The recent Letter of Formal Notice issued by the European Commission concerning Article 56A of Malta’s Gaming Act (Chapter 583 of the Laws of Malta), previously known as ‘Bill 55’, has prompted renewed attention around Malta’s legislative framework for online gaming. While some media narratives have suggested that this provision seeks to insulate Maltese-licensed gaming operators from cross-border enforcement action, the actual legal position is both more nuanced and more consistent with existing European Union (“EU”) law than these criticisms suggest.
What Article 56A Really Says
Far from constituting a “shield” or a legal barrier to enforcement, Article 56A does not introduce any new or independent grounds for refusing the recognition or enforcement of foreign judgments. Instead, it codifies Malta’s long-established public policy regarding the regulation of online gaming, a policy deeply rooted in the principles of EU law and aligned with the order public exception as recognised under Regulation (EU) 1215/2012 (Brussels I Recast Regulation).
Malta’s regulated gaming environment emphasises player protection, responsible gambling, and financial transparency. Article 56A ensures that this public policy is duly considered in enforcement proceedings involving Maltese-licensed operators, especially where such proceedings might undermine the integrity of the Maltese regime.
A Public Policy Grounded in EU Principles
Since joining the EU, Malta has adopted a “point-of-supply” licensing model for online gaming. This means that operators licensed in Malta may offer their services across the EU, provided they remain compliant with Maltese law and have a lawful basis for operating in other jurisdictions.
Malta’s gaming regulatory framework administered by the Malta Gaming Authority (“MGA”) is built on robust principles of consumer protection, responsible gaming, and financial integrity. Player funds must be safeguarded, marketing must be fair, minors and vulnerable persons must be protected, and operators must offer tools to mitigate gambling-related harm.
The ordre public safeguard in Brussels I Recast (Article 45(1)(a)) allows Member States to refuse recognition or enforcement of a foreign judgment if it is manifestly contrary to their public policy. Article 56A merely affirms that, in the case of Malta, public policy includes the proper application of Malta’s gaming framework, which was designed to meet both domestic and EU-level obligations.
Respect for the Internal Market and Legal Certainty
Malta has consistently upheld the principles of the internal market, particularly the freedom to provide services and the freedom of establishment under the TFEU. For over two decades, it has opposed unjustified restrictions that hinder cross-border gaming operations, arguing that such barriers contradict EU law and CJEU case law. Article 56A should be viewed within this context—as a reaffirmation of Malta’s commitment to legal certainty and fair access for its licensed operators across the EU, not as a challenge to EU law.
Ongoing Engagement with the European Commission
The MGA has reiterated its commitment to constructive engagement with the European Commission. Article 56A does not introduce new legal defenses but it codifies existing principles and reinforces Malta’s pro-EU approach to gaming regulation.
Conclusion
For prospective clients, legal practitioners, and regulated entities alike, understanding Article 56A in its proper legal and policy context is essential. It does not represent a departure from EU law, but a reiteration of Malta’s right, as a sovereign Member State, to protect the integrity of its regulatory framework and ensure that its licensees are not unfairly disadvantaged in the internal market.
At Zerafa Advocates, we assist gaming operators and stakeholders in navigating the Maltese legal and regulatory landscape with clarity and confidence. Should you require guidance on licensing, compliance, or EU cross-border considerations, our team is ready to help.
