Oberster Gerichtshof; 2023-10-23; 6 Ob 164/23w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2023:0060OB00164.23W.1023.000
Date: 2023-10-23
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82023AT1023(52)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff, to whom a player had assigned all claims for reimbursement and damages that he had against an online gambling company domiciled in Malta (hereinafter ‘the defendant’), sought repayment from the defendant for the losses suffered by the player.
The claim for repayment was based on enrichment and damages. The plaintiff argued that the defendant did not have a licence for online games in Austria and gambling was prohibited in Austria, which is why the gambling losses were recoverable. Both the jurisdiction of the place of performance pursuant to Article 7(1) of the Brussels I Regulation (recast) (1) and the tort jurisdiction pursuant to Article 7(2) of the Brussels I Regulation (recast) are applicable. The defendant raised an objection regarding the lack of international jurisdiction.
The Bezirksgericht Hall in Tirol (hereinafter ‘the Court of First Instance’) ruled that it lacked international jurisdiction and dismissed the action.
The Landesgericht Innsbruck (hereinafter ‘the Court of Appeal’) did not uphold the plaintiff's appeal and confirmed the decision of the Court of First Instance. The organisation of online gambling was to be regarded as the provision of services, with the place of performance being the defendant's registered office. The tort jurisdiction was also not established. As the assignee, the plaintiff reclaimed the monetary payments made by the assignor (player) as a stake for the allegedly legally valid gambling contract. It thus links the claim for enrichment to a contract. It was therefore not necessary to examine whether the place where the damage occurred or the place of the event giving rise to it were in Austria.
The revision filed by the plaintiff with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’), relying on the tort jurisdiction under Article 7(2) of the Brussels I Regulation (recast), was found admissible and partially justified.
The tort jurisdiction is at the player's place of residence.
In addition to the impairment of assets at the player's place of residence, e.g. on a domestic account, a further element of illegal activity must also occur at this location. In this case, it was the defendant's violation of Austrian gambling law and the provision of services without a licence.
The Supreme Court confirmed the dismissal of the claim insofar as it was based on unjust enrichment.
In all other respects, insofar as the plaintiff based its claims on the legal basis of tortious damages, the Supreme Court overturned the decisions of the Court of First Instance and the Court of Appeal. The Court of First Instance was ordered to initiate proceedings, refraining from the cited ground for dismissal.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).