Sports Betting in Austria: Legal Aspects, Challenges, and Regulatory Considerations for Online Offers

Austria does not consider sports betting to be a game of chance but rather qualifies it as a game of skill. For sports betting providers seeking to enter the Austrian market, this means they are not subject to the Austrian state monopoly on gambling. Due to the Austrian gambling monopoly, only a very limited number of concessions are granted by the Austrian tax office. These concessions permit holders to operate games of chance in Austria, both offline and online. However, a concession issued in another EU/EEA member state does not entitle a gaming operator to offer games of chance in Austria.

In Austria, sports bets are defined as wagers placed in connection with sport events, specifically those involving physical activities in a competitive setting. The distinction between a game of chance and a sports bet lies in the element of chance. The Austrian Federal Ministry of Finance argues that sports betting is not a game of chance because it is neither exclusively nor predominantly dependent on chance. The decisive factor is whether game participants can influence the outcome of winning or losing through their physical and mental abilities, such as dexterity, observation skills, memory, or concentration. 

Taking into account the strictly regulated gambling monopoly in Austria, an infringement of the federal gambling monopoly gives rise to claim for damages by players who have suffered losses. In contrast, the regulatory framework for sports betting is not based on a monopoly. Sports betting in Austria is regulated at the state level rather than by the federal government. Each of the nine federal states has its own legislation, resulting in a fragmented legal framework.

The degree of regulation for different types of bets, as well as the specific requirements for brick-and-mortar betting shops, such as licensing requirements for betting operators, varies significantly between federal states.

Certain federal states have relatively modest regulations. For example, there may be no explicit prohibitions on specific types of bets, and requirements for brick-and-mortar betting shops may not be clearly defined. The betting laws in these federal states primarily set requirements for license holders such as reliability, financial stability, and the obligation to implement measures against money laundering and terrorist financing.

In contrast, betting laws in other federal states are much more detailed, particularly also regarding measures of player protection. In addition to the general requirements for license holders and brick-and-mortar shops, these federal states specify which types of bets are permitted in terms of nature and content. For example, live betting is prohibited except for bets on halftime and final results, and betting on past and virtual events is not allowed. Additionally, certain types of bets are illegal, such as those that violate human dignity or involve the killing or injury of animals. 

The laws of the federal state regulate a licensing system for sports betting. Anyone wishing to open a brick-and-mortar sports betting store in a given federal state must apply for a permit in the form of a license from the responsible state government. When obtaining a license, it does not matter whether the sports betting provider is based in Austria or within the EEA. Academic literature argues that this system is distribution-neutral, meaning that holders of a license to operate a physical betting shop are also authorised to offer bets online nationwide.

Not all federal state laws contain specific provisions for online sports betting, which raises certain questions—particularly what happens if a state law does not regulate online sports betting, yet a sports betting provider targets its offerings to that federal state. This leads to the question of whether such providers are required to obtain a license or if they can offer online sports betting without one.

Under the Austrian constitution, each federal state can only create laws that apply within its own territory. In general, these laws affect only individuals who are physically present in the state or have a connection to it—this is known as the principle of territoriality.

In the context of federal sports betting laws, regulations apply only to operators with a relevant connection to the state. This connection can be based on the operator’s registered office, business location, or, for online services, the location of the server.

Some Austrian federal states require online sports betting providers to obtain a license if their server is located within the state’s territory. In contrast, other states do not explicitly regulate online sports betting in their legislation. Notably, in these states, there are no specific prohibitions on offering online betting services either.

In a recent ruling, the Austrian Supreme Court clarified the potential applicability of state-level sports betting laws to online operators. The case involved a Malta-based gambling operator, who was also licensed in Malta, who also offered live sports betting in Austria, and a claimant domiciled in a certain federal state who placed bets on the provider’s website. The player incurred a hefty amount of losses. The claimant argued that the provider was operating without a valid sports betting license in this federal state and that live sports betting was prohibited regardless. The first-instance court dismissed the claim, stating that the relevant state law does not regulate online sports betting. The Court of Appeal agreed, ruling that a license is required only if the provider has a physical presence in the state. The Austrian Supreme Court upheld this view, confirming that online bets placed from outside the state do not fall within the scope of its regulations. 

This legal interpretation raises uncertainty regarding the licensing requirements for sports betting providers operating servers within Austria. Since some federal states do not explicitly regulate online sports betting, it remains unclear whether providers with servers in these regions require a license. Furthermore, potential regulatory gaps create opportunities for operators to circumvent stricter licensing requirements in certain states by hosting servers in jurisdictions where online sports betting is not specifically addressed by law. This highlights the need for greater clarity in the legal framework. 

In case law and academia, the key factor appears to be the territorial connection of the sports betting provider to the respective federal state. Foreign sports betting providers offering their services to the Austrian market from abroad may not automatically fall under the scope of Austrian federal laws, provided they do not establish subsidiaries, branches, or servers within Austrian territory. However, the legal implications of such operations remain subject to interpretation and potential regulatory developments in the future.

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