Online Gaming nearly regulated in Belgium ?
Publié le 10/02/2002 par Ewout Keuleers
On January 11, 2002 the Belgian House of Representatives passed a bill concerning the reform of the National Lottery. Herewith a ten-year process seems to have arrived into a final stage. This Government bill was tabled to respond to two evolutions. On the one hand and notwithstanding article 49 of the Rome Treaty, the European…
On January 11, 2002 the Belgian House of Representatives passed a bill concerning the reform of the National Lottery.
Herewith a ten-year process seems to have arrived into a final stage. This Government bill was tabled to respond to two evolutions. On the one hand and notwithstanding article 49 of the Rome Treaty, the European Court of Justice has repeatedly specified, namely in the Schindler, Laära and Zenatti cases, that Member states can maintain the existing national gaming monopolies.
On the other hand, the Government endeavours to respond to the evolutions in the gaming market, namely the boom of virtual gaming and the resulting consequences
Although this bill has been evoked by the Senate and therefore can still be amended, its general outlines can be highlighted.
Tasks of the National Lottery
The approach adopted is a double one. In the first place and by offering an attractive and dynamic alternative to gamblers, the Government attempts to restrain gaming excesses, namely by lifting the virtual gaming market out of its current twilight situation. In the second place and following the UK example, by providing a regulatory framework – legalizing such activities – the Government attempts to keep the important financial benefits within the national territory in a way that they can be redistributed for social services or general purposes.
In other words, the adopted policy is one of ‘responsible gaming’ i.e. offering to the public an attractive but regulated alternative.
As a public enterprise, with the possibility to participate in a national or European co-operation, the National Lottery will receive additional tasks. Not only will the kind of games it can offer to the Belgian market increase but, and maybe more importantly, the National Lottery will also have the monopoly on the virtual gaming market. Only the National Lottery can legally offer e-games on the Belgian market.
Following the Schindler ruling of the European Court of Justice – re-affirmed in the Laära and Zenatti cases – Member states can impose restrictions on interstate gaming, betting and lotteries.
National rules that grant special rights e.g. a monopoly, to certain undertakings organizing gaming activities and consequently restrict the freedom to provide gaming services, are not incompatible with the freedom to provide services.
In application of article 6 of the bill the National Lottery may not only offer public lotteries, but also to organize bets and games of chance. To increase the National Lottery’s market position, by giving it the possibility to offer an attractive gaming product, the National Lottery can organize games of chance as regulated by the May 7th 1999 Act.
In addition, article 3 §3 states that the National Lottery also has an educational function. It has to provide the public realistic information about the winnings, to plan information campaigns concerning the social, economic and psychological risks arising from gaming addiction and finally, in cooperation with the competent authorities and associations to set out an active and comprehensive preventative and relief policy.
Supervising the National Lottery
A distinction should be made between monitoring the National Lottery as a public company providing a public service and the National Lottery as an e-gaming operator.
In the first hypothesis the activities of the National Lottery are submitted to the administrative supervision exercised mainly by the competent Minister through two government commissioners.
As an operator offering virtual games to the Belgian market its activities can – in application of article 9 of the 1999 Act concerning games of chance – be supervised by the National Gaming Board.
Although the primary assignment of the National Gaming Board is to supervise private gaming operators, who have as sole purpose to realize as many profits as possible, it is logical that, when the National Lottery offers the same or similar activities as the private operators, those activities are supervised as well.
Therefore, when the National Gaming Board considers that one or more activities organized by the National Lottery, can be qualified under article 1 of the 1999 Act as games of chance, it can monitor those activities, provided that both the Minister of Justice and the Minister of Public Enterprises do follow that opinion.
Closing Remarks
Although this bill can be considered the first serious attempt to regulate online gaming, two elements were not taken into consideration.
In the first place there, is contradiction between this bill and the bill proposed by the Minister of Justice modifying the 1999 Act concerning Games of Chance. Although both bills propose regulating e-gaming activities, the first grants the National Lottery a monopoly on the e-gaming market while the latter leaves the door open for private operators. They can do so keeping in mind certain limits.
In the second place and maybe more importantly this bill or the bill concerning the modification of the 1999 Act, do ignore the cross border nature of e-gaming.
Offering e-games e.g. on the Net, means offering them to the players all around the globe and this indifferently of his or her location. Therefore one should consider the international dimension of e-gambling.
In a time and place where national borders – the geographical limits of a legal order – have become without meaning, special attention should be paid to the underlying legal issues, in particular competent jurisdiction and applicable law.