European Gaming Lawyer magazine Autumn 2016 | Page 10

main points against the new tax provisions
is the distortion of competition between
the National Lottery (exempted from VAT
as well as from the gaming tax) and the
private sector which has to bear all these
tax burdens.
The difference in treatment between
National Lottery and private sector relies
only on public character of the Lottery,
regardless of the actual nature of the
service provided. It can hardly be argued
by the National Lottery that its offer
is not in competition with the private
sector, especially when it develops and
advertises a gaming and betting offer
largely exceeding the scope of traditional
lotteries. The National Lottery actually
benefits from an exorbitant status and
protection regime which does not appear
to be reasonably justified nor proportional
in light of their market practices. Critics
of illegal State aid are being heard and this
would be even more the case if the new
VAT provisions were to be interpreted
as not applying to the National Lottery’s
offer at all.
Discrimination concerns may further
arise from the differentiated treatment
between the online and the offline sector.
Although the specificities of the Belgian
market result in a strong connection
between online and land based gambling,
a differentiated taxation could result in a
breach of the principle of fiscal neutrality.
Last you need is tax, or how
exaggerated tax on gambling can
adversely affect a legal market
Gambling tax is part of a fragile balance
between restrictions and attractiveness
in all regulatory regimes across Europe.

10 | European Gaming Lawyer | Autumn Issue | 2016

The challenge for legislators is to create an
environment where business can thrive,
while players’ and public interests are
being safeguarded. In this context, tax
considerations are absolutely crucial, as they
directly impact licensed operators’ ability to
compete with black market offers, especially
for the online segment.
Consequently, the new increase of the
tax burdens on the Belgian online private
sector can only harm the regulator’s efforts
to channel players and online operations
towards a legal market. The Belgian
Gaming Commission expressed these
concerns before the Budget Bill was passed.
Unfortunately, the country’s regulation
authority has not even been consulted in
the political process, while the changes
to brought to the tax system are likely to
put at risk fundamental policy objectives
such as fighting the black market, ensuring
players are protected, safeguarding jobs
and regional tax revenues.
In the end, if the calculations of the
Court of Auditors and the gaming industry’s
expectations to deduct VAT are correct,
the financial impact of the new provisions
should remain rather limited. The Belgian
government, although not generating the
expected extra revenue, will at least not have
too seriously affected a well functioning
industry. Nevertheless, the VAT exemption
for lotteries, the resulting distortion of
competition and the adverse effect on
Belgium’s balance of federal and regional
powers, are likely to call for a judicial
overhaul of VAT on gambling and betting
operations. The newly introduced measures
shed a bad light on a country which is
already under European scrutiny for its
gambling regulation.

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 tailor-made
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