14 March 2024 (*1)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Questions the answer to which may be clearly deduced from the Court’s existing case-law – Judicial cooperation in civil matters – Law applicable to contractual obligations – Regulation (EC) No 593/2008 – Article 6 – Consumer claiming payment of a sum of money allegedly won in an online casino – No choice of applicable law – Application of a law deemed to be more favourable rather than the law of the country of habitual residence of the consumer)

In Case C‑429/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), made by decision of 22 June 2022, received at the Court on 28 June 2022, in the proceedings

THE COURT (Seventh Chamber),

composed of F. Biltgen (Rapporteur), President of the Chamber, N. Wahl and J. Passer, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

This reference for a preliminary ruling concerns the interpretation of Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6, ‘the Rome I Regulation’), read in conjunction with Article 4 thereof.

The request has been made in proceedings between VK, an Austrian resident, and N1 Interactive Ltd., a company with its registered office in Malta, concerning the law applicable to the contract concluded between those parties.

Legal context

European Union law

Recital 23 of the Rome I Regulation reads as follows:

‘As regards contracts concluded with parties regarded as being weaker, those parties should be protected by conflict-of-law rules that are more favourable to their interests than the general rules.’

Article 4 of that regulation, entitled ‘Applicable law in the absence of choice’, provides:

a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;

a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence;

…

Article 6 of that regulation, entitled ‘Consumer contracts’, provides:

pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

by any means, directs such activities to that country or to several countries including that country,

and the contract falls within the scope of such activities.

…

Article 9 of that same regulation, entitled ‘Overriding mandatory provisions’, provides:

7.7

Paragraph 1271 of the Allgemeines bürgerliches Gesetzbuch (General Civil Code), in the version applicable to the dispute in the main proceedings (‘the ABGB’), provides that bets made in good faith and other authorised bets are binding, in so far as the fixed price has not only been promised but has actually been paid or deposited. The prize cannot be claimed in court.

The dispute in the main proceedings and the question referred for a preliminary ruling

N1 Interactive operates an online casino from Malta and provides services, in particular, in Austria via the homepage of its website.

VK, who claims to have made winnings from playing at this online casino in 2020 in the amount of EUR 106000, brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) seeking payment by N1 Interactive of that sum, together with default interest.

10.10

The defendant in the main proceedings disputes the merits of that action and argues that VK breached the general terms and conditions of sale by allowing a third party access to his user account.

11.11

It is apparent from the order for reference that the parties to the main proceedings have not determined the law applicable to their contract.

12.12

After finding that VK was a consumer, the Handelsgericht Wien (Commercial Court, Vienna) dismissed the action by judgment of 8 November 2021. Having regard to the failure of the parties in the main proceedings to determine the law applicable to their contract, that court held that the dispute in the main proceedings fell within the scope of Article 6(1)(a) of the Rome I Regulation, which determines as the applicable law the law of the country in which the consumer has his or her habitual residence, namely, in the present case, Austrian law.

13However, under Austrian law, in particular Paragraph 1271 of the ABGB, it is not permissible to bring legal proceedings for the payment of winnings from a game of chance. According to the Handelsgericht Wien (Commercial Court, Vienna), the national provision at issue may even be characterised as an overriding mandatory provision within the meaning of Article 9 of the Rome I Regulation.

14VK brought an appeal against that judgment before the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria), the referring court, which agrees with the findings of the court of first instance as to VK’s status as a consumer and the application of Article 6(1) of the Rome I Regulation, but expresses doubts as to whether Paragraph 1271 of the ABGB is a mandatory provision. Furthermore, the Oberlandesgericht Wien (Higher Regional Court, Vienna) points out that, in so far as Maltese law does not contain a provision equivalent to that article, the applicant in the main proceedings would be in a less unfavourable position if that law applied to him. If the applicant in the main proceedings were not a consumer, Maltese law would be applicable by virtue of Article 4 of the Rome I Regulation, even if the parties to the main proceedings had not determined the applicable law.

15Furthermore, where the parties to a consumer contract have chosen the applicable law, that law will apply, in accordance with Article 6(2) of the Rome I Regulation, only if it does not deprive the consumer of the protection afforded to him or her by provisions of the law of his or her place of residence that cannot be derogated from.

16According to the referring court, failure by the parties to a contract to determine the law applicable to it therefore precludes, in accordance with Article 6 of the Rome I Regulation, an analysis aimed at determining the most favourable applicable law.

17In those circumstances, the Oberlandesgericht Wien (Higher Regional Court, Vienna) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the law of the country in which the consumer has his or her habitual residence is not applicable if the law applicable under Article 4 of the Rome I Regulation, the application of which the applicant seeks and which would be applicable if the applicant lacked consumer status, is more favourable to the applicant?’

Procedure before the Court

18By decision of the President of the Court of 9 August 2022, the proceedings in the present case were stayed pending delivery of the judgment of 14 September 2023, Club La Costa and Others (C‑821/21, EU:C:2023:672).

19By letter of 18 September 2023, the Court Registry sent a copy of that judgment to the referring court and asked it to state whether, in the light of that judgment, it wished to maintain its request for a preliminary ruling.

20By letter of 11 October 2023, that court informed the Court of Justice that it wished to maintain its request for a preliminary ruling.

21By decision of the President of the Court of 18 October 2023, it was decided not to notify the parties of the request for a preliminary ruling.

Consideration of the question referred

22Pursuant to Article 99 of its Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

23It is appropriate to apply that provision in the present case.

24By its question, the referring court asks, in essence, whether Article 6(1) of the Rome I Regulation must be interpreted as meaning that, where a consumer contract fulfils the requirements set out in that provision and in the absence of a valid choice of law applicable to that contract, that law must be determined in accordance with that provision, notwithstanding the fact that the law applicable to the contract in accordance with Article 4 of that regulation may be more favourable to the consumer.

25However, the Court has already responded to a similar question, in the judgment of 14 September 2023, Club La Costa and Others (C‑821/21, EU:C:2023:672).

26The Court recalled, first, that Article 6(1) of the Rome I Regulation provides that a contract concluded by a consumer with a professional is to be governed by the law of the country where the consumer has his or her habitual residence, subject to fulfilment of the requirements set out in that provision, namely that the professional pursues his or her commercial or professional activities in the country where the consumer has his or her habitual residence, or, by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities (see, to that effect, judgment of 14 September 2023, Club La Costa and Others, C‑821/21, EU:C:2023:672, paragraph 81).

27In addition, Article 6(2) of the Rome I Regulation expressly provides that the parties may, in accordance with Article 3 of that regulation, choose the law applicable to such a contract, provided that such choice does not result in depriving the consumer of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6(1) of that regulation (judgment of 14 September 2023, Club La Costa and Others, C‑821/21, EU:C:2023:672, paragraph 82).

28Finally, it is only if the contract in question does not fulfil the requirements set out in Article 6(1)(a) or (b) of the Rome I Regulation that Article 6(3) of that regulation states that the law applicable to that contract is to be determined in accordance with Articles 3 and 4 of that regulation (judgment of 14 September 2023, Club La Costa and Others, C‑821/21