Gaming Law 2022

Last Updated October 18, 2022

Poland

Law and Practice

Authors



WKB Wierciński Kwieciński Baehr is a leading Polish independent law firm advising both domestic and international clients across all areas of business law. Located in Warsaw and Poznań, a team of more than 100 lawyers assists clients on the most complex transactions and cases. WKB has a long and highly successful history of advising on matters in the TMT sector. The IP and TMT team works for prominent businesses in the new technologies, e-commerce and media sectors, including Allegro, OLX, Warner Bros. Discovery Group and Ekstraklasa. The firm advises on gambling regulations, advertising, various commercial and consumer issues, IP and IT. The team is very active on the Polish and international markets in relation to cross-border cases, and actively participates in several international associations, such as Multilaw, INTA, ERA, AIJA and the New Technologies Law Association.

Polish authorities have traditionally focused on ensuring that gambling laws are not circumvented for fiscal reasons. Gambling is supervised by the Ministry of Finance and regional tax authorities, which enforce compliance by means of administrative measures, including by revocation of a licence and the imposition of fines. Some breaches may trigger criminal liability for fiscal violation.

Investigations and controls are conducted regularly to ensure effective tax collection. Dedicated teams supervise online gambling activities and manage a public registry specifying “blacklisted” domains, which ISPs are obliged to block.

Future developments may revolve around mechanisms preventing “domain cloning”, whereby an unlicensed gambling operator temporarily penetrates the Polish market under a different domain to that which was previously blocked. Other measures may relate to blockchain-based, fully decentralised gambling operations or gambling with crypto tokens and other virtual currencies, due enforcement challenges and other traditional issues affecting the regulation of those technologies.

Online casinos and lotteries may be investigated due to potential competition with a national lottery’s monopoly. In addition, consumer protection laws are enforced by the Polish consumer protection authority, which has recently become very active in online markets (eg, by investigating marketplaces, influencers and fintechs).

See 1.1 Current Outlook. There have been no changes due to the COVID-19 pandemic.

The Polish Act on Gambling (the “Gambling Act”) distinguishes four types of gambling games:

  • games of chance, including number games, cash lotteries, prize lotteries, promotional lotteries, bingo (telebingo, cash bingo, prize bingo), dice games and cylindrical games;
  • betting;
  • card games; and
  • slot-machine games.

The Gambling Act establishes the state’s monopoly with regard to online gambling, with the exception of promotional lotteries and betting. In consequence, only these two types of online gambling games are generally allowed in Poland; other games can only be organised by the state.

In principle, skill-based online games – eg, traditional massively multiplayer online games (MMOs) and many social games – will fall outside the scope of the Gambling Act, while chance-based online games may be considered an illegal form of gambling. Mixed games should be assessed on a case-by-case basis.

If there is any doubt as to whether a particular game is covered by the Gambling Act and is prohibited/restricted, its operator may initiate a formal inquiry procedure with the Ministry of Finance.

The organisation of number games, cash lotteries, telebingo and slot-machine games outside casinos is covered by the state monopoly.

Other gambling games may be organised based on a licence or permit, depending on the type of game:

  • cylindrical games, card games, dice games and slot-machine games may be organised only in casinos; running a casino is permitted only based on a licence;
  • betting may be organised either online or at betting shops, based on a permit;
  • promotional lotteries, prize lotteries and prize bingo may be organised, based on a permit;
  • in certain cases indicated in the Gambling Act, prize lotteries may be organised based on a registration, if the organiser is a public benefit organisation; and
  • poker games may be organised in casinos; if the poker game meets certain requirements indicated in the Gambling Act, it may also be organised outside a casino.

Gambling games are regulated in the Act of 19 November 2009 on Gambling and a number of executive regulations. Criminal sanctions for illegal gambling are provided in the Criminal Code and the Fiscal Penal Code.

Gambling has not been defined in the Gambling Act, as such, although the Act does indicate four categories of games that constitute gambling:

  • games of chance;
  • betting;
  • card games; and
  • slot-machine games.

The “games of chance” category is broad and encompasses most of the current online gambling activities.

The Gambling Act does not provide a definition of land-based gambling. The Act focuses on indicating the features of each specific gambling game falling within its scope, and most of those are applicable to both land-based and online gambling.

The Gambling Act does not provide a definition of online gambling. The Act focuses on indicating the features of each specific gambling game falling within its scope, and most of those are applicable to both land-based and online gambling.

The key offences with regard to gambling are:

  • the organisation of a gambling game covered by the state’s monopoly;
  • unlicensed gambling operation;
  • a breach of licence/permit conditions; and
  • a violation of advertisement restrictions.

Unlawful gambling may lead to:

  • an administrative fine;
  • the blocking of the website used for gambling;
  • revocation of the licence; and
  • criminal liability for the infringement of penal fiscal regulations, including fines and, in certain cases, imprisonment for up to three years.

The 30 March 2021 law amending the Customs Law and certain other laws changed the prerequisites for entering into the register of domains used for offering gambling games contrary to the Gambling Act. The registry now includes not only internet domain names used for gambling in violation of the Gambling Act, but also domain names used to advertise or promote illegal games available to internet users residing in Poland.

The regulatory authorities supervising the organisation of gambling games are:

  • the Ministry of Finance;
  • the President of the Tax Administration Office;
  • the Customs Office; and
  • the Office of Competition and Consumer Protection (mostly in relation to consumer protection laws).

The Polish regulatory authorities seem to follow a risk-based approach to regulation, focused on:

  • the protection of society, especially minors, from the detrimental impact of gambling; and
  • inhibiting the methods of circumvention of the Gambling Act for fiscal reasons.

No substantial changes have been implemented recently, and there are no forthcoming changes.

Depending on the type of gambling game, the Gambling Act requires a licence or permit in order to organise the game lawfully.

Some of the licences and permits are subject to quantitative restrictions (casinos and cash bingo halls).

If more than one entity meeting the conditions specified in the Gambling Act applies for the licence or permit, the Ministry of Finance is obliged to organise a tender in order to choose the entity that will be authorised to organise the game.

The duration of the licence is dependent on the type of gambling game.

A licence to run a casino or a bingo hall and organise betting is granted for a period of six years.

A permit to organise a prize lottery, promotion lottery, audiotele lottery or bingo is granted for the duration of the lottery or game, but for a period of no longer than two years.

The application requirements will differ depending on the gambling game organised. The key requirements involve the following:

  • the submission of documents confirming the legitimacy of the source of capital used for operation;
  • lack of arrears in the payment of taxes constituting the income of the state budget, customs duties, social security and health insurance contributions, or, in the case of a foreign entity, equivalents of the above, which are due in the state of the entity’s registered office, issued by competent authorities of the state of the registered office;
  • a bank guarantee of prize payment;
  • a confirmation of compliance with AML regulations;
  • a positive opinion of the local authorities as to the location of the premises on which the gambling games will be organised (for land-based games); and
  • the adoption of an internal responsible gambling policy for certain types of gambling activities.

The timescale of licence and permit applications differs depending on the type of gambling game.

The Ministry of Finance decides on the acceptance or denial of the organiser’s application for a licence or permit within six months from the submission of the application.

In the case of a promotional lottery, audiotele lottery or prize lottery, the application is processed within two months from its submission.

The licence or permit application is subject to an administrative fee, which differs depending on the type of gambling game subject to the licence or permit.

For each gambling game, the fee is dependent on the base amount, which equals the amount of the average monthly salary in the enterprise sector without payments of rewards from profit, in the second quarter of the previous year, announced by the President of the Central Statistical Office in Poland (eg, for the second quarter of 2022, the base amount was PLN656,544).

Examples of licence or permit fees are as follows:

  • 32,000% of the base amount in the case of casinos;
  • 2,000% of the base amount in the case of betting, plus additional fees for each betting shop or website; and
  • 10% of the prize pool in the case of a promotional and audiotele lottery, but no less than 50% of the base amount.

The organiser is obliged to pay a fee for the licence or permit renewal after its expiry. An amendment of the licence or permit is also subject to an administrative fee. Taxes will apply (see 13.1 Tax Rate by Sector for further information).

Some gambling games may only be organised in premises that meet the requirements set out in the Gambling Act.

For instance:

  • the number of casinos in towns with up to 250,000 inhabitants may not exceed one;
  • the number of slot machines in the administrative unit (powiat) may not exceed one per each 1,000 inhabitants;
  • gambling facilities must conduct the registration of guests, which is a prerequisite for visitors to enter the facility;
  • casinos and slot-machine facilities are obliged to have an audiovisual game control system installed;
  • slot-machine facilities are obliged to have a communication system recording and archiving data such as stakes paid and paid-out prizes, the course of the game and the location and correctness of functioning of the machines, including information on failures and interference with the machines; and
  • gambling facilities must be equipped with back-up power sources independent from the public grid, as well as anti-interference installations ensuring continuous and undisturbed operation of games.

A new Ordinance of the Ministry of Finance of 10 August 2021 on the requirements for planning the location of slot-machine gaming halls in the municipalities came into force on 18 August 2021. Under this Ordinance, a slot-machine gaming hall may not be located within 50 m of another gaming centre located within the administrative boundaries of the municipality or neighbouring municipalities, nor within 100m of the following:

  • schools;
  • kindergartens;
  • educational institutions;
  • youth educational centres;
  • youth sociotherapy centres;
  • special educational centres;
  • special educational centres for children and youth requiring the use of special organisation of learning, methods of work and upbringing;
  • establishments providing care and upbringing for students during the period of receiving education outside the place of permanent residence; and
  • places of religious worship.

The law does not distinguish between B2C and B2B gambling licences and is based on the underlying assumption that all gambling providers are consumer-facing and need to comply with the licence requirements indicated in 4.7 Application Requirements.

The following requirements may affect suppliers of services to gambling operators (outsourcing):

  • servers must be located in the EU or EEC;
  • the software used by online gambling operators must enable the Polish authorities to obtain online/offline (as requested) access to the operator’s data related to gambling operation, including data affecting the course of the game and transactions made;
  • only certified financial intermediaries may be used to process payments; and
  • manufacturers of slot machines need to notify their business to the authorities, and slot machines need to be able to record the history of transactions for the purpose of tax calculation.

See 6.1 B2C Licences.

In general, gambling operators cannot outsource their gambling operations to affiliates, with the exception that operators of betting, number games or monetary lotteries may employ agents to:

  • sell lottery tickets or betting coupons;
  • accept bets; or
  • pay out prizes.

Agents cannot outsource their operations (prohibition of sub-agency agreements). Use of an agent is only allowed if they meet certain statutory criteria, such as:

  • not being a tax debtor;
  • not posing a risk to national security, public safety or the economic security of the country;
  • having an untarnished reputation; and
  • not having been charged with deliberate crime/fiscal crime.

White-label providers are subject to the same regulations as gambling operators (there are no distinct regulations). Note that ownership changes will trigger compliance regulations; see 10. Acquisitions and Changes of Control for further information.

No substantial changes have been implemented recently, and there are no forthcoming changes.

ISPs are obliged to block the websites of unlicensed operators indicated in the registry managed by the Ministry of Finance. In addition, payment processors are prohibited from providing their services to such websites.

Online gambling operators can only use websites that have top-level domains under the Polish domain (.pl) and that are indicated in the licence.

Gambling operators have to back up (for five years) all data processed in the operation of games and allow public authorities access to such data for the purpose of verifying a game’s process.

Only certified payment institutions may provide payment processing services for gambling operations.

The key requirements include the following:

  • casino location is restricted based on the population and proximity to special facilities, such as schools, kindergartens, churches and other gambling facilities;
  • advertisement is either prohibited outright or restricted, depending on the type of operation (see 9. Advertising for further information);
  • betting advertisements must be accompanied by information about illegal gambling consequences, gambling risks and details of the licence to operate; and
  • slot-machine operators and online gambling operators must adopt terms and conditions (T&C) on responsible gambling (aside from the standard T&C regulating the rules of each game), specifying, among others, an age verification mechanism (users under 18 are not allowed) and a procedure for the registration of users. The terms are subject to the Ministry of Finance’s approval.

No substantial changes have been implemented recently, and there are no forthcoming changes.

See 7.1 RG Requirements.

Gambling operators are subject to standard AML requirements as specified in Directive (EU) 2015/849, which has been implemented in Poland by the Act on combating money laundering and financing of terrorism dated 1 March 2018 (with amendments).

No substantial changes have been implemented recently, and there are no forthcoming changes.

The key AML requirements include:

  • an obligatory KYC procedure;
  • analysis of transactions made by the customer;
  • analysis of the source of money used for gambling (in justified situations); and
  • updating all customer documentation.

See 4.1 Regulatory Authority regarding the general supervisory authority in gambling.

The National Broadcasting Council is the regulatory authority that supervises the compliance of the advertising of gambling games with Polish law.

Polish law restricts (with some exceptions) the advertising and promoting of cylindrical games, card and dice games, slot-machine games and betting.

Advertising is defined as the public dissemination of trade marks, graphic symbols and other signs related to such games, including names and graphic symbols of their operators and information about the place where they are organised. This includes products or services that rely on a name, trade mark, graphic shape or packaging similar to such game or its operator.

Promoting is defined as:

  • the public presentation of such games;
  • the distribution of gadgets related to them, casino chips or other evidence of participation in such games (eg, betting coupons) or their sale in public places; and
  • other forms of public encouragement to participate in such games, or promoting their benefits or encouraging people to enter casinos or betting facilities. This includes products or services that rely on a name, trade mark, graphic shape or packaging similar to such game or its operator.

In general, advertisement/promotion does not require licensing; see 9.4 Restrictions on Advertising.

The advertising and promoting of cylindrical games, card and dice games and slot-machine games is prohibited. The advertisement of betting is allowed subject to statutory requirements, the most notable of which are as follows:

  • only licensed betting operators are authorised to advertise;
  • advertisements cannot be directed at minors (under the age of 18);
  • an advertisement cannot invoke links between gambling and physical or intellectual fitness, relaxation, sexual attractiveness, or professional or personal success;
  • advertising on TV and radio is prohibited between 6am and 10pm, with the exception of advertisements during a sports event sponsored by the sponsor of the event, or a team/players actively participating in the event; and
  • advertising is prohibited in public places, with the exception of a betting company's website indicated in the licence and betting facilities.

Note that it remains controversial as to whether or not internet advertisement is advertisement in a “public place”, and it is recommended that any online advertisement be reviewed based on the applicable regulation.

Sponsorship is regulated separately from advertisement and is currently the main area for marketing campaigns run by betting operators.

The violation of an advertisement restriction constitutes a fiscal crime, which may trigger a fine. A fine can be imposed on individuals engaged in the process of advertising (commissioning, organising, running advertisements, etc). Wrongful advertising may also lead to a revocation of a gambling licence.

No substantial changes have been implemented recently, and there are no forthcoming changes.

A change in the capital structure of a gambling company – causing in excess of 10%, 20%, 30%, 40%, 50%, 60%, 70%, 80% or 90% of the total share of votes or share in the company's equity – needs to be notified to the Ministry of Finance.

The notification should include the names of shareholders and the value of their shares, the sources of financing and a copy of the articles of association.

The following changes require notification to the appropriate authorities:

  • changes in the capital structure – see 10.1 Disclosure Requirements;
  • a change in the management board, supervisory board or audit committee;
  • a change of the local representative of EU-based companies; and
  • other changes relating to the company that require changes to the National Court Registry (eg, change of name).

Notification will be required if the capital levels specified in 10.1 Disclosure Requirements are exceeded.

The authorities can issue administrative decisions – most notably, requesting a cure of legal deficiencies, revoking a licence or imposing a monetary fine of up to PLN500,000. The blocking of an unlicensed website is possible (see 6.6 Technical Measures). In some cases, criminal liability may be triggered (eg, illegal advertising or unlicensed gambling operation).

The sanctions are enforced either by the court enforcement officer, supervised by a competent court, or – in the case of criminal liability – by competent prosecuting authorities.

In general, the authorities remain focused on enforcing fiscal-related regulations. Most cases and investigations relate to illegal operations of slot-machine facilities, and unlicensed gambling websites targeting Polish customers and avoiding taxes.

In 2021, the tax authorities issued 2,300 decisions to impose penalties for violations of the Gambling Act, which amounted to PLN462 million in total.

Financial penalties are enforced through court enforcement officers, supervised by a competent court, unless paid voluntarily. A final administrative decision or a court order may be the basis for enforcement.

The maximum amount of the financial penalty is regulated by the Gambling Act.

Financial penalties shall be imposed on the following entities.

  • A party organising gambling games without a licence or permit or without the required notification, in the following amounts:
    1. PLN100,000 per gaming machine for games on gaming machines;
    2. up to PLN10,000 for games arranged without the required notification; and
    3. five times the value of the fee for granting a licence or permit in the case of other games.
  • A party organising gambling games under a licence granted, a permit issued or a notification submitted that infringe the terms and conditions of approved regulations, a licence granted, a permit issued or a notification submitted, or a party arranging games on gaming machines, lottery drawing machines or gaming devices without the required registration of such equipment. The financial penalties are:
    1. up to PLN200,000 for games arranged under a licence or a permit; and
    2. up to PLN10,000 for games arranged under the required notification.
  • A subsidiary owner of premises where non-registered gaming machines are located and where food catering, commercial or service activities are carried out. The financial penalty shall amount to PLN100,000 per gaming machine.
  • An owner-like holder of premises where non-registered gaming machines are located and where food catering, commercial or service activities are carried out, unless the premises are subject to subsidiary holding. The financial penalty shall amount to PLN100,000 per gaming machine.
  • A provider of payment services who does not comply with the obligation to cease providing services following registration in the register of gambling domains in violation of the Gambling Act. The financial penalty shall amount to PLN250,000.
  • A participant in a game organised without a licence, a permit or a notification. The financial penalty shall amount to 100% of the gained prize, not decreased by amounts of stakes paid.
  • A telecommunications undertaking that failed to fulfil the obligations related to the registration of domains used to offer gambling in violation of the law. The financial penalty shall amount to PLN250,000.
  • An organiser of a gambling game the arrangement of which constitutes the state monopoly. The financial penalty shall amount to PLN500,000.

Notwithstanding a financial penalty imposed on a party organising gambling games without a licence or permit, or without the required notification, the head of the Customs and Tax Control Office may impose a financial penalty on persons holding management positions or being members of the governing bodies of legal persons or organisational units without legal personality arranging gambling games without a licence, permit or notification. The financial penalty shall amount to PLN100,000.

The court shall optionally impose a ban on entering gaming centres or participating in games of chance on persons who have been convicted of a crime committed in connection with the organisation of or participation in gambling. However, the ban does not extend to promotional lotteries, in which it is the participant who takes part by purchasing goods, services or other evidence of participation in the game and thus participates in the lottery free of charge, and the entity arranging the lottery offers winnings in cash or in kind.

The court will impose a ban for a period of one to ten years.

A person who fails to comply with a court-ordered ban is subject to imprisonment for up to three years.

There are no specific trends. Social gaming may fall within the scope of the gambling regulation and thus require licensing.

The Polish Ministry of Finance stated publicly that, following an analysis of the country’s gambling legislation, loot boxes are not a form of gambling defined in the Gambling Act and the element of randomness in loot boxes does not determine this as gambling. According to the judgment of the Supreme Administrative Court of 25 August 2020 (II GSK 601/20), contests on social networking sites can be considered gambling. Participation in a lottery within the meaning of the Gambling Act may consist in the acquisition of other evidence of participation in the game by liking on a social networking site the materials posted by the organiser of the contest and making them publicly available online, as well as the fulfilment by the participants in the game of the conditions of the contest set by the organiser, if the effect of these actions is to randomly identify a winner obtaining a cash or in-kind prize.

There are no specific trends. Betting on esports falls within the scope of the gambling regulation and requires licensing.

There are no specific trends. Fantasy sports may fall within the scope of the gambling regulation and thus require licensing.

There are no specific trends. Skill gaming is outside the gambling regulation and the focus should be on ensuring compliance with consumer protection regulations.

There are no specific trends. Currently, gambling regulations are technology-neutral, meaning that both blockchain-based and centralised gambling operations will fall within the scope of gambling laws. The enforcement of many obligations against fully decentralised networks may be difficult or even impossible for practical reasons; however, the authorities may then decide to focus on the users themselves (participation in illegal gambling is subject to a fine). So far, no licensed operator has announced that it is using blockchain.

The Gambling Act does not regulate nor provide cryptocurrency/virtual currencies as a payment method. Online betting operators are required to conduct payment transactions using specific types of authorised payment service providers, in particular providers of banking services, e-money institutions and payments institutions. It is not possible to pay for a bet using cryptocurrency unless the payment provider permits it.

The organisation of gambling games is connected with the obligation to pay gambling tax.

A gambling taxpayer is a natural person, legal person or business unit without legal personality organising gambling games under a granted licence or permit, except for special offer lotteries or an entity organising games covered by a state monopoly. Gambling tax does not apply to participants, with the exception of winnings from poker tournaments (25% tax is deducted from winnings by the tournament organiser).

The tax rate is dependent on the type of gambling game and totals between 10% (for prize lotteries and prize bingo) and 50% (for slot-machine games, cylindrical games, dice games and card games, except for poker tournaments). Also, the tax base varies between games.

Revenues gained from the organisation of gambling games are also subject to other regular taxes, such as income tax. Winnings from number games, cash lotteries, telebingo, betting, promotional lotteries, audiotex lotteries and raffle lotteries are free from income tax if the one-time value of these winnings does not exceed PLN2,280, as are winnings from slot-machine games, card games, dice, cylindrical games and bingo.

Games subject to gambling tax are exempt from value-added tax.

Offering gambling games remotely into Poland may be subject to gambling tax.

At the moment, there are no ready-made amendments to the Gambling Act.

In response to a parliamentary interpellation, the Ministry of Finance admitted that it is analysing a potential change in the tax base from the current sum of stakes paid to the difference of stakes paid and winnings paid. In the latter case, the tax base would be the operator's gross gaming revenue – ie, revenue before deductible expenses. However, official drafts of such a change have not yet been presented.

WKB Wierciński, Kwieciński, Baehr Sp. j.

Plac Małachowskiego 2
00-066
Warsaw
Poland

+48 22 201 00 00

+48 22 201 00 99

office@wkb.pl www.wkb.pl
Author Business Card

Law and Practice

Authors



WKB Wierciński Kwieciński Baehr is a leading Polish independent law firm advising both domestic and international clients across all areas of business law. Located in Warsaw and Poznań, a team of more than 100 lawyers assists clients on the most complex transactions and cases. WKB has a long and highly successful history of advising on matters in the TMT sector. The IP and TMT team works for prominent businesses in the new technologies, e-commerce and media sectors, including Allegro, OLX, Warner Bros. Discovery Group and Ekstraklasa. The firm advises on gambling regulations, advertising, various commercial and consumer issues, IP and IT. The team is very active on the Polish and international markets in relation to cross-border cases, and actively participates in several international associations, such as Multilaw, INTA, ERA, AIJA and the New Technologies Law Association.

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