Anyone seeking to reclaim gambling losses from a foreign casino must consider more than just Austrian law. In cross-border cases, it is essential to first determine which national law applies to the parties' legal capacity and the concluded contract.
A plaintiff residing in Austria demanded repayment of approximately EUR 250,000 plus interest from a Slovenian casino operator. The casino was located near the Austrian border, targeted its advertising at Austrian customers, and organized, among other things, bus trips from Carinthia to the casino. The plaintiff had been a gambling addict for years. It was determined that, for the relevant period, he generally understood the significance of his gambling behavior, but due to his addiction, he was unable to act accordingly. He therefore argued that his gambling losses had occurred during a period of legal incapacity and were thus subject to reimbursement.
The Supreme Court (OGH) overturned the decisions of the lower courts and first emphasized the importance of private international law. In cases with a foreign element, the courts must examine ex officio which law is applicable and, if necessary, also determine the relevant foreign law. The Rome I Regulation is generally not applicable to the legal capacity, capacity to act, and capacity to conduct business of natural persons. These questions are to be assessed according to the corresponding connecting factors of the Austrian Private International Law Act (IPRG). However, Article 13 of the Rome I Regulation contains a special provision for the protection of the contractual partner's reliance. If the parties are in the same state when concluding a contract, a party cannot, under certain conditions, invoke its lack of legal capacity under the law of another state if the other party was entitled to rely on its legal capacity. According to the Supreme Court, limitations of legal capacity due to illness or temporary impairments can also be relevant. It was therefore insufficient to focus solely on the plaintiff's gambling addiction. Rather, it was also necessary to examine which law applied to his legal capacity and whether the casino operator was entitled to rely on his legal capacity.
The decision demonstrates that claims for reimbursement of gambling losses incurred abroad cannot simply be assessed under Austrian law. In cross-border cases, the conflict-of-laws rules must first be clarified. In practice, this means that it is not only crucial whether a person was actually legally incapacitated while gambling. Equally important is which law governs this question and whether the other party to the contract was justified in relying on the individual's legal capacity.
Supreme Court 24.06.2026, 7 Ob 25/26s