Issue link: https://maltatoday.uberflip.com/i/1537082
IT all started with Bill 55 in June 2023, when parliament approved amendments to the Gaming Act, enshrining into law the country's existing public policy that protects the status of the Maltese gaming licence from unfounded challenges. The amendments, in essence, direct the Maltese courts not to give recognition and enforce in Malta foreign judgments ob- tained by an operator against a player or a player against an operator that conflict with or undermine the legality of the Maltese framework and are re- lated to activity which is lawful in terms of the Gaming Act and the other regulatory instru- ments applicable to the Malta Gaming Authority's licensees. The Maltese legislators thus wanted to clarify that such judgments would be manifestly against the public policy (ordre public) of Malta. Perhaps a close analogy can readily be drawn from Malta's recent anti-SLAPP legislation, whereby it aims to prevent abu- sive lawsuits instituted in for- eign courts designed as a tactic to intimidate, silence or finan- cially burden the defendants found in Malta. Under EU legislation, the amendments were ostensibly justified under EU Regulation No. 1215/2012, also known as Brussels I bis, which governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters within the EU. Specifically, ob- ligations exist for EU member states to recognise and enforce judgments related to gambling matters, unless specific excep- tions, like public policy consid- erations, apply. Within foreign legal circles, this new legal position adopt- ed by Malta for its gambling legislation is often deridingly described as a "sledgehammer" since it allegedly violates EU law and is preventing thousands of successful claims issued in Eu- ropean courts from being paid out. The law is effectively shielding owners of leading local brands such as Pokerstars, Betsson and Unibet from judgments handed down abroad, of which there are an increasing number. In- deed, cross-border gambling claims are on the rise in the EU, and Malta-based companies are the target of many complaints. It is roughly estimated that the amount of gambling losses be- ing reclaimed all over Europe probably will, sooner or later, total €1bn. Authorities in Austria, Germa- ny, Sweden and the Netherlands are dealing with a deluge of con- sumer complaints about illegal gambling, mainly around web- sites operated by Malta-based firms that national courts have assessed are unlicensed in their countries. The first time that the validity or otherwise of this new con- troversial legal stance taken by Malta''s Gaming Authority was tested in judicial proceedings instituted by Mr Green Limited against Michael Kugler in the Maltese courts last year, where- by it sought and requested a declaration that a judgment of the Supreme Regional Court of Vienna, Republic of Austria, should not be recognised and executed in Malta, since recog- nition of such judgments goes against the public policy (ordre public) of the executing Mem- ber State, namely the State of Malta. However, by a judgment deliv- ered by Mr Justice Toni Abela on 11 January 2024, the court outright declined the request purely on procedural grounds, without going into the merits of the case. In the meantime, the Europe- an Commission has launched infringement proceedings against Malta over Article 56A of the Gaming Act, arguing that it establishes new or separate grounds for refusing recogni- tion or enforcement of judg- ments beyond those set out in Regulation (EU) 1215/2012 (Brussels I Recast). In response to the Commis- sion's Letter of Formal Notice, both the MGA and the Govern- ment of Malta issued statements defending Article 56A and reaf- firming the country's position within the EU framework. Both are basically counter-ar- guing that Article 56A reflects Malta's existing public policy under EU law, particularly the ordre public exception con- tained in the Brussels I Recast Regulation, on the basis of which it codified into law Mal- ta's long-standing public policy on online gaming matters. In simple and acceptable le- gal terms, it refers to the fun- damental principles and values upon which our legal system is based. It acts as a safeguard for those fundamental principles when Maltese courts are deal- ing with foreign laws or situa- tions where the application of foreign law might be considered harmful or contrary to the fo- rum state's core values. So, will it turn out that the conflicting interpretation be- ing given by both the European Commission and the Maltese authorities may, in the long run, constitute a double-edged cave- at? The EU Regulation in question in no way does it attempt to define or, worse, limit the con- cept of a country's public poli- cy. Yet, the Commission chose to rely only on the specific and exhaustive grounds for refusing recognition or enforcement of A risky gamble Mark Said File Photo A veteran lawyer 10 maltatoday | SUNDAY • 2 JULY 2025 OPINION It stands to reason that one would have logically and lawfully expected the Maltese authorities to defend their new legal stance by relying mostly, if not exclusively, on the grounds of public policy as understood by them.