Most of the definitions are provided for in the Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players (the Act), as amended in 2010 and implemented by multiple royal decrees.
Games of chance are defined in Article 2 of the Act as any game by which a stake of any kind is committed, the consequence of which is either loss of the stake by at least one of the players or a gain of any kind in favour of at least one of the players, or organisers of the game and in which chance is a factor, even if only ancillary, for the course of the game, or for determining the winner or his or her gains. It follows from case law from the Council of State that games played in a social network whereby players can pay to receive additional play money are also considered games of chance, even if the player cannot win money in them.2
Certain games of chance under the definition laid down in Article 2 above also benefit from specific definitions. This is the case for betting (or ‘bet’), fixed-odds betting and mutual betting. Betting is defined in general terms as game of chance where each player pays a stake and that results in gain or loss that is not dependent on the acts of the player but on the result of uncertain events that occur without intervention of the players. Fixed-odds betting refers to a bet where the player bets on the result of a particular fact and where the amount of the winnings is determined depending on certain fixed odds and where the organiser is personally liable for paying the amount of the gain to the players. Pool betting is defined as a bet where an organiser acts as intermediary between the different players who play against each other, where the stakes are pooled and distributed among the winners, after deduction of a percentage meant for paying the taxes on games and bets, to cover the organisation costs and a profit margin. Additionally, the Belgian Gaming Commission issued a Notice explaining that spread betting (without benefiting from a specific definition under the Act or any royal decrees) qualifies as betting as outlined above.3
All games and activities that fall under the definition provided for in the Act qualify as gambling activities subject to either a licensing regime or a strict prohibition.
In general, poker and other card games, dice games, slot and other types of gaming machines as well as other table games offered within casinos, gaming halls or betting shops fall within the definition of a game of chance and are subject to the rules set out by the Act and its implementing royal decrees.
Lotteries are defined in broad terms in Article 301 of the Belgian Penal Code as any operation provided to the public and aimed at providing winnings based on chance. However, it is commonly agreed that ‘lotteries’ refer to the games provided by the National Lottery operator under the Act of 19 April 2002 on the rationalisation of the functioning and management of the National Lottery (the National Lottery Act) and its implementing royal decrees defining the rules for all types of lottery game. Generally speaking, lottery games refer to draw-based games and scratch cards.
ii Gambling policy
Belgian gambling policy is based on two pillars.
The first pillar is composed of the monopoly regime for public lotteries offered by the state-owned National Lottery operator (with small exceptions for charity lotteries and raffles that receive a prior authorisation and are subject to limitations).
The second pillar is based on a prohibition of all activities that qualify as games of chance under Article 2 of the Act, unless the operator has obtained a licence granted by the Belgian Gaming Commission.4
As regards online gambling, the National Lottery is authorised to provide its lottery games online under the National Lottery Act, while any other games of chance may be offered online provided that operators hold the required licences pursuant to the Act.
Belgium carries out a regime of controlled expansion5 in order to attract players towards a safe and regulated gambling market, through the establishment of a monopoly and the granting of a limited number of licences.
iii State control and private enterprise
As outlined in Section I.ii., all public lottery games (offline and online) may only be offered by the National Lottery operator (i.e., a public undertaking fully owned by the state and subject to the direct control of the government).
The operation of other games of chance is open to competition through the attribution of a limited number of licences.
iv Territorial issues
Games of chance are regulated and licensed at federal level.
The competence granted to municipal authorities is limited to their approval for the establishment and operation of new land-based casinos6 and gaming halls,7 within the perimeters granted to these authorities by the Act.
Taxation, however, is a regional matter (decided at the levels of the regions of Flanders, Wallonia and Brussels).
v Offshore gambling
The Belgian Gaming Commission is competent to monitor illegal gambling in Belgium and to take subsequent action.8 It adopts a stringent approach with regard to illegal offshore gambling operators directing their activities to Belgian residents.
The powers of the Gaming Commission are very broad. It can issue warnings against illegal operators but also issue administrative fines.9 In the first instance, however, the Gaming Commission will not act as prosecuting authority, but will only note infringements and transfer the file to the public prosecutor. If the latter takes action on the basis of the file handed to him or her, the illegal operator may be subject of criminal prosecution (see Section III.ii below). Several international operators have already been sanctioned on that basis.
The Gaming Commission also has in place a mechanism to prevent Belgian residents from accessing illegal (including offshore) gambling websites. This mechanism involves drafting a blacklist, which is available on the Gaming Commission website. This blacklist includes all websites that, in the Gaming Commission’s official opinion, offer gambling to Belgian residents without the required licence. Through a cooperation between the Gaming Commission, the special police IT-crime unit and internet service providers (ISPs),10 the Gaming Commission informs the police of the name and details of the illegal websites; those data are then transferred to the ISPs that will block the access to the website. The website will then be inaccessible to Belgian residents. If they try to access the website, a stop-page will be displayed with the different logos of the enforcement authorities, stating that the website is no longer accessible because it infringes Belgian law. This system has been contested by a number of remote gambling operators before different courts. Rulings in those cases were unanimously in favour of the government.11
II LEGAL AND REGULATORY FRAMEWORK
i Legislation and jurisprudence
The legal and regulatory framework is essentially built around the two pillars of the gambling policy: one set of rules applies to lotteries and another to games of chance (in the strict sense of the word).
Games of chance are regulated by the Act, which is further implemented by a number of Royal decrees.12 The regulatory framework is not complete, as a number of Royal decrees are overdue. The Gaming Commission also issues notes in which policy standpoints or other types of clarifications that it deems necessary are communicated.
Lotteries fall outside of the scope of the Act. The National Lottery holds a monopoly on public lotteries, and this is regulated by a specific law.13 In addition, each game of the National Lottery is regulated by a specific Royal decree. The National Lottery is also subject to a management agreement with the Belgian state.14 Other charity lotteries offered by non-profit organisations are licensed under an old and succinct law.15
ii The regulator
The Belgian lottery and private gambling sector are regulated in different ways.
The sector of games of chance is regulated by the Belgian Gaming Commission, which resorts under the Ministry of Justice. The Commission itself is composed of representatives of various Ministers (most notably Justice, Finance, Public Health, Economic Affairs, Interior Affairs), and in general meets once per month. The gaming commission also comprises a secretariat, which runs the day-to-day activities of control and advises the commissioners. The Gaming Commission as such is established by Chapter II of the Act is defined as ‘an advisory, decision-making and regulatory body in respect of games of chance’.
The National Lottery operator (and its national lottery games) is supervised by the government through the competent Minister, who has direct control through two government commissioners. They are competent to assess the compliance of the National Lottery’s activities and operation with the applicable laws, its obligations of public service, its bylaws and the management agreement concluded with the Belgian state. Moreover, both commissioners attend all the meetings of the National Lottery operator’s board of directors and executive committee in an advisory capacity. The commissioners hold inspection and monitoring powers allowing the government to directly control the national lottery operator.16
iii Remote and land-based gambling
Before the entry into force of the Act of 10 January 2010 that amended the Act to regulate all types of games of chance, including online gambling, only the National Lottery operator was allowed to offer its games online. At that time, the Belgian Constitutional Court found that the particular situation of the National Lottery company regarding the provision of its activities online was in line with the case law of the CJEU, considering, among other things, the characteristics of the operator and its missions of public service.17
However, with the entry into force of the amended the Act in January 2011, all games of chance the operation of which is allowed under the Act can be offered online. Nonetheless, the mere fact operators are duly licensed to provide games of chance offline is not sufficient. The same operators have to apply for and be granted an online gambling licence, corresponding to their offline gambling licence (qualified as ‘plus licence’) to provide online games of the same nature as their authorised land-based activities.
In general, all games of chance are subject to certain rules already applicable to their offline equivalent. In addition, specific rules are in place, such as a specific solvency ratio of 40 per cent for operators of online gambling under the Royal Decree of 21 June 2011,18 as well as distinct security and technical requirements. The Gaming Commission has, in addition, issued a number of information notes related to online gambling.
iv Land-based gambling
The Act defines four categories of gambling premises (the operation of which is subject to the prior granting of a specific and distinct licence).
Class I venues, or casinos, are subject to the prior granting of an ‘A licence’ (duration of 15 years, in principle, which is renewable, but potentially shorter if the remaining concession duration for the casino is shorter). These venues are allowed to offer games of chance, automatic or not, in addition to sociocultural events. The number of casinos is strictly limited to nine by the Act, and the municipalities where those casinos may be operated are enumerated in the Act.19 No casinos can be operated in other locations unless the law is first amended to include a new location.
Class II venues, or gaming halls, are subject to the granting of a ‘B licence’ (duration of nine years, renewable). These venues are only allowed to offer automatic games of chance. They are gaming establishments with only gaming machines (no table games), but without slot machines, which can only be placed in casinos. Moreover, their number is strictly limited to 180 throughout the country. Finally, gaming halls may not be located close to hospitals, prisons, schools, churches and other religious temples, or places where young people regularly meet.
Class III premises refer to pubs and bars, and require a ‘C licence’ to operate a maximum of two gaming machines (low-scale gaming machines, e.g., bingo-type gaming machines). The duration of the C licence is five years and it is renewable.
Class IV venues are betting shops, the purpose of which is exclusively to engage bets. Betting shops may either be fixed (i.e., a permanent venue) or mobile (i.e., a temporary betting shop operated at the occasion of a specific sporting event, at the place of the event and for its duration only). The operation of betting shops requires an ‘F2 licence’ (i.e., a licence that allows bets to be taken on behalf of a betting organiser). F2 licences have a duration of three years and are renewable. F2 licensees have the obligation to take bets on behalf of a betting organiser (i.e., an F1 licence holder). F1 licences are required to organise betting activities and are granted for periods of nine years and are renewable. The number of betting organisers (F1 licences) is limited to 34. In addition, the number of fixed betting shops is limited to 1,000, and mobile betting shops to 60.20 Moreover, the distance between each betting shop operated after 1 January 2011 must be of 1,000 metres (door-to-door walking distance). However, this rule does not apply to betting shops in operation before that date and that have never discontinued their operation since then.21 F2 licences can also be granted to press shops, which can then offer betting as an ancillary activity.
All games provided by the National Lottery company (i.e., lottery games and sports betting) can be offered via the retail agents that concluded retail agreements with the National Lottery. However, in order to offer betting on behalf of the National Lottery, its agents must hold the required F2 licence. There is no minimum or maximum number of retailers for the National Lottery, but it must ensure a reasonable coverage of the whole Belgian territory, without presenting an offer regarded as excessive. This is part of its mission and fits in with the objectives pursued by the controlled expansion policy (namely, player protection, fight against addiction and fight against fraud).22
v Remote gambling
First, it must be reminded that online public lottery games like land-based lottery games fall under the monopoly of the National Lottery and therefore cannot be offered by any other operator. Secondly, as regards other games of chance allowed under the Act, a land-based presence is required in order to be allowed to provide games of chance online (through ‘information society instruments’ to be precise23). Indeed, only land-based licensees may apply for online gambling licences (namely, the A+ licence for online casino games; the B+ licence for online gaming machines; and the F1+ licence for online betting). Online licences only authorise operators to provide via information society means games of the same nature as the games they are allowed to offer based on their land-based licences. The ‘plus licences’ have the same duration as their related land-based licences.
In addition, Article 43/8 of the Act requires that the servers on which the gambling products are managed are located in a permanent establishment in Belgium. This rule is applied in conformity with EU case law, and in practice, it is therefore only required that certain data are stored on the Belgian server (for control purposes) and that the gaming website can be taken offline through the Belgian server (for sanctioning purposes).
vi Ancillary matters
For the provision, renting, selling, putting at disposal, import and export, production or any services of reparation and maintenance of gambling equipment, a specific licence E is required. This licence is granted by the Gaming Commission for renewable periods of 10 years. Furthermore, certain equipment put on the market or supplied to an authorised operator must also receive a certification from the services of the Gaming Commission or another accredited body.24 It is important to note that Article 27 of the Act strictly prohibits cumulating any operational licences (required to operate, e.g., a casino, a gaming hall or a betting shop) with an E licence, either directly or indirectly (by means of subsidiaries or branches).25
Furthermore, people working in a casino, gaming hall or a betting shop must hold a personal D licence. This type of licence is granted by the Gaming Commission for an indefinite duration.
Directors or persons who occupy managing or executive positions within a gambling operator must not obtain any licences. Nevertheless, the details as well as a copy of their criminal records are requested during the application process, and these people must be deemed by the Gaming Commission to be apt for the position they hold.
III THE LICENSING PROCESS
i Application and renewal
Applications for any type of gambling licence must be submitted with the Gaming Commission through registered mail or, when available, online. Specific forms are made available through applicable royal decrees.
Certain eligibility criteria for licences are as follows: as an individual, be a citizen of one of the EU or EEA Member States or, as a legal person26 be incorporated under the laws of any EU or EEA Member State; provide the proof of the necessary solvency (including compliance with the required solvency ratio); description of the shareholding structure; proof that the company has no outstanding debts with regard to the tax authorities of any EU Member State; copy of the criminal records of the directors of the applicant; list and rules of games to be offered; and other requirements depending on the type of licence, such as addresses of the place where the server is located in Belgium (online gambling licence), the name and details of the bookmaker or betting organiser (F1 and F2 licences), responsible gaming policies, the advertising policy to be implemented, a plan outlining the structure of the future website, and a description of the security and technical measures to be implemented to protect players, avoid breaches, protect payments, and so on.
Renewal of licences follows the same principles. However, when one of the (34) available F1 licences becomes available, a transparent, competitive and non-discriminatory award procedure is put in place by the Gaming Commission.27 Furthermore, concession agreements, the conclusion of which is required to be granted an A licence, are allocated under the rules of service concessions, which requires a transparent, non-discriminatory award procedure.28 This also applies to renewals of concession agreements.
For certain licence applications the Gaming Commission must decide within a preset deadline (A and B licence applications must be decided within six months after submitting a complete application file).
Applicants must also pay a security prior to receiving any licence. The amount of this security can go up to €250,000 depending on the type of licence sought. The operational costs of the Gaming Commission are paid by the operators through an annual licensing fee.29
ii Sanctions for non-compliance
Any licensee that breaches the terms of its licence can be subject to different sanctions, varying from simple warnings to administrative fines, a prohibition to operate one or more games of chance, suspension or withdrawal of its licence, and even criminal prosecution, which in its turn can lead to fines and even prison sentences. Administrative or criminal fines (as well as imprisonment) can also be applied to non-licensees in breach of the law on games of chance. In any case, before issuing an administrative fine or any other sanction of administrative nature, the Gaming Commission must give the suspected offender the chance to be heard.
The criminal sanctions applicable to illegal operators also apply to anyone who promotes the illegal operation of gambling activities or who facilitates in any way whatsoever that operation, or who advertises those activities or recruits for those operators, and even to players who participate in illegal gambling activities.30
For the unlicensed organisation or operation of a game of chance or a gaming establishment, for illegally cumulating or transferring gambling licences, for the unlicensed provision of services requiring an E licence, and breach of rules applicable to D licences, a person found guilty may be sentenced to between six months’ and five years’ imprisonment or fined between €800 and €800,000, or both.
For the advertising of illegal games of chance or gaming premises, for participation in games of chance known to be illegal, for the recruitment of players for illegal gaming establishments or games of chance, for breach of rules on betting or breach of the obligation to identify anyone entering a casino or gaming hall, and for the breach of rules relating to complementary gifts to customers, a person found guilty may be fined between €208 and €200,000 or subject to imprisonment between one month and three years, or both. These sanctions may be doubled in the case of a second offence within five years of the first conviction, or when the offence has been committed with regard to minors (i.e., under 18 years old). Moreover, judges may seize the funds, materials, tools, machines and any other means used to perform the illegal activity. Finally, judges can also order the closure of the gaming premises or the withdrawal of a licence by the Gaming Commission.31
Breaches of the National Lottery’s monopoly also give rise to sanctions under the Criminal Code.
Individuals or directors of companies found guilty of organising illegal lotteries may be sentenced to between eight days’ and three months’ imprisonment, plus a fine of between €400 and €24,000. Any remaining prize money, facilities and materials linked to the illegal lottery game are forfeited to the state. If any real-estate property was offered as a prize, it will be seized by the state and the operator will be fined between €800 and €80,000. The distributors, promoters and any person who placed advertisements in any form and by any means whatsoever, may be fined between €400 and €24,000 or sentenced to between eight days’ and one month’s imprisonment. All remaining lottery tickets would also be seized and destroyed.32
The 4th Anti-Money Laundering Directive,33 subjecting all gambling and lottery operators to AML rules, is transposed into Belgian law by the Law of 18 September 2017 on the prevention of money laundering and terrorist financing and the limitation of cash (the AML Act). All gambling operators are consequently subject to due diligence obligations in principle, such as identification of players and final beneficiaries, and the monitoring of potentially suspicious transactions, etc. The Gaming Commission controls the enforcement of the AML Act, in cooperation with the Belgian Financial Intelligence Processing Unit, police forces and public prosecutors.
In addition, there are rules in place with a view to detect and report suspicious gambling patterns and identify players in certain situations. Any betting operator must, for instance, register players who place bets for an amount of €1,000 or above. This is mainly intended to fight match fixing and related wrongdoing.
Match fixing as such is not a criminal offence under Belgian law. However, it generally consists of a number of illegal actions and falls within the scope of the provisions sanctioning corruption.34 It is hence subject to criminal sanctions accordingly. In the meantime, an informal national platform has been put in place. In addition, the law on games of chance prohibits taking part in any game of chance (including betting) where the participant can exert a direct influence on the outcome.
Winnings from lotteries or any other games of chance are exempt from taxes.
There is, however, a gaming tax, which is levied by the regional authorities and hence differs (somewhat) depending on which region is competent.35 The applicable tax rates also vary between different types of gambling. This tax is, in principle, levied on the gross gaming revenue (i.e., profits obtained by the operator after deduction of the winnings paid out to players). However, gaming machines are subject to a gambling tax in the form of a fixed amount per machine per year (differing as well per region and type of gaming machine). There is a different tax rate for online gambling.
The National Lottery operator does pay gambling taxes on its sports betting activities licensed under the Act on games of change. On its public lottery activities, the National Lottery is obliged to pay a monopoly rent, the amount of which is calculated annually and published in a royal decree, as well as ‘subsidies and special contributions’.
Belgium installed VAT on online gambling in the course of 2016. Following this new measure, VAT was levied on online games of chance (including betting) but not on lotteries. The legality of this additional taxation was contested by some operators before the Constitutional Court. On 22 March 2018, the Court decided that the VAT measure was unlawfully implemented and may therefore no longer be applied.
VI ADVERTISING AND MARKETING
As already outlined in Section III.ii, offering gambling services without the appropriate licence, as well as advertising for unlicensed gambling activities, is illegal and can lead to criminal sanctions. As such, any operator not duly licensed under Belgian law, or anyone else promoting the products or services of unlicensed operators may be subject to sanctions.
However, licensed gambling operators and the National Lottery operator are both allowed to advertise their activities, albeit with a certain restraint in order not to undermine the consistency and the objectives pursued by the whole Belgian gambling policy.
The Gaming Commission assesses during the application process for an online licence the advertising policy sought to be implemented by the future operators of online gambling and may raise objections or ask to make modifications should the policy be deemed too aggressive. In addition, gambling advertising must adhere to the general rules as laid down in the Belgian Economic Code (e.g., not mislead players).36
Further, more detailed rules on advertising for online gambling are not unlikely to appear in the future but are not in place at this moment. A draft royal decree on advertising for online gambling was notified to the Commission under the Notification Directive 2015/1535. This lays down very strict rules on advertising, especially for online casinos and gaming halls. These would only be able to advertise through direct marketing or on their own website, which also stops the practice of marketing through affiliate websites for online casino gaming. Betting operators can still advertise under the proposed decree but will be severely limited; for example, by prohibitions to advertising during live sports broadcasts, 15 minutes before or after children’s programmes, or before 8pm (except in the framework of sports programmes), as well as the general rule that there can be a maximum of one gambling commercial per commercial break. There are possibly some arguments to be made against the legality of the proposed decree, and if it is adopted it can be expected that it will be brought before the council of state for legal scrutiny by some of the affected operators.
The National Lottery has in place a Code on ethical advertising. In any case, the National Lottery must advertise for its activities in a responsible manner and with a certain restraint, taking into account its mission of public service as laid down in the management agreement between the National Lottery and the Belgian state.
VII THE YEAR IN REVIEW
An important change from the past year was the implementation of VAT on online gambling. The federal structure of the Belgian state with tax competencies for the regions (whereas VAT is levied at the federal level) raised questions as regards the legality of the VAT measure. There were also questions on the differentiation between online gambling (VAT levied) and land-based gambling (no VAT) and on the differentiation between lotteries (no VAT) and other types of gambling (VAT levied). Therefore, certain online operators, as well as the Walloon government challenged the law imposing VAT on online gambling. The Constitutional Court quashed the VAT on online gambling.
In an ongoing dispute between certain casino operators and a gaming hall operator, the scope of certain provisions in the law on games of chance were put under scrutiny. In January 2016, a judgment was issued by a Brussels court37 in which it was ruled that offering betting and casino games on one and the same website is illegal, and that offering to directly participate in betting online is also illegal. The Brussels Court of Appeal, however, reviewed the case and found that the Belgian law on games of chance must not be interpreted as precluding to offer betting and casino games together on one website (or that offering online betting as such would be illegal). The Council of State (the highest administrative court) had already ruled in the same sense as the Brussels Court of Appeal, but it also referred a question to the Constitutional Court to know whether a difference of treatment between land-based venues (prohibition to offer betting and casino games in one venue) and online websites (provision of both activities on the same website) is compliant with the Belgian Constitution. The Constitutional Court found that this difference in treatment indeed amounts to an unconstitutional discrimination. It is unclear how the Council of State will now rule, as the case is still pending there and a final judgment must be issued that takes into account the ruling of the Constitutional Court.
Another ongoing issue that keeps attracting media attention is the problems faced by online operators in verifying the identity of their players when opening an account with them. It is possible to bypass identity checks, and therefore persons that are not allowed to gamble can still register and play.
In the context of the infringement proceedings ‘re-activated’ in November 2013 by the European Commission, Belgium received an official request for information targeting the transparency of its gambling system. The Commission had issues with the rules relating to the legal conduct of online gambling businesses; the required physical presence in order to be granted an online gambling licence; and the granting to the National Lottery of a betting licence (F1 licence). The European Commission, however, announced at the beginning of December 2017 that it decided to close all infringement proceedings against Member States regarding their gambling policies.
National restrictive measures can still be questioned before national courts, which can judge that these restrictions are contrary to EU law. The national courts in question can make a preliminary referral to the Court of Justice for additional guidance. In a very recent judgment following a Hungarian preliminary referral, the Court opined that, based upon the limited arguments developed by the Hungarian government in Court, the Hungarian ‘licence plus’ is difficult to be justified under EU law.38
This judgment may put some pressure on the Belgian system, although it cannot be interpreted as a direct condemnation of the Belgian ‘licence plus’ approach, since the underlying justifications and circumstances are substantially different from the Hungarian situation.
It can also be expected that legislative changes will be required to amend the situation created by the judgment of the Constitutional Court finding that there is discrimination in the possibility of offering betting and casino gambling on one single website. It is possible that these changes will lead to a prohibition to offer these different types of gambling services jointly. If that would be the case, a number of online gambling operators will have to make fundamental changes to how they operate their websites in Belgium.
It still remains to be seen whether the hotly debated royal decree on online gaming and advertising will be adopted and, if so, whether it will withstand legal scrutiny by the Council of State. The draft decree in question also attempts to regulate the registration process further. It will in any case be the intention to close all potential loopholes and make sure that operators know the exact identities of their players from the beginning. Furthermore, as mentioned, a number of executive royal decrees that should complete the regulatory framework are still missing.
Overall, the outlook for the Belgian regulatory framework is, in our opinion, one that potentially announces a review process. However, this is not expected to take place under the current government.
1 Philippe Vlaemminck is a partner and Robbe Verbeke is a senior associate at Pharumlegal.
2 Judgment 232.752 of the Council of State of 29th October 2015 (Gamepoint). The fact that players can win (unlimited amounts of) play money which gives the opportunity to keep on playing, makes this type of game fall within the ambit of the definition of games of chance, read together with the exclusions provided in Article 3 of the Law on games of chance.
3 Notice of the Belgian Gaming Commission of 12 November 2014 on spread betting, available on the website of the Belgian Gaming Commission.
4 Article 4 of the Act.
5 See CJEU judgment of 6 March 2007, Placanica, C-338/04, 359/04 and 360/04, EU:C:2006:324, paras. 55 and 57.
6 A concession agreement must be concluded with the municipality in which the casino premises will be operated (Article 31 of the Act).
7 The operation of gaming halls must be performed based on the agreement to be entered into, at the own discretion of the authorities, between the operator and the municipal authorities of the territory in which the gaming halls will be operated (Article 34 of the Act).
8 Article 20 of the Act.
9 Article 15/2 and Article 15/3 of the Act.
10 ISPs committed to cooperating voluntarily through the conclusion of an agreement – the majority of ISPs are parties to this agreement.
11 See judgment of the President of the Court of Commerce of Brussels (Flemish Chamber) of 13 June 2012 (Bwin case), and judgment of the Civil Court of First instance of Brussels (Flemish Chamber) of 11 February 2013 (Bet-at-Home case). See also Judgment 232.752 of the Council of State of 29th October 2015 (Gamepoint).
12 The law and its underlying policy were contested before the Constitutional Court, which however decided in 2011 that the Belgian gambling regime based on controlled expansion is effectively pursuing consumer protection objectives, and that this regime is compliant with the case law of the CJEU. See Constitutional Court, judgment of 14 July 2011, Case No. 128/2011.
13 Law of 19 April 2002 on the rationalisation, functioning, and management of the National Lottery.
14 Latest version as agreed by Royal decree of 30 August 2016.
15 Law of 31 December 1851 on lotteries.
16 Under Chapter V of the National Lottery Act.
17 Constitutional Court, judgment of 10 March 2004, No 33/2004.
18 Royal Decree of 21 June 2011 regarding qualitative conditions to be fulfilled by additional licences applicants. This ratio enables the Gaming Commission to ensure the applicant/operator does benefit from sufficient financial means to guarantee the payment of winnings to players, and differs from one type of game to another.
19 Article 29 of the Act.
20 Article 1 of Royal Decree of 22 December 2010 setting the maximum number of fixed and mobile betting shops, the criteria aimed at ensuring a spread of those venues, and the treatment procedures for applications when a licence is released due to a withdrawal or a waiver.
21 Article 2 of Royal Decree of 22 December 2010 setting the maximum number of fixed and mobile betting shops, the criteria aimed at ensuring a spread of those venues, and the treatment procedures for applications when a licence is released due to a withdrawal or a waiver.
22 This stems among other things from Article 4 of the Royal Decree of 30 July 2010 approving the management contract between the National Lottery and the Belgian state.
23 This includes most notably internet (via PC, smartphone, tablet) but other distribution channels are possible.
24 Article 52 of the Act.
25 However, in practice the Gaming Commission usually accepts such a double possession when a gambling licensee holds as well an E Licence via one of its subsidiaries, provided that a certain threshold relating to the shares held by the gambling licensee within that subsidiary is not met.
26 It must be noted that non-profit associations are not allowed to apply for gambling licences.
27 Royal Decree of 22 December 2010 setting the maximum number of betting organisers and the procedure for applications when a licence is released due to a withdrawal or a waiver.
28 Directive 2014/23/EU of 26 February 2014 on the award of concession contracts, as implemented by the law of 17 June 2016 regarding concession agreements. See also case law of the CJEU, e.g., CJEU, judgment of 16 February 2012, Costa and Cifone, joined cases C-72/10 and C-77/10, EU:C:2012:80, Paras. 54-57.
29 For the amounts, see Royal Decree of 20 December 2016 on the contribution to the functioning, personnel and organisational costs of the Gaming Commission due by holders of licences A, A+, B, B+, C, E, F1, F1+, F2, G1 and G2 for the civil year 2017.
30 Article 4 of the Act.
31 Chapter VII of the Act.
32 Articles 302 and 303 of the Belgian Criminal Code.
33 Directive (EU) 2015/849 of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC.
34 Articles 246, 504bis and 504ter of the Criminal Code.
35 For information, Belgium is divided into three economic Regions, namely the Flemish Region, the Walloon Region, and the Region of Brussels-Capital.
36 Their infringement could lead to action for damages before commercial courts.
37 Commercial Court of Brussels (Flemish Chamber), judgment of 27 January 2016.
38 Judgment of the Court of 28 February 2018, Sporting Odds, Case C-3/17, EU:C:2018:130.