An Advocate General (AG) of the Court of Justice of the European Union (CJEU), Cypriot diplomat Nicholas Emiliou, has made what is essentially another EU legal statement against Malta’s Bill 55.
Issuing his second opinion regarding a Bill 55-related case in as many months, Emiliou chiefly referenced an Austrian court request for a preliminary ruling on whether the provision of the Maltese Gambling Act known as Bill 55 is compatible with EU law.
Regarding this request, Emiliou concluded that the Austrian court’s request is inadmissible.
The court’s request relates to one of several legal battles between Austrian as well as German courts considering restitution for players who lost money with Malta-based and licensed operators which either at the time or still do not hold licences in Austria or Germany.
However, Emiliou still did not hold back on Bill 55, the name often given to Article 56A of Malta’s Gambling Act. Adopted in 2023, Bill 55 essentially protects Malta-licensed betting and gaming firms from overseas court judgements.
Emiliou declared that national measures like Bill 55 are “manifestly incompatible with the rules governing the recognition and enforcement of judgments” from Brussels.
He added that judgements around player restriction against Maltese online gambling operators made in EU member states must be “recognised and enforced in all other member states, including Malta”.
ECJ AG opinions are not legally binding, they are merely meant to inform ongoing legal debates and cases. This can still be significant in its own way, however, especially with how many legal battles there are right now between Maltese and other EU courts.
Thomas Bugeja, Partner at Fenech & Fenech Advocates, a Valetta-based law firm, wrote on LinkedIn that “these observations will no doubt form part of the wider legal debate around Article 56A”.
Malta on the backfoot
In the grand scheme of things, it’s not looking good for Malta’s protectionism of its gambling market, which was dealt a pretty hefty blow last week.
On 16 April, an ECJ preliminary ruling – which unlike an AG opinion is legally binding – stated that EU law does not prevent member states from banning online gambling services operated from other member states.
This dealt a blow to Maltse legal authorities’ argument that the activities of Malta Gambling Authority (MGA) licence-holding companies in other EU nations were protected under the EU’s freedom of trade standards.
Doubling down on this yesterday, AG Emiliou asserted that “other member states are entitled to apply their respective gambling laws to operators licensed in Malta”.
He added that “situations are bound to arise in which the services provided by a gaming operator holding a Maltese licence are unlawful in a Member State while being lawful under Maltese law”.
Commenting on LinkedIn, Dr. Jeanella Grech, a Lawyer Linguist at the CJEU, summarised Emiliou’s opinion as being “that there is no mutual recognition of gaming licenses in EU law and, hence, a Maltese gaming license is in principle valid only in Malta”.
Malta’s iGaming sector is hugely significant to the Mediterranean island nation. The online gaming industry, overseen by the MGA, accounts for around one-tenth of the country’s annual GDP.
Central to this has been two things – its 5% tax rate, and the notion that an MGA licence and the standards it carries can be used to operate internationally, whether in the EU or elsewhere.
Austrian and German legal challenges, CJEU rulings and AG opinions are challenging this notion, and could in turn challenge Malta’s status as one of the world’s leading iGaming hubs.