Opinion of the Advocate General — ECLI:EU:C:2025:668
Date: 2025-09-04
Language of the case: English

Anonymised version 
 C-440/23 - 1 
Case C-440/23 
Request for a preliminary ruling 
Date lodged: 
14 July 2023 
Referring court:  
Prim’Awla tal-Qorti Ċivili (Malta) 
Date of the decision to refer: 
11 July 2023 
Applicant:  
FB 
Defendants:  
European Lotto and Betting Ltd 
Deutsche Lotto Und Sportwetten Limited 
      
CIVIL COURT, FIRST HALL 
COURTS OF JUSTICE, MALTA 
[OMISSIS] 
Order of reference to the [OMISSIS] Court of Justice of the European Union 
in accordance with Article 267 [TFEU] [OMISSIS] in the proceedings 
[OMISSIS]: 
[OMISSIS]: 
FB [OMISSIS] 
EN 
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v. 
European Lotto and Betting Ltd 
[OMISSIS] 
& 
Deutsche Lotto Und Sportwetten Limited 
[OMISSIS] 
The Parties 
The parties in these proceedings are FB (the plaintiff) [OMISSIS] and 
European Lotto and Betting Ltd [OMISSIS] and Deutche Lotto Und Sportwetten 
Ltd [OMISSIS] (the defendants). 
The basis for the request 
1 The parties are in dispute over the recovery of lost stakes. The plaintiff is claiming 
losses from assigned rights, which arose from playing online slots and from 
playing (secondary) lotteries. 
2 According to German law ([OMISSIS] [Paragraph] 4 (1) and (4) GlüStV), a 
permit is required to organise gambling in Germany. The organisation of 
gambling without a German permit is prohibited. The regulation in the version 
valid at the time read: 
"Section 4 (1): Public games of chance may only be organised or 
brokered with the permission of the competent authority of the 
respective country. Organising games of chance without such 
permission (unlicensed gambling) and participating in payments in 
connection with unlicensed gambling are prohibited. 
Par. 4: The organisation of public games of chance on the Internet is 
prohibited. 
Par. 5: "By way of derogation from Para. 4, the Lander may, in order 
to better achieve the objectives of § 1, permit the self-distribution and 
brokerage of lotteries as well as the organisation and brokerage of 
sports betting on the Internet..." 
3 [OMISSIS] Section 134 of the German Civil Code [BGB] reads: 
"A legal transaction that violates a statutory prohibition is void, unless 
the law provides otherwise.” 
4 [OMISSIS] Paragraph 812 BGB reads: 
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"Whoever obtains something without legal cause by the performance 
of another or in any other way at his expense is obliged to surrender it 
to him." 
5 The defendant offers online slots as well as lottery services under a licence issued 
by the Maltese Gaming Authority (MGA). The defendant offers lotteries to 
customers online in a similar manner to those offered by state operators. The 
customer can place a bet on the outcome of a number draw. However, the 
defendant does not organise its own number draws, but enables customers to place 
a bet on the outcome of the number draws of other lottery providers. This service 
is known in Germany as a ‘[OMISSIS] secondary lottery [OMISSIS]’. Thus, the 
players’ experience is similar. 
6 The plaintiff claims that the defendant provided its services to the cedent 
‘[OMISSIS] illegally [OMISSIS] because it did not have an additional German 
[OMISSIS] licence. According to him, the violation of the German prohibition to 
organise games of chance without [a] German permit leads to the nullity of the 
contracts according to [OMISSIS] Paragraph 134 BGB. The defendant therefore 
had to refund all lost stakes according to [OMISSIS] Paragraph 812 BGB (unjust 
enrichment). 
7 The defendant is of the opinion that [OMISSIS] it is excluded from a German 
permit for online slots as well as for (secondary) lotteries in violation of its right 
to free movement of services. The court could therefore not use the failure to fulfil 
the administrative formality of ‘[OMISSIS] permit [OMISSIS] to its disadvantage. 
[OMISSIS] Its service had not been ‘[OMISSIS] illegal [OMISSIS] in Germany. 
The prohibition of the organisation of online slots and online (secondary) lotteries 
without a German permit may not be applied. The defendant claims that the 
cedent is acting in abuse of rights and in bad faith. The defendant holds that such a 
[OMISSIS] claim [from a player] for the refund of losses against a Malta-licensed 
operator necessarily constitutes an abuse of rights and bad faith on the [part] 
[OMISSIS] of the player. The plaintiff disagrees on this point and and relies on 
the jurisdiction of all German Higher Regional Court[s] which have not [thus far] 
followed this argument in any of the [cases involving] player claim[s] [OMISSIS]. 
8 German law applies to the contractual relationship between the parties. Pursuant 
to [OMISSIS] Paragraph 812 of the [OMISSIS] BGB [OMISSIS], it is possible to 
reclaim what another party has obtained without legal cause through performance 
or in any other way. Under German law, the organisation of games of chance is 
prohibited without a German permit. According to German case law, these § 4 
par. 1 and par. 4 GlüStV are prohibition laws in the sense of § 134 BGB. The 
nullity of the individual gambling contracts therefore leads to the obligation to 
[re]pay [OMISSIS] lost stakes. 
9 However, it is questionable whether the freedom to provide services and the 
prohibition of abuse of rights recognised by the Court of Justice [preclude] 
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[OMISSIS] a claim [of] [OMISSIS]unjust enrichment in a case with the special 
features mentioned. 
10 A distinction must be made between online (“virtual”) slots and online 
(secondary) lotteries. The area of virtual slots and the area of lotteries were 
regulated differently during the relevant period. 
I. On losses from online slots 
11 For the area of online slots and all other online casino games (roulette, blackjack, 
online poker, etc.), a German permit was necessary, but not available. However, 
private and state providers could obtain licences for this segment at the terrestrial 
level practically at will. In Germany, slot machines are omnipresent, both in 
gaming halls and restaurants as well as in numerous [c]asinos. 1 Since 2012, 
online lotteries and sports betting have been permitted. 
12 At the end of 2019, the federal states agreed at the executive level to amend the 
State Treaty on Gaming and to lift the total ban on all online casino games. The 
draft of an amended State Treaty was notified to the EU Commission in May 
2020. It states in [OMISSIS] [Paragraph] 4 para 4: 
[OMISSIS]A licence for public games of chance on the internet may 
only be granted for the self-distribution and brokerage of lotteries, the 
organisation, brokerage and egg-distribution of sports betting and 
horse betting as well as the organisation and self-distribution of online 
casino games, virtual slot machine games and online poker.[OMISSIS] 
13 By way of explanation, the Communication to the Commission states: 
[OMISSIS]The German Länder have agreed on the attached draft 
State Treaty on Gambling 2021 as a follow-up regulation for the 
period from 1 July 2021. The draft contains a further development of 
the content of gambling regulation in Germany, whereby the previous 
objectives of the State Treaty on Gambling (§ 1) are retained 
unchanged and at the same time it is to be made possible for private 
providers under strict conditions to offer certain further online 
gambling games - previously prohibited in Germany - in order to 
offer players a legal, secure alternative to the games offered on the 
black market. ... The state monopoly on lottery events (§ 10) ... will 
essentially be maintained.’ [OMISSIS] 
14 On 8 September 2020, the heads of the state and senate chancelleries passed a 
resolution on gambling in the transition period until 1 July 2021. The resolution 
concerns how to deal with providers of such unlicensed gambling, which was 
generally prohibited at the time but will be licensable from 1 July 2021. It states: 
 
1  https://www.spielbanken.com/deutschland/ 
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[OMISSIS]Until 30 June 2021, enforcement against unauthorised 
gambling offers will be concentrated on those providers for whom it is 
foreseeable that they will also want to evade probable future 
regulation. [...] The Lander will take action against these providers of 
unauthorised gambling. [OMISSIS] 
15 On this basis, on 30 September 2020, the supreme gambling supervisory 
authorities of the Länder announced so-called Joint Guidelines regarding offers of 
online slots and online poker without (additional) German permit. [OMISSIS] 
These state: 
[OMISSIS] In view of the legal situation, which is expected to change 
on 1 July 2021, offers of virtual slot games and online poker that are 
currently not yet eligible for a licence - the self-distribution and the 
organisation - are generally among the circumstances that will not be 
taken up in the enforcement of gambling law if they fulfil the following 
requirements that have been recognised by the Länder as technically 
feasible. [OMISSIS] 
16 A list of requirements followed. Subsequently, the German Länder did not 
proceed against providers of online slots for lack of a German permit. 
17 The defendant argues that the previous total ban on online casino games could not 
have been justified by the objectives stated in the State Treaty under § 1 
(‘[OMISSIS] Objectives [OMISSIS]). A justification is not possible because the 
federal states, thus the responsible regulator for [g]aming, themselves do not 
consider the former total ban as mandatory. By notifying the draft of an amended 
State Treaty to the Commission, the federal states responsible for gambling 
regulation had made it clear that the objectives of the State Treaty could be 
realised with the milder intervention of a system of prior official authorisation. 
Because the objectives of the State Treaty remained identical in the change from a 
total ban to a system of permits, the replacement of the total ban proves that it 
could not have been mandatory for the realisation of the objectives of the GlüStV 
even before the change in the legal situation came into force on 1 July 2021. 
18 The defendant further argues that a total ban on online casino gambling cannot be 
considered suitable in the sense of the justification requirements of the Court of 
Justice to achieve the objectives of the State Treaty. This is because the objective 
of the State Treaty is not a total ban on casino games, but the steering of the 
“natural gambling instinct” of the population into orderly and supervised 
channels. If, however, under German law there are no ‘[OMISSIS]orderly and 
supervised [OMISSIS] channels for the given demand for online casino games 
(the so called "natural gambling instinct" within the wording of § 1 GlüStV), the 
total ban is indisputably unsuitable to realise the objectives of the State Treaty. 
19 The defendant argues that the justification of the previous total ban on online slots 
on basis of the objectives of the State Treaty is also contradicted by the 
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announcements of the federal states responsible for gambling regulation of 
September 2020 (‘[OMISSIS] circular resolution [OMISSIS] and ‘[OMISSIS] 
joint guidelines [OMISSIS]) With these pronouncements, the Federal States had 
also declared that, in their view, there is no compelling requirement in the public 
interest to justify a restriction of the freedom to provide services based on the lack 
of a German licence. 
20 In addition, the defendant argues that the claim for repayment of lost stakes based 
on unjust enrichment cannot be a justified restriction on the freedom to provide 
services because the conduct of the plaintiff and the cedent (i. e. the original 
player) is abusive of the law. The cedent [OMISSIS] wanted and received a 
flawless game of chance from a licensed and officially supervised provider. The 
Maltese regime protects the player from fraudulent schemes. An additional 
German licence would not bring any advantage to the player. In particular, the 
player’s account was placed under the fiduciary management of the provider. 
Moreover, according to Maltese law, there is a right to immediate payout of credit 
balances and Malta has a functioning court system. 
21 The plaintiff shares the defendant’s view at least to the extent that, in his view, a 
decision by the Court of Justice on the questions raised is necessary to achieve 
legal certainty and legal clarity for his business model. 
22 However, the plaintiff also refers to the case law of German courts. In many 
player lawsuits, practically all German courts would consider the total exclusion 
from a German licence for online slots as a justified interference in the freedom to 
provide services of providers already licensed and supervised by the authorities in 
their EU country of domicile. 
23 From the perspective of the referring court, the defendant’s argumentation cannot 
be dismissed out of hand. However, the correct interpretation of Union law in a 
case with the present particularities is not so obvious that the court can decide 
solely on basis of the previous case-law of the Court of Justice. 
II. For the part of the claim relating to online lotteries, the following 
applies: 
24 During the relevant period, a licence for online lottery operation could be applied 
for lotteries (§ 4 (5) GlüStV). However, the defendant, as a private provider, was 
excluded from such a licence for organi[s]ing online lotteries. Under German law 
the granting of a licence for lotteries was limited to state-controlled providers (§10 
par. 2 and 6 GlüStV). 
25 This exclusion of private providers from a licence for lotteries has been the 
subject of fierce disputes between the state authorities and private competitors 
before German courts for many years. While the private lottery providers claim 
that the state reservation for lotteries is not justified by compelling requirements in 
the sense of the objectives of the State Treaty, the state providers point out that the 
state monopoly for lotteries must remain for the protection of the players. 
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26 However, the Administrative Court of Munich ruled in a 2017 decision that the 
state lottery monopoly pursuant to Section 10 (2) and (6) GlüStV arguably 
violates the freedom of services and is not justified by compelling requirements of 
the common good. 2 
27 In addition, an expert opinion questioning the justification of the lottery monopoly 
in the case of the authorisation of online casino games notified by the federal 
states in spring 2020 is publicly available3. The expert opinion had been 
commissioned by the authorities. It doubted whether the argument of fraud and 
manipulation would then still be sufficient to justify a state monopoly on lotteries. 
28 [OMISSIS] 
29 As far as the [OMISSIS] [referring court] can see, since 2017 all German courts 
have left open the question of whether the state reservation (lottery monopoly) is 
justified in proceedings concerning the legality of secondary lotteries of the 
Defendant or other providers. Since 2017, all courts have based their 
argumentation on the fact that the defendant does not organise lotteries in the 
sense of the definition of the State Treaty, but bets on the outcome of other 
lotteries. It was never considered that these bets are licensed and supervised in 
another [M]ember [S]tate. German courts argue that it would be justified by the 
objectives of the State Treaty to exclude betting on the outcome of state lotteries 
from the possibility of obtaining a licence. 
30 An example for this argumentation is quoted from a judg [OMISSIS] ment of 
OLG Koblenz from 2019. 4 
[OMISSIS] (108) The secondary lotteries operated by the first 
defendant are also not a lottery within the meaning of section 3(3) 
GlüStV, but a bet within the meaning of section 1 sentence 3 GlüStV. 
Accordingly, the game of chance offered by the defendant, is not 
subject to the lottery monopoly pursuant to § 10par. 6 GlüStV, so that 
the question of the unlawfulness of this provision under Union law 
does not need to be decided in the present case. 
... There is no reason for a referral to the Court of Justice of the 
European Union pursuant to Article 267 TFEU. This is because the 
question referred by the plaintiff is not relevant to the decision. In the 
present case, the internet ban pursuant to § 4 (4) GlüStV is decisive. In 
contrast, the lottery monopoly stipulated in the State Treaty on Games 
of Chance has no relevance. The secondary lottery offered by the 1st 
defendant is not affected by the lottery monopoly stipulated in the State 
 
2  https://www.isa-guide.de/isa-law/articles/170610.html 
3  https://cdn.businessinsider.de/wp-content/uploads/2020/01/191107_Kurzgutachten-Ruttig.pdf 
4  https://landesrecht.rlp.de/bsrp/document/JURE190009319  
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Treaty on Games of Chance. As already explained, a secondary) 
lottery is not to be qualified as a lottery, but as a bet. A state monopoly 
does not exist for this form of gambling, which is organised on the 
internet. ... [OMISSIS]’ 
31 In a case brought by the defendant before the Higher Administrative Court of the 
Federal State of Saarland, 5 the court also left open the question of whether the 
state reservation of lotteries is justified under EU law and formulated in the lead 
sentence: 
[OMISSIS] Betting on the outcome of lotteries - so-called secondary 
lotteries – do[es] not fall under the lottery concept of § 3 para. 3 
sentence 1 GlüStV [OMISSIS]’. 
32 Subsequently, the court only examines whether the exclusion of private organisers 
from a licence for organizing (secondary) online lotteries is justified under § 4 par. 
4 GlüStV. The Higher Administrative Court affirms this with the following 
considerations: 
‘[OMISSIS] The object of the prohibition of § 4 para 4 GlüStV is not 
secondary lotteries as such, but the organisation and brokerage of 
games of chance of all kinds via the internet. The fact that this 
prohibition was opened up by paragraph 5 of the provision with 
regard to sports betting under strict conditions for an experimental 
phase does not lead - as the Federal Administrative Court 
convincingly explained - to an incoherence of the entire gambling 
market, if only because of the reservation of experimentation. It is true, 
however, that the specific risk potential of lotteries is, according to 
general knowledge, to be assessed as lower than the risk potential of 
for example, slot machines or horse betting, for which the granting of 
a licence is possible in principle according to the legal situation, 
whereby with regard to horse betting it must be added that according 
to Section 27 (2) sentence 2 GlüStV even the organisation and 
brokerage on the internet can be permitted. Nevertheless, the plaintiffs 
view based on this ignores the background of the new regulation of § 4 
(5) GlüStV. .. .[OMISSIS]’ 
33 The referring court has doubts as to whether this interpretation of Union law and 
this judicial practice is suitable to constitute a justified restriction on the freedom 
to provide services. It is difficult to understand why, in the case of a service which 
is identical for the consumer, a distinction should be made between a tip with a 
state provider on the outcome of a lottery organised by the state and a bet with a 
private organiser regulated in another Member state on the outcome of that same 
state lottery. 
 
5  https://recht.saarland.de/bssl/document/MWRE190001485 
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34 The licensed secondary lottery in Malta is regulated in the same framework as 
betting and thereby falls under a significantly stricter regulation than the 
underlying lotteries in Germany which are seen as less dangerous gambling 
products by the gambling state treaty. 
35 In any case, it is questionable whether this distinction can be used to justify the 
fact that no German licence is available for private (secondary) lotteries by the 
objectives of the State Treaty named in [P]aragraph 1 GlüStV. If, according to 
Union law, the consumer’s point of view is decisive, it seems difficult to reconcile 
the right to free movement of services with treating the same service differently. 
This applies even more because the online casino games, which are probably more 
addictive, should no longer be subject to a total ban from the point of view of the 
federal states responsible for gambling regulation in order to achieve the 
objectives of the State Treaty. 
36 [OMISSIS] 
37 [OMISSIS] 
Questions 
1.) Is [Article] 56 TFEU to be interpreted to the effect that the 
infringement of the freedom of services by a general prohibition 
of online slots in the member state of the consumer (state of 
destination) towards online casino operators that are licensed 
and regulated in their state of origin (Malta) cannot be justified 
by compelling reasons of the common good, 
- if the [M]ember [S]tate of destination is at the same time 
permitting similar land-based gaming ubiquitously with licensed 
slots in arcades and restaurants for private operators, more 
intense gaming in land-based casinos, licensed national [l]ottery 
operations by state lotteries in more than 20,000 agents shops 
that addressing the public, and 
- allowing licensed online gaming operations for private sports 
betting and horse betting operators and for private online lottery 
brokers selling the products of the state owned lotteries and 
other licensed lotteries, 
while that same [M]ember [S]tate - contrary to 
[OMISSIS]judgments [of the Court of Justice in] Deutsche 
Parkinson (C-148/15, par 35), Markus Stoß (C-316/07) and 
Lindman (C-42/02) — did apparently not provide scientific 
evidence showing that there are specific dangers in these games 
that significantly contribute to achieving the goals pursued by its 
regulation, in particular the prevention of problematic gaming, 
and 
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that in view of these dangers restricting the prohibition to online 
slots - in contrast to all the gaming offers that are allowed for 
online and land-based slots - can be considered suitable, 
mandatory and proportionate to reach the regulatory goals. 
2.) Is Article 56 TFEU to be interpreted as precluding the 
application of a total ban on online casino gambling contained in 
Paragraph 4 (1) and (4) of the German Interstate Treaty on 
Gaming (“GlüStV”) if the German gambling regulation (State 
Gambling Treaty, "GlüStV"), according to its § 1, does not aim 
at a total ban of gambling, but at [OMISSIS] "steering the 
natural gambling instinct of the population into orderly and 
supervised channels as well as counteracting the development 
and spread of unauthorised gambling in black markets" and a 
considerable demand from players for online slots exists? 
3.) Is Article 56 TFEU to be interpreted in such a way that a general 
ban of online casino offers cannot be applied if 
- governments in all federal states of this [M]ember [S]tate have 
already agreed that the dangers of such online gambling offers 
can be combated more effectively via a system of prior official 
approval than by a total ban and 
- have drafted and agreed on a future regulatory framework by a 
corresponding state treaty that replaces the total ban by a system 
of prior approval, 
- and in anticipation of this future regulation, decide to accept 
corresponding gambling offers without a German permit subject 
to compliance with certain requirements until German licenses 
are issued, 
although according to [OMISSIS]Winner Wetten [(C-409/06)] 
Union law may not be temporarily suspended. 
4.). Is Article 56 TFEU to be interpreted to the effect that a 
[M]ember [S]tate (of destination) cannot justify a national 
regulation with compelling reasons of the common good, if 
- that regulation prohibits consumers to place licensed cross- 
border bets in another [M]ember [S]tate (of origin) on licensed 
Lotteries in the member state of destination that are permitted 
and regulated there and 
- if the lotteries are licensed in the member state of destination and 
the regulation aims to protect players and minors 
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- and if the regulation of the licensed betting on lotteries in the 
member state of origin also aims to protect players and minors 
and provides the same level of protection as the regulation of 
lotteries in the state of destination? 
5.) Is Article 56 TFEU to be interpreted to the effect that this rule 
precludes the recovery of stakes lost in the course of 
participation in (secondary) lotteries based on the asserted 
illegality' of transactions because of the lack of a licence in the 
member state of the consumer, if 
- such a licence for private (secondary) lotteries is excluded in the 
law, 
- and that exclusion is justified by the national courts with an 
asserted difference between a tip placed with a state operator on 
the outcome of a lottery organised by a state and a bet with a 
private organiser on the outcome of a state lottery? 
6.) Is Article 56 TFEU to be interpreted to the effect that it precludes 
the recovery of stakes lost in the course of participation in 
(secondary) lotteries based on the asserted illegality of 
transactions because of the lack of a licence in the member state 
of the consumer if 
- there is an exclusion of such a licence for private (secondary) 
lotteries in the law 
- and if that exclusion in favour of state lottery organisers is 
justified by the national courts with an asserted difference 
between a tip placed with a state operator on the outcome of a 
lottery organised by a state and a bet with a private organiser on 
the outcome of a same state lottery? 
7.) Is Article 56 TFEU and the prohibition of abuse of rights 
([OMISSIS] Niels Kratzer [C-423/15)]) to be interpreted as 
precluding the claim for reimbursement of lost stakes based on 
the lack of a German permit and unjust enrichment where the 
organiser is licensed and supervised by the authorities in another 
Member State and the player’s claim assets and claims to 
payment are secured by the law of the Member State in which the 
organiser is established? 
[OMISSIS]