A recent legal development in Malta’s gambling legislation has sparked fresh debate at the European Union level. Advocate General Nicholas Emiliou has indicated that Malta’s Bill 55, which aims to restrict the enforcement of certain foreign gambling judgments, could be deemed incompatible with EU law if the Court of Justice of the European Union (CJEU) chooses to examine the case on its merits.
The case revolves around Article 56A of the Maltese Gaming Act, introduced in 2023 through what is widely known as Bill 55. This provision mandates Maltese courts, citing public policy reasons, to refuse recognition or enforcement of specific foreign judgments against gaming operators licensed in Malta. The measure particularly targets cases where players seek to recover losses from Malta-licensed operators, even if the gambling activity was deemed illegal in another EU member state.
This issue was brought before the CJEU via an Austrian court, which is currently handling a dispute over whether a lawyer acted diligently when advising a litigation funder about the compatibility of Malta’s provision with EU law. Advocate General Emiliou’s primary focus is procedural. He expressed the view that the Austrian referral may be inadmissible because the core question isn’t whether Bill 55 conflicts with EU law, but whether the lawyer’s assessment at the time was reasonably defensible. Therefore, he suggested that the CJEU should not answer the referral questions, as the dispute’s main issue is too indirect for a preliminary ruling.
Despite this procedural stance, the Advocate General also addressed the potential substance of the case, should the Court decide to do so. He warned that a rule like Article 56A could be “manifestly incompatible” with the Brussels I bis Regulation, which governs the recognition and enforcement of judgments across EU member states. Under this regulation, judgments from one country are generally enforceable in others, including those requiring Malta-licensed gambling operators to pay back players. Malta’s provision seems to create a national obstacle to this process, which the Advocate General argues is beyond what the public policy exception can justify in a broad, abstract manner.
A significant part of his opinion concerns the legal status of Maltese gaming licenses outside Malta. He dismissed the notion that a Maltese license automatically grants an operator the right to provide gambling services throughout the EU, as such an assumption has been rejected by the CJEU before. Online gambling does not operate under a blanket country-of-origin principle, and individual Member States retain the right to apply their own laws, meaning a game legal in Malta might be unlawful elsewhere. This legal distinction, the Advocate General states, does not automatically violate the EU’s free movement of services.
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The opinion also touches on the economic rationale behind Malta’s approach. Emiliou observed that Article 56A seems designed to protect Malta’s gaming sector from the financial impact of cross-border player claims. However, he emphasized that the EU’s rules on public policy cannot be invoked merely because an industry faces economic challenges. The potential consequences for national industries, operators, or public revenues do not justify broad exemptions from EU enforcement standards.
Ultimately, the Advocate General’s opinion is non-binding. The CJEU judges will now consider his advice and issue a ruling in due course. There are two possible outcomes: either the Court agrees with his procedural view and rules the Austrian referral inadmissible, or it examines the case’s substance and assesses whether Malta’s Bill 55 aligns with EU law.
