Gaming in Austria: overview

A Q&A guide to gaming in Austria.

The Q&A provides a high level overview of the legislative framework of gambling regulation; the regulatory authorities;gambling products; land-based gambling; regulation and licensing; online gambling;B2B and B2C operations; mobile gaming and interactive gambling; social gaming; gambling debts; tax; advertising and developments and reform.

To compare answers across multiple jurisdictions, vist the Gaming Country Q&A Tool.

This Q&A is part of the Gaming Global Guide. The gaming global guide serves as a starting point for understanding the regulatory framework of land-based and online gaming.

Walter Schwartz, Schwartz Huber-Medek und Partner
Contents

Legislative framework of gambling regulation

Overview

1. What legislation applies to gambling?

Structure

Article 10(1)4 of the Federal Constitutional Act of Austria (Bundes-Verfassungsgesetz) (B-VG) allows the federal legislator to establish monopolies. On this constitutional basis, a national gambling monopoly was introduced by section 3 of the Austrian Gambling Act (Glücksspielgesetz) (GSpG). Gambling is regulated by the GSpG which, depending on the gambling product, splits the jurisdiction between the federal state and the nine Austrian provinces, for example:

  • The lottery market is monopolised (one lottery licence was issued to Österreichische Lotterien Gesellschaft m.b.H).

  • The casino market is organised as an oligopoly (there are 15 casino licences available).

  • Slot machines, in principle, fall within the gambling monopoly. However, provincial games with slot machines are excepted and not part of the gambling monopoly (section 4(2), GSpG) (see Question 3, Provincial games with slot machines).

  • The sports betting market is regulated by the nine provinces and is not part of the gambling monopoly (limited to a combination of up to ten individual bets).

Objectives

The Austrian government subjects gambling operators to certain requirements, restrictions and guidelines. Their objectives are, among others:

  • Ensuring that the gaming operators' operations, corporate and shareholder structures do not violate security standards and ensure proper gambling.

  • Reducing the level of risk that gamers are exposed to, as studies show that gaming can become a psychologically addictive and harmful behaviour in some people.

  • Reducing the risk of gaming operations being used for criminal purposes (for example, laundering or fraud).

  • Ensuring certain cash flows from gaming taxation to the government.

 

Definitions of gambling

2. What is the legal definition of gambling in your jurisdiction and what falls within this definition?

General definition

The Austrian gambling monopoly covers all "games where the decision on the result exclusively or predominantly depends on chance" (section 1(1), Austrian Gambling Act (GSpG)). This means that in a game of chance, aleatory moments (that is, a moment depending on chance) need not be exclusive and the outcome of the game can also be influenced by the participants to a certain extent. This kind of game will only become a "game of chance" if the outcome of the game is determined by an absolute majority of aleatory moments, and will be subject to the gambling monopoly.

Games of skill (that is, games where skill rather than chance predominates) are not subject to the gambling monopoly. Typical games of skill are chess, tarot, bridge and the popular card game "Schnapsen". Whether a game of chance is subject to the gambling monopoly or is a game of skill is determined on a case-by-case basis.

Gambling monopoly

Generally, the Austrian gambling monopoly includes all games of chance (sections 1 and 3, GSpG). The federal government have only assigned the organisation of lottery games (Bestimmte Lotterien) and of casino games (Spielbanken) to private individuals by granting licences (sections 14 and 21, GSpG). The GSpG also provides for the assignment of the organisation of "other lottery games" (sonstige Ausspielungen) to private individuals. The GSpG lists several games as games of chance (section 1(2)):

  • Roulette.

  • Optical roulette.

  • Poker.

  • Blackjack.

  • Two aces.

  • Bingo.

  • Keno.

  • Baccarat.

  • Baccarat chemin de fer and their different variations.

The Federal Minister of Finance can list further games as games of chance via an ordinance (section 1(2), GSpG).

Games of chance operated, organised, offered or commercially made available by an entrepreneur where gamblers or others must place a stake to participate in the game, with the entrepreneur's or someone else's promise of possible winnings (Ausspielung), can only be organised on the basis of a national licence. Otherwise they are illegal games of chance (verbotene Ausspielungen).

Online gambling

The GSpG also applies to online gambling services. Therefore, online games are subject to the Austrian gambling monopoly. The GSpG defines "electronic lottery" games as games of chance (section 12a(1), GSpG). In electronic lottery games, the contract is concluded via electronic media (such as telephone, fax, internet and so on). The decision on the result must be made centrally (zentralseitig) and must be provided via electronic media.

The special characteristic of electronic lottery games is that the legislator does not define these games of chance regarding their contents. Instead, they are defined only by the type of contract of chance concluded.

Therefore, any game of chance constitutes an electronic lottery if "the player participates directly in the game via electronic media and the decision on the result of the game is made by a central system and provided via electronic media".

These legal conditions are regularly fulfilled by games of chance offered online. They can only be organised by the licensee of the single lottery licence. As a result, there is a monopoly on online games of chance as part of the lottery monopoly.

Land-based gambling

Land-based gambling is not defined in the GSpG separately. Land-based gambling includes every game of chance that is tied to a location and is accessible to the public.

 

Regulatory authorities

3. What are the regulatory or governmental bodies that are responsible for supervising gambling?

Casino and lottery games

The Federal Minister of Finance is responsible for enforcing the Austrian Gambling Act (GSpG). At the same time he is the relevant regulatory authority and grants the licences for lotteries and casinos games. This allocation of competence is based on the fact that the Austrian gambling monopoly initially pursued fiscal policy objectives. Practice shows that the Federal Ministry of Finance is striving to preserve the gaming monopoly, and tends to allow change only if it involves a tax revenue increase. The lottery market is organised as a monopoly, with only one licence available. In contrast, the casino market is organised as an oligopoly, with 15 casino licences being available. Both the lottery licence and the casino licences are limited to a maximum of 15 years (sections 14(4) 1 and 21(7) 1,  GSpG).

Provincial games with slot machines

Provincial games with slot machines are salons with ten to 50 slot machines or other premises with a maximum of three slot machines, which are accessible to the public (section 2(3), GSpG). They are accordingly not part of the gambling monopoly (section 4(2), GSpG). The biggest difference between slot machines in casinos and provincial games with slot machines are the regulation of stakes and winning earnings. Stakes for provincial games with slot machines in salons are limited to EUR10 and the winnings are limited to EUR10,000 (section 5(5), lit a no. 1 and 2, GSpG). In stand-alone installations of slot machines (for example in restaurants or petrol stations) stakes are limited to EUR1 and the winnings are limited to EUR1,000 (section 5(5), lit b no. 1 and 2, GSpG). The provincial governments grant licences for provincial games with slot machines and are at the same time the regulatory authorities. A licence can only be granted for a maximum of 15 years and, per federal state, only three licences can be granted (section 5(1)8, GSpG). The provincial governments can either allow or forbid provincial games with slot machines. Currently only Burgenland, Lower Austria, Upper Austria, Carinthia and Styria have enacted provincial laws that allow provincial games with slot machines.

 

Gambling products

4. What gambling products have been specifically identified by legislation, and what different requirements have been established for each?

Lottery games

Lottery games are games of chance where the gain is calculated according to the totalisator principle (that is, the amount of the actually distributed gains is directly proportional to the stakes actually made by the participants). The organiser of games of chance that work according to this principle virtually incurs no financial risk.

The following are expressly referred to as lottery games (sections 6 to 12b, Austrian Gambling Act (GSpG)):

  • Lotto.

  • Pools.

  • Bonus game.

  • Instant lotteries.

  • Class lottery.

  • Number lotto.

  • Lotto with running numbers.

  • Electronic lotteries.

  • Bingo.

  • Keno.

Only the organisation of these lottery games can be assigned to private individuals under a licence.

A lottery licence includes the right to operate electronic lotteries (equivalent to online gambling). Therefore, they can only be organised by the licensee of the lottery licence. Online gambling can take place in two forms:

  • Directly on a homepage.

  • Over centrally connected terminals (Video-Lottery-Terminals).

Lottery games without pecuniary reward

Sections 32 to 49 GSpG provide specific regulations for "lottery games without pecuniary reward" (Lotterien ohne Erwerbszweck). These lottery games without pecuniary reward are:

  • Other number lotteries (sonstige Nummernlotterien). These are defined as lottery games in which the tickets are marked with consecutive numbers and in which publicly drawn tickets win (comparable with a raffle in the UK).

  • Tombola games (Tomobolaspiele). These are lottery games in which each tombola ticket has three different sequences of numbers, each consisting of five different numbers from the sequence of number from 1 to 90. The tombola tickets whose combinations of numbers are winning combinations under the rules of the game win (the numbers of these combinations are determined in a public draw).

  • Originally charity lottery games at fairs (Glückshäfen). These are lottery games in which the gamblers find out if their tickets are winning tickets or if they are blanks through drawing or through contributing to the drawing process.

  • Hoax lottery games (Juxausspielungen). These are lottery games in which each ticket is a winning ticket, the gamblers draw lots to find out what they win.

Casino games

Casino games are games of chance that are only allowed in casinos (Spielbanken) (section 21, GSpG). A casino is a gaming house where the public can gamble. The GSpG does not provide an exhaustive list of casino games.

Poker

Poker has a special status and must be considered separately. It was long disputed whether poker is a game of chance or a game of skill. Poker was restated in section 1(2) of the GSpG with the Tax Amendment 2014, meaning, regardless of whether poker depends predominantly on chance or on skill, it is deemed a game of chance that can only be organised on the basis of a national licence (Decision of the Constitutional Court 27 June 2013). There are still poker providers that are allowed to offer poker outside casinos until 1 January 2020, on the basis of trade law licences (which are no longer issued) (section 60(36), GSpG).

 

Land-based gambling

Regulation/licensing

5. What is the licensing regime (if any) for land-based gambling?

There is no special definition in Austria for land-based gambling. Land-based gambling includes every game of chance, which is tied to a location and is accessible to the public.

Lottery games

Only one licence can be granted (that is, a licence that allows the organisation of all lottery games referred to in sections 6 through 12b of the Austrian Gambling Act (GSpG)) (section 14(6), GSpG). The licence:

  • Must be limited in time.

  • Can only be granted to a corporation if the licensee is a stock corporation that has registered offices in Austria or the European Economic Area (EEA).

  • Can only be granted if there is a paid up share capital of at least EUR109 million.

  • Cannot be granted if there is dominant influence from any shareholder whose regulatory reliability is not guaranteed.

Managers must be appointed who have the qualities and experience necessary for a proper operation of the business due to their previous training and who are not subject to any reason for exclusion (for example, criminal record). Finally, due to the circumstances (in particular experience, skills and his own funds), the licensee must justify the expectation that he will run the licence in the best way (section 14(2), GSpG). The licensee must also provide a security of at least 10% of the share capital, for the satisfaction of claims that may be asserted by gamblers and as a guarantee for governmental gaming taxes, which must be deposited with the federal Minister of Finance (section 14(4)(2), GSpG).

In October 2011, the only existing licence for lottery games was granted for 15 years to Österreichische Lotterien Gesellschaft m.b.H. Further licences for lottery games cannot be granted (section 14(6), GSpG).

Lottery games without pecuniary reward

The right to carry out "lottery games without pecuniary reward" can be transferred to other persons through a permit by the federal state of Austria (section 36, GSpG). Such a permit can only be given to legal entities based in Austria for the performance of:

  • Tombola games.

  • Originally charity lottery games at fairs.

  • Hoax lottery games with a gambling capital of up to EUR15,000 where the event does not serve to gain earnings.

This permit can also be given to legal entities based in Austria where the event serves specific charitable, churchly or non-profit purposes within the borders of Austria and deserve to be promoted because of their actions serving the general public for the performance of tombola games, originally charity lottery games at fairs and hoax lottery games with a higher gambling capital, as well as for a number of other lotteries.

Casino games

Only 15 licences for casino games can be granted (section 21(5), GSpG). The licensee receives the right to operate a casino at a specific location, ensuring an even geographical distribution of casinos in Austria.

Licences are only granted if the licensee:

  • Is a stock corporation with registered offices in Austria or the EEA.

  • Has no shareholder whose regulatory reliability is not guaranteed who has a dominant influence.

  • Has a paid up share capital of at least EUR22 million.

Additionally, managers must be appointed who have the qualities and experience necessary for a proper operation of the business due to their previous training and who are not subject to any reason for exclusion (for example, criminal record). Finally, due to the circumstances (in particular experience, skills and his own funds), the licensee must justify the expectation that he will run the licence in the best way (section 21(2), GSpG). The licensee must also provide a security of at least 10% of the share capital, for the satisfaction of claims that may be asserted by gamblers and as a guarantee for governmental gaming taxes, which must be deposited with the Federal Minister of Finance (section 21(7)(2), GSpG).

12 casino licences were granted to Casinos Austria AG for a period of 15 years, divided into a:

  • City package (Bregenz, Graz, Innsbruck, Linz, Salzburg, Vienna) (until 2027).

  • Rural area package (Baden, Bad Gastein, Kitzbühel, Kleinwalsertal, Seefeld, Velden) (until 2028).

These casinos can offer French roulette, baccarat, baccarat chemin de fer, blackjack, pay-outs by gaming machines, American roulette, punto banco, wheel of fortune, poker, red dog, and sic bo.

The three additional casino licences, which were created by an amendment of the GSpG in 2010, were issued in 2014 (that is, Vienna west, Vienna north, Lower Austria). The Federal Ministry of Finance granted two licences to Admiral Casinos & Entertainment AG and one licence to Schweizer Stadtcasino Baden AG. The rejected applicants appealed against the licensing and the Administrative Court annulled the licences on the basis of formal errors in the following year, in particular because of the lack of transparency. Subsequently the Federal Ministry of Finance appealed against the decision to the Higher Administrative Court. In July 2016, the Higher Administrative Court dismissed the appellant's application and the three licences must be issued again in a new procurement procedure.

Provincial games with slot machines

The licences for provincial games with slot machines are granted by the nine provincial governments. Each state can decide whether it allows or prohibits slot machines. Slot machines can be set up as stand-alone installations or in machine parlours.

Until recently provincial laws, which provide for the granting of the licences, have been issued in Burgenland, Lower Austria, Upper Austria, Carinthia and Styria. It appears that the federal provinces of Salzburg, Tyrol and Vorarlberg will continue to prohibit slot machines. Since 1 January 2015 provincial games with slot machines are also prohibited in Vienna. Some of the licences were dismissed by the Higher Administrative Court and therefore the process must now be repeated.

Even where provincial games with slot machines are permitted, stringent regulations apply:

  • Limits as to stakes and winnings:

    • salons/single machines: maximum stakes per game: EUR10/EUR1;

    • maximum winnings per game: EUR10,000/EUR1,000.

  • Minimum playing period (salons/single machines: one second/two seconds).

  • Cool-down phase (salons/single machines: after two hours of consecutive gaming, the machine shuts down/only three hours of gaming per player per day).

  • Stringent player protection.

Minimum requirements for applicants are:

  • There must be no dominant influence from any shareholder whose regulatory reliability is not guaranteed.

  • Paid up share capital of at least EUR8,000 per slot machine.

A licence for provincial games with slot machines requires a methodology and a corporate structure that allows proper regulatory supervision as well as an engineering evaluation that guarantees the player's protection and distribution of profits. Additionally, managers must be appointed who have the qualities and experience necessary for a proper operation of the business due to their previous training and who are not subject to any reason for exclusion (for example, criminal record). A licence can only be granted for a maximum of 15 years.

In addition to provincial games with slot machines, slot machines may be also used in the 15 casinos without applicable limits as to stakes or winnings. These slot machines currently generate the largest turnover in casinos.

 
6. What are the limitations or requirements imposed on land-based gambling operators?

Only adults (aged 18 or above) who have provided adequate proof of identity (official photo ID) and are not subject to any form of entry ban are permitted to enter and gamble in a casino. It is forbidden for visitors to use technical equipment to gain an unlawful advantage. The licensee monitors the frequency of visits to casinos and gambling intensity. If individuals are identified as potentially at risk of threat to their minimum subsistence income, the casino must carry out credit checks. If this is not possible, or if necessary, specially trained employers of the casino will have a counselling interview with the person concerned. If the individual continues its gambling habits or refuses to provide information, the licensee must ban the person from visiting the casino (either for an unlimited period or for a certain time). In cases of breach, the casino is liable for an individuals' threatened minimum subsistence income and must compensate the individual (limited to the minimum living wage).

Additionally, the casino must monitor and report to the Austrian Financial Intelligence Unit (Österreichische Geldwäschemeldestelle) any suspicious incidents, particularly regarding money laundering and terrorist financing (see Question 8, Anti-money laundering).

 

Online gambling

Regulation/licensing

7. What is the licensing regime (if any) for online gambling?

The licence for lottery games includes the right to offer "electronic lotteries" (this includes any gambling product online) (section 14, Austrian Gambling Act). There is only one licence available and the only licence holder in Austria is Österreichische Lotterien Gesellschaft m.b.H.

 
8. What are the limitations or requirements imposed on online gambling operators?

Limitations and requirements

Online gambling can take place in two forms:

  • Directly on the homepage of the sole concessionaire (www.win2day.at).

  • Over centrally connected terminals (Video-Lottery-Terminals)(VLTs).

The limitations or requirements imposed on online gambling operators depend on the way online gambling is offered.

If online gambling is directly offered on the homepage, the Austrian Gambling Act (GSpG) does not provide concrete regulation for player protection itself. However the player protection is ensured by the concession granting procedure. In this process the bidder must, among other requirements, ensure that they provide systems and facilities to prevent gambling addiction. As a result, the bidder with the best concept will receive the concession (including a system for player protection).

If online gambling is offered over VLTs, legislation is specifically intended to protect players. Section 5(3) to (6) of the GSpG (legal regulation for provincial games) denies minors access to games of chance. Only adults who have provided adequate proof of identity (official photo ID) and are not subject to any form of entry ban can be permitted to enter and gamble in a casino. It is forbidden for visitors to use technical equipment to gain an unlawful advantage. The licensee monitors the frequency of visits to VLT-casinos and checks the gambling intensity. If individuals are identified as potentially at risk of threat to their minimum subsistence income, the VLT-casino must carry out credit checks. If this is not possible, or if necessary, specially trained employers of the casino will have a counselling interview with the person concerned. If the individual continues its gambling habits or refuses to provide information, the licensee must ban the person from visiting the casino (either for an unlimited period or for a certain time). In cases of breach, the VLT-casino is liable for an individual's threatened minimum subsistence income and must compensate the individual (limited to the minimum living wage).

Anti-money laundering legislation

The licence holder or the state aid monitoring authority must monitor and report to the Austrian Financial Intelligence Unit (Österreichische Geldwäschemeldestelle) any suspicious incidents, particularly with regard to money laundering and terrorist financing (sections 25(6) and (8), GSpG).

If the licence holder suspects that a player does not trade for his own account, the licensee must contact the player to declare the identity of his trustor (section 25(7), GSpG). The state aid monitoring authority must provide current data relating to methods of money laundering and terrorist funding for the recognition of suspicious transactions (section 25a, GSpG).

Personal requirements

A managing director is prohibited to operate a business if he has a criminal record and has for example been imprisoned for more than three years or organised undeclared work (section 13, Industrial Code (Gewerbeordnung)).

 

B2B and B2C

9. Is there a distinction between the law applicable between B2B operations and B2C operations in online gambling?

The service provider's responsibility depends on the services it provides to the actual online gambling provider. The following are subject to administrative penalties:

  • Operating, organising, offering or commercially making available illegal games of chance (fines of up to EUR60,000) (section 52(1)1, Austrian Gambling Law (GSpG)).

  • Supporting illegal games of chance by soliciting participation in the game and/or commercially placing internet links (fines of up to EUR22,000) (section 52(1)6, GSpG).

  • Advertising or facilitating the advertisement of illegal games of chance (fines of up to EUR22,000) (section 52(1)9, GSpG).

Penalties for not having licences and approvals for B2C or B2B

A person operating games of chance possibly commits an offence against the GSpG and such violations are punishable with fines of up to EUR60,000 (section 52(1)1, GSpG). Objects that are used for intervening in the gaming monopoly may be subject to forfeiture (section 53, GSpG). The authorities, usually the district of administrative authority (Bezirksverwaltungsbehörde), can order a confiscation of intervention objects and facilities on suspicion that the objects that are used to intervene in the gaming monopoly of the state are also used to commit continued offences against the bans provided in section 52(1) of the GSpG (section 54, GSpG).

The authorities can order the complete or partial shut down of a business, on both (section 56a, GSpG):

  • Justified suspicion that games of chance are being operated or executed as a business activity, thereby violating the GSpG.

  • Justified assumption that these activities will be continued.

This shut down does not require compliance with a previous procedure, but a request to cease the games of chance must have been given. According to this provision, not only the internet provider is punishable by an administrative penalty if games of chance abroad are accessible via his web server (which is always the case unless the supply is completely stopped), but also the developer of web pages offering a link to an operator of games of chance abroad.

Intentional offences against the ban on participating in illegal online gambling will be fined up to EUR7,500 and negligent offences will be fined up to EUR1,500. Austrians abroad can participate in games of chance not executed in Austria and can visit a casino. The ban on participating in games of chance not executed in Austria also applies to online games of chance (for example, online casinos). Participating in online games of chance not executed in Austria is punishable if the stake is made in Austria.

Section 168 of the Criminal Code (Strafgesetzbuch) defines the legal element of a crime. Whoever operates a game where gain and loss exclusively or predominantly depend on chance or which is expressly illegal, and whoever supports meetings for the purpose of operating such a game, in order to make financial profits for himself or others will be punished with a term of imprisonment of up to six months or fined with up to 360 daily rates unless the game is executed only for non-profit purposes and amusement and if small amounts of money (under EUR10) are involved. Whoever takes part in such games in order to make profits is also punishable.

Section 52(3) of the GSpG regulates the precedence of the administrative provision over section 168 of the Criminal Code. In 2015, the Higher Administrative Court had to decide whether this regulation is compatible with the constitution, especially on the grounds of Article 18 of the Federal Constitutional Act of Austria, that is, the principle of legal certainty (Bestimmtheitsgebot). The Higher Administrative Court concluded, that section 52(3) of the GSpG does not imply an infringement of the principle of legal certainty, because it is clear and unambiguously worded.

 

Technical measures

10. What technical measures are in place (if any) to protect consumers from unlicensed operators, such as ISP blocking and payment blocking?

There are no technical measures in Austria to protect consumers from unlicensed operators. However, in 2013, the European Parliament adopted a resolution on online gambling. In this resolution the European Parliament clarified that it is necessary to take action against illegal gambling operators, including, among others:

  • Payment blocking.

  • Blacklists.

  • Whitelists.

To date, these measures have not been implemented in Austria.

 

Mobile gambling and interactive gambling

11. What differences (if any) are there between the regulation of mobile gambling and interactive gambling on television?

Electronic lottery games are defined as games of chance (section 12a(1), Austrian Gambling Act (GSpG)). In electronic lottery games, the gaming contract is concluded via electronic media (such as telephone, fax, internet, among others). Therefore, it does not matter which game of chance is offered. The key factor is whether the gaming contract is concluded via electronic media.

Mobile gambling and interactive gambling on television are therefore electronic lottery games (section 12a, GSpG) that can only be provided under a licence for providing lottery games under section 14 of the GSpG.

 

Social gaming

12. How is social gaming regulated in your jurisdiction?

Games of chance that are not organised as pay-outs under section 4(1) of the Austrian Gambling Act (GSpG) can legally be played without a licence if they are played purely for entertainment and for minimal sums of money. This provision covers games mostly organised within families or friends. To be classified as a pay-out, a game must have players or other parties who place a stake on the one side and a business owner, other players or parties who hold out the prospect of a pecuniary benefit on the other side. If the players do not have to place a stake and they can only win credits to take part in additional games, it cannot be qualified as a pay-out. In Austria the Higher Administrative Court has decided that if players can only win credits to take part in additional games, a game cannot be considered as offering pecuniary benefits (VwGH 10.11.1980, 571/80). Beyond that, they must be played as a pastime and for minimal sums of money.

As the GSpG does not make any distinction between money and currency of monetary value, in online games of chance where virtual currency is used and can be won, it must not be possible to exchange game credits or virtual money for other prizes. Otherwise it will be considered an illegal game of chance, only allowed for the licensee of the lottery concession.

Tournaments of card games are allowed if either:

  • Not more than EUR10 must be paid to participate and not more than EUR1,000 can be won per tournament and per person.

  • Where more than 100 players participate, the tournament is held not more than once per quarter in a tavern or restaurant (Wirtshauspoker).

 

Gambling debts

13. Are gambling debts enforceable in your jurisdiction?

For permitted games, the agreed prices, which were not actually paid, are imperfect obligations and cannot be enforced by legal means. If the stake was actually paid, the debt can be enforced before civil courts (section 1271, ABGB (Allgemeines Bürgerliches Gesetzbuch)).

However, section 1274 of the ABGB regulates the entitlements to profits of state lotteries (Staatslotterien). The term "state lottery" is broad and covers all federally organised gambling. Even bookmaker betting for sporting events, due to state regulatory approval, falls within the definition state lottery (OGH 30.10.1998, 1 Ob 107/98m). Contrary to section 1271 ABGB, even gambling debts that have not been paid can be enforced under section 1274 of the ABGB.

Prohibited games of chance are invalid according to section 879 of the ABGB and cannot even be qualified as imperfect obligations. As a result, paid gambling debts can be recovered (section 1431, ABGB).

 

Tax

14. What are the applicable tax regimes for land-based and online gambling?

The basis of assessment for gambling taxation is the annual gross gaming income, which consists of stakes wagered less the pay-outs for winnings during a calendar year.

Lottery games are taxed at 18.5% up to 27.5% (section 17(3), Austrian Gambling Act (GSpG)). Online gambling directly on a homepage, which enables participation from within the country, is taxed at 40% of the gross gaming income (sections 57(2) and 17(3), GSpG). Online gambling over centrally connected terminals (VLTs) is taxed at 10% on the gross gaming income minus VAT (section 57(4), GSpG).

The gambling tax rate for casinos is 30% on the gross gaming income of every casino (for example, for slot machines in casinos, 30% from the gross gaming income from slot machines minus VAT) (section 28(3), GSpG)).

If subject to a concession, the gambling tax for slot machines is 10% on the gross gaming income minus VAT (section 57(4), GSpG).

 

Advertising

15. To what extent is the advertising of gambling permitted in your jurisdiction? To the extent that advertising is permitted, how is it regulated?

Games of chance organised for a fee may be advertised, provided that these are games of chance for which a licence under the Austrian Gambling Act (GSpG) has been issued. When advertising these games, a responsible standard must be observed (section 56(1), GSpG).

Games of chance that have not been licensed under the GSpG can be marketed, provided that these are casino games from a casino that is located and appropriately licensed in a member state of the EEA. The Federal Minister of Finance may issue a permit for marketing such casino games (section 56(2), GSpG), provided that the statutory provisions for the protection of players that are applicable in that member state of the EEA at least correspond to the relevant Austrian provisions.

Marketing other games of chance is inadmissible and constitutes a criminal offence. Whoever advertises or facilitates the advertisement of illegal games of chance is subject to prosecution and fines of up to EUR22,000 (section 52(1)9, GSpG).

 

Developments and reform

Legal development

16. Has the legal status of land-based and online gambling changed significantly in recent years, and if so how?

The legal status of online gambling has not changed significantly in recent years.

 

Reform

17. What, if any, are the likely short-term and long-term developments/legislative amendments concerning gambling in your jurisdiction? Are there any proposals for reform?

In March 2016, the Supreme Court requested the Constitutional Court to repeal several legal provisions of the Austrian Gambling Act (GSpG) (or, alternatively, to repeal the whole GSpG), due to the unconstitutionality of various terms (OGH 30.03.2016, 4 Ob 31/16m).

The main reason for the reference to the court was the excessive advertising of the Austrian gambling monopolists. Due to this excessive advertising the Supreme Court thought that the gambling monopoly is not justified under the law of the European Union. The ECJ assumes that a national gambling monopoly constitutes a restriction of the freedom to provide services. However, such a monopoly can be justified for reasons relating to the public interest (for example, a high level of consumer protection). Furthermore the ECJ affirms that advertising must remain measured and strictly limited to what is necessary (ECJ 15/09/2011, C-347/09; ECJ 30/04/2014, C 390/12).

The Supreme Court argued in its reference to the Constitutional Court, that due to the excessive advertising, player protection cannot be considered as the justification under EU law.

The Constitutional Court decided that the terms of the GSpG are legally compliant with the EU law (VfGH 15.10.2016, E 945/2016). In justifying its ruling the Court said that the monopoly and associated restrictions, even the advertising measures, pursue the legitimate objectives of player protection (for example, gambling addiction). For excessive advertising, the Constitutional Court stated that the negative effects of the advertising must be considered taking into account all market players and not only advertising activities from individual providers. Considering all of the above, the Constitutional Court concluded that there is no excessive advertising.

Sports betting

The Austrian law distinguishes between gambling and sport bets. Sport bets are not part of the gambling monopoly. Only sports toto is part of the gambling monoploy (that is, a collective bet, which combines more than ten single bets). There are currently no reforms planned for sports betting.

Licence and requirements

There are currently no reforms planned.

Tax

There are currently no reforms planned.

Betting (other than sports betting)

Currently, the organisation of society bets is only regulated in Vorarlberg and in Styria because the relevant acts of these provinces do not distinguish between sports bets and society bets. There are currently no reforms planned.

 

Online resources

Austrian Gambling Act

W www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10004611

Description. An English version of the law is not available. For further information concerning translation please contact services@parlament.gv.at.



Contributor profiles

Dr Walter Schwartz, Founding partner

Schwartz Huber-Medek und Partner Rechtsanwälte og

T +43 1 513 5005-20
F +43 1 513 5005-50
E w.schwartz@s-hm.at
W www.s-hm.at

Professional qualifications. Austria, Attorney; Lecturer at the Law School, University of Vienna

Areas of practice. Public law; gambling law; sports betting law; procurement law; administrative law; constitutional law; pharmacy law; public private partnership; telecommunication law; aid law; European law.

Professional memberships/associations

  • Member, Vienna Bar Association.
  • Member, Vienna Juridical Society.
  • Member, Austrian Society of Science of Administration.
  • Member, Austrian Law Congress.
  • Member, Austrian Society of Doctrine of Legislation.
  • Lecturer, Academy for Law and Taxes.
  • Lecturer, Academy of Attorneys at law.
  • Lecturer, Juridical Society of Lower Austria.
  • Lecturer, Academy for Environmental Management Austria.
  • Lecturer, Austrian Association for Gas and Water Industries.
  • Lecturer, Vienna Juridical Society.
  • Lecturer, Vienna Chamber of Commerce.

Languages. German, English


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