Advocate General (AG) Siewert Lindenbergh has advised that online gambling with unlicensed operators isn’t automatically invalid.
Advocate General (AG) Siewert Lindenbergh has advised the Dutch Supreme Court that historical online gambling contracts with operators should not be treated as invalid solely because no Dutch licence scheme was in place.
Lindenbergh’s opinion responds to preliminary questions from the district courts of Amsterdam and Noord-Holland.
Both are handling test cases brought by players seeking reimbursement of losses incurred before the Netherlands formally regulated its online gambling sector.
If followed, the advice would make it significantly harder for players to reclaim losses on the basis of undue payment alone.
Under the Dutch Betting and Gaming Act (Wet op de kansspelen, or Wok), offering games of chance without a licence is prohibited.
However, until 1 April 2021, there was no licensing framework for online gambling, and Dutch-facing operators could not obtain a local permit.
The Remote Gambling Act entered into force on that date, with licences only available from 1 October 2021.
Despite the absence of regulation, Dutch residents had been gambling online for many years, prompting a wave of civil claims arguing that pre-Koa contracts are void and that net losses must be refunded.
Several courts, including Overijssel and others, have previously accepted that reasoning and ordered operators to repay substantial sums, while other courts have rejected such claims, creating divergent case law.
In his analysis, Lindenbergh concludes that the Wok’s text, legislative history and structure do not show any legislative intent to prohibit the conclusion of gambling contracts themselves, only the act of offering games without a licence.
Enforcement, he notes, was deliberately channelled through administrative and criminal law rather than civil nullity.
Public order and morality do not, in his view, require that such contracts be deemed void.
Decision rests with Supreme Court
One salient aspect of the opinion is the emphasis on alternative, more tailored civil remedies, such as rescission for mistake or claims in tort.
This can address individual circumstances without rendering all unlicensed gambling contracts automatically invalid.
The AG also highlights that large-scale online gambling has existed for decades while Dutch lawmakers worked on a licensing regime.
During that period, the possibility of contractual invalidity was never raised in policy or enforcement guidance.
Regulators repeatedly stressed the personal responsibility of players, which, in Lindenbergh’s view, weighs against recognising a general right to reimbursement of losses.
His opinion is non-binding; the onus now shifts to the Supreme Court, which is expected to bring uniformity to a growing number of individual and collective claims stayed pending its decision.
Elsewhere in Europe, high courts have moved in the opposite direction on several occasions.
In Germany, the Federal Court of Justice ruled in July 2024 that sports betting offered without a German licence violates section 134 of the Civil Code, rendering contracts null and allowing players to claim restitution.
An AG at the Court of Justice of the EU has likewise treated unlicensed German contracts as void, supporting repayment of losses.
In Austria, the Supreme Court has held that contracts with foreign operators lacking a national licence are invalid, enabling players to seek refunds.
It later ordered a customer to return winnings to an unlicensed operator on the basis that both sides had breached Austrian gambling law.
These rulings treat illegality as directly affecting contract validity, in sharp contrast to Lindenbergh’s Dutch opinion.