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 20102 and 20193 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.4 In line with that case law, the Gaming Commission has issued an interpretation of the concept of games of chance that explicitly includes certain types of 'loot boxes' in electronic games. A loot box must be understood as a stand-apart game feature in which it is decided at random what item or upgrade a player receives for his or her game character. It could be something useful, affecting gameplay, such as a more powerful weapon. Or it could be something entirely decorative, such as a new wardrobe. In general, whatever the type of item at stake, there will be items that are considered more valuable (because they are relatively rare) and items that are less valuable (because they are more common). A player who pays for a loot box is considered to engage in gambling under Belgian law. Several game developers have altered their game offer for the Belgian market following the approach of the Belgian Gaming Commission (most notably by excluding paid loot boxes from the Belgian market).
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. The 2019 amendment to the law on games of chance introduced new conditions for games that are exempted from the definition of Article 2. 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.5
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.6
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 expansion7 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, namely, 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 casinos,8 gaming halls9 and – since the amendment of the Act in 2019 – also betting shops,10 as well as certain control regarding games exempted from the definition of gambling due to the low stakes and gains,11 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.12 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.13 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). 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 the drafting of 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),14 the Gaming Commission informs the police of the name and details of the illegal websites; that data is then transferred to the ISPs that will block the access to the website. The website will then become 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.15
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.16 The regulatory framework is not complete as a number of Royal Decrees are long overdue. The implementation of Royal Decrees is often disputed before the Council of State by one or several operators. Most notably, there are a number of cases pending and a number in which there was a recent judgment regarding the Royal Decree on publicity and certain implementing rules regarding online gambling. Currently, the last amendment of the Act of 2019 is being challenged before the Constitutional Court.17 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 for public lotteries, and this is regulated by a specific law.18 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.19 Other charity lotteries offered by non-profit organisations are licensed under an old and succinct law.20
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 and 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.21
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.22
However, with the entry into force of the amended 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 2011,23 as well as distinct security and technical requirements. A Royal Decree of 28 October 2018 regarding conditions for the operation of gambling and betting through information society means imposes further restrictions, notably regarding publicity but also with respect to financial play limits, online payments and other matters. 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 socio-cultural 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.24 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, and for its duration only). The operation of betting shops requires an 'F2 Licence' (i.e., a licence that allows the taking of bets 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. a F1 Licence holder. F1 Licences are required to organise betting activities and are granted for periods of 9 years, renewable. The number of betting organisers (F1 Licences) is limited to 34. In addition, the number of fixed betting shops is limited to 600, and mobile betting shops to 60.25 Moreover, the distance between each betting shop operated after 1 January 2011 must be 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.26 Finally, betting shops may not be located close to hospitals, prisons, schools, churches and other religious temples or places where young people regularly meet. 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).27
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. Second, 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 precise).28 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 is stored on the Belgian server (for control purposes) and that the gaming website can be taken offline through the Belgian server (for sanctioning purposes).
As mentioned, the Royal Decree of 28 October 2018 regarding conditions for the operation of gambling and betting through information society means imposes additional restrictions on remote gambling and advertising. Notably, a standard expenditure limit of €500 per week per player is introduced. However, the limit may be raised on specific request of the player, which must be approved by the Gaming Commission before it can be implemented by the operator. This will be refused for players that are listed as having difficulties in paying their debts.
This decree also cracks down on internet payment solutions which allow the funding of a player's e-wallet with a credit card. This was considered a circumvention of the prohibition on using credit cards (directly) for online gambling.
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.29 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).30
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 licences are as follows: as an individual, be a citizen of one of the EU (read: EEA) Member States or, as a legal person,31 be incorporated under the laws of any EU (read: 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.32 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.33 This also applies to renewals of concession agreements.
For certain licence applications, the Gaming Commission must decide within a pre-set deadline (for instance, 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.34
The Amendment of the Gambling Act of 2019 introduced a new separate F1P licence for offering betting on horse races, which can only be acquired by F1 licence holders (betting operators). This entails additional requirements for such operators (including the obligation to find an agreement with the Belgian horse-racing sector that would include a financial return from the betting sector to the horseracing sector).
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 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.35
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 the participation in games of chance known to be illegal, for the recruitment of players for illegal gaming establishments or games of chance, for for breach of rules on betting or breach of the obligation to identify anyone entering a casino or gaming hall, as well as breach of rules relating to complementary gifts to customers, a person found guilty may be fined between €208 and €200,000, subject to imprisonment between one month and three years, or both. These sanctions may be doubled in case of second offence within five years of a 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.36
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.37
The 4th Anti-Money Laundering Directive,38 subjecting all gambling and lottery operators to anti-money-laundering 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, 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 line with a report from the Gaming Commission, bars that offer gambling through (legally limited in number and low-stake) gaming machines are exempt from AML obligations as they are considered not to represent a significant risk.
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.39 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. 40 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 chance. The National Lottery is obliged to pay a monopoly rent on its public lottery activities, the amount of which is calculated annually and published in a Royal Decree, as well as 'subsidies and special contributions'.
Belgium imposed VAT on online gambling in the course of 2016 (excluding lotteries). The Constitutional Court, however, annulled this legislation in March 2018 as it found that the national legislator had acted outside the scope of its competences.
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 in principle to advertise for their activities.
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 Code41 (e.g., by not misleading players).
The abovementioned Royal Decree of 25 October 2018 imposes stricter advertising rules for online operators. The rules imposed concern the content of advertising, such as the prohibition on misrepresenting gambling as a potential source of income, or the obligation to add the minimum age to play as well as a warning message ('play with moderation'). It also contains limitations on the amount of publicity, for example, by prohibitions on 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 advertisement per commercial break.
The new rules as outlined in the Royal Decree of 25 October 2018 entered into force on 1 June 2019. However, as was expected, a number of operators have introduced requests for annulment of the decree as they find the restrictions on advertising imposed through the decree to be too severe. One of the cases (this was on online payment services, however, and not advertising) was dropped and will not receive a final judgment by the Council of State. In two other cases, the Council of State partially annulled the Royal Decree on two aspects: (1) the possibility for online operators to offer bonuses has been removed entirely so that bonuses for online gambling and betting are considered illegal; (2) the differing approach between betting and casino games operators was considered discriminatory so that the (more stringent) rules applicable to online casinos and gaming halls were annulled. Where the latter were previously faced with a quasi-complete prohibition on advertising (only on their own website and through direct marketing), they are now, in principle, subject to the same rules as online betting operators, meaning that advertising is no longer prohibited in principle. There are more cases pending, so that might not yet be the end of the story before the Council of State.
Separately, the Gaming Commission published an official opinion on the application of the Royal Decree of 25 October 2018, with a view to offering some guidance on how the rules will be applied in practice.
The abovementioned decree does not apply to lottery products from the National Lottery. The latter, however, has in place a code on ethical advertising and, in any case, 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
A number of changes came about in 2019. It was another year marked with proceedings instigated by an operator (both land-based and online) that seems to have embarked on a relentless crusade to influence Belgian gambling policy in the direction of tighter restrictions on online gambling in this manner.
Most notably in this respect are proceedings ongoing before the Constitutional Court regarding the latest Amendment in 2019 of the Act. Several operators are challenging the Amendment, which imposes additional requirements on gaming operators, for example, the additional requirements for betting shops, the new horse betting licence's requirement to have an agreement with all horse-racing organisations, and low-stake machines operated in drinking estbalishments. Due to circumstances (most notably a lack of federal government), several implementing Royal Decrees have not been made. Amid continuous new legal proceedings on the interpretation and application of the Act, there is a sense of legal uncertainty among many stakeholders in the gambling sector.
In the context of the infringement proceedings re-activated in November 2013 by the European Commission, Belgium had 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 Commission, however, announced at the beginning of December 2017 that it had decided to close all infringement proceedings against Member States regarding their gambling policies.
This does not close down the possibility to review consistency with EU law of national gambling regimes. 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.
Also, a number of executive Royal Decrees that should complete the regulatory framework are still missing. We have no information on when, if at all, these will be adopted.
Overall, the outlook for the Belgian regulatory framework remains, in our opinion, one that announces potentially substantial changes. This holds true now more than ever, with staff changes at the top of the Gaming Commission ongoing and the political will emerging to reshape the applicable rules in order to create a less contentious legal framework.
1 Philippe Vlaemminck is a partner and Robbe Verbeke is a senior associate at Pharumlegal.
2 Law of 10 January 2010.
3 Law of 7 May 2019.
4 Judgment 232.752 of the Council of State of 29 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 Act.
5 Notice of the Belgian Gaming Commission of 12 November 2014 on spread betting, available on the website of the Belgian Gaming Commission.
6 Article 4 of the Act.
7 See CJEU, judgment of 6 March 2007, Placanica, C-338/04, 359/04 and 360/04, EU:C:2006:324, Paras. 55 and 57.
8 A concession agreement must be concluded with the municipality in which the casino premises will be operated (Article 31 of the Act).
9 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).
10 Article 34/4 of the Act.
11 Article 3, third indent of the Act as amended in 2019.
12 Article 20 of the Act.
13 Article 15/2 and article 15/3 of the Act.
14 ISPs committed to cooperating voluntarily through the conclusion of an agreement – the majority of ISPs are parties to this agreement.
15 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 29 October 2015 (Gamepoint).
16 The law and its underlying policy were contested before the Constitutional Court, which 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.
17 Constitutional Court, joined cases 7277 currently pending.
18 Law of 19 April 2002 on the rationalisation, functioning and management of the National Lottery.
19 Latest version as agreed by Royal Decree of 30 August 2016.
20 Law of 31 December 1851 on lotteries.
21 Under Chapter V of the National Lottery Act.
22 Constitutional Court, judgment of 10 March 2004, No. 33/2004.
23 Royal Decree of 21 June 2011 regarding qualitative conditions to be fulfilled by additional licence 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.
24 Article 29 of the Act.
25 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.
26 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.
27 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.
28 This includes most notably internet (via PC, smartphone or tablet), but other distribution channels are possible.
29 Article 52 of the Act.
30 In practice, the Gaming Commission usually accepts such a double possession when a gambling licensee also holds 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.
31 It must be noted that non-profit associations are not allowed to apply for gambling licences.
32 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.
33 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, for example, 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.
34 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.
35 Article 4 of the Act.
36 Chapter VII of the Act.
37 Articles 302 and 303 of the Belgian Criminal Code.
38 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.
39 Articles 246, 504bis and 504ter of the Criminal Code.
40 For information, Belgium is divided into three economic regions, namely, the Flemish Region, the Walloon Region and the Region of Brussels-Capital.
41 Their infringement could lead to action for damages before commercial courts.