Application of Austrian law to liability in tort of directors of Maltese company offering online games of chance in Austria

The law applicable to an action brought against the directors of a company for damage caused to a player by the infringement of a prohibition imposed by national legislation on offering games of chance to the public without holding a licence is determined in accordance with the Rome II Regulation on the law applicable to non-contractual obligations. According to that regulation, the applicable law is that of the State in which the player has his habitual residence.

The Court responds to the reference for a preliminary ruling from the Austrian Supreme Court in the context of a dispute between NM and OU, directors of a Maltese gambling company (TMB), and TE, a person domiciled in Austria, who sought recovery of losses incurred in connection with participation in online games of chance that that company offered in Austria without holding the licence required under the law of that Member State.

TMB, which was in liquidation, operated an online casino from its registered office in Malta, offering games accessible to the entire European market. The company held a gambling licence under Maltese law, but did not have a licence under Austrian law. TE, who played online games of chance on TBM’s website, sustained gambling losses. In order to be able to play on TBM’s website, TE agreed to the company’s general terms and conditions and was prompted to open a ‘player account’ which was funded by transfers made by TE from his Austrian bank account to a bank account opened with a Maltese bank. That bank account was a real account belonging to TBM, opened for TE and separate from that company’s assets. When the player participated in a game of chance, the sum at stake was debited from the player account and, in the event of a win, was credited to that player account.

TE claimed in its action that NM and OU were jointly and severally liable for the fact that TBM offered illegal games of chance in Austria. The defendants raised a plea of lack of jurisdiction, arguing that jurisdiction could not be based on Article 7(2) of Regulation 1215/2012 (Brussels I Recast) because the place of damage was not Austria but Malta and, furthermore the substantive law applicable is not Austrian law but Maltese law, which does not provide for liability on the part of company officers vis-à-vis the company’s creditors. On appeal, the Oberster Gerichtshof (Supreme Court, Austria) considered that a finding that the Austrian courts have jurisdiction presupposes, first of all, that the national provision that may serve as the basis for TE’s claim be applicable in accordance with the Rome II Regulation. In that context, that court is uncertain as regards the scope of the exception provided for in Article 1(2)(d) of that regulation.

The Rome II Regulation applies, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters (Article 1(1)), but excludes from its scope “  non-contractual obligations arising out of the law of companies and other bodies corporate or unincorporated regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents” (1(2)(d)).

This exception, which must be interpreted autonomously, is justified by the wish of the EU legislature to keep matters for which there is a specific modus operandi, on account of the link between such matters and the operation and organisation of a company or other body corporate or unincorporated, subject to the single body of law of the lex societatis. Accordingly, the liability of the company’s officers, including that of directors, arising from a failure to comply with an obligation incumbent on them owing to the creation of the company or to their appointment and linked to the management, operation or organisation of the company, must be regarded as arising out of the law of companies, within the meaning of Article 1(2)(d) of the Rome II Regulation. Thus, the Court has previously held, as regards specifically the breach of the duty of care, that a distinction must be drawn between the specific duty of care arising from the relationship between the officers and the company, which does not fall within the substantive scope of the Rome II Regulation, and the generic duty of care erga omnes, which does.

In this case, the action seeks to establish liability on the part of NM and OU on account of an alleged infringement by a company of which they were the directors of the prohibition imposed by Austrian law on any person offering games of chance to the public without holding a licence for that purpose. Accordingly, and without prejudice to the classification of other actions which might be brought against those directors on account of the breach of a duty they might have vis-à-vis the company, it should be concluded that an action seeking to establish liability on the part of NM and OU owing to an alleged infringement of a general prohibition on offering online games of chance without holding a licence for that purpose is not covered by the category of non-contractual obligations arising out of the law of companies, within the meaning of Article 1(2)(d) of the Rome II Regulation.

The question of whether that non-contractual obligation must be attached to the directors of the company or to the company itself is not determined by the lex societatis, but by the law applicable to the tort, since that law determines, in accordance with Article 15 of the Rome II Regulation, the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them and the liability for the acts of another person.

In accordance with the general rule set out in Article 4(1) of that regulation, the law applicable to a non-contractual obligation arising out of a tort or delict is to be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. In other words, unlike Regulation 1215/2012, according to which both the court for the place at the origin of the damage and the court for the place where the damage occurred are relevant for determining international jurisdiction, the applicable law is only that of the latter.

The place where the damage occurred is the place where the alleged damage actually manifests itself. In this case, given that the alleged  tort consists in an interference with TE’s interests, which are protected in law by the prohibition, applicable in the Member State in which he has his habitual residence, on offering the public, without holding a licence for that purpose, the possibility of participating in online games of chance, that damage actually manifested itself when he participated, from Austria, in those online games of chance. The conduct of TBM and of its directors, who acted from Malta, is merely the event giving rise to the damage alleged by TE, but it is not, as we have seen, a relevant connecting factor for determining the law applicable within the meaning of Article 4(1) of the Rome II Regulation.

On the other hand, the financial loss alleged to have been sustained on the player account specially created with a view to TE’s participation in online games of chance, or on TE’s personal bank account from which his player account was funded, is only an indirect consequence of the alleged damage, which cannot be taken into account for the purposes of determining the law applicable under Article 4(1) of the Rome II Regulation.

Finally, Article 4(3) of the Rome II Regulation allows the law of the place of the damage to be excluded in favour of the law of the place where the “tort/delict is manifestly more closely connected”. As an exception, this provision must be interpreted strictly and therefore, although the provision itself provides that a “manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question”, the existence of such a relationship is not sufficient in itself to exclude the application of the law applicable by virtue of Article 4(1) and does not permit the automatic application of the law of the contract to the non-contractual liability.

(Judgment of the Court of Justice of the European Union of 15 January 2026, C‑77/24).