Gaming Law 2020

Last Updated November 24, 2020

Belgium

Law and Practice

Author



Astrea is an independent Belgian full-service law firm with offices in Brussels and Antwerp. Founded in 2006, Astrea currently has a team of 42 attorneys. The firm assists clients in all areas of Belgian business law. Astrea also assists clients with challenging and complex EU law matters. The firm's capabilities include TMT, corporate, litigation, antitrust, environmental law, construction law, employment law, insolvency law, and commercial and economic law. Astrea has specific expertise in various industries, most notably gambling, (video)gaming, TMT, sports and esports, media and entertainment.

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 noteworthy judgment of 28 February 2018 concerning Hungarian gambling legislation, the EU Court of Justice held that a restriction that 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 suggests that Belgian gambling legislation is at odds with the EU internal market freedoms.

Amended Gaming Act

In 2019, the Belgian legislature substantially amended the most important piece of gambling legislation (the Gaming Act; see 3.1 Key Legislation). It has become prohibited to organise bets on events "where the majority of the participants are minors" and the Gaming Commission has been given the power to prohibit bets if the fairness of the event cannot be guaranteed or when it considers that certain betting mechanics are prone to fraud.

There are important new rules for betting shops: they must conclude an agreement ("covenant") with the municipality where they are established. That covenant must determine the address of the betting shop, 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 has also become a condition to obtain an F2 licence. Betting shops are now obliged to keep all data related to their 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 an F1P licence. The licensing conditions will be determined in a royal decree.

Further Regulation of Online Games of Chance

Furthermore, the Belgian government adopted an implementing Royal Decree of 25 October 2018 that contains important rules for online games of chance and bets, which entered into force on 1 June 2019. The Royal Decree introduces, amongst others, so-called spending limits: online licence holders must impose compulsory spending limits. Players should be able to make these limits stricter with immediate effect. A player can top up a player account by no more than EUR500 per week across all the online games of chance in which he or she participates. A player can request an increase in their spending limit, but is only able to play with this increased limit once a period of three days has elapsed. The online licence holder must notify the Gaming Commission of such requests. The Gaming Commission must indicate whether the spending limit can be increased after consulting the Central Individual Credit Register (CICR). The Gaming Commission must check with the National Bank every month whether the players who have been granted an increase in their spending limit are listed in the CICR. Should a player be listed in the CICR, the spending limit increase authorisation must be terminated.

The Gaming Commission has also published its "public position" on the application of the Royal Decree of 25 October 2018. The purpose of the public position is to provide online operators and other stakeholders with practical guidance on how to interpret and apply some of the provisions of the Royal Decree of 25 October 2018.

Court Proceedings

There are several proceedings whereby courts are asked to rule on important gambling law questions. Several operators challenge the lawfulness of the amendments of the Gaming Act, of the Royal Decree of 25 October 2018 and of the Gaming Commission’s public position (interpreting the Royal Decree of 25 October 2018). In two judgments of 6 February 2020, the Council of State annulled several provisions of the Royal Decree of 25 October 2018 (see below).

Powers of the Gaming Commission

The Council of State has had the opportunity to clarify the scope of the Gaming Commission’s power. In a judgment of 12 March 2019, the Council of State held that the Gaming Commission is not allowed to exercise "regulatory power" that has been reserved, by the Gaming Act, to the executive power. On this basis, the Council of State annulled passages of two informal notices of the Gaming Commission that defined the term "newspaper shop" as eligible to obtain an F2 licence. In a similar judgment of 19 September 2019, the Council of State held that the Gaming Act does not allow the organisation of bets on virtual events and that the Gaming Commission does not have the power to decide otherwise. The Gaming Commission’s decision and notices authorising the organisation of bets on virtual events have been annulled.

The Gaming Act was substantially amended in 2019 and in the same year the Royal Decree of 25 October 2018, which contains important rules for online games of chance and bets, entered into force (see above and below). The amended Gaming Act as well as several provisions of the Royal Decree on online games of chance have been challenged before Belgian courts. Several proceedings are still pending.

Apart from the ongoing court proceedings, there is also the COVID-19 pandemic, which has heavily impacted the gaming sector, causing all physical gaming establishments to close for several months.

Offering online games of chance and bets requires a licence. There are three categories of online gaming licences:

  • an A+ licence for online casino games;
  • a B+ licence for online arcade games; and
  • an F1+ licence 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 games of chance or bets, 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 organising bets.

A holder of an A, B or 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).

Betting

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 that are contrary to public order or morality, the outcome of which is known, where most of the participants are minors or where the uncertain act has already occurred. The Gaming Commission can 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 that can be offered.

Poker

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

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 automatic machines are allowed (bingo and one-ball).

Casino

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 into 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 play, 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.

Gaming Machines

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 that 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 a maximum of two gaming machines (bingo and one-ball) and two "automatic gaming machines with lowered stakes" (also called Article 3.3 gaming machines).

Lotteries

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 acts.

  • The Federal Act of 7 May 1999 regarding games of chance, wagers and protection of the players (the “Gaming Act”) – for private operators, this is the most important law. The Gaming Act was amended in 2010, in particular to adopt a strict licensing regime for online games of chance and bets. In 2019 the Gaming Act received some further important amendments.
  • The Federal Act of 31 December 1851 regarding lotteries (the “Lotteries Act”).
  • The Federal Act of 19 April 2002 to rationalise the functioning and the management of the National Lottery (the “National Lottery Act”).

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 game;
  • a stake of any kind;
  • a loss or a gain; and
  • a minimal degree of chance that determines the outcome of the game, and the winner or the gain.

A "bet" is defined as a specific subcategory 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) (a "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" (a "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.

  • Sports games.
  • Games where the player can only win up to five additional plays (free of charge).
  • Card, board and parlour games that require a very limited stake and can only result in a gain of low monetary value, which are:
    1. played outside class I and II gaming establishments,
    2. operated in attraction parks or by industrial fairgrounds; for example, in connection with carnivals and trade fairs; or
    3. 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) or to public lotteries and certain games as referred to in the National Lottery Act.

A lottery is any transaction offered to the public that 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 that 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 or gaming establishments, or recruit for illegal games of chance or gaming establishments if it should be known that the game of chance or gaming establishment is not authorised under the Gaming Act (Article 4, §2 of the Gaming Act). It is also prohibited to participate in a game of chance if the player can have a direct impact on the result (Article 4, §3 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 on participating in and facilitating the operation of illegal games of chance or gaming establishments, or advertising or recruiting for illegal games of chance or 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 on any person participating in any game of chance in which, by its nature, he or she could have a direct influence on the result 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.

Administrative Sanctions

The Gaming Act also contains 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.

Prohibited Websites

The Gaming Commission also publishes on its website 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 that 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 movable property staked in the lottery can be seized.

There is no pending legislation as far as is known. The Gaming Act was amended in 2019 and it is not expected that substantial amendments will be enacted any time soon. Further to a judgment of the Belgian Constitutional Court of 23 April 2020, the legislator must amend Article 15/3 of the Gaming Act and introduce the possibility for the Gaming Commission or a civil court to suspend the payment of an administrative fine.

The regulatory authority for games of chance is the Gaming Commission. In essence, the Gaming Commission has a threefold task. It offers advice on legislative or regulatory issues, it is responsible for the granting of gaming licences and it monitors compliance with the Gaming Act and the implementation of royal decrees. The Gaming Commission can, or must, impose certain sanctions in the event of infringement.

The regulation of games of chance and bets is based on a "channelling approach". In order to satisfy the human need to play, the illegal offer of games of chance is fought by providing 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 hold 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:

  • licence A – a class I gaming establishment (casino);
  • licence A+ – an online casino;
  • licence B – a class II gaming establishment (gaming arcades);
  • licence B+ – an online gaming arcade;
  • licence C – a class III gaming establishment (bars);
  • licence D – exercising a professional activity within class I, II or IV gaming establishments;
  • licence E – sale, rental, supply, making available, import, export, manufacture, maintenance, reparation and equipment of games of chance;
  • licence F1 – a class IV gaming establishment (organisers of bets);
  • licence F1+ – offering online bets;
  • licence F1P – allows the F1 licence holder to organise bets on horse races (only an F1 licence holder can obtain an F1P licence);
  • licence F2 – licence to take on bets on behalf of an F1 licence holder; and
  • licences G1 and G2 – media games.

The following licences are readily available:

  • licence A – there are nine available licences and (in October 2020) nine active licences;
  • license A+ – there are nine available licences and (in October 2020) nine active licences;
  • licence B – there are 180 available licences and (in October 2020) 175 active licences;
  • licence B+ – there are 180 available licences and (in October 2020) 29 active licences;
  • licence C – the number of licences is not limited and in 2015 there were 1,680 active licences;
  • license D – the number of licences is unlimited and the number of active licences is unknown;
  • licence E – the number of licences is unlimited and there are 186 active licences;
  • licence F1 – there are 35 available licences and (in October 2020) 31 active licences;
  • licence F1+ – there are 35 available licences and (in October 2020) 23 active licences;
  • licence F1P – unknown;
  • licence F2 – there are 600 fixed and 60 mobile licences available, and the number of active licences is unknown; and
  • licences G1 and G2 – the number of licences is unlimited and the number of active licences is unknown.

The duration of the available licences is as follows:

  • licence A – a renewable period of 15 years;
  • licence A+ – the same as an A licence;
  • licence B – a renewable period of nine years;
  • licence B+ – the same as a B licence;
  • licence C – a renewable period of five years;
  • licence D – unspecified in the Gaming Act;
  • licence E – a renewable period of ten years;
  • licence F1 – a renewable period of nine years;
  • license F1+ – the same as an F1;
  • licence F1P – the same as an F1;
  • licence F2 – a renewable period of three years; and
  • licence G1 and G2 – a renewable period of respectively five years and one year.

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, a licence applicant must submit fiscal and financial information, and demonstrate that there is no criminal history. There are certain solvency 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 (licences A+, B+ and F1+), two royal decrees (both of 21 June 2011) are noteworthy. The first royal decree enumerates the quality requirements to be met by an applicant for an online licence. The applicant must have a solvency 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. The 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, B, F1 and E licences within the six months following receipt of the application or submission of a complete application file. Applications for an online licence must also be addressed 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 or A+ licence) to EUR75,000 (for a B, B+ or 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 2020, an A licence holder must pay a fee of EUR22,085. The holders of A+, B and B+ licences must pay a fee of EUR11,042. In addition, the holder of an A licence commercialising gaming machines must pay a fee of EUR714 for each machine, with a minimum of EUR21,420. F1 and F1+ licence holders must pay a fee of EUR12,603. An F2 licence holder must pay a fee of EUR3,870 (if bets are accepted in a type IV gaming establishment) or EUR1,737 (if bets are accepted outside a type IV gaming establishment).

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 1,000) 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 newspaper shops, which can offer bets as an ancillary activity.

The most notable changes to the land-based gambling sector are the 2019 amendments of the Gaming Act (see above). Several companies have lodged an action for annulment of some of the key amendments before the Belgian Constitutional Court, such as:

  • the requirement to have an agreement with a horse racing organisation in order to hold a horse betting licence (F1P);
  • the registration requirements in relation to access to a class IV establishment;
  • the prohibition on persons under the age of 21 taking part in automatic games of chance in class IV establishments; and
  • the difference in treatment between sports bets and horse racing bets on the one hand and newspaper shops on the other.

These cases are still pending.

Since 1 January 2011, the Gaming Act has contained a 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 A, B or F1 licence) 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 parallel 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 of 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 or 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 but certain activities of affiliates – eg, marketing – fall 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 (including affiliates) to facilitate the operation of unlicensed games of chance, to advertise for unlicensed games of chance or 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.

In 2019, the Royal Decree of 25 October 2018 concerning the conditions to exploit online games of chance and bets came into force. Several operators have challenged the lawfulness of this Royal Decree before the Belgian Council of State. In a judgment of 6 February 2020, the Council of State annulled certain parts of Articles 5 and 11 of the Royal Decree of 25 October 2018. The Gaming Commission has published its official position on the interpretation and application of the Royal Decree of 25 October 2018. Also, this guidance has been challenged before the Council of State.

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 accessing 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 and (online) operators must consult the EPIS database before allowing customers to play.

Online licence holders must impose compulsory game limits (see above). 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.

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 or for online games of chance and bets. It is also prohibited to have ATMs in class I, II, III and IV gaming establishments.

There are 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, a database with (self) excluded persons and mandatory age requirements. Some of these measures are discussed in 7.1 RG Requirements. Other measures 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 (the "AML Law"). The Act of 20 July 2020, amending the AML Law, transposes Directive (EU) 2018/843 (the Fifth Anti-Money Laundering Directive) into Belgian law. The amended AML Law entered into force on 15 August 2020.

The AML Law applies to "all natural and legal persons operating one or more games of chance, except those natural and legal persons meant in Articles 3 and 3bis of the Gaming Act". All gambling operators are subject to due diligence obligations, which consist of the identification and verification of players, and financial beneficiaries; monitoring suspicious transactions; and other vigilance obligations in co-operation with the Belgian Financial Intelligence Processing Unit, the 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 monitors compliance with the Gaming Act and its implementation of royal decrees, including the advertising restrictions that can be found there.

The Gaming Act itself does not define "advertising". Pursuant to Article I.8, 13° of the Code of 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 (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 land-based games of chance is, however, subject to horizontally applicable rules that 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 that will make it possible to adopt specific advertising restrictions for land-based games of chance and bets.

The Royal Decree of 25 October 2018 concerning the conditions to exploit online games of chance and bets contains strict advertising rules for online games of chance and bets (see 9.4 Restrictions on Advertising). The Gaming Commission has also published a "Public Position" to clarify its interpretation of this Royal Decree. The Belgian Council of State has, in two judgments of 6 February 2020, annulled several provisions of the Royal Decree of 25 October 2018 that regulate advertising.

Advertising 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 contain advertising restrictions. Article 2 contains several restrictions in relation to advertising campaigns for online games of chance by A+, B+ or F1+ licensees. Article 3, Section 1 limits when advertising campaigns by A+, B+ or F1+ licensees can be broadcast (for example, advertising is prohibited during live coverage of sporting competitions). Article 3, Sections 2 and 3 have been annulled by the Council of State in a judgment of 6 February 2020. Pursuant to Article 4, advertising online games of chance and bets operated by class A+, B+ or F1+ licence holders must not divulge identities, addresses and other data relating to players and their families, including their photographs and/or other visual recordings. Article 5, as partially annulled by the Council of State in another judgment of 6 February 2020, provides that advertising online games of chance and bets operated by class A+, B+ or F1+ licence holders may not offer gaming credits or bonuses of any kind, and may 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 on offering 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 and it must be enabled to verify the transparency of the exploitation. 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 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 has 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.

For specific infringements of the Gaming Act (eg, the prohibition on offering unlicensed games of chance, or the prohibition on advertising unlicensed games of chance), the Gaming Commission may issue, under certain circumstances, administrative fines. In 2019, the Gaming Commission initiated 52 sanctioning procedures, and in 28 of those procedures an administrative fine was imposed. The Gaming Commission must impose a sanction when it has established an infringement of the Gaming Act.

The Gaming Commission blacklists websites that 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 argued 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, and to what extent, blockchain is being used in the Belgian gaming industry. Further, there is no specific regulation for blockchain-related games of chance.

The 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 given rise to several (criminal) investigations. Some video game developers have decided to leave the Belgian market or to remove the loot boxes under scrutiny from their video games.

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, email, text, via the 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.

Betting

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 a European Economic Area (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 sports 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 11% on the actual gross margin realised upon the bet.

Casino Games

In the Brussels-Capital Region, casino games are taxed as follows:

  • roulette without zero – at 2.75% on the gambler's winnings;
  • other casino games at 33% on the gross gaming revenue, and 44% on the part of the gross gaming revenue in excess of EUR1,360,000; and
  • machines – a percentage (going from 20 to 50) per bracket of gross revenue (for example, 20% on the bracket up to EUR1,200,000).

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.

In the Walloon Region, casino games are taxed as follows:

  • roulette without zero – at 2.75% on the gambler's winnings; and
  • other casino games – at 33% on the gross gaming revenue up to EUR1,360,000 and 44% on the part of the gross gaming revenue in excess of EUR1,360,000.

Gaming Machines

Gaming machines are subject to a gambling tax in the form of a fixed amount per machine per year (also differing 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 (the Walloon Region, the 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.

Lotteries

Winnings from lotteries are exempt from taxes. The National Lottery pays gambling taxes on its sports betting activities.

VAT

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.

Astrea

Louizalaan 235
1050 Brussels
Belgium

+32 2 215 97 58

ppa@astrealaw.be www.astrealaw.be
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Law and Practice

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Astrea is an independent Belgian full-service law firm with offices in Brussels and Antwerp. Founded in 2006, Astrea currently has a team of 42 attorneys. The firm assists clients in all areas of Belgian business law. Astrea also assists clients with challenging and complex EU law matters. The firm's capabilities include TMT, corporate, litigation, antitrust, environmental law, construction law, employment law, insolvency law, and commercial and economic law. Astrea has specific expertise in various industries, most notably gambling, (video)gaming, TMT, sports and esports, media and entertainment.

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