All questions

Overview

i Definitions

Most of the definitions are provided for in the Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players (the Act), as amended in 2010 and implemented by multiple royal decrees.

Games of chance are defined in Article 2 of the Act as any game by 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 in favour of at least one of the players, or organisers of the gamem and in which chance is a factor, even if only ancillary, for the course of the game, or for determining the winner or his or her gains. It follows from case law from the Council of State that games played in a social network whereby players can pay to receive additional play money are also considered games of chance, even if the player cannot win money in them.

Moreover, the Gaming Commission, explicitly backed by the Minister of Justice, has taken the formal viewpoint that loot boxes in games can be considered gambling under Belgian law. A 'loot box' is a game feature in a (as such non-gambling related) game whereby a player pays an amount to receive a game enhancement of which he or she does not know beforehand. For instance, if the enhancement is a new weapon, it may be a very good weapon, or mediocre one, or it could even be one he or she already owns. In general, the item or items received may be regarded as valuable or not by players, mostly depending on how common or rare they are to come by. Even if these game elements are in no way redeemable for cash a loot box may still be regarded gambling if acquired through payment of real-world money (directly or indirectly), with a chance to 'lose' (e.g., acquire an item that the player already has) or with a chance to 'win' (e.g., acquire an item that is hard to obtain).

Certain games of chance under the definition laid down in Article 2 above also benefit from specific definitions. This is the case for betting (or bet), fixed-odds betting and mutual betting. Betting is defined in general terms as a game of chance where each player pays a stake and that results in gain or loss that is not dependent on the acts of the player but on the result of uncertain events that occur without intervention of the players. Fixed-odds betting refers to a bet where the player bets on the result of a particular fact and where the amount of the winnings is determined depending on certain fixed odds and where the organiser is personally liable for paying the amount of the gain to the players. Pool betting is defined as a bet where an organiser acts as intermediary between the different players who play against each other, where the stakes are pooled and distributed among the winners, after deduction of a percentage meant for paying the taxes on games and bets, to cover the organisation costs and a profit margin. Additionally, the Belgian Gaming Commission issued a notice explaining that spread betting (without benefiting from a specific definition under the Act or any royal decrees) qualifies as betting as outlined above.

All games and activities that fall under the definition provided for in the Act qualify as gambling activities subject to either a licensing regime or a strict prohibition.

In general, poker and other card games, dice games, slot and other types of gaming machines as well as other table games offered within casinos, gaming halls or betting shops fall within the definition of a game of chance and are subject to the rules set out by the Act and its implementing royal decrees.

Lotteries are defined in broad terms in Article 301 of the Belgian Penal Code as any operation provided to the public and aimed at providing winnings based on chance. However, it is commonly agreed that 'lotteries' refer to the games provided by the National Lottery operator under the Act of 19 April 2002 on the rationalisation of the functioning and management of the National Lottery (National Lottery Act) and its implementing royal decrees defining the rules for all types of lottery game. Generally speaking, lottery games refer to draw based games and scratch cards.

ii Gambling policy

Belgian gambling policy is based on two pillars.

The first pillar is composed of the monopoly regime for public lotteries offered by the state-owned National Lottery operator (with small exceptions for charity lotteries and raffles that receive a prior authorisation and are subject to limitations).

The second pillar is based on a prohibition of all activities that qualify as games of chance under Article 2 of the Act, unless the operator has obtained a licence granted by the Belgian Gaming Commission.

As regards online gambling, the National Lottery is authorised to provide its lottery games online under the National Lottery Act, while any other games of chance may be offered online provided that operators hold the required licences pursuant to the Act.

Belgium carries out a regime of controlled expansion in order to attract players towards a safe and regulated gambling market, through the establishment of a monopoly and the granting of a limited number of licences.

However, for some aspects of the gambling policy, the scale between channelling towards the legal offer and direct consumer protection through restrictions tips more towards the latter element. For instance, the royal decree regulating publicity for online gambling focuses more on protecting Belgian residents from a perceived overflow of publicity than on publicity as a channelling instrument of legal operators against illegal gambling. This does not make the Belgian gambling policy as a whole incoherent, however, and it fits with the Court of Justice's view on continued assessment of any national gambling policy against changing factual circumstances.

iii State control and private enterprise

As outlined in Section I.ii., all public lottery games (offline and online) may only be offered by the National Lottery operator, namely, a public undertaking fully owned by the state and subject to the direct control of the government.

The operation of other games of chance is open to competition through the attribution of a limited number of licences.

iv Territorial issues

Games of chance are regulated and licensed at federal level.

The competence granted to municipal authorities is limited to their approval for the establishment and operation of new land based casinos and gaming halls, within the perimeters granted to these authorities by the Act.

Taxation, however, is a regional matter (decided at the levels of the regions of Flanders, Wallonia and Brussels).

v Offshore gambling

The Belgian Gaming Commission is competent to monitor illegal gambling in Belgium and to take subsequent action. It adopts a stringent approach with regard to illegal offshore gambling operators directing their activities to Belgian residents.

The powers of the Gaming Commission are very broad. It can issue warnings against illegal operators but also issue administrative fines. In the first instance, however, the Gaming Commission will not act as prosecuting authority but will only note infringements and transfer the file to the public prosecutor. If the latter takes action on the basis of the file handed to him or her, the illegal operator may be subject to criminal prosecution (see Section III.ii. below). Several international operators have already been sanctioned on that basis.

The Gaming Commission also has in place a mechanism to prevent Belgian residents from accessing illegal (including offshore) gambling websites. This mechanism involves the drafting of a blacklist which is available on the Gaming Commission website. This blacklist includes all websites that, in the Gaming Commission's official opinion, offer gambling to Belgian residents without the required licence. Through a cooperation between the Gaming Commission, the special police IT-crime unit and internet service providers (ISPs), the Gaming Commission informs the police of the name and details of the illegal websites; that data is then transferred to the ISPs that will block the access to the website. The website will then become inaccessible to Belgian residents. If they try to access the website a stop-page will be displayed with the different logos of the enforcement authorities stating that the website is no longer accessible because it infringes Belgian law. This system has been contested by a number of remote gambling operators before different courts. Rulings in those cases were unanimously in favour of the government.