Notice: Poker and food at Class II gaming establishments (April 2012)

Background of the issue:

The inspection department needs to have clarity on the attitude to be adopted vis-à-vis two often seen problems, i.e. the poker phenomenon of (illegal – tolerated- legal) and the offering of food (buffets, snacks, beverages, paying or otherwise) in Class II gaming establishments. This query is based on the wish to conduct the same policy/penalisation throughout the country as a whole and on the other hand to put in place legal certainty for the organisers of poker tournaments cq operators of gaming establishments.
1.       Poker: the various Notices and announcements (dated 04 June 2007 and 03 July 2009) continue to apply undiminished, as well as the principle of the circular by the College of the Attorneys General (col 8/2004) on the limited stake and potential gain. Given the rising popularity and ditto widespread acceptance of the poker game in everyday life, the Gaming Commission requires the inspection department to set priorities:
The inspectorate will mount an investigation into poker playing as a matter of priority if:
- A question is put forward by law enforcement agencies or the Public Prosecution Office and the information on the stakes and the pay-outs that exceed the amounts specified in the previous version of the circular of the College of Attorneys-General with regard to the Gaming Act (0.20 euros stake and 6.20 euros maximum gain);
- Exclusively cash games are seen to exist, no tournaments;    
- Minors (under the age of 18) are found to be present;            
- A commercial circuit is being set up;   
- Publicity is being run for illegal websites or establishments acting as sponsors;            
- The poker games are being organised by or in the presence of persons known in criminal circles;
- A class IV mobile gaming establishment is found to be in place.
The inspectorate will not mount an investigation into poker playing as a matter of priority if:
- A tournament is being organised, once a month, for which the registration or membership fees do not exceed 20 euros.
2.       Food at Class II gaming establishments: Class II gaming establishments are often seen to organise dinner parties to say thank you to their loyal customers. In principle, this is to be requested and a certain degree of flexibility is adopted. However, clear guidelines are needed that say what is and what is not allowed:
The sections of the Gaming Act (7/5/99 amended 10 January 2010) that apply are section 34:”Class II gaming establishments or gaming arcades are establishments where exclusively the games of chance permitted by the King are allowed to be operated” andsection 37 § 4: "the gaming room wholly and strictly separated from the rooms in the Class II gaming establishment that are used for different purposes, as well as from the rooms accessible to the public outside of the gaming establishment in such a way that the games of chance cannot be seen from outside of the gaming room; the operator is neither permitted to operate a bar or a restaurant in the gaming room himself, nor assign third parties to perform such operations”. In addition, section 60 is also relevant: “it is prohibited to offer travel, meals, beverages or gifts free of charge to the clientele of Class II, III and IV gaming establishments or to do so below the market price of comparable goods and services. …”.
The Information Notice of 30 June 2004 specifies: “The inspection department wishes to draw attention to the existing guidelines on beverages and meals in Class II gaming establishments: providing meals is not permitted: hamburgers, Chinese evenings, chips, spaghetti, mini-buffets are not allowed. The occasional organisation of an event for which the Commission shows a certain degree of leniency for commercial reasons should not become a matter of routine. With regard to beverages, only non-alcoholic beverages may be made available via vending machines or service”.
The Parliamentary Preparatory Materials (Chamber of Deputies 98/99) show that the word “exclusively” was inserted into section 34 by the representative of the Minister of Justice whereby the Government sought to avoid games of chance being operated in Class II gaming establishments that are not games of chance within the meaning of the law (e.g. arcade games), which may act to lower the threshold. In other words, this did not in any way refer to a ban on operating anything other than “the games of chance permitted by law”.
With the above in mind, the following proposal would appear to make sense:
·         No alcoholic (or low-alcohol) beverages may be served or be made available at Class II gaming establishments. The other beverages served or available can be obtained against payment. Prices can be determined through the purchase invoice: sales may not be operated at a loss.
·         Against payment, food may be provided that does not require preparation in the room or the ancillary kitchen at Class II gaming establishments: sandwiches, cold dishes (supplied by outside caterers), … Here too, the invoice will provide a handle on sales prices. Only fruit, raw vegetables, refreshments such as peanuts, crisps may be made available to the members of the public.
·         Once a year, at a special occasion, a derogation may be applied for with the Gaming Commission (i.e. the inspection department) for a special occasion, when the gaming machines cannot be used, free beverages (including alcohol) and food (buffets or hot food) may be offered. If this is made to occur in a room that is strictly separated from the gaming room, the gaming machines may continue to remain in operation.

Notice: Tokens and poker tournaments (July 2009)

The Gaming Commission has come to notice that several organisations are organising poker tournaments at which players are required to purchase a token as a requirement to participate. At its meeting of 1 July 2009, the Gaming Commission decided that such purchases must be considered as stakes, within the meaning of Article 2 of the Act of 7 May 1999, and that such tournaments are games of chance involving a stake (the amount of the token), the possibility of a win or loss, and an element of chance. As per Article 4 of the Gaming Act, all games of chance are prohibited, unless they have been authorised by the awarding of a licence.
The organisation of poker tournaments involving the compulsory purchase of a token by players as a requirement to participate is therefore prohibited, and constitutes a criminal offence within the meaning of the Act of 7 May 1999.

Notice: Poker tournaments (June 2007)

The Gaming Commission wishes to clarify the exact situation concerning poker and poker tournaments.

Poker games, whether as individual card games or in the form of tournaments, regardless of variations (draw, stud, Texas hold'em) meet the definition of games of chance insofar as they involve a stake of some form (also applies to the cost of participation, constituting stakes in disguise), the possibility of a win or loss of the stake in some form, and in which chance, even if incidentally, exists in the gameplay, the determination of the winner or the confirmation of the winnings (cards generate chances).
In light of the aforesaid elements and the requirement of a "money" factor (a stake, Re-buy, etc.) in the gameplay, we consider poker to be a game of chance.
Article 4 of the Act of 7 May 1999 prohibits the operation of games of chance without a licence that has been previously granted by the Gaming Commission. Currently only poker games (real and electronic as well as poker tournaments) are permitted in Class I establishments. 
In Class II establishments, electronic poker games are also permitted. For unlawful operation of such poker games, the law imposes a custodial sentence of 6 months to 5 years in prison and/or a fine ranging from € 100 to € 100,000. It should be pointed out that this is a criminal law involving a restrictive interpretation.
However, there is an exception prescribed under Article 3, 3 of the Act of 7 May 1999 permitting card games to be played outside of Class I and Class II gaming establishments, since these require a very limited stake and bring the players or betters a material benefit of low value. The College of Attorneys General, which has oversight of criminal policy, has published a circular (col 8/2004) in which, by way of an example, it puts forward a very limited stake of € 0.22 per game and a maximum win of € 6.20. In the event of any disputes, the Courts and Tribunals have jurisdiction to hear such cases.