Dutch Supreme Court rules against players in pre-regulation losses cases

The Supreme Court of the Netherlands has delivered a landmark decision ruling stating that player losses cases in the Netherlands, brought against unlicensed operators, are not automatically void. This means players seeking restitution in cases dating back to before the Netherlands regulated iGaming in 2021 aren’t automatically entitled to reimbursement.

Friday’s ruling was made in response to preliminary questions from the District Court of Amsterdam and the District Court of North Holland. Some in the sector have applauded the outcome, noting it reflects a “consistently maintained” position by the court.

The regional cases involved two individuals who gambled via Malta-licensed operators prior to the Netherlands establishing its own online gambling framework in 2021.

One player lost $139,464.58 playing on PokerStars (operated by TSG Interactive Gaming Europe Ltd, Malta) between 2006 and 2021. The second lost €135,137 gambling with PartyCasino (operated by ElectraWorks Europe Ltd, Malta) between August 2020 and July 2021.

Both players had asked the courts to determine that their contracts with the gambling operators were void, so they could recover their losses from the relevant periods.

The courts sought to determine whether Article 3:40 of the Dutch Civil Code, which renders legal acts void if they contradict public order or mandatory statutory provisions, was relevant in these examples.

Court’s conclusion

The Supreme Court concluded that the Dutch Games of Chance Act, which regulates gambling and prohibits unlicensed offerings, does not itself invalidate such contracts in civil law. 

It rejected the argument that the 2021 regulation intended to undermine the validity of contracts struck with unlicensed online operators.

An Entain spokesperson applauded the Supreme Court’s decision. 

“Bwin, PartyCasino and PartyPoker welcome the Supreme Court’s ruling. It confirms the position they have consistently maintained, which is that gambling agreements entered into before 1 October 2021 are valid, and that any historic gambling losses incurred cannot be recovered on the basis that those agreements were void,” they said.

“In light of the court’s decision, any attempt to pursue such claims, whether individually or collectively, is no longer tenable.”

ECJ hands player losses cases back to national courts

The European Court of Justice (ECJ) has faced a number of similar player losses cases in recent months, as national and regional courts in Germany and Austria have sought clarification of the validity of player contracts that pre-date formal gambling regulations.

However, the sector has been left with many unanswered questions as various ECJ rulings have told regional courts they should uphold local licensing rules.

The overarching response from European judges was that the EU should not and cannot overrule local licensing requirements around gaming.   

In January, in a case (C-77/24) brought by a player in Austria where a gambling monopoly is in place, the court ruled that player-losses cases in Europe should be tried based on local gambling laws.

A few months later, in March, another ECJ case involving German operator Tipico brought forth an opinion which again supported local licensing regimes within European member states. It said operators must adhere to local rules, as long as they remain in line with EU rules for free movement.   

Stakeholders have lamented a lack of certainty from the ECJ over the player losses conundrum.

“Although the ECJ has been dealing with a series of requests for preliminary rulings for several years, we have had little clarity so far,” Claus Hambach of German legal firm Hambach & Hambach told iGB recently. “There remains considerable legal uncertainty and unresolved questions.”