3 Regulation of the European Parliament and of the Council of 12 December 2012 (OJ 2012 L 351, p. 1). In this Opinion, I will refer without distinction to judgments concerning not only that instrument, but also its predecessors, namely Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), and the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968 (OJ 1978 L 304, p. 36). Indeed, the Court’s interpretation of the provisions of the Brussels Convention and the Brussels I Regulation can be transposed to the Brussels I bis Regulation when the provisions at issue are deemed equivalent (see, in particular, judgment of 15 June 2017, Kareda , C‑249/16, EU:C:2017:472, paragraph 27). That is the case of the provisions relevant to the present case.
Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 23 April 2026 ( 1 )
Case C ‑ 683/24
Spielerschutz Sigma Prozessfinanzierungs GmbH
v
Geissler Heilbock Hopf Ferox Legal Partnerschaft von Rechtsanwälten mbB
(Request for a preliminary ruling from the Handelsgericht Wien (Commercial Court, Vienna, Austria))
( Reference for a preliminary ruling – Jurisdiction of the Court – Admissibility of the reference – Judgments in Foglia I and Foglia II – Genuine dispute – Necessity of an answer to the questions referred – Judicial cooperation in civil and commercial matters – Recognition and enforcement of judgments given in the Member States – Regulation (EU) No 1215/2012 – Articles 45 and 46 – Grounds for refusal of recognition and enforcement – Public policy clause )
I. Introduction
1. The present request for a preliminary ruling, submitted by the Handelsgericht Wien (Commercial Court, Vienna, Austria), belongs to a series of cases ( 2 ) concerning civil claims brought by consumers before the courts of (inter alia) Austria and Germany against online gaming operators established in Malta. In essence, the consumers, relying on the rules of unjust enrichment or tort, seek to recover the stakes they placed with the operators, on the ground that the latter acted in breach of the local gambling regulations.
2. That request concerns, specifically, the difficulties faced by creditors when attempting to enforce the judgments upholding such claims in Malta. By its questions, the referring court asks, in particular, whether a provision of Maltese law, pursuant to which such a judgment is not to be recognised or considered enforceable in that State, is compatible with the rules on recognition and enforcement of judgments laid down in Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 3 ) (‘the Brussels I bis Regulation’).
3. However, those questions have not been formulated by a Maltese court in the context of proceedings concerned with the enforcement of such a judgment, but by an Austrian court , called upon to determine the liability of a lawyer who drafted, for a company financing such claims, an opinion on that very issue of compatibility. That somewhat unusual context raises the preliminary issue of the admissibility of the present reference.
II. Legal framework
A. European Union law
4. According to Article 36(1) of the Brussels I bis Regulation, ‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.
5. Under the terms of Article 39 of that regulation, ‘a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required’.
6. Article 45(1)(a) of the same regulation provides that ‘on the application of any interested party, the recognition of a judgment shall be refused ... if such recognition is manifestly contrary to public policy ( ordre public ) in the Member State addressed’.
7. Article 46 of the Brussels I bis Regulation states that ‘on the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Article 45 is found to exist’.
8. According to Article 48 of that regulation, ‘the court shall decide on the application for refusal of enforcement without delay’.
9. Pursuant to Article 52 of the same regulation, ‘under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed’.
B. National law
1. Austrian l aw
10. Paragraph 1299 of the Allgemeines Bürgerliches Gesetzbuch (General Civil Code; ‘the ABGB’) provides:
‘Anyone who publicly commits to the exercise of a function, art, trade or craft, or who voluntarily assumes a task requiring artistic knowledge or an unusual level of effort, demonstrates thereby that he or she believes himself or herself to be capable of the necessary effort and as having the requisite unusual knowledge; he or she must therefore be answerable where such effort or knowledge is lacking. However, where the person who assigned him or her the task was aware of the inexperience of that person or could have been so aware by exercising reasonable care, that person shall also be liable for the latter’s shortcomings.’
11. Paragraph 1300 of the ABGB states:
‘An expert shall be liable also in the case where he or she inadvertently provides, in exchange for remuneration, detrimental advice in matters relating to his or her art or science. In any other situation, an adviser shall be liable only for damage which he or she knowingly caused to the other person by providing that person with the advice.’( 4 )
2. Maltese law
12. Article 56A of the Att dwar il-Logħob (Gaming Act) ( 5 ) (‘the Maltese Gaming Act’), introduced by the act, Att tal-2023 li jemenda l-Att dwar il-Logħob (Gaming (Amendment) Act) ( 6 ) provides:
‘Notwithstanding any provision of the Code of Organisation and Civil Procedure or any other law, as a matter of public policy:
(a) no action may be brought against a licensee, a current or former employee and/or a senior officer of the licensee in respect of matters relating to the provision of gambling services or against a player for obtaining such gambling services, if such action:
(i) infringes or undermines the legality of the provision of gambling services in or from Malta under a license issued by the public authorities, or the legality of any statutory or natural obligation arising from the provision of such gambling services; and
(ii) relates to a lawful authorised activity under the provisions of the law and other applicable regulatory instruments.
(b) The court shall refuse to recognise and/or enforce in Malta any foreign judgment or award rendered in an action of the type referred to in sub-article (a).’
III. Facts, procedure and the questions referred
13. Spielerschutz Sigma Prozessfinanzierungs GmbH (‘Spielerschutz Sigma’), the applicant in the main proceedings, is a company specialising in the financing of legal proceedings. In the course of its activities, it funds, inter alia, actions brought by players domiciled in Austria against operators holding Maltese licenses who have provided online gambling services in that Member State without possessing the license required under Austrian law (‘the legal proceedings in question’).
14. Following the introduction of Article 56A of the Maltese Gaming Act, Spielerschutz Sigma, seeking to assess the risks which that amendment of Maltese legislation might entail for its business model, instructed Geissler Heilbock Hopf Ferox Legal Partnerschaft von Rechtsanwälten mbB (‘the legal adviser’), the defendant in the main proceedings, to provide an expert opinion on the compatibility of that provision with EU law.
15. In the legal opinion of 5 July 2023, the legal adviser in essence reached two conclusions: (i) Article 56A of the Maltese Gaming Act was manifestly contrary to EU law and, accordingly, could not conceivably be applied by the Maltese courts; and (ii) pursuant to Article 48 of the Brussels I bis Regulation, enforcement proceedings in Malta ought, at first instance, to be completed within six months.
16. Relying on that opinion, Spielerschutz Sigma continued to finance the legal proceedings in question in Austria. It did so until 1 August 2023, when, contrary to what the legal adviser had advised, a Maltese court refused, on the basis of Article 56A of the Maltese Gaming Act, to grant recognition and enforcement under the Brussels I bis Regulation in proceedings financed by that company.
17. Following that decision, Spielerschutz Sigma brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria), seeking reimbursement of the fees paid for what it considers an erroneous legal opinion. It further requested that court to declare the legal adviser liable for all future losses arising from the financing of the legal proceedings in question between 5 July 2023 (the date of the opinion) and 1 August 2023 (the date of the decision of the Maltese court refusing recognition and enforcement).
18. Doubtful as to the interpretation of the EU provisions relied upon by the parties to the main proceedings, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 1(1) and (2) of [the Brussels I bis Regulation], in conjunction with Articles 45(1)(a), 46 and 52 of that regulation, be interpreted as precluding a provision of national law which, on the basis of a corresponding principle of public policy enshrined in national law, precludes the recognition and enforcement of judgments given by the courts or tribunals of other Member States in respect of all proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service if such legal action conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the [competent] authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services, and relates to an authorised activity which is lawful in terms of that national law and other applicable national regulatory instruments?
(2) Must Articles 45(1) and 46 of [the Brussels I bis Regulation] be interpreted as precluding a provision of national law which, irrespective of whether a relevant application is submitted to the court or tribunal before which recognition or enforcement is sought and of whether the person bearing the obligation has exhausted all legal remedies in the Member State of the court of first instance, and without review by the court or tribunal before which recognition or enforcement is sought, precludes the recognition (Article 45 of [the Brussels I bis Regulation]) and enforcement (Article 46 of [the Brussels I bis Regulation]) of judgments given by the courts or tribunals of other Member States in respect of all proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service if such legal action conflicts with or undermines the legality of the provision of gaming services in or from Malta by virtue of a licence issued by the [competent] authority, or the legality of any legal or natural obligation resulting from the provision of such gaming services, and relates to an authorised activity which is lawful in terms of that national law and other applicable national regulatory instruments?
(3.a.) Must Articles 45(1)(a) and 46 of [the Brussels I bis Regulation] be interpreted as precluding a provision of national law which declares the recognition and enforcement of judgments to be contrary to public policy ( ordre public ) for the sole purpose, in the context of encouragement of the private sector by the State as provided for in the national constitution, of protecting holders of online gaming licences from the recognition and enforcement of judgments finding against them that are given by courts or tribunals of other Member States?
(3.b.) Must Articles 45(1)(a) and 46 of [the Brussels I bis Regulation] be interpreted as precluding refusal on grounds of public policy of recognition and enforcement by the court or tribunal [addressed] in the State in which enforcement is sought where that refusal is based solely on the premiss that recognising such a judgment would be contrary to the economic and financial interests of the Member State addressed because gaming providers make a significant contribution to the national economy and the revenue of that Member State?
(4) Must Article 52 of [the Brussels I bis Regulation] be interpreted as precluding a provision of national law which precludes recognition and/or enforcement of a judgment given by a court or tribunal of another Member State in proceedings against licence holders and current and former officers and key persons of a licence holder for matters relating to the provision of a gaming service because the gaming provider’s activity, assessed under Maltese law, would be permissible?
(5) Must Article 48 of [the Brussels I bis Regulation] be interpreted as meaning that the obligation to decide without delay enshrined therein is breached if no decision on the application for recognition has been given at first instance within six months and that delay is not due to circumstances or delays on the part of the parties or of third parties in the individual recognition proceedings?’
19. Written observations have been submitted by the applicant and the defendant in the main proceedings, the Belgian, Czech, German, Greek, Maltese and Austrian Governments, and by the European Commission.
IV. Analysis
20. In my view, the present request for a preliminary ruling is inadmissible, since an answer to the questions referred does not appear necessary for the resolution of the dispute pending before the referring court. Accordingly, in the first part of this Opinion, I shall examine in detail the procedural issues raised by the present case (A). Thereafter, and only for the sake of completeness, I shall address the substance of the questions referred (B).
A. Procedural issues
21. In the present case, the German and Maltese Governments express doubts as to both the Court’s jurisdiction to answer the questions referred and/or the admissibility of the request for a preliminary ruling. In their view, certain features of the dispute in the main proceedings cast doubt on whether it is in fact genuine.
22. They further submit that an answer to the questions referred is not necessary for the referring court to give judgment. Even if the Court were to interpret the provisions of EU law in a manner which is different from that adopted in the legal opinion at issue, that would not, in itself, suffice to establish the liability of the legal adviser under national law.
23. In the light of those arguments, it is useful to begin with some preliminary remarks concerning the (distinct, albeit complementary) concepts of ‘jurisdiction’ and ‘admissibility’.
1. Jurisdiction of the Court
24. The concept of jurisdiction concerns, in essence, the scope of the powers conferred on the Court of Justice of the European Union in the Treaties in order to fulfil its task of ensuring ‘that in the interpretation and application of the Treaties the law is observed’ (Article 19(1) TEU). Like any other institution of the European Union, the Court must ‘act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them’ (Article 13(2) TEU). ( 7 )
25. Under the first paragraph of Article 267 TFEU, the Court ‘shall have jurisdiction to give preliminary rulings concerning … the interpretation of the Treaties … [and] the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’. It follows that the Court is not competent to interpret, inter alia, national law or international agreements to which the European Union is not a party. Nor may it be asked to apply EU law to the facts of a particular case. ( 8 )
26. Thus, where a question concerns the interpretation of provisions of EU law – understood broadly as provisions set out in acts of primary law or in acts adopted by EU institutions or bodies that are capable of producing legal effects – the Court has the power, and is in principle under a duty, to answer it, ( 9 ) unless its jurisdiction is expressly excluded by provisions of the Treaties. ( 10 )
27. The Court has nevertheless made it clear that, ‘in the context of a reference for a preliminary ruling under Article 267 TFEU, [it] may interpret EU law only within the limits of the powers conferred on it’. ( 11 ) On that basis, it has declined jurisdiction where the provisions of EU law whose interpretation was sought bore no relation to the dispute in the main proceedings, since they were manifestly inapplicable, ratione materiae , ratione temporis , ratione personae or ratione loci . ( 12 ) By ‘manifestly’, one must understand that the inapplicability of those provisions was obvious and beyond dispute. That said, the Court undoubtedly retains jurisdiction to interpret the scope of EU provisions precisely in order to determine whether they are applicable in a given case.
28. In such situations, where the link between EU law and the situation in the main proceedings is lacking, the Court has considered that the case falls outside the scope of EU law. It may, however, be questioned whether those instances would not be more appropriately considered as cases of inadmissibility. ( 13 )
29. Be that as it may, in the present case, the referring court seeks the interpretation of a number of provisions of the Brussels I bis Regulation. Such questions clearly fall within the Court’s jurisdiction. Moreover, it cannot be said that those EU provisions manifestly bear no relation to the dispute in the main proceedings. In fact, first, Article 56A of the Maltese Gaming Act – the national measure which the parties to the proceedings take issue with – concerns the same matter governed by the provisions of the Brussels I bis Regulation: the recognition and enforcement of foreign judgments. Second, the dispute seems to originate from, or at least to be somewhat related to, the difficulties encountered by certain EU citizens in trying to enforce, in Malta, judgments given by courts of other Member States. Accordingly, the Court has jurisdiction to hear the questions referred.
2. A dmissibility of the request for a preliminary ruling
30. The concept of ‘admissibility’, by contrast, concerns the fulfilment of the (largely procedural) conditions that enable the Court effectively to perform its task under Article 267 TFEU. Those conditions may be structural, such as the requirement that the reference should emanate from a ‘court or tribunal of a Member State’, or circumstantial, such as the requirement that the answer to the questions referred be necessary to enable the referring court to give judgment, or that the request comply with the formal requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice.
31. In the present case, two possible grounds of inadmissibility have been raised: first, the allegedly contrived nature of the dispute (a); and, second, the alleged lack of relevance of the questions referred for the resolution of that dispute (b). I shall examine each in turn.
(a) Contrived nature of the dispute
32. Some of the parties submitting observations in the present proceedings argue that the dispute in the main proceedings is ‘contrived’, in that it constitutes a ‘procedural device arranged by the parties’ designed to call into question the compatibility of Article 56A of the Maltese Gaming Act with EU law. In that regard, they rely on the Court’s judgments in Foglia I and Foglia II . ( 14 )
33. In my Opinion in European Lotto , ( 15 ) I already cautioned against an overly ready reliance on the Foglia case-law in order to declare a reference inadmissible on the ground that the dispute in the main proceedings is not genuine.
34. There is no need to repeat here, in full, the reasons underlying that position. Two points suffice.
35. First, the concept of a ‘genuine’ dispute raises both conceptual and practical difficulties. There is nothing inherently improper in a party bringing proceedings in order to assert its rights, even where the parties broadly agree on the legal issues involved. Nor is it objectionable per se that parties might seek to clarify their respective rights and obligations by bringing a test case and, to that end, bring a test case before a court or tribunal which they consider as having jurisdiction.
36. Furthermore, ascertaining the true intentions of the parties is, in practice, an often delicate – if not impossible – exercise. Moreover, where the referring court is required under national law to adjudicate on the dispute, a refusal by the Court of Justice to answer the questions referred would compel that referring court to interpret and apply EU law despite its doubts. That outcome would scarcely be conducive to the uniform application and coherence of EU law.
37. Second, it is also noteworthy that, since the judgments in Foglia I and Foglia II , the Court has not, to the best of my knowledge, declared a reference to be inadmissible solely on the ground that the dispute was not genuine, even in cases where such a characteristic might have been suspected. That approach appears consistent with the criticism of the Foglia case-law expressed in legal scholarship. ( 16 )
38. In those circumstances, one may legitimately wonder whether that line of case-law has been implicitly set aside or, at the very least, whether it should be revisited.
39. That said, I do not consider that the underlying rationale of those judgments should be entirely discarded. Properly understood and applied only in exceptional circumstances, it may still serve a useful purpose.
40. It is settled-case-law that EU law cannot be relied on for fraudulent or abusive ends . ( 17 ) The exercise of a right conferred by EU law may constitute an abuse where, despite formal compliance with the relevant conditions, the purpose of those rules is not achieved and the parties’ real intention is to obtain an improper advantage by artificially creating the conditions required. ( 18 )
41. Against that backdrop, the Foglia case-law may be understood as addressing situations of abuse of procedure, namely where there are clear, objective and consistent indications that the dispute has been artificially constructed solely in order to obtain a ruling from the Court.
42. In certain legal systems, including those of several EU Member States, such procedural constructions are commonly described as ‘abuse of procedure’. ( 19 ) That concept refers, in essence, to a misuse of judicial proceedings , where the proceedings are not instituted for the purpose of enforcing substantive rights, through recourse to effective judicial protection, but rather in order to secure an undue advantage by exploiting the judicial process. This may occur, for instance, where proceedings are brought with the aim of intimidating or harassing a weaker party (with a view to coercing that party into acting in a certain way, or even driving it into insolvency), of deliberately delaying the course of justice, or of improperly circumventing the application of the EU or national rules that would otherwise govern the situation.
43. Abusive judicial proceedings typically involve claims that are frivolous, vexatious or manifestly unfounded. To counter such conduct, legal systems generally provide courts with specific procedural tools or principles enabling them to adopt appropriate measures, both to protect the bona fide party or parties, where they exist, and to safeguard the integrity of the judicial system and the sound administration of justice. Those measures may include, inter alia, the summary dismissal of the action and the imposition of financial penalties or the award of costs or damages against the party acting in mala fide .
44. The concept of ‘abuse of procedure’ is not unknown to EU law. Indeed, a number of explicit or implicit references may be found in the case-law of the EU Courts, ( 20 ) including in relation to the use of the preliminary reference procedure. ( 21 ) It is also worth noting that the EU legislature has very recently introduced an express provision embodying that concept in Directive (EU) 2024/1069 on strategic lawsuits against public participation. ( 22 ) That directive seeks to establish safeguards against manifestly unfounded claims or abusive court proceedings in civil matters with cross-border implications, brought against natural and legal persons on account of their participation in public life. Article 4(3) thereof provides a specific definition of ‘abusive court proceedings’. ( 23 )
45. In my view, the underlying rationale of the Foglia case-law is, in essence, one of abuse of procedure. ( 24 ) In those cases, the Court considered that the dispute constituted an artificial procedural arrangement, devised in order to prompt a court of a Member State to rule on the compatibility with EU law of the legislation of another Member State. In essence, the parties were regarded as engaging in an impermissible form of forum shopping, by diverting the dispute from its ‘natural’ forum. ( 25 )
46. That said, I am not entirely persuaded that the proceedings giving rise to the judgments in Foglia I and Foglia II did, in fact, involve an abuse of procedure. As I have explained in my Opinion in European Lotto , ( 26 ) there is nothing objectionable in parties bringing a civil or commercial dispute before a court having jurisdiction (for example, an Italian court) and raising, in that context, a question concerning the compatibility with EU law of the legislation of another Member State (for example, French law), rather than initiating proceedings before the French courts. Nevertheless, the broader logic of abuse of procedure underpinning that line of case-law appears to me to be sound and capable of remaining relevant, albeit only in exceptional circumstances. These include situations in which, on the basis of clear and consistent indicia, the Court of Justice concludes that the dispute in the main proceedings – or the request made to the national court to submit a reference under Article 267 TFEU – amounts to an abuse of procedure. In such cases, the Court of Justice may legitimately consider that providing an answer to the questions referred would facilitate the attainment of the abusive objective, and may therefore declare the reference inadmissible.
47. Such situations remain, however, exceptional. In the absence of compelling evidence of abuse, the Court should be slow to conclude that a dispute is not genuine.
48. In the present case, as in European Lotto , ( 27 ) I find no clear, objective and consistent indications of such an abuse of procedure.
(b) Whether an answer to the question referred is necessary
49. By contrast, I agree with the German and Maltese Governments that the present request is inadmissible on the ground that an answer to the questions referred is not necessary for the referring court to give judgment in the main proceedings.
50. As follows from Article 267 TFEU, the preliminary ruling sought must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. The preliminary ruling procedure is not intended to provide advisory opinions on general or hypothetical questions, but to assist national courts in resolving concrete disputes. ( 28 )
51. The Court has traditionally interpreted the requirement of ‘necessity’ in a broad manner, in keeping with the spirit of cooperation underlying Article 267 TFEU.( 29 ) The question referred need not be decisive for the outcome of the dispute, nor must it concern its core. It suffices for the answer be relevant to its resolution.
52. Although the Court’s case-law has, on occasion, referred to relevance and necessity as two distinct requirements governing the admissibility of questions referred, they are, in reality, just two expressions of the same idea. As aptly observed by Advocate General Bobek, ‘relevance and necessity are … two sides of the same coin: a question is relevant if the answer to it is necessary in order for the national court to be able to rule in the main proceedings, and vice versa’. ( 30 ) Indeed, the Court’s settled case-law speaks of a presumption of relevance attaching to questions referred under Article 267 TFEU, ( 31 ) whilst there is scarcely any trace of a corresponding, autonomous presumption of necessity. ( 32 )
53. Those considerations naturally give rise to the following question: when is an answer to a question referred to be regarded as relevant for the resolution of a dispute? In that regard, the decisive criterion appears to be whether there is a case pending before the referring court in which that court is called upon to give a judicial decision capable of taking account of the preliminary ruling. ( 33 )
54. The case-law of the Court of Justice provides useful guidance in that respect. It makes it clear that, in order to establish ‘necessity’ within the meaning of Article 267 TFEU, there must be a connecting factor – sufficiently direct and not merely incidental ( 34 ) – between the dispute pending before the referring court and the provisions of EU law whose interpretation is sought, such that that interpretation is objectively required for the referring court to give judgment. According to the Court of Justice, such a connecting factor may be found where: (i) the dispute is substantively governed, at least in part, by EU law; (ii) the question concerns the interpretation of provisions of EU law of a procedural nature that may be applicable; or (iii) the answer sought appears capable of providing the referring court with an interpretation of EU law enabling it to resolve questions of national procedural law prior to ruling on the substance. ( 35 )
55. In my view, it follows that questions are admissible where the referring court is in a position to draw legally binding consequences from the answers provided by the Court of Justice, ( 36 ) whether of a substantive or procedural nature, for the purposes of the main proceedings. That impact must be concrete, specific and foreseeable; ( 37 ) it cannot be purely hypothetical, theoretical or merely speculative. ( 38 ) A request for a preliminary ruling seeking elements of interpretation of EU law which are merely of incidental interest, or which the referring court could ultimately disregard without affecting its decision must therefore be declared inadmissible. ( 39 )
56. It is in the light of those considerations that the admissibility of the questions referred in the present case must be assessed.
57. In the present case, it appears to be quite clear that the situation does not fall within the second and third categories identified in point 54 above. The reference is, in principle, to be examined in the light of the first category above in so far as the referring court seeks the interpretation of several substantive provisions of EU law, namely, Articles 1, 45, 46, 48 and 52 of the Brussels I bis Regulation.
58. Accordingly, the central issue is whether there exists a sufficiently direct substantive connection between those provisions and the dispute pending before the referring court.
59. In my view, there is no such direct connection.
60. The dispute in the main proceedings concerns the alleged lack of diligence of a legal adviser in drafting a legal opinion on the compatibility of Article 56A of the Maltese Gaming Act with EU law. The central issue is therefore not whether Article 56A of the Maltese Gaming Act is, in fact, compatible with EU law, but rather whether the legal adviser’s assessment was diligent at the time it was made.
61. That assessment is governed by national law and typically involves a comparison with the conduct expected by a reasonably prudent and well-informed member of the legal profession. What matters, in that context, is not whether the opinion ultimately proves to be correct, but whether it was reasonably defensible in the light of the legal framework and the information available at the relevant time.
62. Such an assessment falls outside the scope of the Court’s jurisdiction under Article 267 TFEU. The Court may interpret EU law, but it cannot determine whether a particular legal opinion was plausible or sufficiently diligent.
63. Admittedly, the answers of the Court of Justice might be of some interest to the referring court. However, they would not enable it to draw legally binding conclusions for the purposes of resolving the dispute. At most, they would constitute elements which that court could take into account, should it see it fit.
64. In those circumstances, the link between the provisions of EU law at issue and the dispute in the main proceedings is too uncertain and indirect to justify the requirement of necessity.
65. To accept the contrary would risk extending the scope of the preliminary ruling procedure beyond its proper limits. One could easily envisage analogous situations – such as disputes concerning academic assessments or moot court competitions (assuming they are litigated before a national court) – in which questions of EU law might arise incidentally, without being genuinely necessary for the resolution of the dispute.
66. Such situations do not, in my view, warrant recourse to Article 267 TFEU.
67. That conclusion is supported by the Court’s order in Horn , ( 40 ) which concerned a comparable situation involving a dispute between a lawyer and one of his clients. The lawyer had advised his client against bringing proceedings before a German court against the Federal Republic of Germany, seeking compensation for damage that might, in the future, arise from the allegedly unlawful nature of the diplomatic measures agreed at EU level in 2000 against Austria. ( 41 ) The national court hearing the dispute nevertheless considered it necessary, for the purposes of its assessment, to refer to the Court of Justice a number of questions concerning the compatibility of those measures with various provisions of EU law.
68. In a succinct order, the Court declared the reference to be manifestly inadmissible. It observed, in particular, that the mere fact that the lawyer’s advice ‘concerned the chances of success of a claim for damages brought against the Federal Republic of Germany following the measures adopted against the Republic of Austria by the other Member States does not imply that the merits of the action for payment of fees depend on the validity of said measures’. The Court went on to emphasise that ‘the legality and proper performance of the reciprocal obligations of the parties to the legal consultation at issue in the main proceedings are independent of the validity of the legal acts and facts that constitute its subject matter’. ( 42 ) In my view, those considerations are equally applicable to the present reference.
69. In the light of the foregoing considerations, I propose that the Court declare the present request for a preliminary ruling to be inadmissible.
70. Nevertheless, should the Court take a different view and, for the sake of completeness, I shall now turn to the main substantive issues raised by the questions referred.
B. Substantive issues
1. The (in)compatibility of Article 56A of the Maltese Gaming Act with the rules of the Brussels I bis Regulation (questions 1 to 4)
71. By the first four questions, the referring court asks, in essence, whether Articles 36, 39 and 52 of the Brussels I bis Regulation preclude a Member State from adopting a provision, such as Article 56A of the Maltese Gaming Act, under which a judgment in civil and commercial matters given against an online gaming operator licensed in that State, by a court of another Member State, is neither to be recognised nor enforced, on grounds of public policy, where that judgment treats the services provided by that operator as unlawful in that other Member State, notwithstanding the fact that those services are lawful under the law of the first Member State.
72. In what follows, I shall first outline the rationale underpinning Article 56A of the Maltese Gaming Act (a), before examining its compatibility with the Brussels I bis Regulation (b).
(a) The rationale of Article 56A of the Maltese Gaming Act
73. At a certain stage, the Maltese authorities adopted an economic policy aimed at positioning Malta as a European ‘hub’ for the rapidly expanding online gaming industry. To that end, they (inter alia) established a comparatively liberal regulatory and legal framework, including a licensing regime now governed by the Maltese Gaming Act.
74. As the Maltese Government explains, the Maltese gaming licence was conceived as a ‘point of supply’ authorisation, enabling operators to provide gambling services not only in Malta, but also from Malta to other States, as long as those operators comply with Maltese law and a ‘justifiable legal reason’ exists for operating in those States. ( 43 ) More broadly, the Maltese authorities have consistently taken the view that, in conjunction with Article 56 TFEU, that licence permits gaming operators, as long as they comply with Maltese law, to offer their services across the internal market – or, at least in those Member States ‘whose legal framework is unjustifiably restrictive’ under that provision. ( 44 ) As a matter of fact, a significant number of online gaming operators have chosen to incorporate in Malta and to obtain such a licence with a view to providing their services predominantly abroad.
75. Against that background, Maltese-licensed operators began, in particular, to target markets such as Austria and Germany (through advertising, the creation of websites in German, and so forth), providing online gaming services there without complying with the national rules applicable in those States. According to the Maltese Government, those operators acted under the ‘reasonable presumption’ that, on the basis of their Maltese licence and Article 56 TFEU, they were entitled to do so, the national regulations in question being, in their view, ‘unjustifiably restrictive’.
76. In recent years, a significant number of consumers in those Member States have brought civil actions before their national courts seeking restitution of the stakes they lost through use of such services. ( 45 ) Those claims are typically based on the argument that the gambling contracts concluded with the Maltese gaming operators concerned are void under national law, since the services were provided in breach of local regulatory requirements and, thus, unlawful in the Member State concerned, notwithstanding the operators’ compliance with Maltese law. Accordingly, those operators are required to refund those stakes under the rules on unjust enrichment. ( 46 ) It would appear that thousands of such claims have been brought or are currently pending, inter alia, before the courts of Austria and Germany. ( 47 )
77. Although the operators concerned have argued that the services provided in those target Member States were, in fact, lawful (in particular because the local gambling regulations are incompatible with Article 56 TFEU, and, thus, should not be applied), ( 48 ) the courts of the Member States concerned have, in the main, rejected those arguments and upheld the claims for restitution.
78. Faced with the increasing number of such judgments, the Maltese legislature intervened. Taking the view that those decisions, by treating as unlawful the services provided by operators under valid Maltese gaming licences, constituted ‘unfounded challenges’ ( 49 ) against the Maltese regulatory and legal framework, it introduced through Bill 55 Article 56A into the Maltese Gaming Act.
79. Under that provision, ‘notwithstanding any provision of the Code of Organisation and Civil Procedure or any other law’, Maltese courts, as a matter of public policy, ‘shall refuse to recognise and/or enforce in Malta’ any foreign judgment which, in essence, (i) upholds a claim against a Maltese-licenced gaming operator (ii) based on the illegality of the services provided by that operator in a Member State (generally or with respect to a particular game of chance), even though (iii) those services were lawful under Maltese law. ( 50 )
80. As a result, judgments of the kind described – which include, notably, those upholding players’ claims for restitution, discussed in the previous points – cannot be enforced in Malta, thereby denying creditors access to the assets of Maltese gaming operators located there. As a result, it is virtually impossible for the holders of such claims to obtain payment. ( 51 )
(b) The shortcomings of Article 56A of the Maltese Gaming Act
81. In my Opinion in European Lotto , I explained that, although the courts of a Member State have jurisdiction in disputes between private parties to assess the compatibility with EU law of the legislation of other Member States (including the referring court, with regard to Article 56A of the Maltese Gaming Act, in the dispute between Spielerschutz Sigma and the legal adviser), they must exercise that jurisdiction with a degree of restraint. That is all the more so where EU law leaves a margin of discretion to the national authorities (as is the case here, see point 89 below). In order to dispel concerns as to the legitimacy of such courts to review the sovereign choices of another Member State, they should censure the legislation of another Member State only in situations of manifest incompatibility ‑ for instance, where the Court’s case-law clearly and consistently delineates the limits of the discretion enjoyed by the Member States in the field at issue.
82. The present case is, in my view, one such situation. As all the interested parties who submitted observations before the Court maintain (with the obvious exception of the Maltese Government), a provision such as Article 56A of the Maltese Gaming Act is manifestly incompatible with the rules governing the recognition and enforcement of judgments laid down in Chapter III of the Brussels I bis Regulation, as consistently interpreted by this Court.
83. The judgments targeted by Article 56A of the Maltese Gaming Act, to the extent that (i) they concern ‘civil and commercial matters’ within the meaning of Article 1(1) of the Brussels I bis Regulation and (ii) have been given by the courts of other Member States, fall within the scope of the rules laid down in Chapter III of that regulation. ( 52 ) This is the case, in particular, for the judgments delivered by, inter alia, the courts of various Member States upholding players’ claims for restitution, discussed in the previous section. Accordingly, the recognition and enforcement of those judgments in Malta are governed (exclusively) ( 53 ) by those rules.
84. Under Articles 36 and 39 of the Brussels I bis Regulation, such judgments are to be recognised and enforced ( 54 ) in all other Member States without any special procedure or declaration of enforceability. Those provisions give expression to the fundamental objective of the instrument, namely the ‘free circulation of judgments’ within the European Union – an objective which, in turn, contributes to the proper functioning of that market and to the effective protection of the right of access to justice therein. ( 55 ) A national provision which mandates that the recognition or enforcement of those judgments shall be refused is therefore in direct contradiction to those rules.
85. It is true that the Brussels I bis Regulation provides for limited derogations from the principles laid down in Articles 36 and 39 thereof. Under Article 45(1), the recognition of a judgment given by the court of a Member State is to be refused, upon application by any interested party, in the Member State addressed (only) if one of the grounds for non-recognition exhaustively enumerated therein is present. ( 56 ) Furthermore, pursuant to Article 46, the enforcement of such a judgment is to be refused, upon application by the person against whom enforcement is sought, in the State addressed (only) on the same grounds. One such ground, set out in Article 45(1)(a), arises where the recognition (or enforcement) of the judgment concerned in the Member State addressed would be ‘manifestly contrary to public policy ( ordre public )’ in that State.
86. In the present case, the Maltese Government relies on that derogation. In its view, Article 56A of the Maltese Gaming Act constitutes a ‘declaratory provision’, intended to ‘assist Malta’s courts’ in the application of the ‘public policy’ clause laid down in Article 45(1)(a) of the Brussels I bis Regulation. ( 57 ) That provision merely ‘clarifies’ ( 58 ) (or confirms ( 59 )) that the judgments at issue should not be recognised or enforced in Malta, on the basis of Article 45(1)(a) and Article 46 of that regulation, in so far as such recognition or enforcement would be manifestly contrary to Maltese ‘public policy’.
87. In that regard, the Maltese Government submits that the restitution claims brought against Maltese-licensed operators are opportunistic, amount to an abuse of the freedom to receive services guaranteed by Article 56 TFEU ( 60 ) and are founded on national gambling laws which are, in its view, ‘unjustifiably restrictive’ within the meaning of that provision. By upholding such claims and treating the services provided by those operators as unlawful in their respective Member States, the Austrian and German courts, it is argued, ‘fail to take action to address the shortcomings and unjustified nature of a national restrictive regime’ in the light of Article 56 TFEU and, moreover, disregard the fact that the operators concerned held a valid Maltese licence and complied with the Maltese legal and regulatory framework. The recognition or enforcement of such judgments in Malta would therefore entail a manifest infringement of Article 56 TFEU – which forms part of Malta’s ‘public policy’ – and would, in addition, undermine the ‘integrity’ of that regulatory framework, in particular by calling into question the validity of such licences and thereby weakening the legal certainty which they are intended to guarantee to those operators within the internal market.
88. I am not persuaded by that line of argument. In reality, Articles 45(1)(a) and 46 of the Brussels I bis Regulation obviously do not encompass a provision such as Article 56A of the Maltese Gaming Act.
89. While, as the Maltese Government observes, it is in principle for each Member State to define the content of its ‘public policy’, that discretion is not unlimited. The Court has consistently held that, as a derogation from the general rules on recognition and enforcement laid down in Articles 36 and 39 of the Brussels I bis Regulation, Article 45(1)(a) must be interpreted ‘strictly’, and that recourse to the ‘public policy’ clause ‘is to be had only in exceptional cases’, lest the objective of the free movement of judgments pursued by that instrument be undermined. Accordingly, the Court is both entitled, and indeed, ‘required’ to ‘review the limits within which the courts of a Member State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from a court in another Member State’. ( 61 ) A provision such as Article 56A of the Maltese Gaming Act clearly exceeds those limits.
90. More specifically, first, as regards the alleged wrongfulness of the judgments targeted by Article 56A of the Maltese Gaming Act, it should be recalled that, in general terms, the courts of a Member State may not refuse recognition or enforcement of a judgment delivered in another Member State, on the basis of the ‘public policy’ clause, solely because they consider that EU law – including Article 56 TFEU – has been incorrectly applied in that judgment. ( 62 )
91. If a judgment given by a court of a Member State – for instance, in proceedings concerning restitution claims brought by players against a Maltese gaming operator – were indeed vitiated by a misapplication of Article 56 TFEU, it is for the operator concerned to challenge that judgment in the State of origin , by availing itself of the remedies provided for under that State’s legal system. That system, together with the preliminary ruling mechanism laid down in Article 267 TFEU, affords individuals sufficient guarantees in that regard.
92. Once a judgment has become final in the State of origin, potentially following the exhaustion of all available remedies in the Member State of origin, parties must, in principle, accept whatever findings it contains. ( 63 ) In particular, substantive issues of EU law cannot be re-examined at the stage of recognition and enforcement, before the courts of the Member State addressed. Article 52 of the Brussels I bis Regulation expressly precludes any such review, by providing that ‘under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed’. That prohibition prevents the court addressed, inter alia, from reassessing the findings of fact or law made by the court of the State of origin. As a matter of principle, judgments delivered in the Member States must therefore be recognised and enforced in the other Member States notwithstanding any (alleged) error of EU law which they may contain. ( 64 )
93. Secondly, in the light of the foregoing considerations, the Court has consistently held that recourse to the ‘public policy’ clause in Article 45(1)(a) of the Brussels I bis Regulation is possible only in the ‘exceptional cases’ where recognition or enforcement of the judgment concerned in the Member State addressed ‘would be at variance to an unacceptable degree with the legal order of [that State]’, because it would ‘constitute a manifest breach of a rule of law regarded as essential in the legal order of [that State] or of a right recognised as being fundamental within that legal order’. ( 65 ) That threshold is particularly high.
94. I fully accept that the scenario envisioned in the previous point may encompass that of the recognition or enforcement of a foreign judgment entailing a ‘manifest breach’ of ‘rules of law regarded as essential’ in EU law , ( 66 ) since those form an integral part of the legal order of that State. I am also prepared to accept that Article 56 TFEU constitutes such a ‘rule’. ( 67 ) However, recourse to the ‘public policy’ clause must also remain exceptional where the infringement of a substantive rule such as Article 56 TFEU is at issue. As recalled above, that clause should be used only where the recognition or enforcement of a foreign judgment would be at variance to an unacceptable degree with the EU legal order. ( 68 ) That could only happen where the recognition or enforcement of such a judgment – delivered after the operator concerned has exhausted the available remedies in the State of origin – would give effect to the most egregious infringement of the freedom to provide services, such as direct discrimination on grounds of nationality, devoid of any arguable justification. ( 69 )
95. In the present case, the Maltese legislature could not legitimately proceed, in an abstract and general manner, as Article 56A does, on the premiss that any judgment in civil and commercial matters which treats the services provided by a Maltese-licensed operator as unlawful in a Member State – even though those services are lawful under Maltese law – is necessarily incompatible with Article 56 TFEU, let alone that the recognition or enforcement of any such judgment would give effect to the most egregious, ‘unacceptable’ form of infringement contemplated in the preceding point.
96. Such a blanket assessment runs counter to the principle underlying the rules on recognition and enforcement established by the Brussels I bis Regulation, namely the principle of ‘mutual trust’, which requires Member States to accord confidence to one another’s legal systems and judicial institutions. ( 70 ) On that basis, the Maltese authorities could not presume, for the purpose of justifying the adoption of a measure such as Article 56A of the Maltese Gaming Act, that the courts of other Member States ‘systematically’ and ‘blindly’ (to use the terms of the Maltese Government) apply national gambling legislation contrary to Article 56 TFEU or display ‘blatant complacency’ towards players’ claims for restitution, ( 71 ) in particular by failing to make appropriate references for a preliminary ruling on the matter to the Court of Justice. ( 72 )
97. Besides, Article 56A of the Maltese Gaming Act evidently rests on a particularly expansive interpretation of Article 56 TFEU, mentioned in point 74 above, ( 73 ) according to which operators holding a Maltese gaming licence would be entitled, by virtue of Article 56 TFEU, to provide their services freely and lawfully throughout the Union, so long as they comply with Maltese law.
98. That interpretation of the freedom to provide services in the field of gambling has, however, been consistently rejected by the Court. The latter has repeatedly emphasised that, since games of chance – particularly those offered online – entail significant societal risks (including addiction, financial harm, money laundering) and given the ‘significant moral, religious and cultural differences between the Member States’ on the matter, those States enjoy a broad discretion to regulate gambling services provided on their territory under their respective law. ( 74 )
99. Moreover, Member States may, in principle, apply their respective gambling law also to operators which provide services to consumers within their territory from another Member State, such as Malta. ( 75 ) In that regard, the ‘country of origin’ principle – according to which only the Member State of establishment would be competent to regulate the services concerned – does not apply in the field of online gambling. ( 76 )
100. Furthermore, in the absence of harmonisation at EU level as regards licensing conditions, Member States are under no obligation to recognise gambling licences issued by other Member States and, thus, to allow operators holding such licences to provide services within their territory solely on that basis. ( 77 ) Under the current state of EU law, a Maltese gaming licence is, in principle, valid only within the territory of Malta and, where appropriate, in those Member States which choose to recognise such licences. ( 78 )
101. The argument, advanced by the Maltese Government in the past, ( 79 ) that it would be ‘unnecessary’ (and, thus, disproportionate under Article 56 TFEU) to apply the restrictive requirements laid down in the gambling law of the host Member State to operators licensed in Malta – on the ground that Maltese law, coupled with supervision exercised by the Maltese authorities, already guarantees a high standard of protection against gambling addiction, squandering or money laundering – has also been consistently rejected by the Court. In the field of gambling, the proportionality of national regulatory measures must be assessed solely by reference to the moral, religious and cultural context prevailing in the Member State concerned as well as the level of protection which that State seeks to ensure within its territory. Thus, while Malta has chosen to regulate gambling in a particular manner, having regard to its own characteristics, other Member States remain free to adopt different, including more restrictive, rules reflecting their own society and assessment of the risks involved. Such rules cannot, for that reason alone, be regarded as ‘unnecessary’ with respect to Maltese operators. As regards supervision by the Maltese Gaming Authority, suffice it to recall that the Court has consistently held that a Member State is not required to ‘rely on checks done by the authorities of another Member State using regulatory systems which it itself does not control’.( 80 )
102. In sum, other Member States are entitled to apply their respective gambling laws to operators licensed in Malta. They may require those operators to comply with national rules governing, as the case may be, monopolies, licensing requirements and other regulatory constraints. They may also choose to prohibit certain games of chance altogether or to regulate them in a manner that departs significantly from the approach adopted in Malta. ( 81 ) Accordingly, situations are bound to arise in which the services provided by a gaming operator holding a Maltese licence, or a particular game of chance offered by it, are unlawful in one Member State while being lawful under Maltese law – without that disparity, in itself, being at odds with Article 56 TFEU. ( 82 ) The fact that online gaming operators licensed in Malta may have to comply not only with Maltese law, but also with the law of the Member State(s) targeted by their services – and that failure to do may have repercussions under the local civil law, such as the nullity of the gambling contracts concluded with local consumers – is a simple consequence of the coexistence of different national regulatory regimes. In that context, judicial decisions imposing such civil law repercussions must, in principle, be recognised and enforced throughout the European Union, including in those Member States where the services at issue are lawful under their own gambling law.
103. Admittedly, some of the judgments targeted by Article 56A of the Maltese Gaming Act may give effect to national gambling legislation which is, at least in part, difficult to reconcile with Article 56 TFEU. The Court has, moreover, already had occasion to address such tensions. ( 83 ) Furthermore, even where such legislation is, in principle, compatible with Article 56 TFEU, there may be situations in which the upholding of restitution claims against Maltese-licensed operators proves disproportionate and, thus, contrary to that provision. ( 84 ) Nevertheless, I am not convinced that the recognition and enforcement of those specific judgments would, as a rule, meet the high threshold of ‘unacceptability’ defined in point 94 above. In any event, that assessment could only be carried out by the Maltese courts on a case-by-case basis.
104. Thirdly, as regards the argument that the recognition and enforcement in Malta of the judgments envisioned by Article 56A of the Maltese Gaming Act would ‘undermine’ the liberal Maltese legal framework governing gaming, the ‘validity’ of Maltese licences or, at least, the ‘legal certainty’ which those licences are meant to provide to their holders and, as such, the Maltese State’s duty to ‘encourage private enterprise’ under Article 18 of the Constitution of Malta, I would make the following observations.
105. Even assuming that Article 18 of the Constitution of Malta reflects an ‘essential rule’ in the Maltese legal order, I fail to see how the recognition or enforcement of the judgments concerned would ‘undermine’ the Maltese State’s duty to ‘encourage private enterprise’. Nothing in those judgments prevents that State from doing so, in the field of gambling, by adopting and maintaining a liberal legal framework on its territory . Those judgments merely call into question the extraterritorial effects which the Maltese authorities intend to attach to that framework. If anything, those judgments reveal the limits of a proposition which suggests that compliance with the framework in question would grant Maltese licensees the right to provide their services freely throughout the European Union.
106. However, as the German Government rightly observes, a Member State cannot claim, under its own constitution, the power to regulate and liberalise an economic activity beyond its own territory , in other States. By the same token, a Member State cannot legitimately refuse to recognise a judgment delivered in another Member State which holds that the activities of a given operator are unlawful on its territory , under its gambling law, merely because those activities would be lawful under the more liberal gambling law of the State addressed . Such an approach would, in effect, negate the competence of the Member States to regulate gambling activities within their own territories as permitted under Article 56 TFEU.
107. Fourthly, as all the interested parties – save from the Maltese Government – have submitted, beyond the constitutional ‘veneer’ put on Article 56A of the Maltese Gaming Act, that provision reveals, at its core, a protective purpose. It is designed to shield an industry which the Maltese Government itself describes as ‘essential’ to the national economy ( 85 ) from the potentially significant financial consequences that could arise if the operators concerned were required to satisfy the players’ claims. Those claims may, furthermore, have broader repercussions on the industry, and ultimately an impact on employment and public revenues in that Member State. They may even affect, to a certain degree, the Maltese authorities’ economic policy of making Malta the European ‘hub’ for the online gaming industry.
108. Nevertheless, as the Court has consistently held, the fact that the enforcement of certain foreign judgments may entail serious economic consequences for a national operator, an industry or even the Member State addressed does not justify recourse to the ‘public policy’ clause laid down in Article 45(1)(a) of the Brussels I bis Regulation. ( 86 ) More generally, in order to promote its own economic interests – be it in terms of competitiveness, gross domestic product, employment or tax revenue – a Member State cannot shield its industry from the civil liability arising from its (possibly unlawful) activities in other Member States . Such an approach would not only deprive potentially legitimate national regulations of their effectiveness, but would also distort competition and create an uneven playing field within the internal market.
109. I shall add one final observation. If the Maltese authorities genuinely take the view that certain Member States, with the help of their national courts, maintain gambling laws that are incompatible with Article 56 TFEU to the detriment of Maltese-licensed operators and, indirectly, the Maltese economy, the adoption of a provision such as Article 56A of the Maltese Gaming Act cannot be regarded as an appropriate response. Member States are not entitled to resort to unilateral measures of ‘retorsion’ in reaction to alleged infringements of EU law by other Member States. ( 87 ) Rather, the appropriate course of action would have been to initiate infringement proceedings under Article 259 TFEU.
110. In the light of the foregoing considerations, I propose that the answer to the first four questions referred should be that Articles 36, 39 and 52 of the Brussels I bis Regulation preclude a Member State from adopting a provision, such as Article 56A of the Maltese Gaming Act, under which a judgment in civil and commercial matters given against an online gaming operator licensed in that State, by a court of another Member State, is neither to be recognised nor enforced on grounds of public policy, where that judgment treats the services provided by that operator as unlawful in that other Member State, notwithstanding the fact that those services are lawful under the law of the first Member State. Notably, the derogation provided for in Article 45(1)(a) and Article 46 of that regulation does not encompass such a provision.
2. T he alleged delays of the Maltese courts (question 5)
111. By its fifth question, the referring court asks, in essence, whether Article 48 of the Brussels I bis Regulation must be interpreted as meaning that the obligation for the courts hearing an application for refusal of enforcement of a judgment given in another Member State to rule ‘without delay’ is infringed where those courts have not given a first-instance decision on the matter within six months and that delay is not attributable to the parties or to third parties involved in the proceedings.
112. That question arises from Spielerschutz Sigma’s allegations that, in practice, proceedings before the Maltese courts concerning the enforcement of foreign judgments upholding players’ restitution claims may take months, or even years, before a decision is delivered at first instance, without any explanation being provided for such delays.
113. Article 48 of the Brussels I bis Regulation provides that, where the person against whom enforcement of a judgment is sought lodges an application for refusal of enforcement under Article 46 thereof, the courts of the Member State addressed ‘shall decide on [that application] without delay’.
114. That provision thus imposes on those courts an obligation to be expeditious in the handling of such applications. That obligation serves to ensure ‘rapid ... recognition and enforcement of judgments given in a Member State’, ( 88 ) thereby contributing both to the proper functioning of the internal market and the effective access to justice within the European Union.
115. That said, it follows from the actual wording of Article 48 of the Brussels I bis Regulation that no specific time limit is prescribed. Accordingly, as the Commission observes, the fact that the courts of the Member State addressed have not ruled on an application for refusal of enforcement within six months after it was lodged cannot, in itself, be regarded as constituting an infringement of that provision. Compliance with the obligation to be expeditious must be assessed on a case-by-case basis, having regard to all the relevant circumstances. That includes not only the conduct of the parties and third parties involved in the proceedings, but also the complexity of the case. ( 89 ) One cannot exclude the scenario of an application for refusal of enforcement raising delicate issues, requiring several exchanges of submissions and, overall, more than six months of adjudication, irrespective of that conduct.
116. Nevertheless, in the light of the observations submitted by the interested parties regarding the situation in Malta, it is appropriate to emphasise the following. As explained in the preceding section, pursuant to Article 52 of the Brussels I bis Regulation, the courts of the State addressed are not called upon, when ruling on an application for refusal of enforcement, to review the findings of fact or law made by the court of origin, but merely to ascertain whether one of the grounds for refusal set out in Article 45(1) of that regulation is present. It follows that the courts of the State addressed cannot justify delays in ruling on such applications by engaging in an unwarranted examination of the merits of the judgment at issue.
117. Furthermore, the conduct of those courts is also relevant when determining whether the obligation laid down in Article 48 of the Brussels I bis Regulation has been infringed in a given case. In that regard, a prolonged period of inactivity on their part, for which no explanation is provided, cannot be reconciled with that obligation. ( 90 ) Such unexplained delays are liable to amount, in practice, to a ‘constructive’ refusal of recognition or enforcement, in so far that they may excessively postpone – or even indefinitely defer – the enforcement of the judgment concerned in the Member State addressed. Should such delays be systematic, they may also encourage dilatory conduct on the part of judgment debtors, who might be tempted to lodge frivolous applications for refusal of enforcement for that sole purpose. Ultimately, such situations risk depriving the principle of enforceability enshrined in Article 39 of that regulation of its practical effectiveness.
118. In the light of the foregoing considerations, I propose that the answer to the fifth question should be that Article 48 of the Brussels I bis Regulation must be interpreted as meaning that the obligation for the courts hearing an application for refusal of enforcement of a judgment given in another Member State to rule ‘without delay’ is not infringed where those courts have not given a first-instance decision on the matter within six months and that delay is not attributable to the parties or to third parties involved in the proceedings. Whether that obligation has been infringed must be determined on a case-by-case basis, in the light of all the relevant circumstances, including the conduct of the parties and third parties involved, the complexity of the case and the conduct of the courts of the Member State addressed.
V. Conclusion
119. In the light of all the foregoing considerations, I propose that the Court of justice declare the questions referred by the Handelsgericht Wien (Commercial Court, Vienna, Austria) inadmissible.
1 Original language: English.
2 See my Opinions in Wunner (C‑77/24, ‘my Opinion in Wunner ’ , EU:C:2025:432, points 19 to 22); in European Lotto and Betting and Deutsche Lotto- und Sportwetten (C‑440/23, ‘my Opinion in European Lotto ’, EU:C:2025:668, points 16 to 18); in Mr Green (C‑198/24, EU:C:2025:852, points 1 to 5); and in Tipico (C‑530/24, ‘my Opinion in Tipico , EU:C:2026:230, point 1).
3 Regulation of the European Parliament and of the Council of 12 December 2012 (OJ 2012 L 351, p. 1). In this Opinion, I will refer without distinction to judgments concerning not only that instrument, but also its predecessors, namely Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), and the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968 (OJ 1978 L 304, p. 36). Indeed, the Court’s interpretation of the provisions of the Brussels Convention and the Brussels I Regulation can be transposed to the Brussels I bis Regulation when the provisions at issue are deemed equivalent (see, in particular, judgment of 15 June 2017, Kareda , C‑249/16, EU:C:2017:472, paragraph 27). That is the case of the provisions relevant to the present case.
4 It follows from the referring court’s reply to the Court’s request for information that Austrian law does not lay down a specific liability regime for lawyers. According to the relevant case-law, lawyers are to be regarded as experts within the meaning of Paragraphs 1299 and 1300 of the ABGB, with the consequence that their liability is governed by those provisions. Although the Rechtsanwaltsordnung (Lawyers’ Code) contains rules concerning the professional obligations of lawyers, the national courts consider that those provisions do not confer enforceable rights on individuals seeking compensation for a breach thereof, but merely reflect the standard of care already required under Paragraph 1299 of the ABGB.
5 Supplement to the Malta Government Gazette, No 19,991, of 15 May 2018, Section A, p. 509.
6 Supplement to the Maltese Government Gazette, No 21,071, of 16 June 2023, Section A, p. 473.
7 Similarly, Opinion of Advocate General Wahl in Gullotta and Farmacia di Gullotta Davide & C. (C‑497/12, EU:C:2015:168).
8 See, for example, judgment of 16 June 2022, DuoDecad (C‑596/20, EU:C:2022:474, paragraphs 34 and 37).
9 See, to that effect, judgment of 29 July 2024, Valančius (C‑119/23, EU:C:2024:653, paragraphs 31 and 33).
10 See, in particular, the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU.
11 See, for example, judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 40 and the case-law cited).
12 See, respectively, judgments of 27 March 2014, Torralbo Marcos (C‑265/13, EU:C:2014:187, paragraph 30); of 27 June 2018, Varna Holideis (C‑364/17, EU:C:2018:500, paragraphs 17 and 18); of 3 June 2021, Servicio Aragonés de Salud (C‑942/19, EU:C:2021:440, paragraphs 36 and 37); and of 19 October 2017, Solar Electric Martinique (C‑303/16, EU:C:2017:773, paragraphs 23 and 24).
13 Indeed, case-law has not always been consistent on this matter. See, inter alia, Wahl, N., et al., ‘The Gatekeepers of Article 267 TFEU: On Jurisdiction and Admissibility of References for Preliminary Rulings’, Common Market Law Review , Vol. 55(2), 2018, pp. 513 to 516; and Iannuccelli, P., ‘L’indépendance du juge national et la recevabilité de la question préjudicielle concernant sa propre qualité de «juridiction»’, Il Diritto dell'Unione Europea , 2021, pp. 828 to 831.
14 Judgments of 11 March 1980, Foglia (104/79, ‘the judgment in Foglia I ’, EU:C:1980:73), and of 16 December 1981, Foglia (244/80, ‘the judgment in Foglia II ’, EU:C:1981:302) (together, ‘the Foglia case-law’).
15 Points 78 to 89 thereof.
16 See my Opinion in European Lotto , footnote 67.
17 See, inter alia, judgment of 13 March 2014, SICES and Others (C‑155/13, EU:C:2014:145, paragraph 29 and the case-law cited).
18 See, inter alia, judgment of 17 July 2014, Torresi (C‑58/13 and C‑59/13, EU:C:2014:2088, paragraphs 44 to 46). On the prohibition of abuse of rights in EU law, see also judgment of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraphs 281 to 283).
19 See, for example, Taruffo, M. (ed.), Abuse of Procedural Rights: Comparative Standards of Procedural Fairness , Kluwer, 1999.
20 See, inter alia, judgments of 5 March 1980, Simmenthal v Commission (243/78, EU:C:1980:65, paragraph 11); of 14 February 1989, Bossi v Commission (346/87, EU:C:1989:59, paragraphs 31 to 35); of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596, paragraph 108); and of 10 July 2025, Chmieka (C‑99/24, EU:C:2025:563, paragraph 72 and the case-law cited).
21 See, for example, judgments of 8 November 1990, Gmurzynska-Bscher (C‑231/89, EU:C:1990:386, paragraph 23), and of 7 March 1996, Associazione Italiana per il WWF and Others (C‑118/94, EU:C:1996:86, paragraph 15).
22 Directive of the European Parliament and of the Council of 11 April 2024 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (OJ L, 2024/1069).
23 The definition rests, first, on the purpose of the court proceedings: actions ‘not brought to genuinely assert or exercise a right, but have as their main purpose the prevention, restriction or penalisation of public participation, frequently exploiting an imbalance of power between the parties, and which pursue unfounded claims’. That definition is complemented by a set of indications of such a purpose, such as ‘the disproportionate, excessive or unreasonable nature of the claim or part thereof …’, ‘the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters’, ‘intimidation, harassment or threats on the part of the claimant or the claimant’s representatives …’, ‘the use in bad faith of procedural tactics, such as delaying proceedings, fraudulent or abusive forum shopping or the discontinuation of cases at a later stage of the proceedings in bad faith’.
24 See, in that regard, Mancini. F., ‘Short note on abuse of procedure in Community law’, in Taruffo, M. (ed.), footnote 20, op. cit., pp. 234 and 235.
25 On this matter, see for example, Lipstein, K., ‘ Foglia v. Novello – Some Unexplored Aspects’, in Capotorti, F., et al. (eds), Du droit international au droit de l’integration. Festschrift Liber Amicorum Pierre Pescatore , Nomos, 1987, pp. 382 and 383, and Ginés Martín, D., ‘The Court of Justice in the Archives Project – Analysis of the Foglia case (244/80)’, Academy of European Law, Working Paper 2021/03, pp. 25 to 27.
26 Points 40 to 67.
27 See, mutatis mutandis , points 86 to 89 of my Opinion.
28 See judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland) (C‑181/21 and C‑269/21, EU:C:2024:1, paragraphs 62 and 63 and the case-law cited).
29 See judgment of 20 April 2023, Autorità Garante della Concorrenza e del Mercato (Municipality of Ginosa) (C‑348/22, EU:C:2023:301, paragraph 81 and the case-law cited).
30 Opinion in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, point 77). This view is also consistent with the manner in which legal scholarship understands the case-law of the Court. See, for example, Broberg, M. and Fenger, N., Broberg and Fenger on Preliminary References to the European Court of Justice , 3rd ed., Oxford University Press, 2021, p. 142; and Lenaerts, K., Gutman, K. and Nowak, J.T., EU Procedural Law , Oxford University Press, 2023, p. 92.
31 See, among many, judgment of 2 December 2025, Stichting Right to Consumer Justice and Stichting App Stores Claims (C‑34/24, EU:C:2025:936, paragraph 39).
32 In the whole body of case-law of the Court, I could find only one instance where the Court referred to a ‘presumption of necessity and relevance’: judgment of 19 October 2017, Paper Consult (C‑101/16, EU:C:2017:775, paragraph 29).
33 To that effect, see inter alia judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland) (C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 64 and the case-law cited).
34 See, to that effect, judgments of 16 July 1992, Meilicke (C‑83/91, EU:C:1992:332, paragraph 28); and of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court - Appointment) (C‑508/19, EU:C:2022:201, paragraph 71). See also Opinion of Advocate General Tesauro in Meilicke (C‑83/91, EU:C:1992:178, point 7).
35 See judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 48 to 51 and the case-law cited).
36 See, to that effect, judgments of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 29), and of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 12 and the case-law cited). See also Opinion 1/91 (First Opinion on the EEA Agreement) of 14 December 1991 (EU:C:1991:490, paragraph 61).
37 See, to that effect, judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 14).
38 Similarly, Opinion of Advocate General Bobek in Joined Cases Prokuratura Rejonowa w Mińsku Mazowieckim and Others (C‑748/19 to C‑754/19, EU:C:2021:403, point 106). See also judgment of 16 July 1992, Meilicke (C‑83/91, EU:C:1992:332, paragraphs 30 to 33).
39 See, to that effect, order of 16 May 1994, Monin Automobiles (C‑428/93, EU:C:1994:192, paragraphs 12 to 16); and Opinions of Advocate General Tesauro in Meilicke (C‑83/91, EU:C:1992:178, point 5); of Advocate General Léger in der Weduwe (C‑153/00, EU:C:2002:247, point 51); and of Advocate General Tizzano in Bacardi-Martini and Cellier des Dauphins (C‑318/00, EU:C:2002:544, point 35).
40 Order of 24 July 2003 (C‑44/03, EU:C:2003:419).
41 Those were bilateral measures adopted by the other 14 EU Member States following the entry of the far-right Freedom Party (FPÖ), led by Jörg Haider, into the Austrian coalition Government. See Statement by the Portuguese Presidency of the European Union on behalf of XIV Member States (31 January 2000), available online.
42 Order of 24 July 2003, Horn (C‑44/03, EU:C:2003:419, paragraph 15).
43 See Maltese Gaming Authority (MGA), ‘Amendments to the Gaming Act introduced through Bill 55’, 21 June 2023 (https://www.mga.org.mt/amendments-to-the-gaming-act-introduced-through-bill-55/).
44 As the Maltese Government explains, gaming operators licensed in Malta are required to ‘conduct an assessment in terms of the internal market principles and the relevant case-law of the Court of justice’ before starting to offer their services in a given Member State.
45 The jurisdiction of those courts derives from the ‘ forum actoris ’ rule laid down in favour of consumers under Article 18(1) of the Brussels I bis Regulation. It would also appear that those actions are, in many instances, financed by specialised litigation funding companies in return for a share of the restitution or damages eventually awarded to the players. Spielerschutz Sigma is, in fact, one such company.
46 In some cases, players seek, in the alternative, to recover their losses under the law of tort, arguing that the provision of gambling services in breach of the local gambling rules constitutes a wrongful act giving rise to liability (see my Opinions in Wunner (points 12 and 21) and in Tipico (points 25 and 29)).
47 See Pena, P., Schumann, H. and Peigné, M., ‘EU citizens lose out as Malta regulatory “sledgehammer” protects gambling giants’, Investigate Europe , 6 March 2025. Similar claims appear to be pending before the Dutch courts (see de Graef, M., ‘The House Doesn’t Always Win: Gambling Providers Must Pay’, Solv. Blog.
48 See my Opinion in Tipico (points 26 and 48).
49 See, in that regard, MGA, footnote 43, op. cit.
50 The explanatory memorandum of Bill 55 indicates that the purpose of the provision is to ‘codify in law the longstanding public policy of Malta encouraging the establishment of gaming operators in Malta who offer the local and cross-border supply of their services in a manner compliant with local legislation, in an effort to encourage private enterprise in line with [A]rticle 18 of the Constitution of Malta’.
51 For that very reason, on 18 June 2025, the Commission launched infringement proceedings against Malta, taking the view that Article 56A of the Maltese Gaming Act is contrary to the rules of the Brussels I bis Regulation (INNFR(2025)2100).
52 See Article 2(a) of the Brussels I bis Regulation. By contrast, judgments which, while covered by Article 56A of the Maltese Gaming Act, are not in ‘civil and commercial matters’ and/or have been given by the courts of third States, fall outside the scope of the Brussels I bis Regulation.
53 Indeed, where the rules laid down in Chapter III of the Brussels I bis Regulation apply, they exclude the internal rules on recognition and enforcement of foreign judgments of the Member State addressed (see judgment of 9 December 2003, Gasser , C‑116/02, EU:C:2003:657, paragraph 72).
54 Provided it is enforceable in the Member State in which it was given.
55 See recitals 1, 3, 4 and 6 of the Brussels I bis Regulation.
56 See recital 30 of the Brussels I bis Regulation and judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 46).
57 The caveat ‘notwithstanding ... any other law’ at the beginning of Article 56A of the Maltese Gaming Act would be an implicit reference to (inter alia) Article 45(1)(a) and Article 46 of the Brussels I bis Regulation. Indeed, according to that government, when Maltese courts deny legal effect to such judgments, they do so on the basis of those provisions, read in the light of Article 56A.
58 See MGA, footnote 43, op. cit.
59 The explanatory memorandum of Bill 55 states, I recall, that Article 56A merely ‘codif[ies] the longstanding public policy of Malta’ on the matter.
60 In that government’s view, players have exploited that freedom to receive a flawless cross-border service, only to claim subsequently that it is unlawful under national law in order to recover their losses. See, further, my Opinion in European Lotto (points 90 to 98).
61 See, inter alia, judgments of 28 March 2000, Krombach (C‑7/98, EU:C:2000:164, paragraphs 21 to 23); of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraphs 41 and 42); and of 7 September 2023, Charles Taylor Adjusting (C‑590/21, EU:C:2023:633, paragraphs 32 to 34).
62 See judgments of 11 May 2000, Renault (C‑38/98, EU:C:2000:225, paragraph 33), and of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraph 49).
63 In that regard, the Court has repeatedly emphasised that, in view of the importance of the principle of res judicata for the stability of the law and of legal relations, and for the proper administration of justice, EU law does not, as a rule, require a national court to set aside the binding effect of a final judgment, even where it contains errors of EU law (see, inter alia, judgment of 2 April 2020, CRPNPAC and Vueling Airlines , C‑370/17 and C‑37/18, EU:C:2020:260, paragraphs 88 and 89 and the case law cited). Nevertheless, where the courts of a Member State have manifestly misapplied EU law that State may be held liable (see, to that effect, judgments of 30 September 2003, Köbler , C‑224/01, EU:C:2003:513, paragraphs 50 and 59, and of 16 July 2015, Diageo Brands , C‑681/13, EU:C:2015:471, paragraph 66).
64 See, inter alia, judgments of 28 March 2000, Krombach (C‑7/98, EU:C:2000:164, paragraph 36); of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraph 43); and of 4 October 2024, Real Madrid Club de Fútbol (C‑633/22, EU:C:2024:843, paragraph 36). See Opinion of Advocate General Alber in Renault (C‑38/98, EU:C:1999:325, points 60, 65 and 66).
65 See, inter alia, judgments of 28 March 2000, Krombach (C‑7/98, EU:C:2000:164, paragraph 37); of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraph 44); and of 7 September 2023, Charles Taylor Adjusting (C‑590/21, EU:C:2023:633, paragraph 35).
66 See, for instance, judgment of 7 September 2023, Charles Taylor Adjusting (C‑590/21, EU:C:2023:633, paragraphs 37 to 40).
67 See, by analogy, judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 36).
68 See, to that effect, judgment of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraphs 48 and 50), and Opinion of Advocate General Alber in Renault (C‑38/98, EU:C:1999:325, point 67).
69 See, on discrimination on the basis of nationality being the most unacceptable form of restriction in EU internal market law, Opinion of Advocate General Wahl in Austria v Germany (C‑591/17, EU:C:2019:99, points 1 and 2).
70 See recital 26 of the Brussels I bis Regulation and judgments of 9 December 2003, Gasser (C‑116/02, EU:C:2003:657, paragraph 72), and of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraph 63).
71 I recall, in that regard, that Advocate General Saugmandsgaard Øe in his Opinion in Joined Cases CRPNPAC and Vueling Airlines (C‑370/17 and C‑37/18, EU:C:2019:592, point 103), emphasised that, under the principle of mutual trust, ‘a national court cannot ... be the object of ... suspicions of protectionism, as its independence assumes respect for objectivity and the absence of any interest in the outcome of the dispute apart from the strict application of the rule of law’.
72 An assumption that has moreover proven incorrect, since several references concerning the compatibility of national gambling rules and claims for restitution have been submitted to the Court since the adoption of Article 56A of the Maltese Gaming Act. See, inter alia, the requests for a preliminary ruling in pending cases C‑530/24 and C‑9/25, Tipico .
73 See also, for instance, judgment of 15 September 2011, Dickinger and Ömer (C‑347/09, EU:C:2011:582, paragraphs 94 to 96).
74 See, inter alia, judgments of 24 March 1994, Schindler (C‑275/92, EU:C:1994:119, paragraph 60); of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International (C‑42/07, EU:C:2009:519, paragraph 57); and of 24 January 2013, Stanleybet and Others (C‑186/11 and C‑209/11, EU:C:2013:33, paragraph 24).
75 The Maltese Government often presents the ‘cross-border nature’ of the services provided by operators licensed in Malta as a reason why those services should be governed by Maltese law only, and not the law of the States where the recipients of those services are located. In that respect, I would emphasise that, usually, the services provided by those operators are not merely accessible from those other States, without any particular intention on the part of the operators to do business with the consumers in those States. Instead, they are targeted at those other States and their consumers (through websites in the language of the target country, use of a top-level domain of the country in question, advertising and so on). That justifies further the application of the gambling laws of the States concerned (see, by analogy, my Opinion in Wunner (points 63 to 66).
76 In particular, online gambling services have been excluded from the scope of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1) (Article 1(5)(d)) and of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (Codified version) (OJ 2010 L 95, p. 1) (see recital 22), which otherwise implement the ‘country of origin’ principle.
77 See, inter alia, judgments of 8 September 2010, Stoß and Others (C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504, paragraphs 108 to 116), and of 12 September 2013, Biasci and Others (C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 41). See also my Opinion in Tipico, point 38.
78 See my Opinion in Tipico (points 55 and 56).
79 See, for instance, judgment of 15 September 2011, Dickinger and Ömer (C‑347/09, EU:C:2011:582, paragraphs 94 to 96).
80 See, inter alia, judgment of 12 September 2013, Biasci and Others (C‑660/11 and C‑8/12, EU:C:2013:550, paragraph 42 and the case-law cited).
81 See, to that effect, my Opinion in Tipico (points 31, 32 and 37).
82 See, inter alia, judgment of 22 June 2017, Unibet International (C‑49/16, EU:C:2017:491, paragraph 37) and the case-law cited. However, the Maltese Government argues that, under Maltese law, operators licensed in Malta may lawfully provide services only in Member States whose gambling regulations are ‘unjustifiably restrictive’ under Article 56 TFEU. That position, however, requires two points of clarification. First, as indicated in point 101 above, the premiss of the Maltese Government appears to be that, as a rule, any gambling law that restricts the possibility for a gaming operator licensed in Malta to provide services in the territory of a Member State is ‘unjustifiably restrictive’ (since the Maltese regulatory framework already protects, to a sufficient degree, whatever public interest is at stake). Second, even where local regulations are found to fall short of Article 56 TFEU, that does not entitle Maltese gaming operators automatically to provide their services in the territory of the Member State concerned. The Court has consistently held that a Member State is not required ‘to liberalise the market in games of chance if it finds that such a liberalisation is incompatible with the level of consumer protection and the preservation of order in society which that Member State intends to uphold’ (see, inter alia, judgment of 24 January 2013, Stanleybet and Others , C‑186/11 and C‑209/11, EU:C:2013:33, paragraph 46). In such circumstances, a Member State remains ‘free to undertake reforms’ of its regulations to achieve compliance with Article 56 TFEU.
83 See, for instance, with respect to the shortcomings of the German monopoly on sports betting, judgments of 8 September 2010, Stoß and Others (C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504), and of 8 September 2010, Carmen Media Group (C‑46/08, EU:C:2010:505).
84 See, in that respect, my Opinion in Tipico (points 75 to 86). By contrast, I have already explained, in my Opinion in European Lotto (points 94 to 97), why, contrary to what the Maltese Government argues, such claims cannot possibly constitute abuses of the freedom to receive services. Indeed, the principle of abuse of EU law has no bearing in the present context, since such claims are based entirely on national law.
85 The Maltese Government indicated that, in 2023, the gambling sector accounted for approximately 7% of the national economy, while employment generated by that sector represented around 5.2% of total employment in Malta.
86 See judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraphs 56 to 58).
87 See, inter alia, judgment of 23 May 1996, Hedley Lomas (C‑5/94, EU:C:1996:205, paragraph 20 and the case-law cited).
88 See recital 4 of the Brussels I bis Regulation.
89 See, by analogy, ECtHR, 21 July 2022, Bieliński v. Poland , CE:ECHR:2022:0721JUD004876219, § 42 and the case-law cited.
90 See, by analogy, ECtHR, 24 November 1994, Beaumartin v. France , CE:ECHR:1994:1124JUD001528789, § 33.