Belgium reshuffling the cards of online gaming

On 13 October 2017, the Belgian Council of Ministers approved a series of new gambling regulations, contained in no less than four different legal instruments, currently submitted to the opinion of the European Commission. Yet, these are not the only changes to be expected in Belgium. On 9 November 2017, the Belgian Constitutional Court ruled, on the basis of a preliminary question, that the Belgian Gaming Act is discriminatory, should it be interpreted so as to allow operators to cumulatively offer both gaming and betting services on one and the same web site.

Regarding the new regulations, the standstill period before the European Commission expires on 18 January 2018. By then, the legislation section of the Belgian Council of State is expected to also have delivered an opinion as to the compliance of the new bills with the current Belgian legal framework.

Concretely, this means that most of the new rules for gaming and betting operations in Belgium could be applicable as from February 2018.

In particular in relation to advertising, three provisions are especially problematic for both the industry and the efforts of the regulator to channel consumers towards a legal market, as they render this legal market less attractive:

• The prohibition, for gaming operators, to advertise elsewhere than on the operator’s own web site or through “customized ads”/marketing to customers only (Article 1);
• The prohibition for gaming and betting operators, to offer gaming titles or bonuses of any kind, except on their own web site with a maximum of 275 Euros per month/player (Articles 5 and 11);
• The introduction of deposit limits which can be adapted by players. The standard deposit limit for a player’s accounts with various gaming and betting operators, being set at a maximum of 500 Euros per week (Article 6).

These restrictions will not only impact gaming and betting operators addressing the Belgian market. They also affect a series of services providers, intermediaries, sponsorships deals, sports clubs or other associations and will result, for example, in a total ban of affiliate marketing in Belgium. It remains to be seen whether the restrictions will pass EU and internal scrutiny and, eventually, how they will be interpreted by Belgian authorities.

Furthermore, on 9 November 2017, the Constitutional Court ruled that offering both online gaming and betting services under the same URL is discriminatory towards the land-based sector. Nevertheless, it is not impossible that the ruling will never properly have a general effect.

Indeed, this ruling is the result of a preliminary question raised by the Belgian Council of State in the context of three cases brought by land-based operator Rocoluc against the Belgian Gaming Commission’s decisions to grant operators the permission to provide both gaming and betting offers through a unique web site.

However, Constitutional Court rulings rendered on the grounds of preliminary questions are solely binding upon the judge who raised the question. The ruling does therefore not annul the provision of the Belgian Gaming Act it declares to be unconstitutional. Modifying this provision would require legislative intervention.

Yet, it seems the legislator already anticipated the Constitutional Court’s ruling through a provision in one of the legislative instruments recently notified to the European Commission: The draft Bill amending the Belgian Gaming Act, foresees, under Article 12, the possibility for the government to “determine distinct operational criteria for licences that are supplementary to licences granted for the operation of games of chance in the real world”.

Consequently, the government would have the power to foresee differentiated operating criteria between offline and online operations. Online and offline gaming and betting operations could therefore be treated differently. It will be interesting to see at the beginning of the New Year whether this provision could be interpreted so as to reintroduce the right for operators to offer both gaming and betting services on one and the same web site (although this right does not exist for land-based operations).

In the meantime, operators once again look to the Belgian Gaming Commission for legal certainty as the economy of an important part of the online gaming industry has relied on the interpretation of a provision currently declared discriminatory.

Tatjana Klaeser, Klaeser Avocat. Photo©John Cassidy