'Gambling' is generally defined as gaming and gambling activities concerning money or items with a fiscal value where the probability to win is wholly or partially based on chance. The Swedish Gambling Act (GA)2 further divides 'gambling' into the sub-categories lotteries, betting, combination games and pyramid games.
'Lotteries' are defined as activities in which participants have a chance of winning a prize and the probabilities of winning is based on chance.
'Betting' is defined as activities in which participants have a chance of winning a prize by placing bets on the outcome of future events, such as sports, horse racing and fantasy leagues. Betting on the outcome of future value of financial activities is, however, exempt from the GA.
'Combination games' are defined as games in which participants have a chance of winning a prize and the probabilities of winning is based on a combination of skill and chance.
'Pyramid games' are defined as games in which the winnings derive from future participants' wagers and the probability to win is related to the number of participants that subsequently joins the game.
ii Gambling policy
The central objectives of the Swedish gambling policy are to protect consumers, counter the harmful effects of problem gambling, fraud and criminality and to benefit government activities and public interest purposes.
Accordingly, the Swedish gambling market is highly regulated, but has recently been subject to a substantive reform through the entry into force of the GA on 1 January 2019. Under the previous Swedish Lotteries Act (LA),3 the only operators allowed on the market were, in principle, public interest associations and state-owned or state-controlled entities. However, through the GA, the Swedish state's de facto monopoly on the Swedish gambling market has in large parts been replaced with an open market system in which private operators may apply for licences to offer certain gambling services. As a result, a majority of the gambling services previously reserved for the state's monopoly have been re-allocated to the open market.
Any entity or person may now apply for a licence to offer online casino, online bingo, online poker, as well as betting. Land based casinos and gaming machines are, however, still subject to state monopoly and such services may thus only be provided by state-owned companies. Lotteries, other than bingo, online bingo, computer simulated gaming machines, local pool games and cash gambling machines may be offered by both state-owned companies and public interest associations while the latter also may offer land-based bingo.
As a main rule, providing gambling services without a licence is prohibited and criminalised. Pyramid games are, under all circumstances, strictly prohibited and criminalised.
A licence is not needed in order to provide certain gambling services, such as games that do not require a stake, private games in close-knit groups, with low stakes and low prizes, that are not arranged in an organised form or professionally and are played offline, or certain games offered through editorial channels such as newspapers, radio or TV. Furthermore, public interest associations do not need a licence in order to offer certain local lotteries with low stakes and prizes in form of goods with low value, in connection with events, funfairs, charity events, etc.
iii State control and private enterprise
As of 7 March 2019 a total of 117 licences have been granted to 73 operators under the GA, while another 22 operators are still offering lotteries under licences granted under the LA.4
The state-owned company AB Svenska Spel (Svenska Spel) has an exclusive right to operate gaming machines and land-based casinos. The company also holds licences, through its subsidiary, for lotteries, online gambling and betting and will thus be competing with public interest associations and private enterprises on those markets.
Partially state-controlled AB Travoch Galopp (ATG) previously held a monopoly on horse-racing betting but is now operating under a general licence for online gambling and betting and is competing with other operators.
iv Territorial issues
Gambling is regulated nationally. No localities have any favoured status for gambling.
v Offshore gambling
The GA applies to all gambling services aimed at the Swedish market, and all offshore operators aiming its services at the Swedish market must thus apply for a licence. As Swedish authorities do not have jurisdiction over offshore gambling operators aiming its services at the Swedish market without a licence, they will most likely try to prevent such activities by focusing on subjects in Sweden that, for example, carry advertisements for such operators.
It is possible to block payments from Swedish accounts to operators who are acting without a licence in Sweden and internet service providers can be forced to show warning notices for users visiting gambling websites that are not licensed in Sweden.
II LEGAL AND REGULATORY FRAMEWORK
i Legislation and jurisprudence
The Swedish gambling market is regulated by the GA and applies to all gambling services aimed at the Swedish market. It has not been established what exactly constitutes 'targeting' the Swedish market, but examples that have been mentioned includes offering services in the Swedish language, accepting Swedish currency and offering services on .se domains.
The government has issued the Gambling Regulation5 that provides more detailed regulations relating to the GA. The Swedish Gambling Authority issues further regulations and guidelines, concerning, for example, the application processes and technical requirements for gambling systems.
Additionally, the Swedish Marketing Practices Act (MPA), which has a general application covering all types of marketing activities, may apply to gambling services. According to the MPA, marketing must, as a general rule, not be incorrect, unfair or misleading; however, the specific legislation of the GA supersedes the MPA within the scope of its parameters.
ii The regulator
The Swedish Gambling Authority6 is the supervisory authority for gambling in Sweden and issues licences. The Swedish Gambling Authority shares the supervision of marketing and advertising of gambling services with the Swedish Consumer Authority.7
iii Remote and land-based gambling
As regards to betting, the Swedish legislation does not distinguish between remote and bricks-and-mortar betting as both areas are covered by the same licence and can be applied for by any entity or person. The same applies for lotteries as a stand-alone service, which can only be provided by state-owned companies and public interest associations.
Licences for online casino, card games and bingo can be applied for by any entity or person.
State-owned companies can apply for a licence to run land-based casinos and offer gaming machines.
A licence to offer land-based bingo may only be given to public interest associations.
Licences for other types of land-based gambling services include the provision of casino games at other premises than casinos, gaming machines with winnings in form of goods, and card game tournaments, and can be applied for by any entity or person. Such casino games may only be offered at public fairs hotels and restaurants and gaming machines with winnings in form of goods may only be offered at public fairs.
Casino games at other premises than casinos, cash gaming machines and gaming machines with winning in form of goods may also be offered under licence onboard ships in international traffic.
iv Land-based gambling
The GA allows four land-based casinos in Sweden, which are located in Stockholm, Gothenburg, Malmö and Sundsvall. The casinos are established and operated under licence by Svenska Spel's wholly owned subsidiary Casino Cosmopol AB.
Svenska Spel and ATG have for a long time offered sports betting and horse-racing betting respectively via betting shops and agents in grocery stores and have continued to do so after the GA entered into force. With the new licensing system it is possible that other operators will offer their services through betting shops as well.
Casino games at other premises than casinos are offered in various hotels and restaurants.
Bingo halls are operated by public interest associations.
Gaming machines can be found in both restaurants and bingo halls and are operated by Svenska Spel.
Lottery tickets are sold in a number of venues, from local sport events and fairs, to grocery stores and betting shops.
v Remote gambling
Licences for remote gambling include betting and online casino games and can be applied for by any entity or person. Licences for online lotteries can only, however, be granted to state-owned companies or public interest associations.
vi Ancillary matters
In order to obtain a licence an applicant must fulfil general requirements of sufficient knowledge, experience and suitability (see below under Section III). These requirements also apply to the applicant's or licensee's board members, president, authorised signatories, certain staff as well as shareholders who, directly or indirectly, hold more than 10 per cent of the share capital or voting rights, or otherwise can exercise a significant influence over the management of the applicant or licensee.
While these persons are not subject to a personal licence or approval they are reviewed and audited by the Swedish Gambling Authority.
There is no licence requirement to manufacture or provide equipment for the gambling industry.
vii Financial payment mechanism
A licensee is not allowed to offer or approve bets on credit. The GA does not regulate the use of currencies, and operators are thus allowed to use cryptocurrencies if they wish.
III THE LICENSING PROCESS
i Application and renewal
The GA is based on the general principle that all provision of gambling services aimed at the Swedish market requires a licence. Licences are granted by the Swedish Gambling Authority and may only be granted if it can be presumed that the gambling activities will be executed in a suitable manner, seen from a public perspective.
Any operator that wishes to be granted a licence must have the knowledge, experience and organisation required to conduct the operations, meaning that the Swedish Gambling Authority will assess whether an applicant has sufficient capacity to conduct the relevant gambling operation in terms of staff, management, routines and other organisational resources. The staff's knowledge of the provided gaming and gambling services is of material importance in such assessment. For example, when it comes to online gambling services, the technical competence of the personnel and the applicant's ability to provide a safe gambling environment will constitute an important factor.
Furthermore, it must be expected that the applicant will conduct the operations in accordance with applicable law and other regulations applicable to the operations. The Swedish Gambling Authority will, for example, review the applicant's past compliance with regulations and applicable laws, e.g., in terms of marketing. The ability to follow laws and regulations will also be of importance if a licensee wishes to renew the licence. The Swedish Gambling Authority has stated that operators that have offered their services to the Swedish market unlawfully under the previous legislation or without a licence under the GA risk not being granted a licence, but so far there are no known cases where any applicant has been refused on such grounds.
The applicant must also be deemed suitable in general terms, relating to, for example, financial sturdiness and professionalism. One circumstance that could cause an applicant being deemed as inappropriate is the applicant's past record of non-compliance with laws and regulations or other issues with regards to authorities.
If the applicant is part of a group of companies, the group's competence may, if relevant for the gaming and gambling services, be assimilated by the applicant.
The general requirements of competence, lawfulness and suitability also applies to an applicant's or licensee's board members as well certain staff members and owners.
All gambling systems, business systems, randomisation equipment and physical lottery tickets and bingo cards must meet the technical requirements issued by the Swedish Gambling Authority and must be certified by an accredited body.
Gambling systems must, as a general rule, be placed in Sweden but the Swedish Gambling Authority can make an exception if the applicant has a licence to offer gambling services in another country and is supervised by an authority that the Swedish Gambling Authority has entered into an agreement with for the supervision of gambling services under a Swedish licence. Such agreements have as at March 2019 only been entered into with Malta. Exceptions can also be made if the Gambling Authority can make satisfactory controls of the gambling systems by using remote access or similar tools.
There are six types of gambling licences in Sweden:
- State-run gambling. Includes land-based casinos, gambling machines and lotteries other than bingo, online bingo, computer simulated gaming machines, local pool games and cash gambling machines. Licences can only be applied for by companies owned by the Swedish state.
- Gambling for public interest objectives. Includes bingo and lotteries other than casino games, online bingo, gambling machines or computer simulated gaming machines. Licences can be applied for by public interest associations that promote an undertaking of public utility as their main objective. Furthermore, the association must carry out its operations so as to achieve that objective and it cannot refuse anyone membership in the organisation unless there is a particular reason to do so. Lastly, the association must need the income from gambling services to support its activities in order to be eligible for a licence.
- Commercial online gambling. Includes online casino games, online bingo, computer simulated gaming machines as well as lotteries that are offered as add-on services. Can be applied for by any entity or persons.
- Betting. Includes both online and land-based betting as well as lotteries that are offered as add-on services or to settle interrupted events. Can be sought by any entity or person.
- Land-based gambling. Includes casino games offered at other premises than land-based casinos, gambling machines with winnings in form of goods, and tournament card games. Can be sought by any entity or person. Such Casino games may only be provided in connection with a public fair or in a restaurant or hotel business that holds a valid permit to serve alcoholic beverages. Gambling machines with winnings in form of goods may only be offered at public fairs.
- Gambling on ships in international traffic. Includes gambling machines and casino games that are not offered at a land-based casino.
The application fee for online gambling and betting is 400,000 kronor respectively, or 700,000 kronor if both licences are applied for at the same time. The application fee for state-run and public interest gambling is based on turnover and ranges from 5,000–150,000 kronor. Application fees for the remaining types of licences vary depending on the number of machines, players, etc.
Licences are limited in time, generally for a maximum of five years. If a licensee wishes to extend the licence it must repeat the application process and de facto apply for a new licence.
There is a set minimum age of 18 years for the participation in gambling activities subject to licence, with the exception of land-based casinos where the minimum age is 20. All players must be registered with the licensee and the licensee has to ensure that no one under the minimum age can participate in gambling activities.
All licensees must ensure that social and health considerations are observed in order to protect players from excessive gambling and to help them reduce their gambling when there is such need. The licensees must monitor their players and have routines for contacting identified or suspected problem gamblers.
The GA has introduced a 'self-exclusion' service that licensees must implement. The self-exclusion service means that players must be provided with the possibility to ban themselves from the licensee's services for a fixed time period or until further notice. Operators who offer online casino games, online bingo and online gambling machines must also provide players with the possibility to immediately exclude themselves for 24 hours. Furthermore, players can exclude themselves from all gambling services offered by Swedish licensees for a fixed time period or until further notice by notifying the Swedish Gambling Authority, www.spelpaus.se. Self-exclusion from all licensed gambling services until further notice cannot be lifted until 12 months have passed.
ii Sanctions for non-compliance
Arranging gambling services without a licence or promoting the participation in such services is a criminal offence subject to a fine or imprisonment for a maximum of two years, or imprisonment for six months up to six years in severe cases, for example, when the unlawful activities have been conducted systematically or professionally or to a great extent.
The Swedish Gambling Authority may issue remarks, warnings and injunctions as required to ensure compliance with the GA. Injunctions or prohibitions may be combined with fines.
Fines may also be issued if a licensee does not comply with the GA, ranging from 5,000 kronor to 10 per cent of the licensee's turnover for the previous fiscal year from activities that require a licence under the GA. In severe cases of non-compliance, the Swedish Gambling Authority may also revoke the licence.
The Swedish Act on Measures against Money Laundering (AML), implemented in 2017, imposes obligations for most of the gambling sector to take risk-based measures to prevent gambling being used for money laundering or funding of terrorism. Such risk-based measures include, for example, the identification of all players.
With the introduction of the GA, match fixing and other undue measures that are aimed at affecting games subject to a Swedish licence are now criminalised and punishable by imprisonment of up to two years. In severe cases, for example, in the case of systematic or extensive match fixing, the crime is punishable by up to six years imprisonment.
Licensees are subject to an 18 per cent gambling tax on GGR. The gambling tax is deductible for income tax purposes.
Licensees that are Swedish entities are subject to regular corporate income tax (at present, 22 per cent) that is deductible for income tax purposes. Foreign licensees are subject to corporate income tax on income relating to any permanent establishment in Sweden.
Gambling is not subject to VAT. Winnings from gambling are exempt from taxation if the gambling is arranged within the EU. For gambling arranged outside the EU, any winnings are taxed as income from capital, at a tax rate of 30 per cent.
Winnings from skill-based contests or games are subject to regular income taxation.
VI ADVERTISING AND MARKETING
Advertising and marketing of gambling services must be moderate and cannot be aimed at persons under the age of 18 or to players who have excluded themselves from gambling services. If a player has terminated their account with a licensee, the licensee can only direct advertisements towards the player if he or she has given such permission at the time of termination.
Bonuses are only permitted once, in connection with the opening of an account with the licensee.
The GA prohibits and criminalises the act of promoting participation in non-licensed gambling. Examples of promotion of participation in gambling include offering, selling or supplying lottery tickets or certificates for participation in gambling services, as well as collecting or mediating stakes or winnings. Moreover, the distribution of notices relating to the gambling service in question (e.g., invitation or register of winners) may constitute a promotion of participation of gambling under the GA.
It is not entirely clear how far the territorial scope of the GA reaches. As far as gambling organised from abroad is concerned, the GA will likely not apply only based on the fact that Swedish subjects may participate in gambling through a website or similar medium. An additional circumstance would have to be present in order to trigger Swedish jurisdiction. In this context, a banner on a Swedish website linking to gambling activities provided by a foreign gambling company has previously been found to be a promotion of participation in foreign gambling activities.8
It is not uncommon for television channels, broadcast from abroad under a foreign broadcasting licence, to promote gambling services. As far as we are aware such promotions have not been challenged under the GA. However, the Swedish Gambling Authority has, under the previous legislation, ordered a Swedish television channel to cease broadcasting sponsorship messages and odds of a foreign gambling company (Unibet) in connection with a sporting event.9 The Swedish Gambling Authority's decision was eventually overruled by the Supreme Administrative Court who found that the order regarding sponsorship messages was in conflict with, amongst other things, the purpose of the Fundamental Law on Freedom of Expression, and that the odds were to be considered as editorial content and not advertising. The marketing measures were thus allowed.
VII THE YEAR IN REVIEW
On 7 June 2018 the Swedish parliament passed the long-awaited bill that re-regulated the Swedish gambling market. The process of re-regulating the gambling market was sparked by the European Commission's announcement in October 2014 that it would refer Sweden to the Court of Justice of the European Union (CJEU) for lack of compliance with EU law in the areas of online betting services and online poker services.
The GA, which entered into force on 1 January 2019, has divided the gambling market into two sectors: one competitive and one exclusive. Commercial operators can now apply for licences for the competitive sector, which includes online casinos, betting, poker and bingo, as well as land-based sports and horse-race betting. The exclusive sector is still reserved for companies owned by the Swedish state and public interest association and includes gambling machines, land-based casinos, bingo as well as online and land-based lotteries.
A large number of offshore operators have long targeted the Swedish market and there has been a high interest in the new licensing system. The application processes started on 1 August 2019 and by early October 2018, 60 applications had already been filed with the Swedish Gambling Authority. At the time of writing this Article a total of 117 licences have been granted to 73 operators.10 Online gambling is the most common type with 62 licences. Forty four licences have been granted for betting, six for land-based gambling, three for state-run gambling and two for gambling on ships in international traffic. Another 22 operators are still providing lotteries under licences granted under the previous legislation.
For the past few years, the Swedish Gambling Authority has issued several injunctions against newspapers and other companies for carrying advertisements for foreign gambling operators. Several of these injunctions were appealed to the administrative courts with the arguments inter alia that the LA was not compliant with EU law, that the restrictions on gambling are not carried out in a consistent and systematic manner, as required by the case law of the CJEU, and that the LA's main purpose instead was to provide revenue to the state. Such arguments were, however, ultimately struck down by the courts and the Supreme Administrative Court did not grant a review permit in any of the cases. The Swedish Gambling Authority has continued this strategy under the new GA and it can be assumed that injunctions against, for example, carriers of advertisements will be the main method for the Swedish Gambling Authority to deal with offshore gambling operators who aim their services at the Swedish market without a licence.
When performing an inspection of Casino Cosmopol AB, Svenska Spel's wholly owned subsidiary with a licence under the previous legislation to arrange casinos, the Swedish Gambling Authority found several shortcomings in the areas of anti-money laundering and responsible gaming.11 For example, several players were found to have visited the casinos a large number of times and played for large sums, but were still classified as 'low risk players' and one player was not suspended from using the casinos, despite having lost 2.8 million kronor and having been reported to the financial police three times in two years for suspected money laundering. The Swedish Gambling Authority issued a fine of 8 million kronor for non-compliance with the LA.
In December 2018 the Consumer Ombudsman filed a lawsuit against the Global Gaming 555 subsidiary Elec Games Ltd, which operates Ninja Casino, for advertising with statements that the Consumer Ombudsman has deemed are not 'moderate'. The case concerns statements such as 'can fill your account in five minutes', 'lightning fast payouts', 'winnings on your bank account within five minutes' and 'PLAY NOW!'.12 The case is currently being processed by the Patent- and Market Court and a judgment can be expected in 2019 or 2020.
Shortly after the self-exclusion service was introduced, a player who accidentally excluded himself from all licensed operators until further notice tried to lift the exclusion, but the administrative court found that it was not possible until 12 months had passed from the date of exclusion.13
As always when a new legislation is introduced, it takes some time before all parties have adapted and it has been made clear how the law should be applied. The introduction of the GA is no exception, especially since the law is vague in certain areas, and taking into consideration that gambling in general, and advertisements and problem gambling in particular, have been and continue to be hot topics for the public, media, authorities and the government.
As soon as the GA entered into force on 1 January 2019, there was a significant increase in investments for advertising for gambling services, with an increase of 38 per cent in January 2019 compared to January 2018.14 A debate has sparked in the first months of 2019 concerning the amount of advertisements in different media.
In February 2019, the Swedish Minister for Consumer Affairs, Ardalan Shekarabi, stated that the gambling operators were too excessive and aggressive in marketing their services. Mr Shekarabi called for a meeting with the licensees and urged the operators to self-regulate with regards to advertising. If no substantial change has been made in the amount and design of advertisements by 31 March 2019, Mr Shekarabi has stated that the government will be forced to take action.15
As of 1 February 2019, 20,000 people had excluded themselves from gambling services, using the self-exclusion service introduced by the GA. However, there have been several reports of operators who still have targeted advertisements against players who have excluded themselves, in violation of the GA. This, together with the amount of advertising, has led to further debate on problem gambling in Sweden.
The GA is somewhat unclear in its definition of what constitutes 'moderate' advertising and 'bonuses', where the latter can only be given to players when they first sign up with the licensee. As mentioned above, the Consumer Ombudsman has taken legal action against Elec Games Ltd, which operates Ninja Casino, in December 2018 for the use of certain terms in advertising. Furthermore, the Swedish Gambling Authority and Consumer Ombudsman have initiated supervisory actions regarding the use of bonuses, stating that cashback, payback and lowered player fees may be considered as bonuses under the GA. Ultimately, it will be up to the courts to rule on the interpretation of the GA and we expect several such cases within the coming years.
1 Erik Ullberg and Christel Rockström are partners, John Olsson is a senior associate and Vandad Ahmedi is an associate at Wistrand Advokatbyrå.
2 Spellag (2018:1138).
3 Lotterilag (1994:1000).
5 Spelförordning (2018:1475).
8 Judgment of the Göta Court of Appeal of 20 September 2005 in case No. B 1884-04.
9 Judgment of the Supreme Administrative Court case No. 7800-07 (HFD 2011 ref. 46).
13 Judgment of Linköping administrative court of 1 March 2019 in case No. 1158-19.