Is it possible to return money lost in an unlicensed online casino — explained by the court
A contract for participation in online gambling games concluded with an operator who operated without the legally required license is not automatically invalid. At the same time, players can protect their rights by other means — for example, if they were misled or if the operator caused them harm through their actions.
This conclusion was reached by the Supreme Court of the Netherlands in a preliminary decision, responding to questions from two courts that were considering claims from players against online gambling operators who, until October 2021, did not have a license to operate in the Netherlands.
Circumstances of the case
The plaintiffs participated in online gambling games for several years and lost significant amounts — about 139 thousand US dollars and over 135 thousand euros.
After that, they went to court demanding to declare the gambling participation contracts null or invalid, as well as to recover the lost amounts from the operators. In addition, they referred to rules on unjust enrichment, non-contractual damage, unfair commercial practices, and contracts concluded under error or deception.
The courts of first instance referred preliminary questions to the Supreme Court. In particular, they asked to clarify whether the absence of a license automatically renders the contract null, whether players can demand the return of lost funds as unjust enrichment, and whether the fact that some operators only provide a technical platform for games between users affects the legal assessment.
Legal position
The Supreme Court noted that Dutch law indeed prohibits organizing gambling without a license. Administrative and criminal liability is provided for violating this prohibition.
At the same time, the law does not contain provisions establishing a civil law consequence in the form of automatic invalidity of contracts concluded with unlicensed operators. Therefore, the question of their validity must be resolved according to general civil law norms.
The court emphasized that neither the text of the law nor its history indicates the legislator’s intention to deprive such contracts of legal force. Moreover, the modern approach of Dutch law is that the mere violation of an administrative prohibition does not mean automatic invalidity of a civil law contract.
The court also noted that the state policy in the field of gambling is aimed not at a complete ban, but at conducting such activities within a licensing system that ensures control and protection of players. Therefore, the absence of a license in an operator itself does not make the contract contrary to public order or good morals.
What this means for players
The court concluded that contracts concluded with operators without a license remain valid. Accordingly, the mere fact of the absence of a license does not provide grounds to demand the return of all lost funds as unjust enrichment.
At the same time, the court separately emphasized that players are not deprived of the right to go to court with other claims. In particular, they can request the contract to be declared invalid due to defects in consent if they were misled, or file claims for compensation for damages under tort law.
In addition, the Supreme Court noted that the nature of the online platform’s operation — whether it plays against the house or only provides the possibility for users to play among themselves — does not affect the assessment of the contract’s validity.
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