Who: The Belgian Council of State (BCS), Rocoluc/Fremoluc (claimants), the Belgian State (defendant), Derby (intervening party)
Where: Belgium
When: 6 February 2020
Law stated as at: 1 July 2020
What happened:
With two decisions dated 6 February 2020, the BCS partially annulled several provisions of the Royal Decree of 25 October 2018 that regulated, amongst other things, the advertising of online gambling .
The first decision annuls provisions stating that the advertising of online casinos and gambling establishments (subject to Belgian licenses A+ and B+) was only permitted on the operator’s website or by means of personalised advertising, for which the operator was expected to avoid targeting the categories of people under a gambling ban according to the law (sec.1 of the Decree);
The BCS upheld the argument that there was unjustified discrimination in the advertising requirements between, on one hand, online casinos and gambling activities, subject to these requirements and, on the other hand, online betting activities to which they did not apply.
The provisions on the content requirements of such ads, e.g. in relation to targeting minors or using media known to target minors (section 3, §2 and 3 of the Decree) were also annulled as a consequence of the above, as the BCS’ decisions cannot have the effect of creating new legislation
The second decision, in turn, annuls the provision allowing ads for online casinos, gambling or betting establishments to offer free trials or bonuses on their own websites (secion 5, partially and section 11 of the Decree).
This provision created an unjustified exception to the legal rule that online casinos, together with betting and gambling operators (either brick-and-mortar or online) cannot offer any type of “gifts” (material or immaterial) to the players and that only brick-and-mortar casinos are allowed to do so under strict conditions.
Why this matters:
These decisions offer temporary relief for companies operating an online casino, gambling or betting establishment on Belgian territory. The advertising requirements set out in the Decree could prove to be technically burdensome and hard to implement, and created a commercial disadvantage for those businesses that were subject to them. Now that the abovementioned provisions are annulled, they are no longer in force in the Belgian advertising landscape. However, this situation should only be temporary: in the meantime, several political efforts to petition for a total ban online gambling advertising have found their way to the Belgian Parliament and several bills of law are currently under discussion.
