thursday 12 June, Advocate General N. Emilou will deliver his opinion in case C-77/24, Wunner. The Oberster Gerichtshof (Supreme Court, Austria) has referred two questions to the Court of Justice of the European Union on the interpretation of Regulation No 864/2007 on the law applicable to non-contractual obligations (the Rome II Regulation):
1. Must Article 1(2)(d) of [the Rome II Regulation] be interpreted as meaning that it also applies to claims for damages against an officer of a company which a creditor of the company bases on tortious liability for infringement of protective provisions (such as provisions of legislation on games of chance) by that officer?
2. If Question 1 is answered in the negative:
Must Article 4(1) of the abovementioned regulation be interpreted as meaning that, in the event of an action for damages based on tortious liability in respect of gaming losses suffered which is brought against an officer of a company offering online games of chance in Austria without a licence, the place where the damage occurred is determined by
(a) the place from which the player effects credit transfers from his or her bank account to the player account maintained by the company,
(b) the place where the company maintains the player account in which deposits from the player, winnings, losses and bonuses are entered,
(c) the place from which the player places bets via that player account which ultimately result in a loss,
(d) the player’s place of residence as the location of his or her claim to payment of the credit balance in his or her player account,
(e) the location of the player’s main assets?
In main proceedings TE, an individual domiciled in Austria, is suing NM and OU, who used to be the managing directors of Titanium Brace Marketing Limited (‘TBM’) at the time of the facts. TBM ran an online casino via the website http://www.drueckglueck.com from its registered office in Malta. It offered its services to the European market as a whole. TMB held a valid Maltese gaming licence, but no licence under the Austrian Glücksspielgesetz (Law on Gambling), and is currently in liquidation.
TE played online games of chance via TBM’s website during the period from 14 November 2019 to 3 April 2020 without gaining any winnings.
In order to be able to play on TBM’s website, TE had to open a customer account in Malta. He made payments from his Austrian bank account into an account in a Maltese bank in order to top up his player account (his customer account). TBM booked those deposits as credit. The account opened for TE in Malta was a TBM real-money account for him as a player, not commingled with TBM’s company assets. If the respondent decided to participate in a game of chance, the stake for the game was debited from the player account. In the event of a win, said win would also have been credited to the player account. TE suffered a total gambling loss of EUR 18 547.67.
TE claims that the gambling contract is null and void in the absence of a TBM’s Austrian licence. He seeks reimbursement of its losses from both defendants. His claim is based on tortious liability – the infringement of the Austrian gambling monopoly would entail a violation of a protective law (Schutzgesetz). According to TE, NM and OU, as managers of TBM, are liable for the fact that the company offered illegal games of chance in Austria. They are personally and, as joint perpetrators, jointly and severally liable towards the persons injured by the violation of the provisions of the Austrian Gambling Act relating to the protection of players.
The court of first instance dismissed TE’s claim for lack of international jurisdiction. The appeal court overturned this decision. The appeal for Revision by NM and OU before the Austrian Supreme Court seeks the reinstatement of the decision of the court of first instance or, in the alternative, the annulment of the judgment given on appeal and referral to the previous courts. TE claims that the appeal for Revision should be dismissed.
The judgment will be adopted by a chamber of five judges, with F. Biltgen as reporting judge.
A hearing in case C- 516/24, Windermill, will be held on Wednesday 18 June. The Amtsgericht Schleswig (Local Court Schleswig, Germany) is requesting the interpretation of Regulation 4/2009 on maintenance obligations:
Is an application for legal aid, to which an application to vary in a matter relating to maintenance obligations – which is intended to be formally submitted in the event that legal aid is granted – is attached only in draft form, an ‘equivalent document’ within the meaning of Article 9(a) of the EU Maintenance Regulation, with the result that a national court has been seised and the jurisdiction of that court established?
In the case at hand the applicant resides in Sweden and his father, the defendant, resides in Germany. By application filed with the German competent court on 17 December 2021, which arrived by fax the same day, the applicant requested legal aid for an application to vary child maintenance. A draft of the latter application was attached and it was indicated that it would be submitted in the event of legal aid was granted.
On 28 January 2022, before the German court ruled on the issue of legal aid, the defendant brought an action seeking variation of the maintenance obligation before the Swedish court Eskilstuna Tingsrätt.
By order of 29 March 2022, the Local Court of Schleswig refused legal aid for the proposed application to vary in Germany for lack of international jurisdiction. By order of 27 May 2022, the Schleswig-Holsteinische Oberlandesgericht (Higher Regional Court, Schleswig-Holstein), in response to the applicant’s appeal, set aside the order of the Local Court and granted legal aid, pointing out that international jurisdiction is to be established in the main proceedings and not in the context of the granting of legal aid.
The Swedish court Eskilstuna Tingsrätt – after the action was dismissed at first instance on the grounds of lack of jurisdiction, that decision set aside by the Swedish Supreme Court, and the action referred back to the Tingsrätt – stayed the proceedings by order of 6 May 2024 pursuant to Article 12(1) of the EU Maintenance Regulation.
The legal issue to be determined is whether the application for the granting of legal aid already constitutes seising of the German court within the meaning of Article 9(a) of the EU Maintenance Regulation, and thus establishes jurisdiction as the court first seised, within the meaning of Article 12(1) of the same Regulation. In this context, the Court of Justice will need to establish whether the interpretation for the purposes of the Maintenance Regulation follows the lines of the Brussels system, or is an independent one.
A chamber of five judges (O. Spineau-Matei reporting) will be deciding on this case, counting with the support of AG R. Norkus’s opinion.
A hearing in case C-198/24, Mr Green, will take place on Thursday 19. The Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria), requests the interpretation of the European Account Preservation Order (EAPO) Regulation:
Is Article 7(1) of [the EAPO Regulation] to be interpreted as meaning that action taken by the debtor three years or more previously and/or obstacles to enforcement of the judgment in the Member State of the debtor are not to be taken into account?
TQ, who resides in Austria, played from that country online games of chance offered by Mr. Green Limited, a company based in Malta. Mr. Green Limited has a Maltese online gambling licence but not an Austrian licence under the Glücksspielgesetz (Gambling Act).
Between 3 January 2017 and 25 April 2019, TQ suffered a loss of EUR 62,878, in respect of which he brought a claim in Austria. By judgment of the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna) of 2 December 2021, TQ was awarded EUR 62 878.00 including interest and costs against the defendant from the claim for recovery of those losses. The appeal lodged by Mr. Green Limited was dismissed by judgment of 21 February 2022. Both judgments have been final and enforceable since (at least) 13 April 2022. TQ’s claim has not yet been paid. Other players had in the past attempted to recover sums awarded to them by way of enforcement in Austria and had been successful.
Mr. Green Limited engaged Dimoco Europe GmbH, which is established in Austria, as a payment service provider with which he had a credit balance and which, as a third-party debtor, paid claims against the defendant until the beginning of February 2021. Mr. Green Limited terminated the contract with Dimoco Europe GmbH on an unspecified date before 16 February 2021 in order to prevent creditors from accessing assets.
By document of 13 February 2024, TQ applied for the adoption of a European account preservation order. In addition to an account held by Mr. Green Limited in Malta, TQ named five other accounts in Sweden, Luxembourg and Ireland. With regard to jeopardisation, he asserted that, following final and enforceable judgments, Mr. Green Limited had moved assets by terminating the contract with the Austrian third-party debtor Dimoco Europe GmbH after enforcement had been authorised in January 2021 or previously in other enforcement proceedings. There was a risk that it would take similar steps in other countries and all assets would be transferred to Malta. An Act had recently been adopted in that Member State prohibiting enforcement of Austrian judgments against gaming operators which have a Maltese licence, by reason of breach of public policy (On 12 June 2023, the Maltese Parliament adopted Act No XXI of 2023 to amend the Gaming Act. Under Article 56A of that Act, actions against gaming operators with a Maltese licence are prohibited and it is provided that the court must refuse recognition and/or enforcement in Malta of any foreign judgment and/or decision given upon such an action).
The Austrian court of first instance rejected the application for the adoption of a European account preservation order under Article 19 of Regulation (EU) No 655/2014 on the ground that it could not be inferred from the events in 2021 that enforcement would be impeded or made substantially more difficult in 2024. No urgency was evident because the underlying instrument was from 2021 and TQ had submitted the application only three years later. Appeal has followed before the referring Austrian court.
A chamber of five judges, with N. Jääskinen reporting, will decide on the case, which will benefit from an opinion by AG N. Emiliou.