A landmark European Court of Justice case involving international sports betting and casino games provider Tipico, is reigniting the debate over retrospective liability across the European gaming market.

Speaking on the iGaming daily podcast, SBC Editor-at-Large Ted Menmuir and SBC News Editor Ted Orme-Claye are joined by SBC Media Manager Charlie Horner as the trio explores the latest developments in the case, and what a ruling could mean for iGaming as a whole across Europe.

The case centres on Tipico’s use of its Maltese MGA license to operate in Germany between 2013 and 2020, prior to the passing of the country’s fourth interstate gambling treaty (ISTG) in July 2021.

A German customer is seeking full restitution of losses on the grounds that Tipico was not locally licensed at the time.

Claims against the Malta-based operator have grown in frequency in both Germany and neighbouring Austria as industry observers warn a determination favouring the claimant could have sweeping consequences for operators with legacies in grey markets across Europe.

The Advocate General’s Position 

Emiliano of Cyprus, the advocate general for this case, concluded that EU member state laws on financial harm can be applied to gambling losses – regardless of where an operator is based.

This finding builds on a separate determination published in January that reached a broadly similar conclusion.

Tipico denies any wrongdoing on its part.

It argues that it operated lawfully under the EU’s freedom of service principle despite being forced to navigate what it described as a protracted and difficult local licensing process.

And despite the advocate general’s verdict, it’s important to note, their opinion does not constitute a final ruling; that authority falls to the Court of Justice, which receives guidance from the advocate general in order to decide on the outcome.

As such, the case is still ongoing.

Malta’s Bill 55 Under Scrutiny

This case has brought renewed attention to Malta’s Bill 55 – legislation introduced to shield MGA-licensed operators from foreign court enforcements.

Malta’s position is that certain markets – Germany and Austria chief among them – have maintained conditions for online gambling that are restrictive and potentially incompatible with EU competition law.

This assertion, Malta argues, gives its courts grounds to resist the application of foreign rulings on locally licensed operators.

Retrospective Liability

Beyond this, the case has drawn the attention of industry commentators due to its asking of uncomfortable questions.

Mainly: is it appropriate to pursue operators retrospectively for activity that took place during regulatory transition periods?

Ted Menmuir doesn’t think so, “what is the point of even launching a legal challenge over a period in which you see [these] kinds of frameworks in transition?”

Critically, the Tipico case is not being brought by a regulator or a public authority – it is a claim by an individual customer seeking personal restitution.

This distinction reframes the Tipico case as less about regulatory enforcement and towards consumer tort law.

International Implications

Many of Europe’s largest and most established operators have histories rooted in markets that only recently transitioned to white market regulation.

Should the ECJ side with the claimant in this case, it could establish a precedent that exposes operators across multiple jurisdictions to a wave of retrospective loss recovery claims.

How Does It End?

The resolution of the Tipico case remains deeply uncertain. 

For Ted Orme-Claye, a negotiated settlement seems to him to be the best course of action, “If I was running a German facing business and Tipico is the market leader in Germany, I would probably be willing to make the tradeoff of retroactively paying someone out in order to secure more concessions”

But, observers have pointed out that this could risk setting a serious precedent that invites further claims from other customers active on the platform over a similar period of time.

As the case continues to slowly progress through the European legal system, one thing is very clear. 

Germany cannot indefinitely defer a fundamental reassessment of their online gambling frameworks. Until that happens, disputes of this kind are unlikely to be the last.