Notice: spread betting (12 November 2014)

1. What is spread betting?

Financial spread betting and how it works in practice are best explained with an example of the British Vodafone share.
 
A spread betting office establishes the spread of that share at 116 – 116.5.
If it is assumed that Vodafone will continue to decrease due to the unfavourable stock market environment, shares are sold at 116 and 10 pounds per point are staked for example. This is called a shorting or a down bet. In case of a price decrease to 112 – 112.5, shares are bought at 112.5. Therefore, the winnings equal 3.5 points (116 - 112.5), i.e. 3.5 x 10 pounds = 35 pounds. If, however, the speculation was incorrect and there was a price increase to 120.5, 4.5 points (120.5 - 116) are lost which leads to a loss of 45 pounds (4.5 x 10 pounds). The purchase is called a going long or an up bet and occurs when a price increase is expected.
 
2. Spread betting vs. binary options
The general concepts behind spread betting and binary options share a number of similar characteristics, which often leads to confusion. They both use a simple technique: both are based on a prediction of the price change of a financial instrument and in both instances a cash settlement is acquired instead of the instrument itself. Moreover, the limited time frames and the involvement of brokers are characteristic for both instruments (they are both over-the-counter financial instruments).
 
The most important difference between both instruments is the fact that spread betting is a bet. In addition, the possible losses with spread betting are much larger than with binary options. With binary options, the possible winnings or losses are already fixed at the time of the stake. Based on the concluded agreement, either an amount 70 to 85 % of the stake can be won or the complete stake can be lost. Spread betting is different: winning or losing an amount depends on the spread of the speculation and the result at the end of the expiration time. The closer the prediction is to the result, the higher the amount that is won.
 
The maximum loss with binary options is the stake. With spread betting, the loss can be much larger than the stake itself.
 
3. Competence
In the past, there was uncertainty about the competence concerning spread betting. As with binary options, there are arguments to qualify spread betting both as a game of chance and a financial instrument. The choice for the term betting, however, supports the assumption that, in this case, it is a game of chance and not a financial instrument.
 
a) European position
The CESR (Committee of European Securities Regulators) confirms that spread betting is often linked with sports results. Therefore, the situation is unclear. In contrast with binary options, the Committee does not take any uniform and clear position concerning spread betting.
 
b) Belgian position
The FSMA confirms the assumption that the term spread betting leads to a qualification as game of chance and establishes that spread betting falls within the competence of the Gaming Commission as they are mostly offered by gambling websites.
 
4. Conclusion
As the term spread betting itself already leads to the qualification as game of chance and taking into account the very large winnings and losses involved (which indicate the great risk those types of game of chance pose), spread betting falls within the competence of the Gaming Commission. To date, neither Europe nor the FSMA has contradicted that interpretation.

Notice: binary options (12 November 2014)

1. What are binary options?

Binary options are defined as unconventional financial instruments that predict whether the market price of the underlying asset (e.g. shares, resources, inflation, interest decisions...) will increase or decrease. Contrary to normal options on the stock market that can lead to a loss in terms of percentage when assessed incorrectly, speculating with binary options leads to a total loss of the stake or the winning of a previously established amount. The established amount will be paid if the underlying asset satisfies a certain condition (e.g. an increase or a decrease of a share) at a previously established point in time. If that is not the case, the player receives nothing and loses the stake.
The expiration times of the binary options differ. Options of one minute up to a few hours are offered. Within such short time frames, it is almost impossible to predict the direction of the underlying asset.
Because binary options are offered online on non-professional websites, they are available to the general public. As participation can lead to great risks, the Gaming Commission wishes to issue an official advice.
 
Example in figures:
Assume that the BEL20 is selling at 3026 today. You can buy a binary call option for 50 euro and you predict that the BEL20 will increase within 60 minutes. If it does you receive 40 euro, if not you lose 50 euro. The loss is thus greater than the possible winnings. If the number of correct predictions equals the number of incorrect predictions, the final result will still be negative. To earn money in the long run, many more correct predictions than incorrect predictions are necessary, which is impossible due to the short time frames.

 

2. Competence

In the past, there was uncertainty about the competence concerning the binary options because they can be qualified as both illegal games of chance and financial instruments.
 
A. Binary options vs. the Law on games of chance
Pursuant to Article 2 of the Law of 7 May 1999 on games of chance, gaming establishments and the protection of players (hereinafter: Law on games of chance), it is possible to speak of a game of chance if the following conditions have been fulfilled:
 
a) STAKE: to place a binary option, you have to stake a certain amount;
 
b) WINNINGS OR LOSS: if you win, you earn the stake plus a previously determined percentage of the stake (e.g. 85 %). If you lose, you lose the complete stake;
 
c) CHANCE: as it concerns very short time frames, it is impossible to predict the rate of a share and the like with any certainty. The participation in binary options is therefore a gamble that is completely based on chance.
Thus, it is possible to speak of an (illegal) game of chance.
 
B. Binary options vs. the financial market
Because binary options are connected to the stock exchange, they can also be qualified as financial instruments. The FSMA (Financial Services and Markets Authority) repeated in a communication of 25 July 2014 that enterprises that offer binary options on the Belgian territory have to comply with a number of important obligations, a.o. concerning the rules of conduct of the European MiFID and the Belgian prospectus obligation. Because the FSMA has not approved any prospectus to date, no binary options may be sold in Belgium. Today, binary options are therefore only offered abroad.
 
C. Position of the European Commission
Though both regulators could be considered as supervisory body for the binary options, the European Commission has taken a clear position in this matter and has confirmed that binary options are financial instruments governed by Point 4 of Section C of Annex 1 of Directive 2004/39/EC[1] and therefore fall within the competence of the FSMA.
 
4. Conclusion
Although binary options could be qualified as (illegal) games of chance, they are first and foremost financial instruments according to the European point of view and fall within the competence of the national regulators of financial services. The FSMA keeps a close eye on that specific market via a specific and unique Belgian system concerning the prospectus obligation and has not allowed any Belgian provider to enter that market.
The Dutch gaming authority had previously reached the same conclusion and, together with the AFM (Dutch Financial Market Authority), it has placed warnings on their respective websites.
 

 


[1] http://ec.europa.eu/yqol/index.cfm?fuseaction=domain.show&did=6 and http://ec.europa.eu/yqol/index.cfm?fuseaction=question.show&questionId=955; Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments.

Notice: solvency of the supplementary licence holder (6 November 2013)

1. General points

In compliance with Article 3 of the Royal Decree of 21 June 2011 on the qualitative requirements to be satisfied by those applying for a supplementary licence for games of chance, applicants must furnish proof that they have a 40% solvency ratio.

The reason for this obligation arises from the Gaming Commission's fear of seeing supplementary licence holders fail to find sufficient resources to refund money to gamblers' accounts. The obligation to have a certain degree of solvency is a serious and efficient long-term obligation. However, such (proof of) solvency in no way guarantees the solvency of the licence holder in the short term. Even though he may reach a sufficient solvency ratio, a lack of cash flow may result in bankruptcy.

 

2. Nature of the player account

The player account is an account to which funds are moved that belongs to third parties (the players). Unlike the players' stakes, which are paid to the operator, the ownership of the funds of players remains with the players.

The key issue of the present notice concerns what happens to these player accounts in the event that the supplementary licence holder goes bankrupt. This raises the question of whether or not a player account is to be included as part of the assets of the bankrupt licence holder. Case law of la Cour de cassation (the Supreme Court) shows that the general principle according to which funds are enforceable against a bankrupt estate is to be accepted regardless.

However, to avoid disputes in the event of bankruptcy, it is advisable to produce a more substantial surety to secure players' funds.

 

3. Proposal to introduce a supplementary surety

3.1. Quality account

A surety may be brought by blocking 75% of the players' funds in a quality private account outside of the company. A quality account is defined as an account that is held openly as a QQ account by the holder, that is to say, not for his own account, but for the account of one or several other people.

The quality account prevents the money that is paid into it becoming part of the assets of the account holder. The person to whose benefit the funds are placed into the account cannot claim these funds directly from the bank. As such, this person does not have a personal right against the bank, but he is definitely the economic owner of this receivable. In case the account holder becomes insolvent, the money is not included in his estate, provided there is a clearly separated account.

The specific legal nature of such a quality account is widely recognised by legal precedent (E. DIRIX and V. SAGAERT, of kwaliteitsrekening herbezocht, TPR, 2004, 263-282; I. SAMOY, Middellijke vertegenwoordiging – vertegenwoordiging herbekeken vanuit het optreden in eigen naam voor andermans rekening, Intersentia, 499-517; M.E. STORME, Vertegenwoordiging, lastgeving, kwaliteitsrekening en aanverwante rechtsfiguren – Syllabus ten behoeve van het vak notarieel zaken- en contractenrecht, edition 2009-2010, 62-77).

 

3.2. Conditions

The first condition for this specific status is the existence of a specific agreement between the holder of the account and the banker recognizing the QQ nature of the account, that is to say, that the funds are not to be held in the holder's own name or on his/her behalf, but on behalf of third parties. The second condition is that the bank administering the account should expressly consent to the account being a private account. In an absolute sense this may be achieved by giving the account a specific name (quality account général or account omnibus), for example: "quality account-deposits-player accounts + name of the operator".

Furthermore, opening a quality account requires the consent of the players. To that end, operators will need to insert a supplementary clause in their general terms and conditions in which the player expressly grants consent for his funds to be deposited into such an account. The same applies to existing player accounts where the players will first need to consent to a supplementary agreement. The Gaming Commission believes that players will not have any problems with this, since any improved protection of their money is only in their best interests.

 

3.3. Enforceability

To be enforceable vis-à-vis to third parties, the Gaming Commission is to publish the existence of these accounts in the Belgian Official Journal by specifying a link to its website where the notice in question was published.

 

3.4. Deposit and Consignment Fund

Contacts have been made with the Treasury Administration in Brussels in light of the fact that opening a quality account with the Deposit and Consignment Fund may offer substantial added benefits. Both the Administration and the Guarantees Department have reported that it is impossible to open a quality account with the Deposit and Consignment Fund, even for a voluntary deposit. A system in which the non-uniqueness of the accounts is accepted as a principle cannot therefore be used to accommodate these quality accounts.

 

3.5. General obligations incumbent on the operator

The opening of a quality account, subject to the consent of the players, is to be included as part of the ethical obligations in the royal decree to be published for this purpose. Until the actual amendment of the regulatory decree, this ethical duty will be imposed through the publication of an information notice on the Gaming Commission's website.

The ethical duty will be imposed on all supplementary licence holders, and will be further elaborated by strict rules on the conclusion of an agreement with the commercial banks (e.g. a prohibition on opening a quality account with a bank where financial credit has been contracted) as well as on the duty to inform the Gaming Commission thereof.

FEBELFIN has been contacted over the safety of the commercial banking industry and its willingness to accept the existence of these accounts, but has yet to return its reply. The strict conditions governing the opening of a quality account are to be specified in due course.

As part of the duty of information vis-à-vis of the Gaming Commission, it is important that the latter is informed of what is on the player accounts at all times. Since the money held in player accounts is subject to fast changing fluctuations, the licence holder will be required to perform a new calculation each calendar year and to pay the required amounts into the quality account. Moreover, the Gaming Commission will be entitled to call up the figures from the licence holders at any time, and will be able to force these to immediately adjust the quality accounts to be blocked.

Furthermore, in exceptional cases (in the event of major wins or players withdrawing significant amounts), the surplus cash of the players held with the commercial bank (25%) will be insufficient. In that case, money that is held blocked in the quality account will be freed for use in paying out winnings or refunds. The operator will be required to provide the Gaming Commission with proof that a new account has been set up and that the quality account has been adapted immediately.

The interest generated by the quality account will go to the operator: art. 1936 C.C.: "If the deposits have yielded earnings that were collected by the depositary, he shall be under obligation to return these earnings, he shall not owe any interest over the money deposited, apart from on the day on which notice of default was served on him to transact the refund." (underscored by the author)

As the quality account according to its private nature is expressly withdrawn from the operator's own estate, the funds held in this account can no longer be factored in to reach the 40% solvency ratio.

Technical notice (7 September 2012)

1. Adapting the URL for e-services (EPIS, WEB, E-gaming)

The Gaming Commission invites the industry to make the required changes in preparing for the transition from the “gamingcommission.fgov.be“ domain to “gamingcommission.be.”

We invite the industry to make the three adaptations outlined below to be able to run tests:

1. Make the URL adaptable in the software to facilitate the transition

a. Use an external configuration

b. Adapt the URL in the configuration

2. Obtain a “Root” certificate from Fedict plus installation

3. Test the URL using the Gaming Commission's test environment

 

Please request technical details by sending an e-mail to ict@gamingcommission.be.

 

 

2. New protocol for the Gaming Commission's drop server

 

Three systems will be made available free of charge by the Gaming Commission. According to the type of transfer for the protocol files (manual or automatic), the industry will need to make the necessary changes.

1. FTP (current situation): only involves a name change into depot.gamingcommission.be

2. FTPS, login and password, inventory per room (option): safer

3. HTTPS, login and password, inventory per room, compulsory as from 1/1/2013 (web form for manual contacts and web services for automatic contacts).

 

Please request technical details by sending an e-mail to ict@gamingcommission.be.

 

Notice: free gambling site with link to .com (January 2009)

The Gaming Commission has put in place the following decision. The Commission wishes to underscore that, alongside illegal gambling sites ending in .com where clandestine games of chance are made available, the websites that subtly promote their illegal cousins are equally problematic. All too often, certain tournaments are sponsored by websites whose URLs end with the domain names .net or .free and which do not necessarily engage in illegal practices as such. Because of the choice of name however, there is often a connection with illegal sites, which has prompted the Gaming Commission to adopt a consistent stance by banning these websites.