Ayuda estatal — Bélgica — Ayuda estatal SA.53630 (2019/FC) — Supuesta ayuda concedida a Ladbrokes en relación con apuestas virtuales — Invitación a presentar observaciones en aplicación del artículo 108, apartado 2, del Tratado de Funcionamiento de la Unión Europea

• Section: Serie C

23.10.2020 ES Diario Oficial de la Unión Europea C 355/6

Comisión Europea Dirección General de Competencia Registro de Ayudas de Estatales 1049Bruxelles/Brussel BELGIQUE/BELGIË Fax + 32 22961242 Stateaidgreffe@ec.europa.eu

(1) By letter of 1 March 2019, the Commission services received a complaint lodged by Rocoluc NV and European Amusement Company NV (hereafter respectively referred to as ‘Rocoluc’ and ‘EAC’ or together as the ‘complainants’) concerning the alleged grant of State aid by Belgium to Derby NV through an ad hoc authorisation to operate virtual betting granted to Ladbrokes (‘the contested measure’). Derby NV (hereafter referred to under its commercial name in Belgium, ‘Ladbrokes’) is a local branch of the betting and gambling company Ladbrokes PLC.

(2) On 1 April 2019, the Commission services forwarded the complaint to Belgium and requested additional information. By letter of 15 May 2019, Belgium submitted its views on the complaint and replied to the request for information after requesting and obtaining an extension of the deadline to reply.

(3) On 17 June 2019, the Commission services forwarded the non-confidential version of Belgium’s submission of 15 May 2019 to the complainants, inviting them to state their views with regard to the arguments put forward by Belgium. By letter of 23 July 2019, the complainants submitted their views in reaction to Belgium’s arguments, maintaining their complaint, after requesting and obtaining an extension of the deadline to reply.

(4) On 4 December 2019, the Commission services requested additional information and documents from the Belgian authorities, which were provided, after granting an extension of the deadline to reply, on 30 January 2020.

(5) By letter dated 16 July 2020, the Belgian authorities granted a language waiver to the Commission, agreeing to have the decision adopted and notified in English.

(6) The contested measure is the ad hoc authorisation granted by Belgium to Ladbrokes to operate virtual betting in Belgium. According to the complainants, that measure resulted in Ladbrokes enjoying a de facto exclusive right since 2014 to operate virtual betting in Belgium without appropriate remuneration.

(7) The Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players (the ‘Gaming Act’) (1), as amended by an Act of 10 January 2010 (2), together with Royal Decrees implementing it (together referred to as the ‘legislative framework’), distinguishes between four classes of gaming establishments in Belgium: (i) Class I: casinos; (ii) Class II: gaming arcades; (iii) Class III: drinking establishments; and (iv) Class IV: betting offices.

(8) The Gaming Act also specifies the licenses each class of gaming establishment needs to operate. For instance, class II establishments, such as the complainants, require a class B license to operate. Class IV establishments, such as Ladbrokes, require an F1 or F2 license to operate.

(9) The Gaming Commission is a federal regulator within the Federal Public Service of Justice (formerly, the Ministry of Justice) tasked with advising the Government and Parliament on the gaming legislative framework, taking decisions (including the granting of licenses necessary for opening any of the above establishments), and controlling the sector.

(10) Two main gaming categories referred to in the present Decision are gambling and betting. Gambling is an ‘automatic game of chance’ whereby the player bets on the outcome of a game or event that has an uncertain, randomly determined, result that depends on probabilities (e.g. slot machines). Automatic games of chance can be offered mainly by class II establishments with a B license. Betting, on the other hand, is about predicting the outcome of a future, real event, based on certain criteria (e.g. betting on the outcome of a football match based on the relative strength of the teams). Betting is offered mainly by class IV gaming establishments and it requires an F1 or F2 license (3). Class IV establishments may also offer automatic games of chances under certain conditions. Under Article 43/8 of the Gaming Act, operators with an A, B or F1 licence may acquire an additional licence ‘plus’, by which they are authorised to offer the same games online as they do land-based.

(11) Rocoluc and EAC are class II establishments both holding offline B and online B+ licenses. Ladbrokes is a class IV establishment holding offline F1 and F2 (4) and online F1+ licenses.

(12) Virtual betting is a game of chance, which appeared in Europe in 2011, whereby players can bet on the outcome of a fictional sport event (e.g. a fictional horse race) and where the results are determined by a random number generator.

(13) By way of three ‘framework notes’ or ‘memoranda’ (omkaderingsnota and nota) dated 12 January 2012 (5), 17 April 2013 (6) and 1 July 2015 (7) (‘the Framework Notes’), the Gaming Commission explained that it considered virtual betting to be betting on (virtual) events and, thus, that it should be offered only via class IV gaming establishments.

(14) Following requests by e-mails from Ladbrokes dated 9 February 2014 (regarding land-based or ‘offline’ virtual betting, i.e. in betting outlets) and 5 March 2015 (regarding online virtual betting), the Gaming Commission authorised Ladbrokes to operate virtual betting by e-mails dated 10 February 2014 and 5 March 2015 respectively.

(15) On 9 September 2015, following reactions received from the sector, the Gaming Commission came to ‘new insights’ as to the classification of virtual betting and set up a sub-commission to investigate whether legal action was required to regulate virtual betting.

(16) On 28 October 2015, another class IV establishment requested authorisation to operate virtual betting. The Gaming Commission rejected that request, justifying that rejection with reference to the...