Commission Opens Infringement Procedure Against Malta for Non-Compliance with the Brussels I bis Regulation

On 18 June 2025 the European Commission opened an infringement procedure under Article 258 of the TFEU against Malta (INFR(2025)2100), alleging that Malta is failing to comply with its obligations under the Brussels I bis Regulation with respect to litigation in matters related to gambling.

Following the formal notice sent by the Commission, the Maltese Government has now two months to address the shortcomings raised by the Commission. Absent a satisfactory response, the Commission may decide to issue a reasoned opinion. If indeed such an opinion is issued, and Malta fails to comply with it, the Commission may then bring the matter before the Court of Justice.

The Alleged Infringement

As stated in its own press release, the Commission considers that Malta is breaching the Brussels I bis Regulation by requiring its courts to “systematically refuse”, on grounds of public policy, the recognition and enforcement of judgments given in other Member States against Maltese-licensed gaming companies. In the view of the Commission, Malta is also violating the Regulation by discouraging “foreign litigants from pursuing legal action in Maltese courts against these entities, despite EU rules designating such courts as the appropriate forum based on the defendant’s domicile”.

In the Commission’s view, this “undermines the principle of mutual trust in the administration of justice within the Union and violates the prohibition on reviewing judgments from other Member States on their substance, exceeds the limits of the public policy exception, and distorts the EU’s rules on jurisdiction”.

The Commission’s press release only provides a short description of the relevant facts. The circumstances of the alleged infringement, however, can be retraced based on court and media reports that have been emerging over the last few years, in particular after May 2023, when an Austrian law firm and a German lawyer wrote to the European Commission, as reported in article in the Times of Malta, to inform that the Maltese government was “undermining European rule of law through a Bill tabled in parliament to amend Malta’s gaming regulations” with a view to preventing “Maltese courts from enforcing sentences handed down against Maltese gaming companies in foreign jurisdictions”.

An article by Paulo Pena, Harald Schumann, Maxence Peigné, published on EUobserver on 6 March 2025, further explains that

[t]he world’s biggest gambling companies are using a little-known Maltese law, that nullifies court verdicts elsewhere in the European Union, to protect themselves from potentially having to pay out millions in legal claims.

Under a law known as Bill 55, Maltese courts can “refuse recognition and, or enforcement” of any foreign judgment involving companies registered on the island — namely, the scores of betting companies based there thanks to an already favourable corporate climate. 

The law effectively shields owners of brands such as Pokerstars, Betsson and Unibet from judgements handed down abroad, of which there are an increasing number.  

Bill 55, as another article in the Times of Malta recalls, has sparked significant controversy, especially in Austria, Germany, Sweden, and the Netherlands, where courts “have ruled against Malta-based online gaming companies, demanding reimbursement for losses incurred by players” using what those courts consider “illegal” foreign betting platforms.

According to a report published on 18 June 2025 on the Time of Malta, the Maltese government maintains that the “law does not establish new or separate grounds for refusing the enforcement of judgments” beyond those set in the Brussels I bis Regulation. The Malta Gaming Authority, for its part, argued that the law “does not impose a blanket ban on enforcing European judgments against Maltese-licensed gaming companies, nor does it shield them from legal action in other EU courts”.

Cases Pending before the Court of Justice

Two requests for a preliminary ruling, currently pending at the Court of Justice, are concerned with private international law issues in connection with gambling.

The first request forms the object of the Wunner case and concerns the interpretation of Articles 1 and 4 of the Rome II Regulation on the law applicable to non-contractual obligations. The second request resulted in the Mr Green case, which revolves around Article 7(1) of Regulation No 655/2014 establishing a European Account Preservation Order (EAPO) procedure.

As reported by Marta Requejo on this blog, the Wunner case arises from proceedings pending in Austria between a company running an online casino via a website from its registered office in Malta, holding a valid Maltese gaming licence but no licence under the Austrian rules on gambling, and a natural person domiciled in Austria. The latter had played online games via the company’s website, paying the amount claimed but without gaining any winnings. He sought repayment of his losses from the managing directors of the company, claiming that, in the absence of an Austrian licence, the gambling contract is null and void. He bases his claim on liability for damages, on the ground that interference with the Austrian monopoly on games of chance entails an infringement of protective provisions.

In his opinion delivered on 12 June 2025, AG Emiliou proposed that the questions referred should be answered as follows.

To begin with, AG Emiliou suggests that Article 1(2)(d) of the Rome II Regulation, which excludes from the scope of the Regulation the non-contractual obligations “arising out of the law of companies” , should be interpreted as meaning that the exclusion  does not cover an alleged non-contractual obligation of a company director arising out of the infringement of a duty or prohibition imposed by the law independently of the director’s own appointment, such as the prohibition on anyone to offer games of chance in a given Member State without a licence granted by the authorities of that State

Secondly, according to AG Emiliou, Article 4(1) of the Rome II Regulation should be interpreted as meaning that, “where a consumer alleges to have sustained gambling losses as a result of participating, from the Member State in which he or she is habitually resident, in the online games of chance offered to him or her by a provider established in another Member State without a licence granted by the authorities of the first State, the ‘damage’ within the meaning of Article 4(1) of that regulation occurred in that first State, as the country from which the bets were placed”.

The questions submitted to the Court of Justice in the Mr Green case are closely related to the facts underlying the recente infringement procedure opened by the Commission. An Austrian applied in Austria for a European Account Preservation Order against a defendant seated in Malta. The former asserted, in particular. that, following final and enforceable judgments, the defendant had moved, and could further move, its assets to Malta, apparently relying on the Maltese legislation (Bill 55) prohibiting enforcement of foreign judgments against gaming operators which have a Maltese licence. The issue arose of whether this would justify the periculum in mora required to obtain an EAPO.

Issues similar to those raised by the case are discussed in the guest post written by Carlos Santalò Goris in November 2023 fo this blog: The 2023 Reform of the Maltese Gaming Act: A Valid Ground to Reject the Issuance of an EAPO?

Further Readings

The EAPIL blog has dealt with various issues raised by cross-border (Malta-related) litigation over gambling. See, in particular, Matthias Lehmann’s posts published respectively in January 2024 (Where Do Gamblers Lose their Money? Lessons from an Austrian-Maltese Conflict), and in April 2024 (How Can Gamblers Get Their Winnings? Not Under Article 6 of Rome I!).

Geert van Calster has also discussed some private international law issues in connection with gambling and the Maltese Bill 55 in his blog, here.