The terms 'gambling' and 'gaming' are foreign to the Austrian legal system and can only serve as umbrella terms that encompass the entirety of the various types of legally defined activities in this context. For the purposes of this chapter, 'gaming' is better suited as an all-embracing term.
The most fundamental distinction in gaming law is drawn between 'games of chance', which are generally regulated under federal law through the Gaming Act and subject to a federal monopoly on games of chance, and 'betting', which is regulated on a state level through nine separate state betting laws.
'Games of chance' are defined as games where the decision on the outcome exclusively or predominantly depends on chance. The Gaming Act further differentiates between licences for 'lotteries' (games of chance), 'land-based casinos', 'electronic lotteries' (online games of chance) and 'video lottery terminals' (VLTs). The cited federal act exempts 'slot machines outside of land-based casinos' from the monopoly and transfers the competence for licensing to the states. 'Free prize draws' are expressly regulated by the Gaming Act merely regarding their taxation. Skill games where the decision on the outcome does not exclusively or predominantly depend on chance do not fall within the ambit of the federal monopoly on games of chance.
As betting is regulated in nine different state laws, the legal definitions of betting vary slightly. In general, 'betting' may be defined as the placement of a bet on the outcome of a future event whereby the outcome of the bet does not predominantly depend on chance, because a player can bring their knowledge regarding the event into their decision-making process and this knowledge outweighs the element of chance of the event. Betting in turn is subcategorised into different forms of betting, whereby 'sports betting' is the main type of betting that is regulated by all nine state betting laws, and the following text will therefore focus on sports betting. 'Social betting', such as bets on the outcome of presidential elections, fall within the ambit of some state betting laws. Betting on e-sports is not explicitly regulated in any of the nine state betting laws; however, depending on whether e-sport is classified as a sport or not, betting on such events falls within one of the existing two categories (sports betting or social betting).2 'Live betting', meaning bets on the occurrence of a particular circumstance in connection with an event that is already in progress at the time the bet is placed, are prohibited in most states. 'Pool betting', in the sense of an operator brokering bets between betting customers on a professional basis, is regulated in all nine state betting laws. None of the nine state betting laws expressly defines 'fantasy leagues' or 'spread betting'.
The gaming law does not explicitly regulate betting on the results of lotteries. However, the Supreme Administrative Court has previously considered bets on an outcome that exclusively or predominantly depends on chance as games of chance.3
ii Gambling policy
The regulatory framework ranges from a federal monopoly on games of chance to an open licensing regime on a state level for sports betting. The legality of gaming is therefore entirely dependent on the type of gaming product offered.
As Austria is part of the European Union (EU), the fundamental freedoms as guaranteed by EU law, including the freedom to provide services, apply. Any monopoly, including therefore the federal monopoly on games of chance, potentially interferes with the freedom to provide services. Such interferences by a Member State may only be justified within narrow boundaries developed by the European Court of Justice (ECJ). According to the relevant legislative materials, the main justifications for upholding the federal monopoly on games of chance are to serve the purpose of player protection, prevention of gaming addiction, combatting and preventing related crime as well as protection of minors.4 For many years, the case law regarding the compliance of the federal monopoly with EU law was inconsistent. Only by the end of 2016 did all three supreme courts conclude that the federal monopoly on games of chance is in conformity with EU law. Hereafter this uniform line of decisions has become well-established case law.
However, the ECJ has previously held that, in a review of proportionality of infringements of the fundamental freedoms, the approach taken by the national court must take account of the way in which circumstances have developed.5 The arising of new facts and circumstances therefore makes a new review of the conformity of the federal monopoly on games of chance with EU law necessary. Given the emergence of such new facts and circumstances, stakeholders still have the opportunity to challenge the compliance of the federal monopoly with EU law. Current case law clearly shows that the EU conformity continues to be questioned.
The nine state betting laws are all based on a federal act from 1919, but have since evolved independently. While licences for operating sports betting are not limited in number, and anyone who fulfils the preconditions of the relevant state betting law may be granted a licence, only four states (Vorarlberg, Salzburg, Upper Austria and Tyrol) even contain explicit regulations for online offerings. All nine state betting laws require some sort of physical presence in the state territory, such as outlets or servers, for offerings to fall within the ambit of the state betting laws. This necessity of a physical presence gives reason to question the conformity of such a regulatory framework with EU law.
iii State control and private enterprise
When analysing public and private stakeholders in the gaming industry, again a distinction needs to be made between offerings that fall under the federal monopoly, slot machines outside of land-based casinos and sports betting. There are no legal requirements whether or not operators need to be state-owned or controlled.
Licences for games of chance regulated under the federal monopoly are limited in number and subject to a public tender procedure. According to the Gaming Act, only one licence is available for lotteries, electronic lotteries and VLTs, thereby de facto constituting a monopoly. This licence has been granted to Österreichische Lotterien GmbH with a term until 2027. However, the document for the public tender of the lottery licence informed applicants that that changes to the legal framework are possible at any time and that there are no guarantees regarding the scope or exclusivity of the licence. Of the 15 available licences for land-based casinos, Casinos Austria AG holds 12 with a term until 2027. The regime for land-based casinos may therefore also be seen as a factual monopoly. The outstanding three land-based casino licences remain unused after the public tender was ruled to be in violation of the principle of transparency. It is unknown whether and when these open licences will be retendered. The federal state (indirectly) holds a substantial stake in both licensees under the federal monopoly.
Five of the nine states (Lower Austria, Upper Austria, Carinthia, Styria and Burgenland) elected to regulate slot machines outside of land-based casinos within their territory and offer licences for operating this type of gaming. These licences are limited to three per state, and nationwide only six companies in total received licences.
State betting laws do not limit licences for offering sports betting in number, thereby creating an open market.
iv Territorial issues
Depending on the type of gaming offered, gaming is regulated and licensed nationally as well as subnationally by the nine states. The licences for lotteries, VLTs and land-based casinos are regulated on a federal level and are subject to the federal monopoly on games of chance. Slot machines outside of land-based casinos and sports betting are both regulated subnationally through state laws.
There are no particular localities that are considered to have favoured status for gaming, such as, for example, tourist islands or reservations where particular groups have autonomy. A certain favoured status may be attributed to the five states that chose to permit and license the offering of slot machines outside of land-based casinos within their territory.
v Offshore gambling
The gaming law does not recognise 'offshore gambling operators' as a category to differentiate between operators. However, the online games of chance market is dominated by EU-based and licensed operators not holding an Austrian licence. According to market experts, this market share continues to grow. Also, the online sports betting market has steadily increased in recent years and this trend is expected to continue.
Regarding the legal basis for sanctioning operators who do not hold an Austrian licence but offer their games of chance products in Austria, see Section III.ii.
A ban on advertisements of games of chance is included in the Gaming Act as a mechanism of control. For more details, see Section VI.
The attitude of the authorities towards operators who do not hold an Austrian licence but still have a games of chance offering within the national territory has been heavily focused on terrestrial offerings. In the period from 2014 to 2016, the Financial Police of the Federal Ministry of Finance confiscated 4,628 gaming machines and filed 2,768 administrative criminal complaints. Regarding online operators of games of chance who do not hold an Austrian licence and offer their products inbound to Austria, there are no cases known to us where such operators were prosecuted by the regulator for violations of the federal monopoly on games of chance.
Regarding the legal basis for acting against sports betting operators who do not hold an Austrian licence but offer their products in Austria, see Section III.ii.
II legal and regulatory framework
i Legislation and jurisprudence
The basic legal framework applicable to gaming is contained in the federal Gaming Act, the five state laws regarding slot machines outside of land-based casinos and the nine state betting laws. In addition to these main gaming-related laws, general laws also apply.
As previously outlined, the Gaming Act covers the federal monopoly on games of chance and the licences that fall thereunder (lottery and VLT licences and licences for land-based casinos). The cited federal act includes fundamental requirements for slot machines outside of land-based casinos, but transfers the licensing competence to the states. The five states that have elected to regulate slot machines outside of land-based casinos therefore have separate state laws in this regard. The nine state betting laws regulate sports betting within their respective territory.
In addition to these gaming specific laws, for example, the Civil Code, the Unfair Competition Act, the Acts for the Protection of Minors and the E-Commerce Act also affect gaming activities.
Under the Unfair Competition Act, licensees may petition for a cease-and-desist order against operators without Austrian licences. According to well-established case law, a trade practice is unfair if someone obtains an advantage over competitors, who abide by the law, by breaching the law for competition purposes.
Furthermore, the Criminal Code contains a criminal provision regarding games of chance, but the remaining ambit of this regulation is limited due to the primacy of application of the administrative offences. For more details, see Section III.ii. Moreover, this federal act includes provisions regarding fraud and money laundering, which each in the past have impacted on gaming activities.
ii The regulator
Due to the fragmentation of the legal framework for gaming, different regulators are responsible for the various types of gaming identified in Section I.i.
The Federal Minister of Finance is the regulator that governs the games of chance that fall within the scope of the federal monopoly on games of chance as defined in the Gaming Act.
Aside from the framework regulations constituted by the federal Gaming Act, slot machines outside of land-based casinos are regulated at a state level, and the state government is the competent regulator.
The regulator for betting activities that fall under the ambit of the state betting laws are the state governments of the nine states.
The enforcement agency that imposes penalties for administrative offences regarding violations of the regulations for the above-mentioned gaming activities are the competent district administrative authorities.
iii Remote and land-based gambling
The gaming law does to some extent differentiate between remote and terrestrial gaming, and distinctions once again need to be made based on the type of gaming under review.
The Gaming Act distinguishes between electronic lotteries (online games of chance) and premises-based lotteries (terrestrial games of chance). For a definition of (terrestrial) games of chance, see Section I.i. 'Electronic lotteries' means games of chance where the player immediately takes part in the game via electronic media and where the decision on the outcome is made centrally and then made available via electronic media. Both types of lotteries fall under the federal monopoly on games of chance and are subject to a single licence, which has already been issued with a term until 2027.
The state betting laws all regulate terrestrial sports betting, but only the state betting laws of Vorarlberg, Salzburg, Upper Austria and Tyrol contain explicit regulations regarding online sports betting. Only these four states therefore draw a distinct differentiation between the distribution channels though which sports betting is offered. However, only operators of online sports betting who have a physical presence, such as a server, located in the respective territory of the four states fall within the ambit of either of the state betting laws. Licences for either form of offering are not limited in number.
iv Land-based gambling
The primary venues for land-based gaming also differ depending on the form of gaming being offered within the premises. The number of licences for land-based casinos is restricted to 15 land-based casinos. Currently, only 12 of these 15 possible licences have been granted, meaning Austria currently has 12 land-based casinos.
Products offered under the lottery licence, with the exception of VLTs, are available in over 5,100 outlets nationwide. The Gaming Act imposes limitations on venues for VLTs. The cited federal law stipulates minimum distance requirements and places limitations on the number of VLTs permissible in a venue. Additionally, the opening of new premises for VLTs requires a site permit.
Similarly, the Gaming Act also provides restrictions for venues that offer slot machines outside of land-based casinos. For example, the number of slot machines is limited depending on the number of inhabitants. Minimum distances between venues as well as separate site permits are also required.
Every state betting law includes certain requirements for betting outlets, which can vary significantly from state to state. Some state betting laws, for example, require separate site permits for the betting outlets. Others provide for limitations on operating hours or require the appointment of responsible persons for each venue, clear identification of the premises as a betting outlet or other structural requirements, such as separately accessible areas wherein the betting terminals are located.
v Remote gambling
Restrictions and limitations placed upon remote gaming vary significantly based on the type of gaming offered, ranging from a monopoly to a licensing regime.
The only licence for electronic lotteries (online games of chance) has already been issued. Operators, especially those licensed in other EU Member States, continue to question the compliance of the federal monopoly with EU law and rely on the freedom to provide services when offering their products in Austria. However, the relevant authorities and courts follow the line of jurisprudence set by the three supreme courts at the end of 2016, wherein the federal monopoly was considered to comply with EU law.
The Gaming Act does not provide for IP or payment blocking. However, the Gaming Act provides that anyone who promotes or facilitates participation in games of chance without the relevant licence, including by providing infringing items other than electronic gaming machines, commits an administrative offence. This restriction applies regardless of the type of device used, such as tablets. The Gaming Act even provides for administrative criminal offences for players that place their stakes on online games of chance not licensed by the Minister of Finance from within Austria.
Contrary to the restrictive regulation of online games of chance under the federal monopoly, licences for (online) sports betting are not limited in number. As previously outlined, only four of the nine state betting laws provide explicit regulations for online sports betting offers. Their applicability is limited to operators who have a physical presence, such as servers, in the relevant state territory. Due to the fragmentation and peculiarity of the legislative framework for online sports betting, operators that are licensed in other EU Member States continue offering their sports betting products within Austria without obtaining a state betting licence on grounds of strong EU arguments.
None of the nine state betting laws provides for blocking measures, such as IP or payment blocking. However, all nine state betting laws include their own provisions on administrative criminal offences. Similarly, for online games of chance, facilitating the participation in non-licensed online sports betting constitutes an offence, regardless of the device from which the offering is made accessible.
vi Ancillary matters
The regulatory regime does generally not provide for licences for manufacturers and business-to-business (B2B) providers of key equipment for the industry, such as casino tables, roulette wheels or gaming machines and computer software. However, the Regulation on Electronic Gaming Machines, for example, regulates the construction and gaming technical features of slot machines as well as VLTs and requires accredited testing companies to prepare equipment reports. Similarly, the state betting laws also provide for technical requirements concerning betting terminals, and a detailed description of the functions of the betting terminal need to be provided to the authority prior to operation.
While the gaming law only requires the operator to hold a licence, and individuals holding particular positions within a gaming operator need not hold personal licences, the Gaming Act as well as the state betting laws include personal prerequisites that must be fulfilled when applying for and holding a licence. For example, the AML provisions that implement the EU anti-money-laundering directives brought additional fit and proper requirements for managing directors and supervisory board members, such as reliability, sincerity and impartiality.
vii Financial payment mechanisms
Neither the Gaming Act, the five state laws regarding slot machines outside of land-based casinos nor the nine state betting laws include specific restrictions on certain types of payment mechanisms for gaming.
The Federal Ministry of Finance does not currently recognise cryptocurrencies, such as bitcoin, as official currencies and does not consider them as financial instruments. Furthermore, the Financial Market Authority has generally negated the inclusion of bitcoin under the ambit of the Banking Act, Electronic Money Act or Payment Services Act. However, a licence from the Financial Market Authority may be required for the operation of various business models based on block chain technology. Because of the vast variety of business cases, an individual assessment is necessary. Against this background, tokens that may be used on online gaming platforms also need to be assessed on an individual basis, depending on their functionality.
III The licensing Process
i Application and renewal
The licensing process, the licensing authority, the eligibility requirements for applicants, the information applicants must provide and the period of validity of licences vary depending on the type of gaming activities that the respective licence regulates.
The Federal Minister of Finance may grant the single licence for lotteries, electronic lotteries and VLTs after a transparent public tender process. As this licence has been granted with a term until 2027, this chapter will forgo further considerations in this regard.
The Federal Minister of Finance may grant up to 15 licences for land-based casinos. Twelve of the 15 casino licences have been granted with a term until 2027. As it is unknown whether the remaining three licences will be retendered, this chapter will also refrain from an analysis of the licensing process for land-based casinos.
Slot machines outside of land-based casinos and sports betting are regulated at a state level through individual state laws, so the licensing process therefore differs from state to state, which is why only a general overview will be given below.
The five state laws regulating slot machines outside of land-based casinos all require the applicants to be corporations with at least a share capital of €8,000 for each licensed slot machine. Additionally, professional qualifications and proof of creditworthiness is also required. The licences are valid for between 10 and 15 years at the most, depending on the state. The state laws do not provide for separate licence-renewal procedures.
All state betting laws require the applicant to possess reliability, meaning applicants may be excluded if they have previously been convicted, especially regarding violations of the above outlined provisions of the Criminal Code, tax offences or violations of the Gaming Act. Furthermore, most state betting laws require applicants to show proof of their professional qualifications and creditworthiness. Betting licences in most states are limited in time and no special renewal procedures apply.
ii Sanctions for non-compliance
The main administrative offences and sanctions relating to a breach of gaming law and licence terms are included in the relevant regulations for each type of gaming activity outlined above.
The Gaming Act includes administrative offences and corresponding sanctions for violations of its provisions for operators holding licences granted in accordance with the cited federal act and those who do not hold an Austrian licence. Section 52 of the Gaming Act incorporates the legal basis for acting against operators who do not hold an Austrian licence. The main subsection stipulates that any entrepreneur, who operates, organises or makes accessible from Austria a game of chance that has not been granted a licence or participates in such games as an entrepreneur commits an administrative offence. The fine for each individual offence is up to €60,000 and the principle of accumulation applies. Should operators holding a licence for lotteries or land-based casinos no longer fulfil the requirements of the licence or should they be in violation of the Gaming Act, the licensee has to be ordered to restore the rightful condition under threat of an administrative fine. In case of a repeat offence, the managing directors are prohibited from running the business. As ultima ratio, the Federal Minister of Finance may withdraw the licence.
As previously outlined, the Gaming Act provides that where one particular act constitutes both an administrative offence as defined in Section 52 Gaming Act as well as a criminal offence defined in Section 168 Criminal Code, only the administrative offence law provision of Section 52 Gaming Act shall apply. Criminal liability based on the criminal law provision regarding games of chance is therefore very limited. For example, individual players may fall under the applicability of this criminal offence, if they are taking part in the game of chance on a commercial basis (professional player). Moreover, violations of other criminal offences, such as fraud or money laundering, remain applicable to all stakeholders.
The five state laws regulating slot machines outside of land-based casinos each contain administrative offences for violations of the state laws. The fines imposed vary significantly from state to state and range between a maximum of €22,000 and €40,000 for individual offences (principle of accumulation applies).
Similarly, the nine state betting laws each contain their own administrative offences for violations of their provisions, with fines of up to €25,000 in some provinces. Burgenland is the only state where detention is provided for by the state betting law, as it has essentially remained unchanged from the federal law of 1919. No Supreme Court cases are known to us where operators of online sports betting were fined by the regulatory authority in 2019 for offering their products within Austrian territory.
Operators holding licences for slot machines outside of land-based casinos or sports betting who break the rules of the relevant state laws may have their licence withdrawn by the regulator because of such violations.
The basic gaming laws all include regulations relating to money laundering, and licensees are required to take measures to prevent money laundering. When looking at the Gaming Act, for example, in exercising its duties and supervisory powers under this federal law, the regulator shall proceed according to a risk-based approach. For instance, the risk profile of the licensee is reassessed at regular intervals and when important events or developments occur in the management and business activities of the licensee. The competent district administrative authorities can impose fines of up to €22,000 for each individual violation. Additionally, the Criminal Code also includes the criminal offence of money laundering, which provides for custodial sentences.
Regarding match-fixing in the context of betting, the Supreme Court has previously argued that the offer to conclude a sports betting contract contains at least the implied declaration that the subject matter of the contract has not been deliberately manipulated to one's own advantage. For this reason in particular, the Supreme Court subsumed sports betting fraud under the general fraud provision of the Criminal Code, which provides for custodial sentences or monetary penalties.6
The basis of calculation for taxes, as well as the tax rate imposed on operators, depends entirely on the type of gaming offered, and subsequently varies significantly. Taxation for all types of gaming is regulated on a federal level and is therefore applicable uniformly nationwide. The most relevant gaming-related taxes are as follows:
|Gaming product||Basis of calculation*||Tax rate|
(online games of chance)
|Gross gaming revenue||40%|
|Land-based casino||Gross gaming revenue||30%|
|Net gaming revenue||30%|
|Net gaming revenue||10% + municipal fees|
|VLTs||Net gaming revenue||10% + municipal fees|
|Other games of chance||Stake||16%|
|Unlicensed slot machines||Net gaming revenue||30%|
|Unlicensed VLTs||Net gaming revenue||30%|
* Gross gaming revenue (GGR) = stakes less winnings; net gaming revenue (NGR) = GGR less VAT.
Licensees as well as operators not holding Austrian gaming licences are required to pay the above outlined taxes.
Generally, the VAT Act exempts betting and games of chance activities from VAT of 20 per cent, with the exception of turnover generated through slot machines and VLTs.
In Austria, income that does not fall under the seven types of income are not subject to personal income tax and players therefore generally do not have to pay income tax on winnings from games of chance.
VI Advertising and Marketing
The fragmentation of the regulatory framework for gaming according to the type of gaming offered also impacts on the permissibility of advertising and marketing of gaming opportunities, as once again a distinction needs to be made between games of chance and betting.
Operators holding licences regulated under the Gaming Act are generally entitled to advertise their offering in Austria, but have to apply a responsible standard to their advertising measures. Regarding advertising by the holder of a public monopoly, the ECJ has ruled that such advertising must remain measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks.7
For operators not holding games of chance licences under the Gaming Act and offering such products in Austria, an advertisement ban is in place. The Gaming Act prohibits advertising or facilitating the advertising of games of chance where the operator does not hold the relevant Austrian games of chance licence. This administrative offence is punishable with a fine of up to €22,000 for each individual violation (principle of accumulation applies).
Each state law regarding slot machines outside of land-based casinos provides that licensees also have to follow a responsible standard in their advertising measures.
On the other hand, the state betting laws generally do not include explicit regulations regarding sports betting advertisements or marketing, either for licensees or for operators without an Austrian licence. However, for example, the Viennese state betting law also requires the application of a responsible standard to the advertisement measures of licensees.
VII The Year in Review
The year 2019 was dominated by political scandals, which also affected the gaming industry. The notorious secretly recorded video showing Heinz-Christian Strache, then vice-chancellor of Austria and leader of the Freedom Party (FPÖ), and Johann Gudenus, a deputy leader of the FPÖ, during a meeting in Ibiza with a woman posing as the niece of a Russian oligarch, kicked off the 'Ibiza affair'. This ultimately led to the dissolution of the Austrian government and new elections.
In the Ibiza video, Strache explicitly named Novomatic AG and indicated possible contacts between the FPÖ and the company, which have been denied by both parties.
However, in the wake of the Ibiza affair, an anonymous statement of facts was filed with authorities. Therein it was alleged that representatives of the FPÖ and Novomatic AG made a deal regarding the monopolist, Casinos Austria AG. Namely, it was supposedly agreed that the Casinos Austria AG shareholder Novomatic AG would nominate Peter Sidlo, a member of the FPÖ, for the board of the Casinos Austria AG and would support his appointment. The statement of facts stated that in return the FPÖ allegedly agreed to support legislation regarding online games of chance licences. Due to these suspicions of bribery and corruption, the authorities started criminal investigations.
In 2019–2020, the shareholder structure of the Austrian monopolist, Casinos Austria AG, changed significantly. Novomatic AG sold its entire 17.19 per cent share to its co-shareholder the Sazka Group, which by then already held 38.29 per cent of the shares.
Especially impacting sports betting operators, the European Commission launched an infringement procedure against Austria in which it accused the federal and state governments of failing to fully implement the provisions of the 4th Anti-Money Laundering Directive. Several states thereupon amended their state betting laws by including additional anti-money-laundering provisions. Upper Austria and Tyrol further have deemed it necessary to include explicit regulations on online betting.
The past year also saw a significant rise of player claims against online games of chance operators not holding an Austrian licence. Players argue that games of chance contracts with such operators are null and void and that their pay-ins less winnings are therefore reclaimable. Further, litigation-cost financier companies announced that they will finance such lawsuits.
The outcome of the currently pending player claims against online games of chance operators not holding an Austrian licence and especially any high court case law taking into account a dynamic evaluation of the compliance of the national monopoly on games of chance with EU law may increase legal certainty for all stakeholders. New facts and expert opinions give reason to continue challenging the federal monopoly on games of chance based on EU argumentation.
Furthermore, games of chance and sports betting are on the agenda of the newly formed government, and legislative developments will need to be monitored closely.
Owing to the global coronavirus pandemic, the gaming industry will also have to adapt to new conditions and demands. As large-scale sporting events, such as UEFA Euro 2020, are being postponed, sports betting operators are looking for alternative betting opportunities to offer their customers. The steadily rising popularity of e-sports and betting on such events could be a valid substitution and long-term addition for operators and their customers.
1 Christian Rapani is founding partner and Julia Kotanko is an associate at Rapani.
2 Rapani/Kotanko/Sallegger, eSport in Österreich – besteht Regelungsbedarf?, ZfWG 2020, 13.
3 VwGH decision dated 22 February 2017, Ra 2016/17/0037.
4 ErläutRV 657, BlgNR, 24th Legislative Period.
5 Case C-464/15, Admiral Casinos & Entertainment AG, § 36.
6 OGH decision dated 28 January 2016, 12 Os 77/15p.
7 Case C-347/09, Dickinger/Ömer, §68.