Originating Department: Service des infractions et procédures particulières
Responsible Department: SPF Economie, PME, Classes moyennes et Energie
Received: 2021-12-09 00:00:00
Country: Belgium
Category: DOMESTIC AND LEISURE EQUIPMENT
Draft Royal Decree laying down the procedures for consulting the Central Individual Credit Register by the Gaming Commission and amending the provisions on the limitation of online games of chance
Notification No.: 2021-0845-B
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Draft Royal Decree laying down the procedures for consulting the Centrale des crédits aux particuliers (Central Register of Credits to Individuals) by the Belgian Gambling Commission and amending the provisions on the limitation of online games of chance. PHILIPPE, King of the Belgians, To all those present and those to come, Greetings. Having regard to Article 55/1 of the Act of 7 May 1999 on gambling, betting, gambling establishments and the protection of gamblers, inserted by the Act of 7 May 2019; Having regard to the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services; Having regard to the opinion of the Gambling Commission, issued on 20 January 2021; Having regard to the opinion of the Finance Inspector, issued on 27 April 2021 and 5 July 2021; Having regard to the agreement of the Secretary of State for the Budget, issued on 11 May 2021 and 15 July 2021; Having regard to opinion No. 177/2021 of the Data Protection Authority, issued on 4 October 2021; Having regard to the impact assessment of the regulation, conducted in accordance with Articles 6 and 7 of the Act of 15 December 2013, containing various provisions relating to administrative simplification; Having regard to opinion XXX of the Council of State issued on xxxx, pursuant to Article 84(1)(1)(2) of the laws on the Council of State, consolidated on 12 January 1973; On the proposal of the The Minister for the Economy, the Finance Minister, the Minister for Public Health, the Minister for Justice, the Minister for the Interior, and the Secretary of State for the National Lottery, and in the opinion of the Ministers who have deliberated them in the Council, IT IS HEREBY DECREED: CHAPTER 1 — Procedures for consultation by the Gambling Commission of the Central Register of Credits to Individuals of the National Bank of Belgium Article 1 The consultation of the National Bank of Belgium’s Central Register of Credits to Individuals by the Gambling Commission is motivated by the purposes referred to in Article 6(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services. Article 2 The National Bank of Belgium shall determine the technical procedures for the consultation of the National Bank of Belgium's Central Register of Credits to Individuals by the Gambling Commission. Article 3 §1. The identification information of players in default of payment within the meaning of Article VII.148 of the Code of Economic Law may be shared with the National Bank of Belgium to verify whether the player is known to be in default of payment in the file in the Central Register of Credits to Individuals. The identification information referred to in the first subparagraph shall include: 1. the player’s national registration number, if known to the licensee; 2. if the player’s national registration number is not known to the licensee, the player’s surname, first name and date of birth. No data on recorded loans shall be provided. §2. The player’s national registration number shall be used for the sole purpose of determining whether the player is known to be in default of payment in the file in the Central Register of Credits to Individuals. As a result of the purposes referred to in Article 6(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services, the Gambling Commission is entitled to use the national registration number as a search criteria within the National Bank of Belgium's Central Register of Credits to Individuals. When a request is submitted to the Gambling Commission to increase the gambling limit, licensees of Class A+, B+ or F1+ shall collect the player’s national registration number and communicate this to the Gambling Commission. Article 4 The Gambling Commission shall keep the national registration number or player identification data referred to in Article 4 for the period necessary for its monthly verification task if the authorisation to increase the gambling limit is to remain. Article 5 §1. The Gambling Commission shall create log files of consultations of the National Bank of Belgium's Central Register of Credits to Individuals. These consultation log files shall be used to establish: 1. the date and time of the consultation; 2. the identification of the individual user or, failing that, the process or system that accessed the data; 3. the type of request; 4. the purpose of the consultation. §2. The National Bank of Belgium shall create log files to establish: 1. the identification of the user who has accessed or received communication of the data, 2. the type of request made; 3. the date and time of the consultation or communication. §3. Appropriate measures shall be adopted by the Gambling Commission and the National Bank of Belgium to ensure the security of log files and, in particular, prevent unauthorised processing and ensure the integrity of the data processed. Log files shall be kept for ten years from the date of consultation. The log files of the Gambling Commission shall be kept and made available to the Data Protection Authority at first request. Article 6 The agents of the Secretariat of the Gambling Commission, whose role requires access to the National Bank of Belgium's Central Register of Credits to Individuals, may only have access to information that a player is in default of payment within the meaning of Article VII.148 of the Code of Economic Law and only after authentication by means of an electronic identity card, either in relation to the application of the Gambling Commission or with regard to the application of the National Bank of Belgium. The Gambling Commission shall, at first request, provide the National Bank of Belgium or the Data Protection Authority with the identity of the member of its staff who has consulted or become aware of the personal data referred to in the preceding subparagraph. Article 7 The Gambling Commission shall keep the personal data consulted by the National Bank of Belgium’s Central Register of Credits to Individual for the time necessary to carry out the tasks referred to in Article 6(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services. Article 8 The costs of consulting the National Bank of Belgium’s Central Register of Credits to Individuals shall be borne entirely by the funds of the Gambling Commission, as referred to in Article 19(2) of the Act of 7 May 1999 on gambling, betting, gambling establishments and the protection of gamblers. CHAPTER II — Amendments to the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services Article 9 In Article 6(1)(1)(a) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services, the number ‘500’ shall be replaced by the number ‘200’ and the words ‘on all participated games of chance and betting’ shall be repealed. CHAPTER III – Final provisions Article 10 Article 6(1)(1)(b) of the same decree shall enter into force on the same day as this decree. Article 11 The Minister for the Economy, the Finance Minister, the Minister for Public Health, the Minister for Justice, the Minister for the Interior, and the Secretary of State for the National Lottery are each responsible, as far as concerned, for the implementation of this decree.
KINGDOM OF BELGIUM _________ FEDERAL PUBLIC SERVICE FOR JUSTICE 19 JUNE 2022 – Royal Decree laying down the procedures for consulting the Centrale des crédits aux particuliers (Central Register of Credits to Individuals) by the Belgian Gambling Commission and amending the provisions on the limitation of online games of chance REPORT TO THE KING Sire, This draft Royal Decree submitted to You has two parts. First of all, it seeks to implement Article 55/1 of the Act of 7 May 1999 on games of chance, betting, gambling establishments and the protection of players (hereinafter: the Act on games of chance). Secondly, it provides for an amendment and a clarification to Article 6(1)(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services. The draft was submitted to the Data Protection Authority which delivered opinion No 177/2021 on 4 October 2021. The vast majority of the comments of the Data Protection Authority have been followed up on and are reflected in the article-by-article comments below. Following communication 2021/0845/B to the European Commission on 9 December 2021, pursuant to Article 5(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, the draft received no comments from the European Commission or the Member States. Before addressing the part relating to the implementation of Article 55/1, it is necessary to clarify the amendment to Article 6(1)(1) of the aforementioned Royal Decree of 25 October 2018. Indeed, the provisions laid down in this Decree implementing Article 55/1 are intended to carry out the task provided for in Article 6(1)(1)(b), of the Royal Decree of 25 October 2018. The first amendment concerns point (a), which provides that “a player may top up their online player accounts by no more than EUR 500 per week on all games of chance and betting in which they participate”. The default amount of the gambling limit is revised downwards to EUR 200 to enhance player protection. Furthermore, the words “on all games of chance and betting in which they participate” are deleted. It turns out that an overall gambling limit (valid for all sites), which has not been implemented in practice since the entry into force of the Royal Decree in 2018, is technically unrealistic. It also has many drawbacks. The overall limit is supposed to protect players from the dangers of gambling and to avoid excessive spending related to gambling. However, it should be noted that the overall gambling limit, in its current form, does not offer quality protection to players. It only applies to legal online games of chance, so players could still go to land-based gambling establishments. Due to the processing of data relating to the overall gambling limit, players may be inclined to request a large-scale increase in their limit, so that no more data are processed. In view of the above, it is therefore preferable to remove the overall character of the limit and to keep it to a limit per website, while lowering the default limit. This protects players better, especially the most vulnerable of them. This means that a player who wishes to increase their EUR 200 gambling limit shall submit an application to the Gambling Commission through the licence holder. The Gambling Commission shall check, within three days, whether the player is known to be in default of payment in the Central Register of Credits to Individuals of the National Bank of Belgium. If the player is not known to be in default, they will be allowed to increase their gambling limit with that licensee by an amount of their choice. In accordance with Article 55/1 of the Act on games of chance, it is therefore necessary to define the provisions according to which the commission may ask the National Bank of Belgium whether a person is known to be in default of payment in the Central Register of Credits to Individuals of the National Bank of Belgium. The purpose of these provisions is to enable the commission to carry out the player protection tasks assigned to it by the aforementioned Act and its implementing decrees. Article 6(1)(1) of the aforementioned Decree of 25 October 2018 provides for a limitation imposed by default on all players with regard to the topping up of their player accounts for games of chance and betting using Information Society services. In accordance with Article 6(1)(1)(b) of the Royal Decree of 25 October 2018, as amended by this Decree, players may request an increase of this gambling limit. However, except in the cases defined in the transitional measure provided for in Article 13(2) of the Royal Decree of 25 October 2018, such an increase may be granted only if the national bank confirms to the Gambling Commission that the player is not known to be in default of payments in the Central Register of Credits to Individuals. In order to verify this, gambling operators must transmit certain player data to the Gambling Commission, which in turn must be able to verify with the National Bank whether the player is known in the register in question. This system implies that a Royal Decree is necessary to regulate the manner in which the Commission may ask the National Bank whether a person is in default of payment in the Central Register of Credits to Individuals, as prescribed by Article 55/1 of the Act. The provisions laid down in this Decree are therefore intended to carry out the task provided for in Article 6(1)(1)(b) of the aforementioned Decree. Comments on the Articles Article 1 In accordance with the opinion of the Data Protection Authority, this Article specifies the purpose for which the Gambling Commission may consult the Central Register of Credits to Individuals of the National Bank of Belgium. It is for the Gambling Commission to verify whether a person requesting an increase in their gambling limit is known to be in default of payment in the Central Register of Credits to Individuals of the National Bank of Belgium. Article 2 As the data controller, the National Bank of Belgium shall lay down the technical arrangements for the consultation of the Central Register of Credits to Individuals of the National Bank of Belgium by the Gambling Commission. This Article follows the opinion of the Data Protection Authority. Article 3 In accordance with the opinion of the Data Protection Authority, Article 3 specifies which identification data may be transmitted by the Gambling Commission to the National Bank of Belgium. In order to allow the Gambling Commission to submit an application to the National Bank of Belgium, the commission must have the national registration number of the player who requests an increase in the player’s gambling limit, or, if this is not known to the operator who transmits the data to the Gambling Commission, the player’s surname, name and date of birth. No data on recorded loans shall be communicated. This provision also includes operators’ obligation to attach these data to the notification provided for in Article 6(1)(1)(b)(2) of the Decree of 25 October 2018. If operators do not do so, the Gambling Commission cannot fulfil its task. Article 4 In accordance with the opinion of the Data Protection Authority, Article 4 specifies the retention period of the national registration number or player identification data by the Gambling Commission. Article 5 Article 5 concerns the keeping of log files by the Gambling Commission and the National Bank of Belgium, as requested by the Data Protection Authority. In its opinion, the Data Protection Authority states that “This file must be protected against any modification, kept for 10 years from the date of the consultation and be made available to the Data Protection Authority at first request.” However, this retention period must be adapted to the length of the retention period provided for in Article 12(3) of the Act of 28 November 2021 on the organisation of a Register of Credits to Businesses, i.e. 5 years, since the data of the Central Register of Credits to Individuals and the Register of Credits to Businesses are on the same system. It is therefore not possible for the National Bank of Belgium to modulate the retention period of log files according to the capacity of the user or the functionality used. Article 6 Following the opinion of the Data Protection Authority, the rights of access to the Central Register of Credits to Individuals are limited to persons designated by the Gambling Commission whose role requires this. In accordance with that opinion, the Article also provides for the use of a strong authentication system for managing access, namely authentication via an electronic identity card either in relation to the application of the Gambling Commission or to the application of the National Bank of Belgium. Thus, once, with regard to one of the two applications mentioned above, authentication can be done via the electronic identity card, the provision is respected. Currently, with the Central Register of Credits to Individuals, the connection is only made with a (group) certificate issued by the National Bank of Belgium and not with an electronic identity card. It should be noted that the process referred to here is carried out in two phases: - When a player, via the operator, requests an increase in their gambling limit from the Gambling Commission, control over the Central Register of Credits to Individuals of the National Bank of Belgium is carried out automatically, without human intervention and therefore without authentication. - Where human intervention is necessary at a later stage, in particular by the staff of the Gambling Commission whose function so requires, authentication with the electronic identity card shall be possible. However, this authentication system is not currently in place and it will take several months to set up. Article 7 Article 7 sets out the retention period for data collected by the Gambling Commission from the Central Register of Credits to Individuals. Article 8 Finally, Article 8 of this Decree specifies that the costs of this consultation of the National Bank of Belgium will be borne by the Gambling Commission fund referred to in Article 19(2) of the Act on games of chance. It is therefore the same licence holders themselves who, through the contribution system, pay the National Bank. This approach is fully justified from the point of view of player protection. Article 9 Article 9 of this Decree amends Article 6(1)(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services as outlined above. Article 10 Article 10 determines the entry into force of the Royal Decree. Given the remarks of the Data Protection Authority, many technological developments are needed. For this reason, the Gambling Commission needs a period of 3 months. Article 11 Article 11 provides for a transitional measure. Thus, this Article provides that at the time of the entry into force of the Royal Decree, the gambling limit for all player accounts shall be set at the gambling limit referred to in Article 9, i.e. EUR 200. Indeed, in its Decree No 253.722 of 12 May 2022, the Council of State explicitly held that an increase in the gambling limit on the basis of Article 6 of the Royal Decree of 25 October 2018 can only be done after it has actually been established that the player is not registered as being in default of payment. In other words, unless the former transitional provision of Article 13 of the Royal Decree of 25 October 2018 is applied, no one can have benefited from an increase. In practice, it turns out that it is not possible for the Gambling Commission to know exactly when the increase has been granted in the past. The best solution for player protection is to reduce all limits to EUR 200. Article 12 Article 12 contains the implementing Article. We have the honour of being, Sire, of Your Majesty, the most respectful
and faithful servants, The Minister for the Economy, P-Y DERMAGNE The Minister for Finance, V. VAN PETEGHEM The Minister for Public Health, F. VANDENBROUCKE The Minister for Justice, V. VAN QUICKENBORNE The Minister for the Interior, A. VERLINDEN The Secretary of State for the National Lottery, S. MAHDI * OPINION 71.218/4 OF 19 APRIL 2022 OF THE COUNCIL OF STATE, LEGISLATIVE SECTION, ON A DRAFT ROYAL DECREE “LAYING DOWN THE PROCEDURES FOR CONSULTING THE CENTRALE DES CRÉDITS AUX PARTICULIERS (CENTRAL REGISTER OF CREDITS TO INDIVIDUALS) BY THE BELGIAN GAMBLING COMMISSION AND AMENDING THE PROVISIONS ON THE LIMITATION OF ONLINE GAMES OF CHANCE” On 18 March 2022, the Council of State, Legislative Section, was invited by the Deputy Prime Minister and the Minister for Justice and the North Sea to communicate an opinion, within 30 days, on a draft Royal Decree “laying down the procedures for consulting the Centrale des crédits aux particuliers (Central Register of Credits to Individuals) by the Gambling Commission and amending the provisions on the limitation of online games of chance”. The draft was examined by the Fourth Chamber on 19 April 2022. The chamber was composed of Martine BAGUET, President of the Chamber, Luc CAMBIER and Bernard BLERO, Councillors of State, and Charles-Henri VAN HOVE, acting Registrar. The report was presented by Stéphane TELLIER, senior auditor. The concordance between the French version and the Dutch version was verified under the control of Bernard BLERO. The opinion, the text of which follows, was issued on 19 April 2022. * As the request for an opinion is submitted on the basis of Article 84(1)(1)(2) of the laws on the Council of State, consolidated on 12 January 1973, the legislation section limits its examination to the legal basis for the draft, the competence of the author of the document and the completion of the prior formalities, in accordance with Article 84(3) of the aforementioned consolidated acts. On these three points, the draft calls for the following observations. GENERAL COMMENTS 1.1. On the basis of Article 55/1 of the Act of 7 May 1999 on games of chance, betting, gambling establishments and the protection of players, the Royal Decree under examination lays down the procedures for consulting the Central Register of Credits to Individuals (hereinafter: the CCP) of the National Bank of Belgium by the Gambling Commission (hereinafter: the CJH). In doing so, the draft Royal Decree provides for new instances of personal data processing. 1.2. In its Opinion No 68.936/AG given on 7 April 2021 on a preliminary draft which became the Act of 14 August 2021 “on administrative police measures in an epidemic emergency” (1), the Legislative Section observed the following: “b) Article 22 of the Constitution and Article 8 of the ECHR 100. Article 6 of the preliminary draft envisages processing of personal data which constitutes interference with the right to privacy of persons concerned, guaranteed in particular by Article 22 of the Constitution and Article 8 of the ECHR. In order to be admissible under the aforementioned provisions, interference with the exercise of the right to privacy must be defined in clear and sufficiently precise terms which make it possible to understand in a predictable manner the cases in which the legislator authorises such interference. Any interference with the right to privacy must, moreover, be based on objective and reasonable justification and, consequently, be proportionate to the aims pursued by the legislator (2). If the interferences provided for in the draft Act under consideration pursue a legitimate objective, namely the protection of the health and the protection of the rights and freedoms of others (3), compliance with the requirements of legality, relevance and proportionality must be verified. c) The principle of legality enshrined in Article 22 of the Constitution 101. In accordance with Article 22 of the Constitution, any processing of personal data and, more generally, any infringement of the right to privacy, shall be subject to compliance with a principle of formal legality (4). By reserving to the competent legislator the power to determine in which cases and under what conditions the right to privacy may be infringed, Article 22 of the Constitution guarantees to every citizen that no interference in the exercise of this right may take place except in accordance with rules adopted by a deliberative, democratically elected assembly. However, delegation to another authority is not contrary to the principle of legality, provided that the authorisation is defined in a sufficiently precise manner and relates to the implementation of measures the “essential elements” of which are laid down in advance by the legislator (5). Therefore, the “essential elements” of the processing of personal data must be laid down in the Act itself. In this regard, the Legislative Section considers that, irrespective of the matter concerned, the following are, in principle, “essential elements”: (1) the categories of data processed; (2) the categories of persons concerned; (3) the purpose pursued by the processing; (4) the categories of persons having access to the processed data; and (5) the maximum data retention period” (6). 1.3. Asked about compliance with the principle of legality recalled above and the existence of a legal provision specifying these essential elements, the Minister’s delegate stated: “In our view, the essential elements are already found in the article of the Act empowering the King to lay down the procedures for the consultation of the Central Register of Credits to Individuals by the Gambling Commission. In fact Article 55/1 of the Act of 7 May 1999 on gambling, betting, gambling establishments and the protection of gamblers, provides that: “In order to enable the Commission to carry out the tasks of player protection assigned to it by this Act and its implementing decrees, the King shall lay down the procedures according to which the commission may ask the National Bank of Belgium whether a person is in default of payment in the Central Register of Credits to Individuals of the National Bank of Belgium”. This provision contains the essential elements set out in your question: — the category of data processed: whether a person is in default of payment — the category of persons concerned: individuals — the purpose of the processing: to enable the commission to carry out the player protection tasks assigned to it by the Act and its implementing decrees — the categories of persons having access to the data: the Commission The draft Royal Decree regulates the technical arrangements for consultation and for this purpose, goes into detail on the various essential elements without modifying them, and therefore without amending the Act.” 1.4. As regards the categories of data processed, it should be noted that Article 55/1 of the Act of 7 May 1999 does not allow the categories of data processed in the context of the CJH’s monitoring mission to be identified. These categories are precisely provided for in Article 3(1)(2)(1) and (2), and (2)(3) of the draft Decree. Furthermore, as regards the maximum data retention period, Articles 4 and 7 of the draft provide for this retention period, in very broad terms. The authorisation implemented by the King to adopt the aforementioned provisions should be further framed in order to ensure that this authorisation complies with the principle of legality referred to above and to better ensure legal certainty. 2. The amendment provided for in Article 9 of the draft relates to Article 6(1)(1)(a) of the Royal Decree of 25 October 2018 “on the procedures for operating gambling and betting operated via Information Society tools” and aims to set the maximum topping up amount of online player accounts to EUR 200 per week instead of EUR 500 per week and to repeal the clarification that this limit is imposed on the player “on all games of chance and betting in which they participate”. As regards the proportionality of the measure envisaged in Article 9, the report to the King on the Royal Decree of 25 October 2018 states, in its general part, that it takes into account the case-law of the Court of Justice of the European Union in the field of games of chance, according to which the limitation of activities related to games of chance may be justified on compelling grounds of general interest, such as consumer protection, countering fraud and the desire to prevent citizens from being induced to squander their money on gambling. The report also states that “given the objectives of player protection and the need to avoid any incentive for players to squander money, the imposition of stricter rules is reasonably justified in proportion to the fact that a certain type of game presents a high risk of addiction and squandering of money.” Regarding Article 6 of the Royal Decree of 25 October 2018, the report to the King mentions that “to effectively counter the squandering of money and addiction to gambling, it is necessary to impose gambling limits: a player may top up their online player accounts by no more than EUR 500 per week across all of the games of chance and betting in which they participate. While the proposed amendment to Article 6(1)(1)(a) of the Royal Decree of 25 October 2018 appears more restrictive, in that it lowers the maximum amount that one can top up online player accounts with to EUR 200, it seems above all more permissive, in that it no longer provides that this limit applies “on all games of chance and betting in which they participate”, which must be understood in the sense that the limit applies only per online gambling or betting site for which a player has an account. The report to the King justifies the deletion of the words “on all games of chance and betting in which they participate” as follows: “ The first amendment concerns point (a), which provides that “a player may top up their online player accounts by no more than EUR 500 per week on all games of chance and betting in which they participate”. The default amount of the gambling limit is revised downwards to EUR 200 to enhance player protection. Furthermore, the words “on all games of chance and betting in which they participate” are deleted. It turns out that an overall gambling limit (valid for all sites), which has not been implemented in practice since the entry into force of the Royal Decree in 2018, is technically unrealistic. It also has many drawbacks. It is therefore preferable to remove the overall character of the limit and to keep it to a limit per website, while lowering the default limit. This protects players better, especially the most vulnerable of them.” It follows from the proposed amendment that while in theory, on the basis of the current rule, a credit limit of EUR 500 per week is imposed on the player on all games of chance, under the proposed scheme, the player may, if they have more than one player account on different online gambling sites, top up their player accounts up to a significantly higher amount, for example EUR 1 000 per week in total if they have five player accounts. In view of the pursued aim of protecting consumers and effectively countering the squandering of money and gambling addiction, the report to the King will be supplemented with a view to setting out more clearly the elements which make it possible to consider that the proposed amendment is indeed of a nature that better protects the players, “especially the most vulnerable of them”. 3. Subject to these general comments, the following specific comments are made. SPECIFIC COMMENTS PREAMBLE The only legal basis for the draft referred to in the first subparagraph is Article 55/1 of the Act of 7 May 1999. However, that provision does not empower the King neither to amend the Royal Decree of 25 October 2018, nor to determine the entry into force of Article 6(1)(1)(b) thereof. With the agreement of the Minister’s delegate, the first subparagraph shall be supplemented with a reference to Article 43/8(2)(2) of the Act of 7 May 1999, which empowers the King to amend the Royal Decree of 25 October 2018. As regards Article 10 of the draft, which establishes the entry into force of Article 6(1)(1)(b) of the same Royal Decree, reference is made to the particular observation made under Article 10. INSTRUMENT Article 3 In view of the fact that, at the time when a player’s identification data is transmitted to the National Bank of Belgium for verification, it is not yet established that the player is in default of payment within the meaning of Article VII.148 of the Code of Economic Law, it is incorrect, in Article 3(1)(1) of the draft, to indicate that “ The identification information of players in default of payment within the meaning of Article VII.148 of the Code of Economic Law may be shared […]”. Questioned on this point, the Minister’s delegate suggests the following wording for Article 3(1)(1) of the draft: “ The identification information of the player requesting an increase in their gambling limit pursuant to Article 6(1)(1)(b) of the Royal Decree of 25/10/2018 may be shared with the National Bank of Belgium to verify whether the player is known to be in default of payment within the meaning of Article VII.148 of the Code of Economic Law in the file in the Central Register of Credits to Individuals.” The text will be adapted to that effect, with the words “of the Royal Decree of 25/10/2018” being replaced by the words “of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services”. Article 9 1. The measure envisaged by Article 9, which seeks to amend Article 6(1)(1)(a) of the Royal Decree of 25 October 2018 so as to set the maximum topping up amount of online player accounts at EUR 200 instead of EUR 500 per week, is likely to have an impact on the fiscal competence of the federated entities. In this regard, the Legislative Section observed, in its Opinion No 63.662/VR given on 17 July 2018 on a draft which became the Royal Decree of 25 October 2018 (7): “ As recalled by the Constitutional Court in its Decision No 114/2005 of 30 June 2005 (8), the competence to determine the conditions under which gambling and betting activities are tolerated and to organise the control required by the dangerous nature of such activities rests with the federal authority (9). The draft Decree under examination falls within that framework and is therefore within the competence of its author.” This comment is reiterated in relation to Article 9 of the draft. 2. The Royal Decree of 25 October 2018 is or has been the subject, in whole or in part, of numerous applications for annulment (10); some of them have resulted in decisions annulling certain provisions of that Royal Decree (11). The application bearing reference G/A. 227.138/XI.22.372 seeks the annulment “at the very least, in the alternative, [of] its Articles 1, 6(1)(1), and 6(2)”. This abundant litigation, as well as the practical difficulties in implementing the envisaged amendment of Article 6(1)(1)(a) of the Royal Decree of 25 October 2018, are highlighted by the Inspector of Finance in his opinion of 5 July 2021, in a manner that can be summarised as follows: – amendment of this provision while proceedings are pending before the Council of State; – risk of more requests for an increase in the account topping up limit, with the same operator or with another operator, if a player is refused when they consider themselves to be eligible for this increase; – the “automatic” nature of the refusal if the player is included in the Register of Credits, even though there may be errors; – administrative appeals will inevitably be presented. Asked about these difficulties, the Minister’s delegate does not deny the possibility of appeals being presented, the risk of player volatility as players could constantly change operators, and specifies that “ It should be noted that based on information provided by the CJH in June 2021, among the 100 000 daily players, about 45 % are likely to request an increase in their gambling limit. In addition, there are an average of 70 000 new player registrations per month, and the CJH estimates that about 40 % of these players could request an increase in their gambling limit. Although the fact that the implementation, including the financing, of a regulatory provision may prove complicated is not proof of its illegality, the fact of amending a regulatory provision that has been challenged before the Administrative Litigation Division of the Council of State is likely to raise difficulties in terms of legal certainty. Article 10 Article 10 of the draft provides for the entry into force of Article 6(1)(1)(b) of the Royal Decree of 25 October 2018 “on the same day as this Decree”. The entry into force of that provision is provided for in the first subparagraph of Article 13 of the same Royal Decree, as follows: “ This Decree shall enter into force on the first day of the eighth month following that of its publication in the Belgian Official Gazette, with the exception of Article 6(1)(1)(b) which shall enter into force no later than January 2019 or, where applicable, on a later date set by the King by way of a decree deliberated in the Council of Ministers. The report to the King clarifies, in relation to Article 13, that: “ Article 13 provides for a transitional period of eight months so that gambling and betting operators can adapt to the new licensing requirements, with the exception of Article 6(1)(1)(b) which shall enter into force by no later than 1 January 2019”. In view of this clear indication in the report to the King, it must be considered that, in the absence of a Royal Decree adopted before 1 January 2019, Article 6(1)(1)(b) entered into force on that date. The first subparagraph of Article 13 of the Royal Decree of 25 October 2018 cannot be understood as allowing the King to adopt a Royal Decree deliberated in the Council of Ministers after the date of 1 January 2019, which would set the entry into force of Article 6(1)(1)(b) of that Decree, insofar as it would remove any legal scope from the requirement that that provision enters into force “no later than January 2019”. Consequently, Article 10 of the draft will be omitted. * THE REGISTRAR Charles-Henri VAN HOVE THE PRESIDENT Martine BAGUET ------------------ Notes (1) Parl. doc., Chamber, 2020-2021, No 55-1951/1, pp. 55 to 127, http://www.raadvst-consetat.be/dbx/avis/68936.pdf. (2) Footnote 172 of the cited opinion: EC Opinion No 63.192/2 given on 19 April 2018 on a preliminary draft which became the Act of 30 July 2018 “on the protection of natural persons with regard to the processing of personal data”, Parl. doc., Chamber, 2017-2018, No 54-3126/001, pp. 402 to 456, http://www.raadvst-consetat.be/dbx/avis/63192.pdf; EC Opinion No 63.202/2 given on 26 April 2018 on the draft Act of 5 September 2018 “establishing the Information Security Committee and amending various acts concerning the implementation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC”, Parl. doc., Chamber, 2017-2018, No 54-3185/001, pp. 120 to 145, http://www.raadvstconsetat.be/dbx/avis/63202.pdf. (3) Footnote 173 of the cited opinion: Article 8(2) of the ECHR. (4) Footnote 174 of the cited opinion: Already invoked earlier, numbers 70 et seq. (5) Footnote 175 of the cited opinion: Established case-law of the Constitutional Court: see in particular C.C., 18 March 2010, No 29/2010, B.16.1; C.C., 20 February 2020, No 27/2020, B.17. (6) Case-law also reproduced more recently in C.C., 10 March 2022, No 33/2022, B.13.1. (7) http://www.raadvst-consetat.be/dbx/avis/63662.pdf. (8) Footnote 1 of the cited opinion: Recital B.13. (9) Footnote 2 of the cited opinion: On the limits which, under Article 3(1)(1) of the Special Act of 16 January 1989 “on the financing of Communities and Regions”, are attached to the fiscal competence of the federal authority with regard to gambling and betting, see C.C., 22 March 2018, No 34/2018, recital B.13. (10) See references G/A. 227.048/XI-22.358, G/A. 227.050/VII-40.459, G/A. 227.051/XI-22.359, G/A. 227.052/VII 40.460, G/A. 227.068/VII-40.461, G/A. 227.073/VII-40.463 and G/A 227.109/XI-22.369, G/A. 227.138/XI.22.372. (11) Thus, in Case G/A. 227.048, Decision No 246.998 of 6 February 2020 annulled Article 1(1) and Article 3(2) and (3) of the Royal Decree of 25 October 2018, and in Case G/A. 227.051, Decision No 246.999 of 6 February 2020 annulled the words “apart from on their own website” in Article 5(1), and Article 11 of the same Royal Decree. ------------------ 19 JUNE 2022 - Draft Royal Decree laying down the procedures for consulting the Centrale des crédits aux particuliers (Central Register of Credits to Individuals) by the Belgian Gambling Commission and amending the provisions on the limitation of online games of chance. PHILIPPE, King of the Belgians, To all those present and those to come, Greetings. Having regard to Article 43/8(2)(2) inserted by the Act of 10 January 2010, and Article 55/1 of the Act of 7 May 1999 on gambling, betting, gambling establishments and the protection of gamblers, inserted by the Act of 7 May 2019; Having regard to the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services; Having regard to the opinion of the Gambling Commission, issued on 20 January 2021 and 21 April 2021; Having regard to the opinion of the Finance Inspector, issued on 27 April 2021 and 5 July 2021; Having regard to the agreement of the Secretary of State for the Budget, issued on 11 May 2021 and 15 July 2021; Having regard to the impact assessment of the regulation, conducted in accordance with Articles 6 and 7 of the Act of 15 December 2013, containing various provisions relating to administrative simplification; Having regard to opinion No. 177/2021 of the Data Protection Authority, issued on 4 October 2021; Having regard to communication 2021/0845/B to the European Commission, dated 9 December 2021, pursuant to Article 5(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services; Having regard to opinion 71.218/4 of the Council of State issued on 19 April 2022, pursuant to Article 84(1)(1)(2) of the laws on the Council of State, consolidated on 12 January 1973; On the proposal of the The Minister for the Economy, the Finance Minister, the Minister for Public Health, the Minister for Justice, the Minister for the Interior, and the Secretary of State for the National Lottery, and in the opinion of the Ministers who have deliberated them in the Council, IT IS HEREBY DECREED: CHAPTER 1 — Procedures for consultation by the Gambling Commission of the Central Register of Credits to Individuals of the National Bank of Belgium Article 1 The consultation of the National Bank of Belgium’s Central Register of Credits to Individuals by the Gambling Commission is motivated by the purposes referred to in Article 6(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services. Article 2 The National Bank of Belgium shall determine the technical procedures for the consultation of the National Bank of Belgium's Central Register of Credits to Individuals by the Gambling Commission. Article 3 § 1. The identification information of the player requesting an increase in their gambling limit pursuant to Article 6(1)(1)(b) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services shall be shared with the National Bank of Belgium to verify whether the player is known to be in default of payment within the meaning of Article VII.148 of the Code of Economic Law in the file in the Central Register of Credits to Individuals. The identification information referred to in the first subparagraph shall include: 1. the player’s national registration number, if known to the licensee; 2. if the player’s national registration number is not known to the licensee, the player’s surname, first name and date of birth. No data on recorded loans shall be provided. §2. The player’s national registration number shall be used for the sole purpose of determining whether the player is known to be in default of payment in the file in the Central Register of Credits to Individuals. As a result of the purposes referred to in Article 6(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services, the Gambling Commission is entitled to use the national registration number as a search criteria within the National Bank of Belgium's Central Register of Credits to Individuals. When a request is submitted to the Gambling Commission to increase the gambling limit, licensees of Class A+, B+ or F1+ shall collect the player’s national registration number and communicate this to the Gambling Commission. Article 4 The Gambling Commission shall keep the national registration number or the player identification data referred to in Article 3 for the period necessary for its monthly verification task if the authorisation to increase the gambling limit is to remain. The Gambling Commission shall delete the identification data referred to in Article 3 if the gambling limit of the online player account is reduced to EUR 200 or less, or if the online player account is deleted. Article 5 § 1. The Gambling Commission shall create log files of consultations of the National Bank of Belgium's Central Register of Credits to Individuals. These consultation log files shall be used to establish: 1. the date and time of the consultation; 2. the identification of the individual user or, failing that, the process or system that accessed the data; 3. the type of request; 4. the purpose of the consultation. §2. The National Bank of Belgium shall create log files to establish: 1. the identification of the user who has accessed or received communication of the data; 2. the type of request made; 3. the date and time of the consultation or communication. §3. Appropriate measures shall be adopted by the Gambling Commission and the National Bank of Belgium to ensure the security of log files and, in particular, prevent unauthorised processing and ensure the integrity of the data processed. Log files shall be kept for five years from the date of consultation. The log files of the Gambling Commission shall be kept and made available to the Data Protection Authority at first request. Article 6 The persons designated by the Gambling Commission, whose role requires access to the National Bank of Belgium's Central Register of Credits to Individuals, may only have access to information that a player is in default of payment within the meaning of Article VII.148 of the Code of Economic Law and only after authentication by means of an electronic identity card, either in relation to the application of the Gambling Commission or with regard to the application of the National Bank of Belgium The Gambling Commission shall, at first request, provide the National Bank of Belgium or the Data Protection Authority with the identity of the member of its staff who has consulted or become aware of the personal data referred to in the first subparagraph. Article 7 The Gambling Commission shall keep the personal data consulted by the National Bank of Belgium’s Central Register of Credits to Individual for the time necessary to carry out the tasks referred to in Article 6(1) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services. Article 8 The costs of consulting the National Bank of Belgium’s Central Register of Credits to Individuals shall be borne entirely by the funds of the Gambling Commission, as referred to in Article 19(2) of the Act of 7 May 1999 on gambling, betting, gambling establishments and the protection of gamblers. CHAPTER II — Amendments to the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services Article 9 In Article 6(1)(1)(a) of the Royal Decree of 25 October 2018 on the procedures for operating games of chance and betting using Information Society services, the number “500” shall be replaced by the number “200” and the words “on all games of chance and betting in which he participates” shall be repealed. Chapter III — Entry into force and transitional provision Article 10 This Decree shall enter into force three months after its publication in the Belgian Official Gazette. Article 11 Upon entry into force of this Decree, the gambling limit for all player accounts shall be set at the EUR 200 gambling limit in accordance with Article 9 of this Decree. Chapter IV – Final provisions. Article 12 The Minister for the Economy, the Finance Minister, the Minister for Public Health, the Minister for Justice, the Minister for the Interior, and the Secretary of State for the National Lottery are each responsible, as far as concerned, for the implementation of this decree. Done in Brussels, 19 June 2022 PHILIPPE By the King: The Minister for the Economy, P-Y DERMAGNE The Minister for Finance, V. VAN PETEGHEM The Minister for Public Health, F. VANDENBROUCKE The Minister for Justice, V. VAN QUICKENBORNE The Minister for the Interior, A. VERLINDEN The Secretary of State for the National Lottery, S. MAHDI
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