Monday, 13 December, 2010

New Belgian Gaming Act.

On 1 January 2011 the new Gaming Act is scheduled to enter into force in Belgium. The new legislation has caused a lot of controversy and is even the subject of a complaint with the European Commission.

Licensing System 

Under the new Gaming Act, the operation of gambling and betting services is (still) principally prohibited, but licensing systems provide for exceptions. The new Gaming Act imposes a mandatory licensing system for all kinds of gambling services to be controlled by the Belgian Gaming Commission, whether provided offline or online. Although the National Lotteries will remain unaffected by the changes and remain a monopoly controlled by the government, all other games of chance including poker, sports wagering and horse race betting will ultimately rely on a licensing regime created by the new legislation.

Requirements

In order to be able to offer online gambling services, the new Gaming Act requires operators from other Member States (i) to hold a license for land-based gambling operations in Belgium and (ii) to (re)locate their servers in a permanent establishment within the Belgian territory. This means that foreign operators, duly licensed and operating from other Member States, will be required to become licensed operators of land-based gambling establishments in Belgium before they can offer their services online. In addition, the number of licenses available in the country can be limited by Royal Decree.

The new Gaming Act provides criminal penalties and/or administrative sanctions for any person involved in illegal gambling. This applies to the actual participants in illegal gambling but also to the operator or the person who facilitates the operation, whether through advertising or by recruiting players.

European Commission v Belgian Government

Notwithstanding the European Commission’s objections to the draft Gaming Act(1), the Gaming Act has been passed without any substantial amendments as compared to the first draft. According to the Belgian government, the restrictions on both the free movement of services and the freedom of establishment contained in the Gaming Act can be justified by mandatory requirements of consumer protection and the fight against fraud.

However, on 23 June 2010 the Remote Gambling Association (RGA) and the European Gaming and Betting Association (EGBA) lodged a joint complaint with the European Commission, claiming that the new Gaming Legislation is not compliant with EU law. This complaint calls on the Commission to open a formal infringement procedure against the Belgian government over the new Gaming Legislation. It is not yet clear at this stage what the Commission’s intentions are.

Conclusion 

This article summarises information provided by our local partners who are active specifically in the legal and fiscal advisory industry. The purpose of this article is only of an informative nature and intended to provide some understanding regarding the new Belgian Gaming Act and the   consequences thereof. If more in depth advice is needed, specifically regarding more detailed tax information, please consult your advisor.

Notes
(1) In June 2009 the European Commission rendered its detailed opinion on the draft Gaming Act and expressed its concern mainly on two issues: (i) the fact that the Legislation does not take into consideration the conditions previously fulfilled by EU-based online gambling websites when applying for an online gambling license in their home Member State and (ii) the requirement for online gambling websites to have a fixed establishment in Belgium. These issues raise concerns more particularly in the context of the free movement of services (art. 56 TFEU) and the freedom of establishment (art. 49 TFEU).

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