With Bill 55 on increasingly shaky ground amid a transitional era for online gambling, what does the future hold for Malta’s point-of-supply industry?
This week has seen the EU heap yet more pressure on Bill 55, a defensive measure introduced by the Maltese government to hold back a tidal wave of player refund lawsuits that could cost the industry hundreds of millions of euros.
Players in Austria and Germany have been able to successfully argue in court that they should be repaid all money lost to operators that offered gambling in their countries without a local licence. The cases stand to erase years of grey market earnings at many operators.
Bill 55, which in June 2023 became an official amendment to the Malta Gaming Act under the title Article 56A, allows judges to reject court rulings from other EU nations if they threaten the economic security of the island’s gambling industry.
It has served Maltese operators well since it was enacted, effectively blocking lawyers from passporting claims from Austria, Germany and elsewhere to the location where operators are legally headquartered, in order to force them to pay out.
This has triggered an international legal wrestling match, now being fought via a series of cases at the Court of Justice of the European Union (CJEU), the EU’s highest judicial authority.
So far, the judgements and opinions issued have not made comfortable reading for the Maltese industry or its regulatory officials.
Earlier this month, the court appeared to settle a longtime debate on which the entire premise of Malta as an offshore hub is founded. Judges said that the freedom to provide services within the EU does not allow for operators to ignore local prohibitions on certain types of gambling.
That was followed this week by an Advocate General (AG) advising judges that if they were to consider the legality of Bill 55, it should be struck down.
It also reaffirmed the court’s dim view of gambling as a cross-border service.
As the opinion put it: “Under the current state of EU law, Member States are under no obligation to recognise gambling licences issued by other Member States. Accordingly, a Maltese gaming licence is, in principle, valid only in Malta.”
This opinion is only advisory, and is unlikely to amount to anything in this particular case (C-683/24) because the AG also recommended that the case as a whole should be ruled inadmissible.
But this is just one in a handful of similar issues being considered by the CJEU and the more time that passes, the greater the pressure appears to be on Malta and Bill 55.
The EU is also taking a tandem approach: The European Commission, the EU’s executive arm, has itself opened an investigation into Malta and the legality of Article 56A and has indicated through its own statements and submissions to the CJEU that it considers the provision to be against EU law.
New tactics needed?
All of which leads to several difficult questions for Malta and the many gambling companies based there.
The first is a defensive issue: With Bill 55 on the ropes, how will the nation prevent the many operators who call its islands home from being stuck with a huge refund charge?
Work is already underway to mount a new defense. The tactic uses the same inspiration as Article 56A, which argues that allowing the foreign court judgments that demand large payments from operators would seriously damage the Maltese economy and thereby upset its “public policy”.
The EU principle, also known as “ordre public”, allows for member states to make legal exceptions in order to protect their society.
In a pair of new cases addressing transferred player refund claims from Austria, Maltese lawyers have argued, without reference to Bill 55, that granting the payment orders would upset the nation’s public order.
These two cases are a clear attempt to establish that, even without any specific Gaming Act amendments, the principle of ordre public protects Maltese gambling firms from having to pay up.
The problem is, the CJEU may have seen this coming.
“The fact that the enforcement of certain 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,” reads the recent AG opinion.
Although lawyers in Malta insist that the AG’s comments should be taken only to refer to Bill 55.
Meanwhile, lawyers fighting to recover refunds believe that cases like these, which have already been appealed, will themselves wind up in the CJEU and at least buy more time for Malta before payouts need to be made.
A new kind of industry hub?
Perhaps the more fundamental question is what Malta offers as a gambling hub over the next decade.
It’s been apparent for some time that the value of a Maltese licence is degrading, through no fault of local authorities.
As European nations gradually switched on their own licensing models, operators have needed to collect local approvals.
Even where nations have clung firmly to monopolies, like in Norway, authorities have also become more effective in enforcing against offshore operators who offer into their territories.
The clear trend of the CJEU also indicates that arguments based on the freedom to provide services are practically finished.
In face of this reality, regulators and business leaders in Malta are looking further afield. Maltese law firms have appeared in locations as far afield as the UAE and Taiwan in recent years, as they look to advertise the nation’s status as a centre of iGaming excellence to emerging online gambling markets.
Leaning into the density of online gambling expertise is also an increasingly important strategy for those looking to attract investment to Malta.
The reason that the industry flocked to Malta in the first place may no longer be relevant, but it’s still the case that two decades later the nation boasts a greater concentration of industry talent than in any other European nation.
There’s also been an increased focus on suppliers, which typically have lower local compliance overheads and more ability to run their businesses remotely from the territories where their content is used.
Although this sector is increasingly subject to local licensing, as well as new compliance burdens designed by regulators looking to drive a wedge between on- and offshore online gambling markets.
Change is inevitable
Malta has demonstrated its ability to adapt and survive, but there’s little denying that the nation’s gambling industry has never been more under siege than it is now.
After decades of growth and success, new ideas are needed to steer the sector into a new phase.
The success with which it emerges from the Bill 55 era will have a dramatic impact on Europe’s online gambling sector and beyond.
