New opportunities in ? Evolutions and updates on the belgian gambling landscape

By Tatjana Klaeser, Attorney-at-Law

elgian gambling and betting services, and the Gambling Commission’s policy plans are likely whether land-based or online, are to blow a wind of change over the Belgian gambling regulated under the Law of 7 May landscape and to further strengthen the development of 1999, generally referred to as the new business opportunities with interested parties. B Belgian Gaming Act (“BGA”). Under Article 4 of the BGA, the o er of gambling or betting Prospects for the casino industry services is subject to the prior granting of a license from  e opening of two new casino premises the Belgian Gaming Commission.  ese licenses can be e Belgian Government’s Agreement (Accord de granted for a large array of games but the number of Gouvernement) of 10 October 2014, which discloses

Tatjana Klaeser available licenses for each type of gaming service is the Government’s future policy actions and political limited (the “numerus clausus principle”) by secondary ambitions, announces that it “will amend the Act of legislation (Royal Decrees). May 7, 1999 on gambling, gambling establishments Since the reform of the BGA by the Law of 10 January and player protection (“BGA”), in order to increase the 2010, the holder of a land-based casino, gaming arcade number of Class I gambling establishments (casinos) or betting license can also apply for a “supplementary” to eleven”. license allowing the o er online of games equivalent to e Government’s Agreement does not only impact those already o ered o ine (the “o ine requirement”). the brick and mortar business. Due to the o ine As a result of both the numerus clausus principle and requirement contained in the BGA, opening new land- the o ine requirement, the Belgian gambling market is based casino licences also means that the number of somewhat of a “Members’ only club” restricted to local casino web sites will be increased to eleven. land-based operators which have o en been there for Currently, under the provisions of Article 29 of years.  is is one of the reasons why Belgium’s online the BGA, only nine land-based operators are entitled gambling bill has been much criticised by the European to run casinos and operate online casinos in the Commission, which, in November 2013, declared its country, respectively from -Heist, Ostende, intention to  le an infringement proceeding against the Blankenberge, , , Namur, Dinant, Member State. Chaudfontaine and Spa. Despite these restrictions, the Belgian market is not Given that two of the larger Belgian cities are inaccessible to foreign operators, as land-based licensees missing from the list of communal territories allowed have systematically partnered with gambling services to establish a casino, propositions have been made providers from other jurisdictions to develop joint that the cities of Antwerp and Liege may be the next to opportunities. receive an authorisation to grant a casino concession to  e Belgian Government’s recent decision to allow the their candidates. opening of two new land-based casinos, the impending is development is bound to reshape the Belgian expiry of certain land-based gambling concessions casino landscape, introducing some welcome change

14 | European Gaming Lawyer | Autumn Issue | 2015 into an otherwise rather restricted market. of a transparent, proportional and non- has made clear the intention of the coalition Although the concrete selection criterions for discriminating procedure. parties to authorize international cruise potential candidates to a casino concession Indeed, on the grounds of Article 76 of ships, which have an onboard casino or still need to be de ned, interested parties the BGA, concession agreements which have gambling hall, to operate these in Belgian should move quite quickly to get a head been concluded before 31 July 2001 shall waters until mooring in a national harbour. start on the application process, which remain e ective, unless a shorter contractual implies negotiations with the relevant local period is foreseen, for a maximum period of The gaming halls sector administration for the concession itself as 20 years. Hence, these concession agreements Room for growth in the online segment well as  ling a licence application with the can only be valid until 31 July 2021 at the As for casinos, the operation of gaming Belgian Gaming Commission. latest. e regulator’s conference documents, arcades is subject to a licence from the It is important to note that concession published on 28 May 2015, provide an exact Gambling Commission and the conclusion agreements by the relevant communal timeline regarding the impending expiries of a prior concession agreement with the administration and licences by the regulatory (table below). commune. authority go together: Article 4 of the In the light of this context, the Belgian e number of gaming halls is limited, Royal Decree of 26 June 2002 provides that Gaming Commission underlined that by Article 34 of the BGA, to a maximum of concession agreements shall automatically the (almost automatic) extension of 180. On 2 April 2014 the Belgian Gaming terminate with the retrieval or the ending of existing concession agreements by local Commission attributed the last available their corresponding Class A casino licence administrations is no longer something license to the applicant who came  rst on a (valid for a renewable period of 15 years). obvious, especially with respect to waiting list, so that the maximum number On the other hand, on the basis of the BGA, competition law and general European law of gambling arcades admitted on the Belgian being entitled to a casino concession is a principles. Local administrations are thereby territory has now been reached. condition to remain an A class licence holder. invited to carefully examine all applications Despite the strong demand for gambling before deciding to renew a concession halls licences, the sector in general has been  e expiry of casino concessions agreement. facing di cult times in terms of revenue, Another factor for change in the showing important di erences from one Belgian casino landscape can be found Gambling on international cruise ships operator to another. in the impending expiry of several land- Furthermore, the Government’s Agreement e operators doing best are those which based casino concessions. At a Study Day conference held by the Belgian Gaming 2016 2017 2019 2020 2021 2023 Commission on 27 May 2015, the regulator Middelkerke Knokke Namur Brussels Spa Dinant stressed that in the coming six years, eight Blankenberge Chaudfontaine out of the currently nine land-based casino Ostende concessions will terminate and that new Source: A01. Van Cauwenberge “Nota studiedag: thema Concessies van kansspelinrichtingen Klasse I concessions must be concluded on the basis (Casino’s) Conclusie”

European Gaming Lawyer | Autumn Issue | 2015 | 15 are able to compensate their potential losses reviewed its numbers to limit the reduction country’s regulatory authority and it remains on the land-based market through their to 150 arcades, according to an o cial to be seen whether the political decision online operations. Yet, only 34 o ine license publication on its web site of 18 August makers decide to translate them into action. holders also hold a supplementary license 2015. e reduction should be implemented For operators interested in the Belgian for online operations. Currently, there are progressively to 174 by the end of 2015, 165 gaming halls segment, this could be a only 27 di erent web sites to o er online in the course of 2016 and 150 in the course call to overtake and restructure weaker arcade games in Belgium. is also means of 2017. businesses which could otherwise potentially that there is still much room le for business A  rst step consists in encouraging get squeezed out of the market, should partnerships aiming at developing the online operators to hand back their licence on a the legislator indeed decide to follow the arcades sector. voluntary basis. e conference working regulator’s advice. documents and the Commission’s online Market concentration around its strongest publication list further measures the The betting sector actors regulator intends to undertake supporting e regulator’s position in favour of e working documents of the Gaming this opinion. ese include no more licence a market concentration has not spared Commission’s Study Day conference held on issuances when a licence becomes vacant the betting sector. e Belgian Gaming 27 May 2015 underline the regulator’s e orts, (e ective immediately and for a renewable Commission, competent for the regulation over the past years, to consolidate the market period of 3 years), no more acceptance of betting services since 2011, notes in its and improve its pro tability, for instance of relocation requests a er 30 October Conference working documents of 28 May by easing the rules and requirements on 2015 (unless the relocation is made in the 2015 that the canalisation of betting o ers is the relocation of premises. According to same commune and in agreement with still insu cient. the Gaming Commission, one of the side the communal administration) and the According to the authority, reducing e ects of these policy actions was that no application of stricter conditions of solvency the number of land-based licences seems more B class licences have been granted to for operators to be able to keep their licence. appropriate to stop the spreading of the o er. market new comers. Another side e ect is However, the number of gaming Currently the number of licences is set at 34 the evolution of a rather diversi ed market arcades being set by the law, it is not an for bookmakers (organisers of bets), 1000 for towards a market where several, bigger, administrative authority’s prerogative to permanent betting shops (takers of bets), and capital strong, groups have overtaken smaller discretionally decide to reduce this number. 60 for moving betting shops (Royal Decrees companies: 57% of the available licences e measures announced by the Belgian of 22 December 2010). On the grounds of are in the hands of groups which own 10 or Gaming Commission seem premature as the Commission’s publication of 18 August more gaming halls. there has been no political consensus so far 2015 on its web site, the regulator advocates It seems the Belgian Gaming Commission to adapt the maximum number of licences. a reduction of permanent betting shops from has decided to back-up this trend of market It should be kept in mind that it is the 1.000 to 600. concentration even further. In its conclusive Commission’s duty to perform the missions e Gaming Commission announced its remarks for the conference, the regulator attributed to it by the law, which include intention to apply to the relocation of betting pleads for a structural reorganization of issuing licences to applicants who duly meet shops the same restrictions it also announced the arcades market through a decrease of the legal requirements de ned by the BGA for gaming halls. Requests for relocation the number of licences. According to the and its secondary legislation. introduced a er 30 October 2015 can only conclusive remarks of the Commission’s In the Belgian Commission’s Annual be accepted if the relocation is made in the Chairman, Etienne Marique: “For gaming report, published on 17 June 2015, the same commune, with the approval of the halls, the message to keep in mind is that [...], Chairman notes that the changes announced communal authorities and in compliance the o er is too large and that the number of in the Government’s Agreement also with the requirement of a minimum distance premises should be reduced from the current constitute an opportunity to modernize of 1000 meters between betting shops. 180 to 120. [...]  e city (commune) which gaming legislation with the aim to rationalize At the same time, it is interesting to grants concession agreements for both casinos and limit the o er of games of chance, see that such a strict position against the and gambling arcades contributes to trivialize taking into account new technical, social spreading of the betting o er has not resulted gambling and endangers the casino operation. and economical Belgian and international in prohibiting new forms of betting such as [...]  e goal would be to only keep gambling environments. ese declarations virtual sports betting. Indeed, the Gaming arcades with potential and to avoid the are actually in contradiction to the Commission published a memorandum on multiplication of “lame ducks”. Government’s measures to further liberalise 1 July 2015 where it concludes to the legality Ever since this announcement, it the Belgian gaming market. At this stage, of the o er of virtual sports bets under the appears the Gambling Commission has they merely constitute opinions from the provisions of the BGA.

16 | European Gaming Lawyer | Autumn Issue | 2015 e memorandum, which entered is in line with the case law of the Court of based upon the o ine requirement and into force on 1 September 2015, lists Justice of the European Union (CJEU) on enforces the provisions of the BGA through the conditions under which a licensed gambling. Belgium argues, on the basis of the measures such as black listing, ISP and bookmaker may o er bets on virtual sports Santa Casa precedent (C-42/07, 8 September  nancial blockings. events to the Belgian public. e list of 2009), that “Member States are free to set e long awaited Royal Decrees relating conditions includes prior authorisation from the objectives of their policy on betting and to the concrete operation of online games the regulatory authority, partnership with a gambling and, where appropriate, to de ne of chance (noti ed to the European licensed supplier for bets involving a random in detail the level of protection sought”. Commission on 22 April 2014) have still number generator, compliance with the In line with this approach, the Belgian not been adopted and somewhat add to requirements applicable to bets committed Government applied for an annulment the legal uncertainty relating to Belgian in betting shops, technical approval before the CJEU for a non-binding online gambling regulation. Momentary and certi cation, record keeping, player Recommendation (2014/478/EU) on compensation can be found through information and time limitations. Player Protection, issued by the European the regulator’s ongoing e orts to outline Commission on 14 July 2014. the scope of the BGA and to adopt a Remote gambling still under European In its Annual Report for 2014, pragmatic, approach which, at least, makes scrutiny published on 17 June 2015, the Belgian for a business-friendly environment, open Meanwhile infringement proceedings Gaming Commission strongly defends its for partnerships between international introduced by the European Commission Government’s action claiming that “public services providers and local operators. As against Belgium on the grounds of the BGA policy on gambling, which is a national a result, and despite all the legal issues and are still pending. competence, refuses the trivialization of controversy around the BGA, the country Even when the BGA was still at the gambling and wants to bring to human was able to pass the threshold of over a stage of a dra , the European Commission condition a better dimension of life. […] million player registrations for online already criticised its provisions on online Eventually, it (the European Commission) gambling in 2014. gambling, especially those relating to aims to introduce within its arsenal of the o ine requirement and to server directives, online gambling operations which location in Belgium. According to the are disconnected from land-based gambling. European Commission, such conditions It blurs the lines between the di erent result in a strong protection of the local categories of games inducing confusion TATJANA KLAESER is a Member of o ine market and create a distortion between free and paid games in the minds of the Brussels Bar Association and in competition towards foreign online young people. is stage digs a gap between partner at the Law fi rm Klaeser operators in contradiction with the Treaty the citizen and the political world, and more Avocat, competent for the French on the Functioning of the European speci cally the European elite”. and Belgian market. Tatjana has Union’s (TFEU) principles of freedom of is statement shows a clear intention of a broad experience in diff erent establishment (Article 49) and services the country’s decision makers and regulators areas of IP and IT law, especially in provision (Article 56). to defend the BGA as it stands, despite all the gambling sector advising both Nevertheless, Belgium decided to pass critics of non compliance with EU law. In land based and online operators in matters ranging from licensing the BGA without taking into account the the end, it seems only the European supreme to the development of tailor- detailed opinion received from the European judge will be able to settle the di erences made strategies for local markets. Commission. Following the publication of on online gambling regulation between She contributes to scientifi c its Action Plan on Online Gambling on 23 Belgium and the European Commission. research and publications within October 2012, the Commission addressed It would be interesting to see in which the area of gaming law, fair trade Belgium a formal request for information. direction the CJEU’s decision goes. Should practices, intellectual property In a statement of 20 November 2013, the the European Commission’s arguments and information technologies and European Commission then indicated its of lack of proportionality of the Belgian is often interviewed as an expert intention to o cially launch infringement provisions of the BGA prevail, it is likely in these fi elds. Tatjana is further proceedings against Belgium on the grounds that the European Supreme Court’s decision involved on an academic level where that its national legislation illegally restricts will result in an overhaul of Belgium’s online she has accepted a teaching position within the Sports Law Master course the supply of gambling services. gambling legislation, reshu ing the current at the Aix-Marseille University. In response, the Belgian government market forces. continuously tried to justify that the Belgian In the meantime, Belgian Gaming model safeguards the public interest and Commission pursues its licensing policy

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