Supreme Court dismisses players’ claims based on nullity.
3 July 2026 marks a significant milestone in the legal battle surrounding online gambling. The Supreme Court has today ruled that contracts between Dutch players and online gambling operators without a Dutch licence (prior to October 2021) are not void or voidable under Article 3:40 of the Dutch Civil Code. In doing so, the Supreme Court has followed the opinion of Advocate General Lindenbergh, which we previously discussed in our article “Gambling agreements not void due to lack of license – Attorney General“.
Background: thousands of claims against former operators
In recent years, various players have initiated legal proceedings against operators who offered online games of chance without a Dutch licence prior to the entry into force of the Remote Gambling Act (Koa). The crux of these proceedings was often the same: if the gambling contract is void, lost stakes should be regarded as unduly paid and refunded.
In a number of proceedings, the courts referred questions to the Supreme Court for a preliminary ruling on the validity of such agreements.
The central question: does the Gambling Act affect the validity of the contract?
Under Section 1(1)(a) of the Gambling Act, it is prohibited to provide an opportunity to participate in games of chance without a licence. The question was whether a breach of that prohibition automatically means that the underlying gambling contract is void or voidable under Section 3:40 of the Civil Code.
The Supreme Court’s answer is clear: no, as there is no basis for this in the legislative history. Nor does the scope of the prohibition provide such a basis.
According to the Supreme Court, it does not follow from the text, structure or legislative history of the Games of Chance Act that the legislature intended to render agreements with illegal providers invalid under civil law. The Games of Chance Act already provides for administrative and criminal sanctions against illegal providers, but contains no provision that affects the validity of the agreements themselves.
No nullity on the basis of Article 3:40 of the Civil Code
The Supreme Court considers that, whilst Article 1 of the Wok does contain a mandatory provision, Article 3:40(3) of the Dutch Civil Code stipulates that a conflict with a statutory provision does not lead to nullity if that provision is not intended to affect the validity of the contract. The Supreme Court concludes that this is the case with the Wok.
Furthermore, the Supreme Court ruled that there is no conflict with public policy or public morals within the meaning of Article 3:40(1) of the Dutch Civil Code. In this regard, the Supreme Court emphasised that Dutch gambling policy is not based on a general ban on games of chance, but rather on channelling the desire to gamble towards a regulated supply. Gambling contracts are therefore not unacceptable in themselves.
Does this mean that all player claim proceedings are now off the table?
No. The Supreme Court has now effectively cut off the short route to reimbursement via the grounds of nullity and the recovery of unduly paid sums. This does not alter the fact that players will still have to demonstrate, on other grounds, why their money should be refunded; examples include a breach of the duty of care or the absence of a defect of consent.
These individual cases are specific to each player and, in our view, do not lend themselves well to, for example, proceedings via a mass claim.
Major impact on the gambling sector
This ruling is of great significance for operators who were active on the Dutch market prior to 1 October 2021 without a Dutch licence. Many proceedings were based on the argument that the gambling contract was void and that players could reclaim their full net losses.
With this judgment, the Supreme Court has removed an important legal basis for such claims. The ruling thus provides greater legal certainty for operators facing historical claims from the pre-Koa period.
With this judgment, the Supreme Court has removed an important legal basis for such claims. The ruling thus provides greater legal certainty for operators facing historical claims from the pre-Koa period.
Conclusion
Attention will now likely shift to other grounds, such as mistake, unfair commercial practices and tort. In the coming years, it will become clear to what extent these alternative routes still offer players opportunities to recover their losses.
