European Gaming Lawyer magazine Autumn 2015 | Page 17

The memorandum, which entered
into force on 1 September 2015, lists
the conditions under which a licensed
bookmaker may offer bets on virtual sports
events to the Belgian public. The list of
conditions includes prior authorisation from
the regulatory authority, partnership with a
licensed supplier for bets involving a random
number generator, compliance with the
requirements applicable to bets committed
in betting shops, technical approval
and certification, record keeping, player
information and time limitations.
Remote gambling still under European
scrutiny
Meanwhile infringement proceedings
introduced by the European Commission
against Belgium on the grounds of the BGA
are still pending.
Even when the BGA was still at the
stage of a draft, the European Commission
already criticised its provisions on online
gambling, especially those relating to
the offline requirement and to server
location in Belgium. According to the
European Commission, such conditions
result in a strong protection of the local
offline market and create a distortion
in competition towards foreign online
operators in contradiction with the Treaty
on the Functioning of the European
Union’s (TFEU) principles of freedom of
establishment (Article 49) and services
provision (Article 56).
Nevertheless, Belgium decided to pass
the BGA without taking into account the
detailed opinion received from the European
Commission. Following the publication of
its Action Plan on Online Gambling on 23
October 2012, the Commission addressed
Belgium a formal request for information.
In a statement of 20 November 2013, the
European Commission then indicated its
intention to officially launch infringement
proceedings against Belgium on the grounds
that its national legislation illegally restricts
the supply of gambling services.
In response, the Belgian government
continuously tried to justify that the Belgian
model safeguards the public interest and

is in line with the case law of the Court of
Justice of the European Union (CJEU) on
gambling. Belgium argues, on the basis of the
Santa Casa precedent (C-42/07, 8 September
2009), that “Member States are free to set
the objectives of their policy on betting and
gambling and, where appropriate, to define
in detail the level of protection sought”.
In line with this approach, the Belgian
Government applied for an annulment
before the CJEU for a non-binding
Recommendation (2014/478/EU) on
Player Protection, issued by the European
Commission on 14 July 2014.
In its Annual Report for 2014,
published on 17 June 2015, the Belgian
Gaming Commission strongly defends its
Government’s action claiming that “public
policy on gambling, which is a national
competence, refuses the trivialization of
gambling and wants to bring to human
condition a better dimension of life. […]
Eventually, it (the European Commission)
aims to introduce within its arsenal of
directives, online gambling operations which
are disconnected from land-based gambling.
It blurs the lines between the different
categories of games inducing confusion
between free and paid games in the minds of
young people. This stage digs a gap between
the citizen and the political world, and more
specifically the European elite”.
This statement shows a clear intention of
the country’s decision makers and regulators
to defend the BGA as it stands, despite all
critics of non compliance with EU law. In
the end, it seems only the European supreme
judge will be able to settle the differences
on online gambling regulation between
Belgium and the European Commission.
It would be interesting to see in which
direction the CJEU’s decision goes. Should
the European Commission’s arguments
of lack of proportionality of the Belgian
provisions of the BGA prevail, it is likely
that the European Supreme Court’s decision
will result in an overhaul of Belgium’s online
gambling legislation, reshuffling the current
market forces.
In the meantime, Belgian Gaming
Commission pursues its licensing policy

based upon the offline requirement and
enforces the provisions of the BGA through
measures such as black listing, ISP and
financial blockings.
The long awaited Royal Decrees relating
to the concrete operation of online games
of chance (notified to the European
Commission on 22 April 2014) have still
not been adopted and somewhat add to
the legal uncertainty relating to Belgian
online gambling regulation. Momentary
compensation can be found through
the regulator’s ongoing efforts to outline
the scope of the BGA and to adopt a
pragmatic, approach which, at least, makes
for a business-friendly environment, open
for partnerships between international
services providers and local operators. As
a result, and despite all the legal issues and
controversy around the BGA, the country
was able to pass the threshold of over a
million player registrations for online
gambling in 2014.

TATJANA KLAESER is a Member of
the Brussels Bar Association and
partner at the Law firm Klaeser
Avocat, competent for the French
and Belgian market. Tatjana has
a broad experience in different
areas of IP and IT law, especially in
the gambling sector advising both
land based and online operators
in matters ranging from licensing
to the development of tailormade strategies for local markets.
She contributes to scientific
research and publications within
the area of gaming law, fair trade
practices, intellectual property
and information technologies and
is often interviewed as an expert
in these fields. Tatjana is further
involved on an academic level where
she has accepted a teaching position
within the Sports Law Master course
at the Aix-Marseille University.

European Gaming Lawyer | Autumn Issue | 2015 | 17