Legal and regulatory frameworki Legislation and jurisprudence
The main laws and regulation of gambling matters on a national level are as follows.General regulationsGeneral regulations are:
- Gambling Act No. 13/2011, dated May 26;
- Royal Decree No. 1613/2011 of 14 November, establishing technical requirements for gaming activities;
- Royal Decree No. 1614/2011, of 14 November, developing the regulatory regime set forth by the Gambling Act; and
- Royal Decree No. 958/2020, of 3 November, regulating commercial communication of gambling activities.
- Ministerial Order No. EHA/3080/2011 of 8 November, approving the basic regulations of fixed odds sports betting;
- Ministerial Order No. EHA/3081/2011 of 8 November, approving the basic regulations of mutual sports betting;
- Ministerial Order No. EHA/3079/2011 of 8 November, approving the basic regulations of other fixed odds betting;
- Ministerial Order No. EHA/3082/2011 of 8 November, approving the basic regulations of fixed odds horse race betting;
- Ministerial Order No. EHA/3083/2011 of 8 November, approving the basic regulations of mutual horse race betting;
- Ministerial Order No. EHA/3085/2011 of 8 November, approving the basic regulations of the game of roulette;
- Ministerial Order No. EHA/3086/2011 of 8 November, approving the basic regulations of the game of baccarat;
- Ministerial Order No. EHA/3088/2011 of 8 November, approving the basic regulations of the game of black jack;
- Ministerial Order No. EHA/3089/2011 of 8 November, approving the basic regulations of the game of poker;
- Ministerial Order No. EHA/3087/2011 of 8 November, approving the basic regulations of the game of bingo;
- Ministerial Order No. EHA/3090/2011, of 8 November, approving the basic regulations of the game of supplementary games;
- Ministerial Order No. EHA/3084/2011, of 8 November, approving the basic regulations of contests;
- Ministerial Order No. HAP/1369/2014 of 25 July, approving the basic regulations of export betting; and
- Ministerial Order No. HAP/1370/2014 of 25 July, approving the basic regulations of the game of slots.
- Law 6/2001, of 3 July 2001, on gambling in the Community of Madrid;
- Canary Islands
- Law 8/2010 of 15 July 2010 on Gambling and Betting in the Canary Islands; and
- Law 2/2020 of 14 October on the suspension of licences for new premises and other complementary measures in the field of gambling and betting;
- Law 2/1986, of 19 April 1986, on gambling and betting, of the Autonomous Community of Andalusia;
- Balearic Islands:
- Law 8/2014, of 1 August, on gambling and betting in the Balearic Islands;
- Law 15/1984 of 20 March 1984 on gambling in Catalonia Region; and
- Law 1/2020, of 11 June, of the Generalitat, on the regulation of gambling and the prevention of pathological gambling in the Valencian Community.
The body that was created in Spain by means of the Gambling Act to regulate online gambling activities on a national level in Spain is the so called General Directorate for the Regulation of Gaming Activities (DGOJ). It is the only national body entitled to: (1) adopt secondary regulations developing the main gaming regulations; (2) control and inspect the operation of gaming activities; (3) prosecute illegal gaming activities; (4) decide on the claims filed against operators; and (5) collaborate with other Spanish authorities (such as the financial and criminal authorities) in the enforcement of anti-money laundering legislation. The DGOJ is a body which depends on the Ministry of Consumer Affairs which is entitled to regulate, authorise, monitor, control and sanction gaming activities on a national level, including advertising and commercial communications.iii Remote and land-based gambling
The offering of online gambling activities on a national level was first regulated in Spain in 2011 by means of the Gambling Act, which sets forth a very strict licence regime. As a general and basic duty, remote gambling operators are requested to obtain from the Spanish national authorities gambling licences for the development of the games. Furthermore, not all types of remote game can be offered, but only those games specifically approved and regulated (more details on the type of games that can be offered as well as on the licensing process are described in following Sections).iv Land-based gambling
As previously mentioned, land based gambling matters is a competence of each of the 17 autonomous regions of Spain; therefore the legal regime in each region varies significantly. In general terms, the primary venues for land based gambling in Spain among all the regions are basically: casinos, bingo halls, arcades and betting shops.
Furthermore, each autonomous region has a gambling catalogue with the games authorised to be offered in that certain region. Furthermore, and depending on the specific games to be offered, a different type of premises or venue (e.g., casino, arcade, bingo hall, etc.) will be required. Generally, the games permitted in each type of premises are as follows. In casinos the games permitted are roulette, blackjack, baccarat, poker, thirty and forty, dice or craps, chemin de fer, and type C slot machines. In bingo salons, generally only bingo games and short limited number of type B slots machines are permitted. In betting shops, only sports and social betting can only be offered, and in gambling arcades only slot machines types A and B are allowed.
Also lottery shops or kiosks are available, but the legal regime is very specific as the number of licences is limited and depends on the authorisation from the two lottery operators licensed (SELAE and ONCE).v Remote gambling
Remote gambling activities offered by Spanish licensed operators must be addressed to Spanish citizens or residents only, meaning that IP geo-localisation shall be implemented in order to avoid non Spanish residents accessing to the games. Moreover, offshore operators without Spanish licences must use an IP geo-localization system in order to impede Spanish residents accessing to their platforms. This means that Spanish residents should only have access to remote gambling platforms managed by operators that have the corresponding Spanish licence.
In order to apply and obtain the corresponding remote gambling licences, it is mainly necessary to be an EU-based company equivalent to the Spanish sociedad anónima (Spanish limited liability company), as well as to count with a technical platform duly certified by a recognised testing lab and a .es website. Furthermore, Operators with Spanish remote gambling licences must have their internal control unit (main server) located in Spain, so the DGOJ has access to it for monitoring and control purposes.vi Ancillary matters
In terms of equipment homologation, when it comes to land-based gambling, roulette wheels and slots machines have to be homologated as per the applicable regional rules. Moreover, when it comes to remote gambling activities, the technical platform has to be certified and homologated from both a functionality and security perspective. This certification has to be made by a recognised testing lab, and has to be based on the specific technical requirements set forth in the Spanish regulations, it not being to use the certifications issued for other jurisdictions.
In terms of individuals holding relevant positions within the share capital of the operators, or being directors, or personnel directly involved in the operation of the games, there is no need for them to hold a personal licence approved by the regulator. However, they need to identified before the Spanish authorities, including the UBO (ultimate beneficial owner).vii Financial payment mechanisms
There are no specific restrictions of payment mechanism for gambling, although, cryptocurrencies and bitcoins are not permitted. The main requirements that shall be taken into account in terms of payment methods when it comes to remote gambling are the following two:
- the integration of the operator platform and the payment services provider has to be certified in order to guarantee the security and traceability, and
- it is completely forbidden for the gambling operators to provide credit or financial support to players.
All online gambling operators are required to pay gaming tax on a quarterly basis. The taxable event is the authorisation, celebration or organisation of games, raffles, contests, bets and random combinations at the state level, the taxable person being whoever authorises, celebrates or organises the gaming activities.
The taxable base for the vast majority of games comprises the net income, defined as the total amount devoted to play and any other income that may be obtained directly from organising or celebrating games, once the prizes awarded by the operator to the players are deducted. In the case of crossed bets or games in which the taxpayers do not gain the amounts placed as own income, but simply transfer them to winning players (i.e., poker), the taxable base shall comprise the commission, as well as any other sums whatsoever, for services related to the gaming activities, no matter their type, that the players pay to the taxpayer.
On 5 December 2019, the Spanish tax authorities published a ruling (No. V3347/2019) interpreting this rule, which concluded that:
- 'amounts devoted to play' includes all registered bets, whether made with money deposited by the player or with bonuses and all amounts obtained for the organisation or celebration of the games (i.e., contribution to the jackpot).
- 'prizes awarded by the operator to the players' includes any reward given to players for the success of a game, whether with real money or bonuses. Therefore, amounts placed by the players and eventually returned to them do not qualify as prizes for the purpose of reducing the taxable base; and
- in the case of poker games, when the operator receives a commission from the participants but also guarantees a given prize, the taxable base will be made up of the amount resulting from deducting the guaranteed and paid prizes from the gross gaming revenue. In addition, in case of a 'poker deficit', whereby the guaranteed prize is higher than the gaming revenue, the net income derived from the organisation of the game is negative and can be deducted from the taxable base.
The tax rate depends on the sort of game and, at the same time, will determine the taxable base applicable as follows:
- betting, raffles, contests and other games: 20 per cent over the net income referred to above;
- sport betting organised at a state level: 22 per cent over the gross income, defined as the total amount spent on the participation in the game, as well as any other income that may be obtained from its organisation or celebration; and
- random combinations for advertising purposes: 10 per cent of the market value of the prizes offered or advantages granted to participants.
In this regard, a 50 per cent reduction in the applicable gambling tax rates (except for sports betting organised at a state level) is available for operators with tax residence and actually established in the autonomous cities of Ceuta or Melilla. Note that Spanish law also foresees tax benefits in other taxes for companies resident and actually established in the autonomous cities.
In addition, online gambling operators are subject to gambling duty, with six taxable events and different payable amount for each one. In the case of the gambling duty corresponding to regulatory actions performed by the regulator, it is 0.75 per mille of the gross operating income that is accrued at 31 December each year.
Gambling operators resident in Spanish territory would be subject to corporate income tax on their worldwide income at a 25 per cent general tax rate. The taxable base is the result of the profit and loss account with certain adjustments.
No withholding on account of the player's personal income tax shall be made, except with regards to lotteries organised at a state or regional level, by the Spanish Red Cross, the National Organisation of Blind People and similar entities, which are subject to a 20 per cent withholding on amounts exceeding €40,000. Gambling winnings shall be declared by players in their final personal income tax return at the general tax rates (except in the case of the above-mentioned lotteries, which are subject to the 20 per cent withholding as final payment), with the possibility of offsetting gambling losses (except in the case of the above-mentioned lotteries), only up to the limit of those winnings.
The online gambling business is a value added tax-exempt activity.