Notice: new procedure for sanctions

Section 15 of the Gaming Act of 7 May 1999 specifies that the Gaming Commission is within its rights to impose sanctions and/or administrative fines, and also lays down the procedure to do so (appendix 1).

The ruling returned by the Council of State of 3 October 2013 (224.975) and the report from the Auditor's Office of 19 February 2014 in the JANNA BVBA – GC case (A/A 211.312/VII-39.015) shows that the (auditor of the) Council of State is of the opinion that the procedure set out in the Act is to be observed, instead of the R.D. of 20 June 2002 in respect of the sanctions which may be imposed by the Gaming Commission, as the Act provides broader guarantees for the rights of the defence.
 
PROCEDURE
Decision of the GC to instigate a sanction procedure.
1. Letter sent by recorded delivery to the party concerned, specifying the following details:
- References of the report or the "PV"
- Summary of the details and the offence
- The procedure to be observed: choice between written or verbal procedure (30 days)
- The right to seek to be assisted by a legal counsel
- The right to examine the case record file
- The (postal and e-mail) address of the GC
 
2. EITHER Written procedure
- The party concerned submits written (also by e-mail) defence and legal remedies within 30 days counting from the notification by letter sent by recorded delivery (item 2).
- The GC takes a decision within 2 months upon receipt of the written defence and legal remedies
- The decision is sent by recorded delivery.
 
3. OR Verbal procedure
- The party concerned submits a request to be heard within 30 days counting from the notification by letter sent by recorded delivery (item 2).
- The Hearing Chamber sends out an invitation to attend the hearing by recorded delivery.
- The party concerned is entitled to request for a once-only deferral by letter sent by recorded delivery.
- The Hearing Chamber sets a new date for the hearing and sends out the invitation by recorded delivery. No further deferrals are permitted.
- The Hearing Chamber draws up a detailed report of the hearing.
- A copy of this report is sent by recorded delivery to the party concerned.
- Upon receipt of this copy, the party concerned can send in his comments within a fifteen-day time frame (no recorded delivery required)
- The GC (members of the Hearing Chamber MAY join in the deliberations and decision-making) shall take a decision within 2 months counting as from the date of expiry of the 15 days after the party concerned obtained the copy of the minutes of the hearing.
- The decision is sent by recorded delivery.
 
HEARING CHAMBERS
Section 15/5 §2 of the Gaming Act refers to Hearing Chambers if a party concerned chooses to conduct verbal proceedings.
 “To this end, the Commission may constitute separate Chambers made up of the Chairman and two permanent members.”
 
Organising the Hearing Chamber is not an obligation, but a possibility, which nonetheless shall be required to be resorted to taking into account the volume of sanction procedures set to be initiated/conducted over the months ahead.
The Commission may constitute these Hearing Chambers itself. To do so, no R.D. is required under section 15/5.
In consideration of the ruling returned by the Council of State in the TIMMERS case, it is advisable that the members of the Hearing Chamber are present at the deliberations, although section 15/6 of the Gaming Act specifies that these members MAY (not MUST) join in the deliberations and decision-making. If the hearing is organised by the Commission itself, it is advisable that the same members subsequently arrive at the decision.
USE OF LANGUAGES
According to the laws on the use of languages in administrative affairs, the location of the place of business where the offences occurred is the deciding factor to determine the language in which the procedure is to be conducted and the case record file is to be written. The basis for this rests with section 39§1 of the co-ordinated laws on the use of languages in administrative affairs.
With regard to the verbal procedure, under section 41§1 of the same Act the party concerned is to be heard and tried in one of the three national languages of his choice (appendix 2).
 
SANCTION PROPOSAL
A sanction proposal is specified in the summons. When imposing a sanction in respect of the licence of the party concerned, in all cases the most severe sanction shall be set out as a possibility, leaving the GC free to decide entirely at its own discretion.
When imposing an administrative fine, it is advisable that a distinction be made between an offence by an organiser/member of staff or an offence by a player. The minimum and maximum fines are specified under sections 63 and 64 of the Gaming Act.
 
Section 63. The perpetrators of the offences in violation of the provisions of sections 4, § 1, 4 §3, 8, 26, 27, first member, 46 and 58 shall be punished with a custodial sentence ranging from six months to five years and with a fine ranging from 100 francs to 100,000 francs or with either one of the aforesaid penalties alone.
 
Section 64. The perpetrators of offences in violation of the provisions of sections 4, §2, 43/1, 43/2, 43/3, 43/4, 54, 60 and 62 shall be punished with a custodial sentence ranging from one month to three years and with a fine ranging from 26 francs to 25,000 francs or with either one of the aforesaid penalties alone.
 
Raised with the surcharges, this translates into the following minimum and maximum amounts:
Section 63: 600 EUR – 600,000 EUR
Section 64: 156 EUR – 150,000 EUR
Specify the maximum fine in the summons, i.e. 150,000 EUR, acts as a deterrent to and is felt to be disproportionate by the players. It is advisable to state a realistic maximum amount. This amount may be made contingent on whether the case sees the player appearing before the GC for the first time and/or whether the player is known as a professional player or not. Obviously other factors can also play their part in arriving at the ultimate decision on the amount of the fine (e.g. the amount gambled away, environment).
- Player - 1st offence (maximum 2,000 euros)
- Player – 2nd offence (maximum 3,000 euros)
- Professional player – 1st offence (maximum 5,000 euros)
- Professional player – 2nd offence (maximum 10,000 euros)
 
PROPOSAL TO ESTABLISH HEARING CHAMBERS
The GC is to establish a Dutch language and a French language Hearing Chamber, each existing of two members and two alternates.
 
Appointment of members:
From an organisational perspective, it is preferable for members/alternates of the Hearing Chamber to be appointed for a ONE YEAR term. The members shall be appointed with an absolute majority of the votes. If there is a tie or if candidates are absent, they shall be appointed by the Chairman.
 
Dates for hearings:
It is preferable for a set date/time to be put in place for the organisation of the hearings, or to establish the agenda for the entire year (both NL and FR), to the effect that the dates are known to the Secretariat well ahead of time to efficiently organise the hearings.
The GC shall appoint the members and the alternates of the French language and of the Dutch language Hearing Chamber for 2014.
The dates for the organisation of the French language and Dutch language Hearing Chamber shall be established for  2014.
 
APPENDIX 1: NEW PROCEDURE
Section 15/2. By motivated decision, the Commission shall be within its rights to caution all natural or legal persons who have offended against this Act or its implementing orders, suspend or revoke their licences for a certain length of time and impose a provisional or final ban on the operation of one or several games of chance.
 
Section 15/3.
§1. Without prejudice to the measures specified under section 15/2, the Commission shall be within its rights to impose an administrative fine on the perpetrators in the event sections 4, 8, 26, 27, 46, 43/1, 43/2, 43/3, 43/4, 54, 58, 60, 62 have been offended against, and subject to the terms set out under section 15/1, §1.
§ 2. The minimum amount and the maximum amount of the administrative fine shall respectively concur with the minimum amount and the maximum amount, raised with the surcharges, of the criminal fine, laid down by this Act, that penalises the same offence.
The amount of the administrative fine shall be proportionate with the severity of the offence warranting the fine and whether or not this is a repeat offence.
§3. The decision of the Commission shall specify the amount of the administrative fine and be duly reasoned.
§4. The notification of the decision setting the amount of the administrative fine shall extinguish the criminal prosecution.
§ 5. No decision to impose an administrative fine may be put in place when five years have lapsed since the events resulting in the offences laid down by this Act.
 
Section 15/4. The measures set out under sections 15/2 and 15/3 may be put in place by the Commission after the party concerned has been enabled to put forward his defence and his legal remedies.
To this end, the party concerned shall be invited to submit his defence and legal remedies by letter sent by recorded delivery. This letter is to specify the following details:
1° the references of the report (PV) establishing the offence and containing the account of the events that have resulted in these offences;
2° the right to:
- either submit his defence and legal remedies in writing;
- or to request to do so verbally
within a thirty day time limit, counting from the date of the notification by recorded delivery,
3° the right to seek to be assisted by a legal counsel;
4° the possibility to examine the case record file, as well as the address and the opening hours of the department he should contact to this end;
5° the postal address and e-mail address of the Gaming Commission with a view to submitting his defence and legal remedies.
If the party concerned has neglected to collect the letter sent by recorded delivery from the Post Office within the time limit set out, the Commission may still send him a second invitation by regular post to submit defence and legal remedies.
This second invitation shall not set in motion a new thirty-day term for the party concerned to submit defence and legal remedies.
 
Section 15/5.
§1. The defence and legal remedies may be submitted in writing, including by e-mail.
§2. They may also be put forward verbally. If the party concerned wishes to verbally put forward his defence and legal remedies, he shall be heard, after he has requested the Commission to be heard within the time limit as specified in section 15/4, second member, 2°.
To this end, the Commission shall be free to constitute separate Chambers which shall be made up of the Chairman and two permanent members.
The Chamber established to this end shall invite the legal or natural person concerned to the hearing by letter sent by recorded delivery.
The party concerned shall be within his/its rights to request for the hearing to be deferred just once and shall do so by letter sent by recorded delivery addressed to the Chamber intended in the above member.
The Chamber shall set the new date when the case is to be heard, without any further deferrals being allowed.
The members of the Chamber that heard the party concerned, shall draw up a detailed report of the hearing. A copy of this report shall be sent to the party concerned by recorded delivery. Upon receipt of this copy,  the person against whom the procedure is ongoing shall have a fifteen-day time limit to send in his comments to the Commission.
 
Section 15/6.
§ 1. The Commission shall deliberate and pronounce itself within two months.
This term shall take effect either upon receipt of the written defence and legal remedies submitted in compliance with section 15/5, §1, or upon the expiry of the 15-day time limit set out under section 15/5, §2, last member, in the event the defence and legal remedies are put forward verbally.
The members of the Chamber that heard the person concerned, shall be allowed to take part in these deliberations with the right to vote.
§2. The decision must be duly reasoned and shall not be served on the party concerned by letter sent by recorded delivery.
 
Section 15/7.
§ 1. The party concerned who disputes the decision whereby the Commission imposed an administrative fine, may institute an appeal by way of a petition with the court of first instance of his place of residence or registered office, which shall hear the case with full discretionary jurisdiction, and must do so within a one-month time limit counting from the date on which the Commission's decision was served on him.
§2. The appeal shall act to suspend the enforcement of the decision of the Commission.
§3. Against the decision of the court of first instance, only an appeal procedure before the Court of Cassation shall be possible.
§4. Without prejudice to the provisions set out in the preceding paragraphs, the provisions of the Judicial Code shall apply to the appeal with the court of first instance.
Section 15/8. The King shall determine the manner in which the administrative fine imposed is to be collected and enforced.
The administrative fines collected shall be remitted to the Treasury.
 
APPENDIX 2: Use of languages in administrative affairs
Section 39
§ 1. In their back office departments and in their relations with the regional and local services based in Brussels-Capital, the central departments shall act in accordance with section 17, § 1, on the understanding that the language register shall be the deciding factor for the cases specified under A, 5° and 6°, and B, 1° and 3°, of the aforesaid provision, to be heard.
§ 2. In their relations with the local and regional services from the Dutch, the French and the German language regions, the central departments shall communicate in the language of the region concerned. They shall communicate in Dutch in their relations with the services located in the peripheral municipalities.
§ 3. The instructions to staff, as well as the forms and printwork for the back office shall be drawn up in Dutch and in French.
 
Section 17
§ 1. In its back office departments, in its relations with the services under which it comes and in its relations with the other Brussels-Capital services, each local department based in Brussels-Capital, shall communicate in Dutch or in French, without calling on translators, in observance of the following distinction:
 
A. If the case is or can be located:
1° exclusively in the Dutch or in the French language region: the language of that region;
2° simultaneously in Brussels-Capital and in the Dutch or the French language region: the language of that region;
3° simultaneously in the Dutch and in the French language region: the language of the region where the case originated;
4° simultaneously in the Dutch and in the French language region and in Brussels-Capital, if the case originated in one of the first two regions: the language of that region;
5° simultaneously in the Dutch and in the French language region and in Brussels-Capital, if the case originated in the latter region: the language imposed under B below;
6° exclusively in Brussels-Capital: the language imposed under B below;
 
B. If the case has not been or cannot be located and:
1° relates to a civil servant of the department: the language in which he sat his admission exam or in the absence of such, the language of the group which the party concerned belongs to based on his first language;
2° was put forward by a private citizen: the language used by the said citizen;
3° none of the cases set out under 1° and 2° applies: the language of the admission exam of the civil servant charged with the case. If the civil servant did not sit an admission exam, he shall communicate in his first language.
 
§ 2. The service orders and the instructions to staff, as well as the forms and printwork for the back office shall be drawn up in Dutch and in French .
 
§ 3. In its relations with the services from the Dutch or the French language region, each local department from Brussels-Capital shall communicate in the language of that region.
 
Section 41
§ 1. For their relations with private citizens, the central departments shall communicate in either of the three languages used by the said citizens.