Opinion of the Advocate General — ECLI:EU:C:2025:432
Date: 2025-06-12
Language of the case: German

Anonymised version 
Translation C-77/24 – 1 
Case C-77/24 [Wunner] i 
Request for a preliminary ruling 
Date lodged: 
1 February 2024 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
11 January 2024 
Appellants on a point of law: 
NM 
OU 
Respondent in the appeal on a point of law: 
TE 
      
The Oberster Gerichtshof (Supreme Court, Austria), in the matter of the applicant 
at first instance (respondent in the appeal on a point of law; ‘the respondent’), TE, 
1100 Vienna […] versus the first defendant at first instance, NM, Malta, M-
XBX 1120 Ta’Xbiex, […] and the second defendant at first instance (appellants 
on a point of law; ‘the appellants’), OU, Cyprus, CY-2108 Nicosia, […] 
concerning EUR 18 547.67 plus interest and costs, further to the appeal on a point 
of law lodged by the appellants against the order of the Oberlandesgericht Wien 
(Higher Regional Court, Vienna, Austria) of 4 September 2023, GZ 15 R 96/23g-
46, which set aside in part the order of the Landesgericht für Zivilrechtssachen 
Wien (Regional Court for Civil Matters, Vienna, Austria) of 27 April 2023, GZ 11 
Cg 61/22d-29, has […] made the following 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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O r d e r: 
I. The proceedings stayed by order of 9 November 2023, AZ 5 Ob 18l/23p, 
will be continued. 
II. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Must Article 1(2)(d) of Regulation (EC) No 864/2007 of the European 
Parliament and of the Council of 11 July 2007 on the law applicable to non-
contractual obligations (‘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? 
III. […] [stay of proceedings] 
G r o u n d s 
In respect of I.: 
1 By order of 9 November 2023, the adjudicating Chamber stayed the proceedings 
pending the decision of the Court of Justice of the European Union on the request 
for a preliminary ruling made to the Court by the Supreme Court on 19 October 
2023 in respect of 5 Ob 110/23i. 
WUNNER 
 
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2 The respondent in the proceedings giving rise to the present request for a 
preliminary ruling then withdrew his action, renouncing his claims, which the 
adjudicating Chamber acknowledged by its order of 23 November 2023, 
consequently withdrawing the request for a preliminary ruling. The stayed 
proceedings therefore had to be continued in order to clarify the issue of EU law 
in those proceedings. 
In respect of II.: 
A: Facts of the case 
3 Titanium Brace Marketing Limited (‘Limited’) ran an online casino via the 
website www.drueckglueck.com from its registered office in Malta. It marketed 
its services to the European market as a whole. It holds a valid Maltese gaming 
licence, but no licence under the Austrian Glücksspielgesetz (Law on Gambling), 
and is currently in liquidation. 
4 The respondent, who is domiciled within the area of jurisdiction of the court of 
first instance, played online games of chance via Limited’s website during the 
period from 14 November 2019 to 3 April 2020 and paid, in total, the amount 
claimed without gaining any winnings. The appellants were ‘directors’ of Limited 
during that period. 
5 In order to be able to play on Limited’s website, the respondent 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). Limited booked those deposits as credit. The account opened 
for the respondent in Malta was a Limited real-money account for him as a player 
which was not commingled with Limited’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, that would also have been credited 
to the player account. The respondent suffered a total gambling loss of 
EUR 18 547.67. 
B. The arguments of the parties in the proceedings and the procedure to 
date 
6 The respondent seeks repayment of his losses from the two appellants. He submits 
that, in the absence of an Austrian licence held by Limited, 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. He asserts that the appellants, as managing 
directors of Limited, were responsible for the fact that the company offered illegal 
games of chance in Austria. He submits that they were personally and, as joint 
perpetrators under Paragraph 1301 of the Allgemeines Bürgerliches Gesetzbuch 
(General Civil Code), jointly and severally liable to creditors for the infringement 
of the provisions for the protection of players laid down by the Law on Gambling. 
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The jurisdiction of the court of first instance was based (inter alia) on Article 7(2) 
of Regulation No 1215/2012. 
7 The appellants raised an objection of lack of international jurisdiction. Article 7(2) 
of Regulation No 1215/2012 was not, they submitted, available to the respondent. 
The appellants claimed not to have had the authority to decide whether Limited 
should withdraw from the already established Austrian market. They asserted that 
they had not taken strategic business decisions and that the second appellant had 
been only a liaison with the Maltese gambling authority. They contended that the 
place where acts and events occurred was Malta. The appellants claim to be 
subject not to Austrian but to Maltese substantive law, which does not recognise 
liability on the part of a company’s officers towards its creditors. 
8 The court of first instance dismissed the action on the ground of lack of 
international jurisdiction. 
9 The court of appeal set aside that decision in so far as the respondent’s legal basis 
for his claims was compensation based on tortious liability and ordered the court 
of first instance to initiate proceedings, without applying the ground for dismissal 
used previously. 
10 The conditions for establishing the place of the offence as the forum of 
jurisdiction under Article 7(2) of Regulation No 1215/2012 were held to be 
satisfied in view of decision 10 Ob 56/22s recently made on a similar matter by 
the Supreme Court. In principle, the court of appeal held, the managing directors 
of a limited liability company (Gesellschaft mit beschränkter Haftung) were liable 
only to the company for their own culpable behaviour, with exceptions only in the 
event of corresponding legislation, intentional damage to creditors, criminal acts 
or culpable infringement of protective provisions. In its decision 6 Ob 168/19b, 
the Supreme Court had ruled that the infringement of provisions intended to 
protect players was not only a breach of duty which made the company liable for 
damages to external parties through their designation as officers but also 
something for which the defendant managing directors could be held personally 
liable. The court of appeal held that the applicant relied on the same point in the 
present case. It found that the place where the damage occurred was in Austria 
because the gaming stake placed in Malta depended on success or failure in the 
game, and losses were offset against winnings. That court held that only the loss 
which ultimately remained was initial damage, which affected the player by way 
of the absence of a corresponding amount in his assets located in Austria. It found 
that the defendants’ alleged infringement of overriding mandatory provisions of 
Austrian public law would also mean the damage had occurred in Austria. 
11 The court of appeal declared the appeal on a point of law admissible on account of 
the lack of case-law established by the highest court on the question of the 
international jurisdiction of the Austrian courts in respect of similar actions 
brought against managing directors of gaming companies. 
WUNNER 
 
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12 The appeal on a point of law brought by the appellants seeks the restoration of the 
dismissal of the action at first instance or, in the alternative, its setting aside and 
referral back to the lower courts. 
13 The respondent contends that the appeal on a point of law should not be upheld. 
C. Relevant legal provisions 
14 Article 7 of Regulation No 1215/2012 reads as follows: 
‘A person domiciled in a Member State may be sued in another Member State: 
… 
(2) in matters relating to tort, delict or quasi-delict, in the courts for the place 
where the harmful event occurred or may occur;’ 
15 Article 1 of the Rome II Regulation reads as follows: 
Paragraph 1: ‘This Regulation shall apply, in situations involving a conflict of 
laws, to non-contractual obligations in civil and commercial matters. …’ 
Paragraph 2: ‘The following shall be excluded from the scope of this Regulation: 
… 
(d) 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;’ 
16 Article 4(1) of the Rome II Regulation reads as follows: 
‘Unless otherwise provided for in this Regulation, the law applicable to a non-
contractual obligation arising out of a tort/delict shall 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.’ 
17 Paragraph 1301 of the Austrian General Civil Code reads as follows: 
‘Two or more persons can be held liable for damage caused unlawfully in that 
they contributed to it by jointly, directly or indirectly, by inducement, threats, 
orders, assistance, concealment and the like, or merely by refraining from 
fulfilling the special obligation to prevent harm.’ 
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18 Paragraph 1311 of the Austrian General Civil Code reads as follows: 
‘Pure accident affects the person in whose assets or person it occurs. However, if 
someone has caused the accident by fault, he or she has breached a law intended 
to prevent accidental damage; or […] he or she is liable for all harm which would 
not otherwise have occurred.’ 
Paragraph 3 of the Austrian Law on Gambling reads as follows: 
‘Unless this Law specifies otherwise, the right to organise games of chance shall 
be reserved for the Federal State (gaming monopoly).’ 
D. Basis for the reference 
19 1.1. Under Austrian case-law, the statements made in the application are 
decisive for assessing international jurisdiction. Express reliance on a ground for 
jurisdiction under Regulation No 1215/2012 is not necessary. The applicant only 
has to submit the necessary factual basis. As regards what are known as ‘doubly 
relevant facts’ – that is to say, facts from which both international jurisdiction and 
the merits of the claim are derived – the submissions must be sufficiently 
conclusive in order not to burden the determination of jurisdiction with an 
extensive examination of the merits. The question of international jurisdiction 
must therefore be decided by whether or not the statements made in the 
application are conclusive. 
20 1.2. Under the existing case-law on Austrian law, an officer of a company can, 
in principle, have external liability for culpable infringement of protective 
provisions under Paragraph 1311 of the General Civil Code, with provisions in the 
Law on Gambling intended to protect players already characterised as protective 
provisions. According to the appellants’ assertions, Maltese law on compensation 
for damages does not recognise such liability. 
21 1.3. Accordingly, the claim against the appellants for damages based on 
tortious liability, relating to tort, delict or quasi-delict within the meaning of 
Article 7(2) of Regulation No 1215/2012, would not – on the basis of Austrian 
law on compensation for damages – be inconclusive. What needs to be examined 
for conclusiveness, however, is the applicability of Austrian substantive law 
alleged by the respondent. In the view of the adjudicating Chamber, there is no 
‘acte claire’ in that regard, with the result that reference to the Court of Justice 
seems necessary. 
22 2. The Court of Justice has not yet – it appears – examined the scope of the 
derogation in Article 1(2)(d) of the Rome II Regulation. However, from its 
judgment in C-147/12, ÖFAB (paragraph 42), it is apparent – in respect of 
international civil procedural law – that the concept of ‘matters relating to tort, 
delict or quasi-delict’ in Article 5(3) of (the then applicable) Regulation 
No 44/2001 was to be interpreted as meaning that it covered actions brought by a 
creditor of a limited company seeking to hold liable a member of the board of 
WUNNER 
 
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directors of that company and one of its shareholders for the debts of that 
company, because they had allowed that company to continue to carry on business 
even though it was undercapitalised and was forced to go into liquidation. 
23 3. There is no national case-law on the scope of that derogating provision. 
The following views can be found in the Austrian and German literature: 
24 3.1. Wagner, in Die neue Rom II-Verordnung, IPRax 2008, 1, takes the view 
that a broad interpretation of Article 1(2)(d) would indeed include the liability of 
officers and members as such for wrongdoing vis-à-vis the company and external 
creditors. However, according to Wagner, from a normative and functional 
perspective, the arguments for, in any event, connecting members’ external 
liability vis-à-vis the company’s creditors with tort/delict are more convincing. 
25 3.2. According to Lurger and Melcher in Handbuch Internationales 
Privatrecht2 (2021), paragraph 5/14 et seq., it is doubtful, with regard to the 
derogation relating to the personal liability of officers and members as such in 
respect of a company’s obligations, whether that derogation applies solely to (the 
limitation of) corporate liability (that is to say, depending on the form of the 
company, for example derogation from the principle of limited liability for the 
members of a capital company) or also to liability to the company and its creditors 
for any other wrongdoing. They note that the case-law of the Court of Justice 
(Case C-147/12), at least in the field of international jurisdiction, assumes a tort- 
or delict-related qualification for claims based on derogation from the principle of 
limited liability. 
26 3.3. According to Neumayr in KBB7, Art 1 Rom II-VO, paragraph 6, the 
derogation does not apply to claims for damages based on the tortious liability of 
members and officers. 
27 3.4. In Germany, it is argued with regard to the derogating provision that it is 
feasible to characterise claims rooted in company law as non-contractual and, in 
particular, based on tortious liability where the personal legal liability of officers 
and members as such for a company’s obligations is concerned (Junker, in 
MüKomm8, Art 1, paragraph 36). The German Bundesgerichtshof (Federal Court 
of Justice, Germany) (II ZR 84/05, NJW 2007, 1529) has examined the question 
of what law should be applied in respect of personal liability where a limited 
liability company (Gesellschaft mit beschränkter Haftung) under Netherlands law 
does not include in its name the suffix indicating its form, and characterised the 
member’s personal liability with reference not to company law but to tort law, 
because using a suffix indicating the form of a company is not one of the specific 
obligations laid down in company law (see also Junker, ibid, paragraph 38). 
28 3.5. The principle of liability for the destruction of means of subsistence 
(Paragraph 826 of the Bürgerliches Gesetzbuch (German Civil Code)) developed 
by the German Federal Court of Justice on the basis of substantive tort law, which 
is intended to protect an indefinite number of creditors on whom the member has 
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inflicted damage in a manner offending common decency, is in Germany 
predominantly characterised with reference to tort law (see Junker, ibid, 
paragraphs 38-39 with further reference, including references to divergent 
opinions). 
29 3.6. The connection to tort/delict of claims for damages from a company’s 
external creditors in international civil procedural law, which was advocated by 
the Court of Justice in C-147/12, ÖFAB, could, in the view of the adjudicating 
Chamber, also be an argument for interpreting the derogating provision in 
Article 1(2)(d) of the Rome II Regulation in a narrow sense, despite its broad 
wording, and for regarding claims from a company’s creditors for damages based 
on tortious liability as not covered by that provision. 
30 4. If the derogation is not applicable in the present case, a connection would 
have to be made, first, in accordance with a choice of law within the meaning of 
Article 14 of the Rome II Regulation, then in accordance with the special 
connecting factors set out in Articles 5 to 9 of that regulation, and finally in 
accordance with the basic provision established by Article 4 of the Rome II 
Regulation (Neumayr, in KBB7, Vor Art 1 Rom II-VO, paragraph 3; 6 Ob 
186/21b). 
31 4.1. A choice of law has not been asserted. The special connecting factors set 
out in Articles 5 to 9 of the Rome II Regulation concern product liability, unfair 
competition, environmental damage, infringement of intellectual property rights 
and industrial action; they are not relevant. 
32 4.2. Reference must therefore be made to Article 4 of the Rome II Regulation. 
The situation governed by Article 4(2), where the person claimed to be liable and 
the person sustaining damage both have their habitual residence in the same 
country at the time when the damage occurs, does not apply according to the 
statements made in the application. The basic provision of Article 4(1) of the 
Rome II Regulation is therefore decisive. 
33 4.3. Under that provision, the law applicable to a non-contractual obligation 
arising out of a tort/delict is 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. The term ‘damage’ refers to the initial damage, and reference is 
made to the place where the event giving rise to liability inflicted immediate 
damage on the directly affected party (Neumayr, in KBB7, Art 4 Rom II-VO, 
paragraph 3 with further references). 
34 4.4. Where damage is purely pecuniary, without infringement of absolute 
rights – like that at issue in the present case – it is difficult, according to the 
literature, to determine the place where it occurred within the meaning of 
Article 4(1) of the Rome II Regulation (Melcher, Reine Vermögensschäden im 
internationalen Zuständigkeits- und Privatrecht, VbR 2017, 126; Lurger and 
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Melcher, Handbuch Internationales Privatrecht2, paragraph 5/37 et seq. with 
further references, in particular those in footnote 81). For the sake of the 
consistency also provided for in recital 7 of the Rome II Regulation, reference 
must also be made to law on jurisdiction in accordance with Article 7(2) of 
Regulation No 1215/2012. 
35 4.5. For the purposes of determining the place where the harmful event 
occurred under Article 7(2) of Regulation No 1215/2012, it is necessary to take as 
a basis the place where the damage occurred (Case C-709/19, Vereniging van 
Effectenbezitters, paragraph 26 et seq.), whereby special criteria for the attribution 
of jurisdiction may plead from the outset in favour of determining the place where 
the harmful event occurred to be in the Member State of the applicant’s domicile, 
giving rise to a forum actoris (Case C-12/15, Universal Music, Case C-304/17, 
Löber, paragraph 34). According to the case-law of the Court of Justice, a breach 
of legal obligations in respect of a prospectus or the breach of legal information 
obligations in the Member State of the applicant’s domicile (Case C-709/19, 
Vereniging van Effectenbezitters) or the management of accounts through which 
investments are typically made and where damage may typically occur (bank and 
securities accounts) with banks in the Member State where the applicant is 
domiciled may be considered to be such criteria (Case C-304/17, Löber). The 
place where purely pecuniary damage has occurred directly in a bank account can 
be established as the forum of jurisdiction under Article 7(2) of Regulation 
No 1215/2012 only if the other specific elements of the facts of the case also 
support such jurisdiction (see Lurger/Melcher, Handbuch Internationales 
Privatrecht2, paragraph 5/37). 
36 4.6. In its recent decisions 10 Ob 56/22s and 8 Ob 172/22k, in gaming cases 
brought against a Maltese company, the Supreme Court held that the place where 
the company maintained the player accounts was not decisive. It found that the 
deposit made by the player did not yet damage his assets, because he had a claim 
against the company for the same amount which he could request to have paid 
back at any time. Only a loss exceeding his winnings in the prohibited game of 
chance damaged the player’s assets, by reducing his claim for payment by the 
amount of the loss, it held. In those rulings, the fact that the unlawfulness on 
which the claim for damages was based resulted from the infringement of 
Austrian legislation on games of chance – that is to say, the infringement of 
overriding mandatory provisions of Austrian public law – was considered to point 
to Austria. Similarly, decisions 3 Ob 164/23y and 6 Ob 168/23h, both of which 
concerned actions for damages brought against the gaming companies themselves, 
held that the breach of duty relevant to the damage had occurred in Austria. 
37 4.7. If that view, advocated in respect of the place where the harmful event 
occurred under Article 7(2) of Regulation No 1215/2012, is also applied – in the 
light of the necessary consistency between international law on jurisdiction and 
private international law – in respect of the place where the damage occurred 
under Article 4(1) of the Rome II Regulation, the applicant’s habitual residence 
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should presumably be used as the location of his claim for payment of the credit in 
his player account. 
38 4.8. That was the direction taken by the Supreme Court in its decision 6 Ob 
233/18k in a matter concerning an applicant who had made his financial 
arrangements and effected the credit transfer from Austria. The application of 
Austrian substantive law was affirmed in that case. The sixth Chamber – in the 
proceedings brought before it against a notary established in Switzerland who 
issued incorrect audit reports on stocks of precious metals – did not object to the 
decisive place where the damage occurred under Article 4 of the Rome II 
Regulation being defined as Austria in the light of factors specifically relating to 
that situation. 
39 4.9. The adjudicating Chamber takes the view that the decisive factors in 
determining the place where the initial damage occurred are, first, what the 
damage consists of and, second, where it first occurred, in the sense of an initial 
reduction in the relevant part of the respondent’s assets. That may be considered 
to be the place from which the respondent effects credit transfers from his bank 
account to his player account – if one assumes that the respondent’s claim to bank 
money from his bank is more valuable than his claim to payment of a notional 
amount of credit in his player account from the gaming company, which would 
mean that those transfers already caused a detrimental change in his assets. It 
would be equally conceivable, in line with the appellants’ objections, to recognise 
a definitive reduction in assets only once the loss occurred in the player account 
and – given that the account is maintained in Malta – to regard that as initial 
damage occurring in Malta. However, as such a loss depends on the respondent 
playing again (and losing), only that (additional) game resulting in the loss could 
be regarded as having triggered the initial damage and the place of that game 
considered relevant. If one considers the (definitive) loss of his claim to payment 
of a credit balance in the player account as the initial damage, the question arises 
as to where that claim is located – in Malta, where the account is maintained, in 
the respondent’s place of residence, in the location of his main assets, or 
elsewhere. 
40 4.10. However, if the place where the initial damage occurred is in Austria, the 
adjudicating Chamber takes the view that – in line with the abovementioned case-
law of the Court of Justice concerning Article 7(2) of Regulation No 1215/2012 – 
it would need to be assumed, also with regard to the question of applicable law, 
that factors specifically relating to the situation plead in favour of applying the 
national substantive law of the place where the damage occurred. In the view of 
the adjudicating Chamber, no manifestly closer connection with another country 
within the meaning of Article 4(3) of the Rome II Regulation would be discernible 
in that event. 
In respect of III.: 
[…] [national procedural law] 
WUNNER 
 
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Vienna, 11 January 2024 
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