Contributed By Astrea
During 2019, the Belgian legislature has substantially amended the most important piece of gambling legislation (the Gaming Act). These amendments are discussed below. Furthermore, the Belgian government adopted, in 2018, an implementing Royal decree which contains important rules for online games of chance and bets. These rules will also be discussed below. At the same time, there are several proceedings whereby courts are asked to rule on fundamental gambling law questions, such as whether live gaming is allowed under the currently applicable rules and whether different online gaming products (for example, bets and casino games) can be commercialised on the same website ("multi-product websites").
Since 2011, it has been an essential characteristic of Belgian gambling policy that online gaming licences can only be obtained by a company holding an offline licence. In a remarkable judgment of 28 February 2018 concerning Hungarian gambling legislation, the EU Court of Justice held that a restriction which reserves access to the market for online games of chance to casino operators situated on national territory is disproportional and therefore contrary to the EU freedom to provide services. This judgment alsosuggests that Belgian gambling legislation is at odds with the EU internal market freedoms.
The Belgian Gaming Commission published in 2018 an "investigatory report on loot boxes". The report argues that certain loot boxes in video games qualify as a "game of chance" and fall within the scope of the Gaming Act. The report has triggered a number of criminal investigations into loot boxes. Several video game developers have decided to amend their video games for the Belgian market.
During 2019, the Belgian legislature has substantially amended the most important piece of gambling legislation (the Gaming Act). These amendments are discussed below. Furthermore, the Belgian government adopted, in 2018, an implementing Royal decree which contains important rules for online games of chance and bets. These rules will also be discussed below.
Offering online games of chance and bets requires a licence. There are three categories of online gaming licences: A+ for online casino games, B+ for online arcade games and F1+ for online bets. As a general rule, the Gaming Act stipulates that an online licence-holder (A+, B+ or F1+) can only operate games of chance “of the same nature” as the ones offered offline.
An F1+ licence-holder can offer online bets, and an A+ licence-holder has the right to commercialise online casino games. The National Lottery holds the monopoly to offer online lotteries. Fantasy sports and social gaming are not explicitly regulated; however, if these products qualify as a game of chance or a bet, they fall within the scope of the Gaming Act and can only be commercialised with an online licence. A+ and B+ licensees can operate online poker games. The holder of an A+ licence can also offer online bingo.
Offering land-based games of chance and bets requires a licence. There are four categories of land-based gaming licences: an A licence for casinos, a B licence for gaming arcades, a C licence for bars and an F1 licence for bets. Holders of an A, B and C licence can offer explicitly enumerated games of chance (see further details below). An F1+ licensee can commercialise all (sports) bets. But bets on horse races have been more strictly regulated. Certain bets are or can be prohibited (see also below).
The holder of an F1 licence can commercialise (sports) bets. Bets can be organised on sports events and non-sporting events. It is prohibited to organise bets on events or activities which are contrary to public order or morality, whose outcome is known, where most of the participants are minors or where the uncertain act has already occurred. The Gaming Commission has recently been given the power to prohibit bets in two specific cases: where the fairness of the event on which a bet is organised cannot be guaranteed and where it considers that specific bets are prone to fraud. The Gaming Act lists explicitly the bets on horse races which can be offered.
The Gaming Act itself does not mention poker specifically. But poker will usually qualify as a game of chance (see below, for the definition of a game of chance), unless it is a free poker game. Under specific conditions, two types of gaming establishments can offer poker: casinos that operate under licence A as a class I gaming establishment and gaming arcades that operate under licence B as a class II gaming establishment.
Bingo is a table game that may be offered in a casino (class I gaming establishment). In addition, bingo machines are also allowed in class III gaming establishments (bars) for which C licences are required. Bars are premises where drinks are sold to be consumed on the spot and where no more than two games machines are allowed (bingo and one-ball).
A royal decree of 19 July 2001 enumerates the games of chance that can be offered in casinos (class I gaming establishment). These games are subdivided in two categories. The first category of games comprises table games (baccarat, big wheel, blackjack, poker, chemin de fer, craps, mini punto banco, midi punto banco, maxi punto banco, French roulette, American roulette, English roulette, sic bo and bingo); the second category comprises automatic games (reel-slot-type games, video-slot-type games, wheel-of-fortune-type games, horse races with several terminals where at least 12 players can take place, keno-type games and interactive poker games). Casinos can therefore offer poker both as a "table game" and as an "automatic game". In addition, casinos have the right to organise one poker tournament per year, in close co-operation with the Gaming Commission.
Casinos have the right to commercialise certain gaming machines (see above).
In addition, a royal decree of 26 April 2004 lists the gaming machines that can be offered in gaming arcades (class II gaming establishment). For gaming arcades there are two categories of games: automatic games without players’ cards and automatic games with players’ cards. The category of automatic games without players’ cards contains the following five types of games: blackjack, horse bets, dice games, poker games and roulette. There is currently only one game of chance class II gaming establishments can offer as an automatic game with players’ cards, namely interactive poker.
Bars having a C licence (class III gaming establishments) can have maximum two gaming machines (bingo and one ball) and two "automatic gaming machines with lowered stakes" (also called Article 3.3 gaming machines).
Article 1 of the Lotteries Act (see below) states that all lotteries are prohibited. There are nevertheless certain limited exceptions to this general prohibition, namely for lotteries "exclusively intended for religious or charitable purposes, to promote industry and art or any other purpose in the general interest": these lotteries must obtain a licence (depending on the case, at local, provincial or national level). Furthermore, the National Lottery has been granted a monopoly on offering public lotteries: these should be offered "in the general interest and in accordance with commercial methods".
The Belgian regulatory framework regulating games of chance and lotteries consists of a number of different acts:
Definition of Gambling
A game of chance is broadly defined as follows: "any game in 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 for at least one of the players or organisers of the game, and in which chance is an even ancillary element in the course of the game, the designation of the winner or the determination of the gain" (Article 2, 1° of the Gaming Act).
A "game of chance" therefore requires the presence of:
A "bet" is defined as a specific sub-category of games of chance: "a game of chance in which each player wagers an amount that generates a gain or loss that does not depend on an act of the player, but depends on the realisation of an uncertain event happening without the intervention of the players" (Article 2, 5° of the Gaming Act). The Gaming Act explicitly distinguishes "totalisator" (mutual bets) ("bet for which an organiser acts as the intermediary between various players who play against each other and in which the bets are collected and distributed among the winners, after deduction of a percentage to cover the taxes on gambling and betting, the costs of the organisers and the profits they gain from it") from "odds betting" ("bet in which a player places stakes on the result of a certain act, in which the amount of earnings is determined according to fixed or conventional odds and in which the organiser is personally liable to pay winnings to players").
Free games do not qualify as games of chance under the Gaming Act, as they do not involve any kind of stake.
The Gaming Act explicitly excludes the following games of chance from its scope of application:
(a) played outside class I and II gaming establishments,
(b) operated in attraction parks or by industrial fairgrounds, for example in connection with carnivals and trade fairs; or
(c) organised occasionally (that is, not more than four times a year) by an association having a social or charitable purpose, or by a non-profit association for the benefit of a social or philanthropic project.
In addition, the Gaming Act explicitly states that it does not apply to lotteries (within the meaning of the Lotteries Act and Articles 301 to 303 of the Belgian Criminal Code) and to public lotteries and certain games as referred to in the National Lottery Act.
A lottery is any transaction offered to the public which is meant to procure a gain by means of chance (Article 301 of the Criminal Code). A lottery requires that the loss or gain is exclusively determined by chance without any active involvement or intervention of the player, regardless of the player's skill. There is, however, no requirement that the player commits a stake. As a consequence, free transactions may also qualify as a lottery.
There is no separate definition of “land-based” games of chance. The general definition of a "game of chance" applies.
Online games of chance are games of chance offered via an "instrument of the information society". An instrument of the information society is defined as an electronic equipment for processing (including digital compression) and storing data which is entirely transmitted, conveyed and received by wire, radio, optical means or other electromagnetic means (Article 2.10° of the Gaming Act).
The Gaming Act contains a very broad prohibition clause. Not only is it prohibited to "operate in any place, in any form and in any direct or indirect manner, games of chance or gambling establishments without a licence" (Article 4, §1 of the Gaming Act), but it is also prohibited to participate in illegal (ie offered without a licence) games of chance, facilitate the operation of illegal games of chance or gaming establishments, advertise illegal games of chance/gaming establishments or recruit for illegal games of chance/gaming establishments if it should be known that the game of chance or gaming establishment is not authorised under the Gaming Act. It is also prohibited to participate to a game of chance if the player can have a direct impact on the result (Article 4, §2 of the Gaming Act). All these acts are punishable with criminal sanctions.
The operation of illegal games of chance or gaming establishments can be sanctioned with a prison sentence of six months to five years and/or with a fine of EUR800–800,000. Persons guilty of breaching a prohibition to participate in and facilitate the operation of illegal games of chance/gaming establishments, or advertising or recruiting for illegal games of chance/gaming establishments, are liable to imprisonment for a period of one month to three years and/or a fine of EUR208–200,000. In particular cases (recidivism or if the infringement involves a person younger than 18 years), these sanctions can be doubled. A violation of the prohibition for any person to participate in any game of chance on the result of which, by its nature, he or she could have a direct influence can give rise to a prison sentence of six months to five years and/or with a fine of EUR800–800,000.
In particular cases (recidivism or if the infringement involves a person younger than 18 years), the sanctions can be doubled.
The Gaming Act contains also an administrative sanctioning mechanism. For certain (serious) infringements and under certain conditions, if the Public Prosecutor decides not to bring a criminal case, but without calling into question the existence of the infringement, the Gaming Commission has the power to impose administrative sanctions. If, however, the Public Prosecutor informs the Gaming Commission that it will prosecute the facts or that no sufficient elements to prosecute are available, the Gaming Commission cannot impose an administrative sanction. The Gaming Commission can impose an administrative fine corresponding to the minimum and maximum amounts of the criminal fine. The administrative fine must be imposed by reasoned decision. The notification of that decision prevents a criminal prosecution for the same facts. The Gaming Act contains a specific procedure to challenge an administrative fine legally.
In the case of an infringement, the stakes and other material will be confiscated. A court may order the definitive or temporary closure of the gaming establishment. In this case the Gaming Commission must withdraw the gaming licence. Natural persons and directors, managers, decision-making bodies, employees and agents of legal entities are liable in civil law to pay any damages, fines, costs, confiscations and administrative fines whatsoever issued for breaching the Gaming Act.
The Gaming Commission publishes on its website also a blacklist of "prohibited" websites. Most Belgian ISPs will block access to these websites from Belgian IP addresses. The Gaming Commission and Febelfin (a Belgian non-profit association representing banks and financial institutions) have signed a protocol, whereby Belgian banks and financial institutions are requested to block payments from and to blacklisted operators.
For lotteries, Article 1 of the Lottery Act stipulates that all lotteries are prohibited. Article 302 of the Belgian Criminal Code provides that organisers, entrepreneurs, directors, representatives and agents of lotteries which are not legally allowed will be punished with a prison sentence of eight days to three months and with a criminal fine of EUR50–3,000. In addition, the moveable property staked in the lottery can be seized.
There is no pending legislation as far as is known. Moreover, in light of the recent amendment of the Gaming Act (in 2019), it is not expected that the Belgian legislature will enact substantial amendments to the Gaming Act in the coming years. The Gaming Commission is preparing guidance on the interpretation of the 2018 Royal decree on online games of chance (see Section 4 Licensing and Regulatory Framework).
The regulatory authority for games of chance is the Gaming Commission. In essence, the Gaming Commission has a three-fold task. It offers advice on legislative or regulatory issues, and is responsible for granting of gaming licences. The Gaming Commission also monitors compliance with the Gaming Act and the implementing Royal decrees, and it can impose certain sanctions in the case of infringement.
The regulation of games of chance and bets is based on a channelling approach. In order to satisfy the apparently human need to play, the illegal offer of games of chance is fought by offering a limited, strictly controlled and regulated, but attractive, offer of games of chance and bets. Hence, the Gaming Act contains a broad prohibition to offer (online and offline) games of chance and bets: only the companies that have the required licence can commercialise games of chance and bets. Furthermore, the Belgian legislature has limited the number of available gaming licences (numerus clausus).
The following land-based and online gaming licences are available:
The following licences are available:
The durations of the licences available are as follows:
The application requirements vary for each type of licence. All applications should be filed with the Gaming Commission.
Only EU citizens and EU-registered companies can apply for an A, B, E or F1 licence. In general, an applicant for such a licence must submit fiscal, criminal and financial information. There are certain solvability criteria to be satisfied. A legal person must include additional information about its directors and shareholders, together with supporting evidence. Failure to meet any conditions set out in the application form or to submit the requested information will result in the application being denied.
For online games of chance (licence A+, B+ and F1+) two Royal Decrees (both of 21 June 2011) are noteworthy. A first Royal decree enumerates the quality requirements to be met by the applicant for an online licence. The applicant must have a solvability ratio of 40%, provide a plan that guarantees the security of all payments between the operator and the player, provide details about advertising policy, provide proof that there are no tax debts, etc. The applicant is also responsible for a permanent data connection between the website and the Gaming Commission. A second Royal decree stipulates that the application for an online licence must be sent to the Gaming Commission by registered post, or electronically. It adds that the application should specify "where the website will be managed" (which means that the Gaming Commission should be informed about the precise location, in Belgium, where the servers used to administer the website will be established).
The Gaming Commission must decide on applications for a licence A, B and E within the six months following receipt of the application or submission of a complete application file. Applications for an online licence must also be treated within a period of six months starting from the date of the application.
There are no fees associated with the submission of a licence application. However, the payment of a guarantee deposit is required. The guarantee must be paid to the "Caisse des dépôts et consignations". Guarantee deposits need to be paid for most licences. The guarantee varies from EUR250,000 (for an A and A+ licence) to EUR75,000 (for a B, B+ and F1+ licence) and EUR10,000 (for an F1 licence).
Licence-holders (except D) are required to pay a fee on an annual basis. The precise amount to be paid is determined by Royal Decree. As of 2019, an A and A+ licence-holder must pay a fee of EUR22,085, whereas an F1 and F1 licence-holder must pay a fee of EUR12,603.
A "casino" (class I gaming establishment) is defined as an establishment "in which are operated games of chance, whether or not automatic, that are authorised by the King and in which there are at the same time organised socio-cultural activities, such as shows, exhibitions, congresses and hotel and catering activities". Only nine casinos are allowed on Belgian territory. The Gaming Act enumerates the territories of the communes/cities where a casino can be operated: Blankenberge, Chaudfontaine, Dinant, Knokke-Heist, Middelkerke, Namen, Oostende, Spa and Brussels. The casino must conclude a concession agreement with the council of the municipality or city.
A Royal decree of 3 December 2006 contains the operating rules and additional requirements concerning the accounting and control of games of chance that can be offered in class I gaming establishments. A Royal decree of 15 December 2004 provides that class I (and II) gaming establishments must have an access register. A Royal decree of 23 May 2003 lays down the rules for the supervision and control of the games of chance offered in casinos, including control through an IT system. All casinos must have a local area network (LAN), which must be connected with the LAN of the Gaming Commission.
"Gaming arcades’"(class II gaming establishments) are "establishments in which only games of chance authorised by the king are operated". Gaming arcades may not be located in the vicinity of hospitals, prisons, schools, ceremonial places and places where young people regularly meet. The operating rules for the automatic games of chance that can be offered in class II gaming establishments are laid out in a royal decree of 8 April 2003. A royal decree of 23 May 2003 sets out the rules for supervising and controlling the games of chance offered in class II gaming establishments. This includes the control through an IT system, whereby the class II gaming establishment has a LAN that is connected with that of the Gaming Commission.
The licensing system for bets distinguishes between the organisation of bets (F1 licence) and the acceptance of bets (F2 licence). Class IV gaming establishments are places exclusively permitted to accept bets on behalf of an F1 licence-holder. It is prohibited to accept bets outside a class IV gaming establishment. There are, however, a limited number of exceptions to this prohibition. A class IV gaming establishment can be fixed or mobile. A fixed class IV gaming establishment is a permanent establishment, clearly demarcated, where bets are offered. A royal decree determines that a maximum of 600 (initially 1000) fixed class IV gaming establishments can be licensed. A mobile class IV gaming establishment is a temporary establishment, also clearly demarcated, where bets are offered during and at an event, a sports game or a sports competition. A maximum of 60 mobile class IV gaming establishments are allowed. There must be a distance of 1,000 metres between each betting office. F2 licences can also be granted to press shops, which can offer bets as an ancillary activity.
During 2019, major changes have been made to the Gaming Act.
Betting shops (class IV gaming establishments) are henceforth obliged to conclude an agreement ("covenant") with the municipality in which it is established. The covenant must determine the address of the betting shop, the opening and closing hours, and the opening and closing days. In addition, the covenant must determine the “conditions” under which a betting shop can be operated. The requirement to have such a covenant also becomes a condition to obtain a F2 licence.
It has become mandatory for betting shops to check whether players are in the Gaming Commission’s Excluded Persons Information System. There are also new limitations for the establishments of betting shops: it is expressly prohibited to establish a betting shop in the vicinity of schools, hospitals, or places frequently visited by young people, unless permitted by the municipality. Furthermore, betting shops have the right to have two "gaming machines" that offer bets. Betting shops are now obliged to keep all data related to these gaming machines in a permanent establishment in Belgium.
An undertaking that wishes to organise bets on horse races must obtain the newly created F1P licence. Only the holders of an F1 licence can obtain such an F1P licence. The licensing conditions to be satisfied will be determined in a Royal decree.
The conditions to obtain a C licence have become more strict. If there are any "unfavourable antecedents" concerning criminal acts or public order, it will no longer be possible to obtain a C licence. The precise conditions must still be determined in a Royal decree.
Since 1 January 2011, the Gaming Act has contained an explicit legal framework for offering online games of chance and bets in Belgium; before that date, online games of chance and bets were not explicitly regulated. The Belgian legislature has set up a closed licensing system: offering online games of chance and bets requires an online licence (licence A+ for online casinos, licence B+ for online gaming arcades and licence F1+ for online bets). The number of online licences available is limited to nine A+ licences, 180 B+ licences and 35 F1+ licences. In addition, an online licence requires a mandatory physical connection to the Belgian territory: only those operators licensed to operate in the real world (and holding a principal licence A, B or F1) can obtain a licence to offer the same games of chance and bets online (an additional A+, B+ or F1+ online licence). The Gaming Act thus introduces a parallelism between the offline and online licences.
B2B operators should hold an E licence. The following activities are subject to an E licence requirement: sale, rental, supply, making available, import, export, manufacture, maintenance, reparation and equipment of games of chance. The Gaming Act does not distinguish between land-based games of chance and online games of chance. It follows that all undertakings providing one of these services to an A+, B+ or F1+ licence-holder should obtain an E licence.
It is prohibited for a natural or legal person to hold at the same time an A, A+, B, B+, C, D, F1, F1+, F2, G1 and G2 licence and an E licence, either directly or indirectly or through another natural or legal person. An infringement of this prohibition can give rise to criminal sanctions.
The Gaming Act does not specifically regulate "affiliates". However, certain activities of affiliates come within the scope of application of the Gaming Act. Pursuant to Article 4 §2 of the Gaming Act, for example, it is prohibited for anyone (so also affiliates) to facilitate the operation of unlicensed games of chance, to advertise for unlicensed games of chance and to recruit players for unlicensed games of chance.
The Gaming Commission publishes on its website a list of all licence-holders (except D licence-holders). All "licensed" websites can be found on the Gaming Commission’s website.
The Gaming Act has been amended in 2019. For online games of chance the Belgian legislature has created the possibility to issue a Royal decree laying down “separate exploitation criteria” for online and offline games of chance. As discussed earlier, the parallelism between online and offline gaming licences is an essential characteristic of the Belgian Gaming Act: only holders of an offline licence (A, B or F1) can obtain an online licence (A+, B+, F1+) and holders of an online licence can only commercialise those games of chance that have the "same nature" as the ones that are offered offline. The possibility to lay down separate exploitation criteria is a deviation from that strict parallelism.
In 2018, an important Royal Decree (of 25 October 2018) has been adopted introducing (i) general rules to offer online games of chance and bets, (ii) advertising rules and (iii) rules on player registration, identification and age verification (see also Section 7 Responsible Gambling).
There are currently no (legally binding) technical requirements for online games of chance and bets.
Persons younger than 21 years are prohibited from accessing a casino or a gaming arcade. Bets are prohibited for minors (less than 18 years). The same age requirements apply for online games of chance and bets. The Gaming Act contains additional prohibitions to access casinos and gaming arcades for particular persons (eg, magistrates).
The Excluded Persons Information System (EPIS) is a database containing the names of (self) excluded persons. Most (online) operators have to consult the EPIS database before allowing customers to play.
Online licence-holders must impose compulsory game limits. Players should be able to make these limits stricter with immediate effect. A player can top a player account by no more than EUR500 per week across all of the online games of chance in which he or she participates. Online licence-holders must offer the possibility of temporary self-exclusion, and they must inform players by means of notifications and pop-up windows on the potential risks of participating in online games of chance. Online licence-holders must also refuse any intervention by electronic payment systems authorising the use of a credit card by the player as a transfer method. The maximum amount of the bonuses offered to a player is limited to EUR275 per month.
Giving credit or a loan and engaging in a financial or other transaction in casinos to pay for a stake or a loss is prohibited, except for credit and debit cards. However, payment by credit card is not allowed in class II, III and IV gaming establishments and for online games of chance and bets. It is also prohibited to have ATMs in class I, II, III and IV gaming establishments.
There is a wide variety of measures that aim to create a safe and responsible gambling environment. For gaming machines there are detailed rules on maximum stakes, losses and gains. Also the average hourly loss is regulated. For example, gaming machines in casinos must have a theoretic redistribution percentage of at least 84%. Only gaming machines with an average hourly loss not exceeding EUR25 are allowed in gaming establishments of type II. Other essential measures to protect players are the Excluded Persons Information System (EPIS), a database with (self) excluded persons and mandatory age requirements. Some of these measures are discussed above (in 7.1 RG Requirements). Other measures which can be mentioned include the following: all advertising for online games of chance must mention the minimum age requirements to participate; all advertising for online games of chance must include the message "Play with moderation!" (in Dutch or French); and online licensees must offer the possibility for self-exclusion and inform players by means of notifications and pop-up windows on the potential risks of participating in online games of chance.
The key legislation is the Law of 18 September 2017 on the prevention of money laundering, terrorist financing, and on the limitation of the use of cash (AML Law). The AML Law transposes Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (Fourth EU Anti-Money Laundering Directive) into Belgian law.
The AML Law applies to "all natural and legal persons operating one or more games of chance". All gambling operators are subject to due diligence obligations which consist of the identification and verification of players, financial beneficiaries, monitoring suspicious transactions, and other vigilance obligations in co-operation with the Belgian Financial Intelligence Processing Unit, police and the public prosecutor’s office. The gaming operator is now obliged to register players who place bets for the amount of EUR1,000 or above. The AML Law also imposes limits on the use of cash money; no gift or payment in cash can be made or accepted when the amount exceeds EUR3,000 (or the counter value of EUR3,000 in another currency). A Royal decree of 30 January 2019 exempts C, G1 and G2 licence-holders from the application of the AML Law.
There is no specific agency responsible for gaming advertising. Instead, the Gaming Commission is competent to monitor compliance with the Gaming Act and its implementation of Royal decrees – including the advertising restrictions which can be found there.
The Gaming Act itself does not define "advertising". Pursuant to Article I.8, 13° of the Code Economic Law (CEL) advertising should be understood as “any communication of an undertaking with the purpose to promote directly or indirectly the sale of products, irrespective of the place or the designated tools of communication”.
It is prohibited to advertise for (land-based and online) games of chance and bets if it is known that those games of chance or gaming establishments are not authorised under the Gaming Act. A violation of this prohibition can give rise to criminal sanctions.
As far as land-based games of chance and bets are concerned, the Gaming Act does not contain any specifically applicable advertising restrictions. Advertising for land-based games of chance is, however, subject to horizontally applicable rules which can be found, for example, in Book VI (“Market practices and consumer protection”) of the Code of Economic Law. In 2019 a provision was inserted in the Gaming Act, which will make it possible to impose specific advertising restrictions for land-based games of chance and bets.
Since 2011, the Gaming Act provided that a Royal Decree may set out rules regarding advertising for licensed online games of chance and bets. This Royal decree was effectively adopted in 2018 (Royal Decree of 25 October 2018 concerning the conditions to exploit online games of chance and bets). This Royal Decree imposes strict advertising rules for online games of chance and bets (see 9.4 Restrictions on Advertising).
Advertising for unauthorised games of chance and bets, both land-based and online, is prohibited.
Articles 1 to 5 of the Royal Decree of 25 October 2018 on online games of chance contain strict and detailed advertising restrictions. A+ and B+ licensees can only promote their online games of chance on their website or through personalised advertising. Article 2 contains several restrictions in relation to advertising campaigns for online games of chance. Article 3, section 1, limits when advertising campaigns by A+, B+ or F1+ licensees can be broadcast (for example, advertising is prohibited during the live coverage of sporting competitions). Article 3, section 2 contains restrictions on advertising campaigns by an F1+ licence-holder and section 3 contains restrictions on advertising campaigns by A+ or B+ licence-holders. Advertising for online games of chance and bets must not divulge identities, addresses and other data relating to players and their families, including their photographs and/or other visual recordings. Advertising for online games of chance and bets must not offer gaming credits or bonuses of any kind, except on the websites on which the operation of these games are authorised, and must not incite people to play by promising a new contribution or reimbursement of the bet in the event of a loss.
An infringement of the prohibition to advertise for unlicensed games of chance and unlicensed gaming establishments can give rise to criminal sanctions: imprisonment for a period of one month to three years and/or a fine of EUR208–200,000. Under certain conditions, the Gaming Commission can also impose an administrative fine of EUR208–200.000.
The Royal Decree of 25 October 2018 itself does not contain any sanctions. However, the Gaming Commission can issue warnings, suspend or revoke a licence, or impose a temporary or final prohibition to offer one or more games of chance.
Transferring gaming licences is prohibited. The Gaming Commission must at all times, and scrupulously, be notified of any changes to the shareholding structure of the A, B, E and F1 licence-holder. Whereas the Gaming Act only refers to the identity of the "shareholders", it is the Gaming Commission’s practice to extend this to all persons or entities who directly or indirectly exercise control over the company (including the ultimate beneficial owner).
The Gaming Act does not contain any specific triggers whereby notifications to the Gaming Commission have to be made. Instead, the Gaming Act requires that the A, B, E and F1 licence-holders notify the Gaming Commission of any changes to the shareholder structure.
There are no specific passive investors requirements mentioned in the Gaming Act. As explained earlier, the Gaming Commission must be informed of all changes in the shareholder structure of an A, B, E and F1 licensee.
The Gaming Commission is the administrative authority that monitors compliance with the Gaming Act and its implementing decrees. The Gaming Commission’s Control Unit have been given broad investigative powers. It can carry out inspections in gaming establishments and IT systems, conduct investigations, make any findings it deems useful and request to be handed all documents that may be useful for its investigation. It may also seize all documents, gaming machines and exhibits that may be useful to demonstrate an infringement of the Gaming Act. The Control Unit has the power to draft an "official report", which will be sent to the Public Prosecutor. Under certain conditions, the Gaming Commission can impose administrative sanctions.
Whenever the Gaming Commission finds that there is an infringement of the Gaming Act or its implementing Royal decrees, it must take a reasoned decision to issue a warning, to suspend or withdraw a gaming licence for a certain period or to impose a temporary or final ban to operate one or more games of chance. In addition, when certain explicitly enumerated provisions of the Gaming Act are infringed (eg, prohibition to offer unlicensed games of chance, or the prohibition to advertise for unlicensed games of chance) the Gaming Commission can impose, in certain circumstances, administrative fines. In 2017 the Gaming Commission initiated 75 sanctioning procedures. That same year, 82 administrative fines were imposed. The Gaming Commission used to have a discretionary power to impose sanctions. With the entry into force of the 2019 amendment to the Gaming Act, the Gaming Commission is obliged to impose sanctions.
The Gaming Commission blacklists those websites it considers to offer unlawful games of chance in Belgium. The blacklist is also published on the Gaming Commission’s website. Most Belgian ISPs block access to the blacklisted websites.
As previously discussed, certain infringements of the Gaming Act can give rise to criminal fines. In certain circumstances, the Gaming Commission can impose administrative fines.
There is no specific regulation applicable to social games. Social gaming will be subject to the Gaming Act only if the game qualifies as a game of chance.
There is no specific regulation applicable to eSports. In its 2017 annual report, the Gaming Commission argues that betting on eSports must be considered as betting on events: it can be organised in betting shops and online with the prior approval of the Gaming Commission.
There is currently no specific regulation applicable to fantasy sports. The Gaming Commission argued, in its 2017 annual report, that fantasy sports should be regarded as betting on sports events and that F1/F1+ licence-holders can organise these bets with the Gaming Commission’s prior approval.
There is no specific regulation in force with regard to skill games. Skill gaming is only subject to the Gaming Act if it qualifies as a game of chance.
It is not known whether or to what extent blockchain is being used in the Belgian gaming industry. Further, there is (at least currently) no specific regulation for blockchain-related games of chance.
No reforms are expected in this market.
Tax Rate by Sector
A gaming tax is applied to all types of games of chance and bets, ie, all transactions characterised by the fact that the participants wager a sum with the risk of loss, in the hope that it would benefit in specie or in kind. The way participation takes place (verbally, in writing, by telephone, internet, e-mail, text, via internet, etc) is of no importance. The tax on games and bets is also payable for unlicensed games of chance and bets and for which the organisers are subject to criminal sanctions. It is therefore not necessary for a transaction to be permitted by law for the tax to be due.
In the Flemish Region and the Region of Brussels-Capital, bets on horse races, dog races and sports events, taking place in Belgium or in an EEA member state, are taxed at a rate of 15%, calculated on the actual gross margin realised with that wager. Bets on horse races, dog races and sporting events taking place outside the EEA are taxed at a rate of 15% on the gross amount of the sums or stakes involved. In the Walloon Region, bets are generally taxed at a rate of 15% on the actual gross margin realised upon the bet.
In the Brussels-Capital Region, casino games are taxed as follows:
In the Flemish Region, all casino games are taxed on the gross amount of the stakes. Casino games are taxed at 33% on the gross gaming revenue up to EUR865.000 and 44% on the part of the gross gaming revenue in excess of EUR865.000.
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 of class A,B,C,D or E).
Online Games of Chance and Bets
The three Belgian federated regions (Walloon Region, Flemish Region and the Region of Brussels-Capital) have the competence to determine the tax rates applicable to online games of chance and bets. While these regions could have set different tax rates, in practice they have set the same tax rate of 11% of the actual gross margin realised with the game of wager, ie, the gross amount of the sums staked minus the profits that have actually been distributed.
Winnings from lotteries are exempt from taxes. The National Lottery pays gambling taxes on its sports-betting activities.
Under Article 44, section 3, 13° of the Belgian VAT Code, offline and online games of chance, bets and lotteries are VAT-exempt subject to the conditions and limitations specified in a Royal decree.