Maltese Court refuses recognition of Austrian gambling judgment and affirms applicability of Article 56A
The Maltese Civil Court (First Hall), presided over by Mr Justice Mark Simiana, has refused to recognise and enforce an Austrian court judgment against a Malta-licensed gaming operator, in a decision that provides important judicial clarification on the operation of Article 56A of the Gaming Act within the EU law framework and confirms the consistent approach of the Maltese courts in holding that Austrian gambling judgments are contrary to Maltese public policy within the meaning of Article 45 of the Brussels I Recast Regulation.
The judgment was delivered on 30 January 2026 in proceedings brought by an Austrian player seeking recognition and enforcement in Malta of a 2022 decision of the Vienna Regional Civil Court. That foreign judgment had ordered the repayment of alleged gambling losses incurred on an online gaming platform licensed and regulated in Malta.
Background to the proceedings
The claimant relied on the Brussels I Recast Regulation (EU) 1215/2012, arguing that the Austrian judgment should be recognised and enforced in Malta following the abolition of exequatur procedures.
The defendant, Virtual Digital Services Limited, opposed recognition, raising both procedural objections and substantive grounds under Articles 45 and 46 of the Regulation. Central to the defendant’s case was the argument that recognition of the foreign judgment would be manifestly contrary to Maltese public policy, and that enforcement would produce effects incompatible with Malta’s domestic legal order.
During the pendency of the proceedings, Article 56A of the Gaming Act was enacted, and the Court considered its relevance as part of the applicable public policy framework governing recognition and enforcement.
Limits of review under the Brussels I Recast Regulation
As a preliminary matter, the Court emphasised that in proceedings for recognition or enforcement it is precluded from examining the merits of the foreign judgment.
An examination of the Austrian decision showed that the compatibility of Austrian gambling law with EU law had already been considered and determined by the Austrian court — rightly or wrongly. Any attempt to re-argue that issue before the Maltese court was therefore inadmissible and irrelevant.
The Court stressed that its task was not to reassess whether Austrian gambling legislation complied with EU law, but to determine whether recognition of the foreign judgment would, in itself, produce effects that are manifestly contrary to Malta’s public policy. This required an assessment of the impact that recognition would have on Malta’s domestic legal order.
Impact on Maltese licences and fundamental EU freedoms
In this regard, the Court observed that recognition of the Austrian judgment would have the immediate effect of undermining the legal force of a licence issued by the Malta Gaming Authority. By recognising the foreign judgment, Maltese law would give enforceable effect to a determination that the Maltese licence was ineffective for the provision of gaming services to Austrian players.
Such an outcome, the Court held, would substantially interfere with the right of a Malta-licensed operator, lawfully established in an EU Member State, to provide services cross-border within the European Union. That right is one of the fundamental freedoms protected by EU law and forms part of the core legal framework recognised by the Maltese legal order.
The decisive question was therefore whether the protection of that right forms part of Malta’s public policy. The Court answered that question in the affirmative.
The crux of the Court’s reasoning: Article 56 TFEU and Article 56A
At the heart of the judgment lies the Court’s finding that the right prejudiced by recognition of the foreign judgment is not merely a domestic or sector-specific interest, but a fundamental EU law right.
The Court held that the right of a Malta-licensed operator to provide services in other Member States finds its legal basis in Article 56 TFEU, and that this same right is regarded by the Maltese State as essential and fundamental to its legal order. It is precisely this right that Article 56A of the Gaming Act seeks to protect as a matter of public policy.
The Court found that recognition and enforcement of the Austrian judgment would seriously and irreversibly prejudice that right, by producing enforceable legal effects in Malta that negate the validity and effectiveness of a Maltese regulatory licence. In that sense, recognition of the foreign judgment would be contrary to Malta’s public policy, as both identified by the Court and expressly codified in Article 56A.
The Court observed that, in the absence of EU legislation aimed at harmonising the gambling sector, each Member State remains free to regulate that sector within its own territory. Austria exercised that discretion when it legislated as it did, and Malta has exercised the same discretion through its own licensing and regulatory framework.
The Court was careful to stress that it was not, and could not be, finding that Austrian gambling law is incompatible with EU law. Rather, its conclusion was confined to the effects of recognition. The recognition of a foreign judgment that fails to acknowledge the right of a Malta-licensed operator to provide services in another Member State would undermine an essential right forming part of the Maltese legal order and, for that reason, would be contrary to Malta’s public policy.
Article 56A and its compatibility with EU law
Against this background, the Court undertook a detailed examination of Article 56A of the Gaming Act. In a significant development for Maltese jurisprudence, it held that Article 56A is applicable in proceedings governed by the Brussels I Recast Regulation and that there was no basis to disapply it on grounds of incompatibility with EU law.
The Court rejected the argument that Article 56A should be disapplied merely because it was enacted after the foreign judgment was delivered or after the proceedings had commenced. It held that the provision is procedural in nature and therefore applies to pending proceedings. The Court further held that the existence of infringement proceedings initiated by the European Commission does not justify setting aside a law that remains validly in force.
Crucially, the Court clarified that a domestic statute may be disapplied only where it is inconsistent with a hierarchically superior norm, whether constitutional, Convention-based or EU law. This explained why Article 56A had been disapplied in earlier cases concerning EU instruments that do not permit a public policy exception.
By contrast, the Brussels I Recast Regulation expressly allows refusal of recognition on public order grounds. In that context, no inconsistency arises between Article 56A and EU law. The Court therefore found no valid basis to disapply Article 56A in the present proceedings.
While similar conclusions had been reached in other recent First Hall judgments, appeals remain pending. For that reason, the Court considered it appropriate to conduct an autonomous assessment of the applicable principles rather than simply rely on prior decisions, ultimately reaching the same conclusion.
The Court accordingly refused recognition and enforcement of the Austrian judgment in Malta.
The decision reinforces the developing line of Maltese jurisprudence applying Article 45 of the Brussels I Recast Regulation to refuse recognition of foreign gambling judgments on public policy grounds, while providing the clearest judicial articulation to date of how Article 56A of the Gaming Act operates within the EU law framework.
Dr Joseph Mizzi was counsel to Virtual Digital Services Limited in the proceedings.
