Maltese Legislation Prohibiting The Enforcement Of Foreign Judgments Is A Relevant Factor For National Courts When Establishing Urgency In Proceedings For European Account Preservation Orders

In a 21 May 2026 decision from Luxembourg, the Court of Justice of the European Union (CJEU) has made clear that Article 56A of Malta’s Gaming Act, which prohibits the enforcement of foreign judgments against gambling operators holding a Maltese licence, is a factor for national courts to take into account in their overall assessment of the circumstances when creditors in other Member States apply for European Account Preservation Orders (EAPOs).

Background

Since the early 2000s, Malta has positioned itself as a hub within the EU for the online gaming industry. It was the first European country to establish a gaming authority. As a result, numerous online gaming operators set themselves up in Malta and obtained gaming licenses there. The strategy brought enormous benefits for the Maltese economy: today, online gaming accounts for around one-eighth of the island’s GDP. Many gaming operators established in Malta also made their online gaming platforms available to consumers in other EU Member States, sometimes without obtaining a licence from the gaming authorities (where they existed) in those other Member States.

In practical terms, a Maltese gaming license provided operators with an established base in the EU, regulatory credibility and access to banking and payment services. This enabled them to offer their services in several Member States, often until those Member States introduced stricter local licensing or blocking measures.

Technically, under EU law, the “country of origin” principle does not apply in the field of online gaming. In the absence of EU harmonization in this field of regulation, Member States enjoy broad discretion to regulate gaming services provided on their territory under their respective national laws. So as other Member States began to regulate online gaming services accessed by consumers in their territories, operators offering their platforms from Malta began to run up against increasing hurdles.

Many consumers and consumer organisations established in other Member States where Maltese platforms were accessible online have brought legal actions to recoup gambling losses against Maltese-established operators who were not licensed to operate in the consumers’ country. The majority of the cases brought before the national courts involve German or Austrian applicants.

In the present case, Mr Green Limited (Mr Green) is a company offering online games of chance through the website www.mrgreen.com in, among other countries, Austria, from its registered office in Malta. It holds a gaming licence issued by the Maltese Gaming Authority under Maltese law. However, it did not have a licence under the Austrian Glücksspielgesetz (Act on Games of Chance).

Between 3 January 2017 and 25 April 2019 a consumer called TQ living in Vienna gambled on the Mr Green website and lost a total of EUR 62,878.

Subsequently, TQ brought a claim against Mr Green before the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters in Vienna). TQ argued that, since Mr Green did not hold a licence under the Austrian Act on Games of Chance, the underlying gambling contract was null and void, which meant that Mr Green had to refund him what he had lost. The Austrian court upheld the claim and, accordingly, ordered Mr Green to refund TQ EUR 62,878 as well as pay interest and costs.

Regulation (EU) No 655/2014 European Account Preservation Order

TQ then lodged an application for a EAPO before the Austrian court, targeting bank accounts held by the company Mr Green in Ireland, Luxembourg, Malta and Sweden, using Regulation (EU) No 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (the Regulation).

TQ argued that the requirement for ‘actual risk’ set out in Article 7 of the Regulation was met insofar as Mr Green had sought to defeat enforcement proceedings by transferring its assets outside the jurisdiction and by terminating its contractual relationship with a payment service provider. TQ argued that Mr Green would take similar steps in other Member States and transfer all its assets to Malta. Should this happen, the recovery of TQ’s claim would be ‘impeded or made substantially more difficult’, within the meaning of that provision, since the recently introduced Article 56A of the Maltese Gaming Act made the enforcement of such claims against a Maltese gaming company virtually impossible in Malta.

The Austrian court dismissed TQ’s application on the grounds that the condition of ‘periculum in mora’ laid down in Article 7(1) of the Regulation had not been met, finding that the measure was not ‘urgent’. It based this decision, in particular, on the fact that although the First Chamber of the Civil Court in Malta had refused enforcement based on Article 56A of the Maltese Gaming Act, it was unclear whether high courts in Malta would rule the same way.

TQ brought an appeal against the Austrian court’s decision. The Austrian appeal court decided to stay the proceedings and refer a question of interpretation of Article 7 of the Regulation to the CJEU for a preliminary ruling.

Interpretation of Article 7 of the EAPO Regulation « periculum in mora »

In its decision handed down on 21 May 2026, the CJEU followed the Advocate General’s October 2025 opinion as to the interpretation of Article 7(1) of the Regulation, concerning the nature of “urgent need”.

The CJEU found that Article 7 does not stipulate two separate requirements – namely the ‘urgent need’ and a ‘real risk’ that, absent such a measure, the subsequent enforcement of the creditor’s claim will be impeded or rendered substantially more difficult. Rather, the CJEU felt that it follows unambiguously from the wording of Article 7 that those concepts constitute two inseparable aspects of a single condition: the creditor must demonstrate that there is an ‘urgent need’ for the measure ‘because’ (that is to say, as a consequence) of a ‘real risk’ to the subsequent enforcement of their claim.

Second, the ‘real risk’ referred to in Article 7(1) of the Regulation must be understood as relating, in essence, to the risk that the debtor may take measures – such as the dissipation, concealment or destruction of assets or their disposal at an undervalue – to evade payment of the debt.

A Law which is Likely to Hinder the Recovery of the Debt in Question May Help to Demonstrate such a ‘Real Risk’

The CJEU noted that the creditor bears the burden of putting forward ‘sufficient evidence’ to the national court to demonstrate that the real risk exists. A ‘fair balance’ must be struck between the interests of the creditor and those of the debtor. The ‘balanced’ approach requires the creditor to produce concrete indications giving rise to a reasonable probability that, if the EAPO were not to be issued, the debtor may have dissipated, concealed or destroyed their assets or disposed of them at an undervalue by the time enforcement measures are taken.

By way of illustration, the fourth paragraph of recital 14 of the Regulation sets out examples such as ‘withdrawals from accounts and instances of expenditure’ by the debtor which do not seem necessary ‘to sustain the normal course of his [or her] business or recurrent family expenses’.

In principle, the mere fact that the debtor holds and transfers assets to a Member State other than that of the court which issued the judgment does not in itself suffice to establish the existence of a ‘real risk’. Evidence such as the debtor’s conduct in respect of the creditor’s claim, or ‘the nature of the debtor’s assets’ and ‘any recent action taken by the debtor with regard to his [or her] assets’ are also relevant. A temporal link may amount to probative evidence.

The CJEU agreed with the Advocate-General’s Opinion on the assessment of the Maltese law. Basing the existence of a risk solely on the existence of the Maltese law was not sufficient by itself to prove the existence of a ‘real risk’. But a national court could certainly take the Maltese legislation into account when assessing whether a ‘real risk’ exists in a specific case.

The CJEU found that the fact that legislation such as Article 56A of the Maltese Gaming Act was in existence, which mandates Maltese courts to deny the enforceability, on its territory, of foreign judgments such as the one upholding the creditor’s claim, could help national courts to find “real risk”.

In other words, the CJEU confirmed that Article 56A of the Maltese Gaming Act is plainly relevant in the ‘overall assessment’ to be undertaken by the national court.

Implications for Maltese Gaming Operators

In this preliminary reference case, it was not for the CJEU to rule on the compatibility of Article 56A of the Maltese Gaming Act with EU law. That question is pending in other litigation. In addition, the European Commission has already made clear to Malta that it believes Article 56A breaches EU law. If the CJEU does not decide the issue in a preliminary reference case, the Commission is likely to put the question to the CJEU directly in due course (if Malta does not repeal Article 56A of its own accord first).

The CJEU’s 21 May 2026 judgment clarifies practical issues around the imposition of European Account Preservation Orders under the Article 7 of the Regulation and will be important for claimants in other Member States who have obtained favourable judgments from their national courts but still need to claw back their gaming losses from Maltese-based gaming operators.

This decision is an interesting development from the Maltese perspective, as it shines the spotlight on an EU law mechanism which can assist aggrieved parties, i.e. European Account Preservation Orders, even though Article 56A of the Maltese Gaming Act, inter alia, attempts to remove their rights to have precautionary warrants issued.

The CJEU’s decision also has to be considered against the evolving body of case law emerging from the Maltese courts on European Account Preservation Orders. For example, the case ISTITUTO PER LE OPERE DI RELIGIONE (IOR, the Vatican Bank) vs Futura Funds SICAV plc, decided on 10 March 2026, currently under appeal, concerns the first EAPO issued in Malta for a very large amount that has actually reached the stage of cross‑border execution.

The Supremacy of EU Law in Action

More generally, the ongoing saga around Article 56A of the Maltese Gaming Act is a textbook example of national law potentially conflicting with EU law. The principle of the primacy (supremacy) of EU law holds that EU law forms a new legal order that national authorities cannot override with later national measures. Primacy means that when a valid EU rule and a national rule conflict, national courts must disapply the national rule to the extent of the conflict, regardless of whether the national rule is earlier or later in time. National courts are required to set aside any incompatible national provision and give full effect to EU law, even if they lack power under domestic rules to strike down statutes; they simply do not apply the conflicting rule in the case before them.

For the moment, though, until the CJEU definitively declares that Article 56A of the Maltese Gaming Act is in breach of EU law, the Maltese legislator and Maltese courts are quietly biding their time.

This insight has been prepared in collaboration with Gecic Law, one of the foremost innovative full-service law firms in Europe.