Category Archive: Poland
On 28 December 2016, an amendment to the Polish Gambling Act (described in this post) was signed by the Polish President. It will come into force on 1 April 2017. On 30 December 2016, new secondary legislation to the amended Gambling Act was notified to the EC. The notifications can be found here (700, 699 and 698). The standstill period expires on 31 March 2017.
Last Thursday (Sejm) and Friday (Senat), an amendment to the Polish Gambling Act was adopted. Once signed by the Polish president and published, it will come into force on 1 April 2017. Its official aim is to increase the protection of players against risks related to excessive gambling and to decrease the unlicensed market. However, it extends the number of games permitted in Poland and includes a couple of revolutionary changes:
The Polish Regulator has published a new report on the implementation of the Polish Gambling Act in 2015. The report presents interesting statistical data and summarizes the most important court judgements.
The Polish version can be downloaded from the Regulator’s website: link.
In connection with on-going work on the amendment of the Polish Gambling Games Act (the “Act”), numerous press articles have been published, presenting the planned amendments and assessing their impact. Meanwhile, it is worth analysing which provisions of the present Act, not necessarily those covered by the draft amendment, should be changed in order to achieve postulated market opening or extension of the catalogue of gambling games that are licensed in Poland. There is no doubt that only such opening and the consequent extension of the scope of licensed gambling, especially – the group of entities entitled under relevant concessions or licenses to provide online gambling services, can guarantee meeting the primary objectives of user protection, ring-fencing the market and reducing the grey market.
At a meeting of the Council of Ministers on 19 July 2016, the Bill on the Amendment to the Gambling Games Act and Certain Other Acts, tabled by the Ministry of Finance, was adopted. The Ministry stressed that its main objective was to limit the so-called “grey zone”, protect players against the negative consequences of gambling and increase social awareness of the risks associated with illegal gambling.
By Paweł Satkiewicz, Senior Associate, DLA Piper, Warsaw
On 28 June 2016, the Polish Supreme Administrative Court (“NSA”) issued an important judgment (I FSK 180/15) regarding an exemption from the tax on goods and services (“VAT”) pursuant to Article 43 paragraph 1 point 15 of the Polish VAT Act. This exemption applies to activities related to games of chance, betting, and gaming machine games, which are subject to gaming tax on the terms specified in a separate act.
According to the NSA, there are no grounds for excluding from this VAT exemption gaming machine games organised outside casinos without a relevant license or permit. In this regard, the NSA referred to the reasoning of the C-283/95 Karlheinz Fischer judgment of the Court of Justice of the European Union and based its argumentation on the VAT neutrality principle. According to the NSA, both games of chance in casinos and games of chance illegally organized outside casinos should be treated in the same way (i.e. should be exempt from VAT). It must be underlined that one of judges expressed a dissenting opinion to the judgment.
The Polish Regulator has published the wording of the proposed amendment to the Polish Gambling Act. If enacted, it will come into force on 1 January 2017. In subsequent posts, I will highlight the most interesting changes and provide some comments.
The new amendment changes or modifies the definitions of gambling games. Namely, it provides that: “Gambling games include games of chance, betting, card games, gaming machine games, and games operated through the Internet.” This means that card games are no longer considered as games of chance but as a separate type of gambling. In addition, a new category of gambling is specified – games operated through the Internet.
On Monday 23 May, the Ministry of Finance (the Polish gambling regulator (“Regulator“)), published a list of points to be covered by the forthcoming amendment to the Polish Gambling Act. According to the list, the amendment will cover the following points:
- IP and payment blocking will target unlicenced operators. This should reduce the “grey area” in gambling, increase the market share of licenced operators, and raise the level of protection for players, because – according to the Regulator – only licenced operators guarantee the offering of games in a safe and responsible way.
- The operation of slot machine games outside casinos will be covered by a state monopoly and operated by a designated company. They will only be operated in designated places, under permanent supervision, and will not be available for people under the age of 18.
- Operators offering games on slot machines and online gambling will be required to introduce responsible gaming regulations which should increase the protection of players from the negative effects of gambling.
- Sanctions for violating the Polish Gambling Act will be more severe (however, it is not specified what this means). This will disrupt unlicenced operators and thus increase the market share of licenced operators.
- The regulation of poker games will be liberalized. It will be permitted to organize poker games outside casinos and the process of organizing them will be simplified. It will be possible to legally participate in online poker games.
- The requirement for people directly supervising and operating gambling games to pass professional exams will be liquidated. The exams will be replaced by training obligations. According to the Regulator, this should reduce red tape and the costs for entities operating in the gambling industry.
According to the Ministry of Finance, these proposals represent a compromise between providing the highest possible level of protection for players against the adverse effects of gambling (including limiting the “grey area”) and guaranteeing the transparent and efficient functioning of the legal gambling market in Poland.
According to the Regulator’s announcement, the draft amendment has been transferred to departmental consultation. If enacted following EC notification, the amendment will come into force on 1 January 2017.
The key issue that is missing from the above list – and the most important issue for any onshore and offshore operator – is that of taxation. The announcement does not say anything about whether Polish gaming tax will be based on GGR under the amendment.
The proposed timing for the introduction of the amendment is quite challenging as it does not seem to take into consideration the fact that the EC notification process may take longer than three months stand-still. Another question mark is whether there will be any transitional period for operators to adjust their activities and apply for licences under the new regime.
The link to the full text of the Regulator’s announcement: http://www.mf.gov.pl/ministerstwo-finansow/wiadomosci/aktualnosci/-/asset_publisher/M1vU/content/mf-przygotowalo-projekt-nowelizacji-ustawy-hazardowej?redirect=http%3A%2F%2Fwww.mf.gov.pl%2Fministerstwo-finansow%2Fwiadomosci%2Faktualnosci%3Fp_p_id%3D101_INSTANCE_M1vU%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-2%26p_p_col_count%3D1#p_p_id_101_INSTANCE_M1vU_
According to the statement of the Polish Minister of Finance, Paweł Szałamacha (the Gambling Regulator), proposals for the new Polish Gambling Act were to be presented by the end of April 2016. To date this has not been done. However, on Sunday 15 May, a press conference was organized by Minister Jarosław Gowin (Deputy Prime Minister and Minister of Science and Higher Education, representing the right wing party Polska Razem) and Zbigniew Boniek (President of Polish Football Association).
During the press conference, Minister Gowin outlined his proposals for the new law regulating betting and card games like poker. Under the new law, betting and card games like poker should be ‘excluded’ from the Gambling Law.
With respect to betting, the gaming tax should be based on 20% GGR instead of the current 12% turnover tax. According to the authors of the proposal, this should generate income of PLN 200 million (i.e. EUR 50 million) for the state budget. Further, since there should be some liberalization with respect to advertising and sponsoring, sports team in Poland should earn an additional PLN 100 million (i.e. EUR 25 million). 10% of the revenue from gaming tax should be allocated to socially important initiatives. Namely, 7% should be given to the Polish Olympic Committee and used to support youth sport, while the remaining 3% should be used to combat gambling addiction.
According to the authors of the proposal, it should result in the situation where 70% of the Polish betting market is regulated, because the new law should permit the blocking of both IP and payments of operators that do not have a valid Polish licence.
With respect to poker, which is currently permitted only in licenced land-based casinos, the new law should permit online poker and the organizing of tournaments by licenced operators. It should also de-criminalise poker games played in private houses as a social card game (which is currently prohibited and subject to fines and even imprisonment).
The proposals for the new law were not prepared by the main party in the Polish government – PIS (Law and Justice); however, Minister Gowin hopes that they will gain its support and be adopted by the Polish parliament.
New Polish Gambling Act still not ready & Polish Supreme Court judgement on applicability of transition period for adjusting to the new law
In April 2016, the Polish Regulator declared that a draft of the new Polish Gambling Act will be published by the end of the month. It has been widely speculated that the new law will be based on the Danish model and will change the taxation base for GGR. However, as of 9 May 2016, no draft has been published and officials in the Regulator’s office are not sure when it will be ready.
In the meantime, in its judgement of 28 April 2016 (I KZP 1/16), the Polish Supreme Court indirectly decided to whom a transition period under the amendment of 3 September 2015 is applicable. In the justification to the judgement (published recently), the Supreme Court explained that the transition period to adjust to the amended legal requirements is only applicable to those operators who held a valid Polish licence as of 3 September 2015. The Supreme Court also stated that the article introducing the transition period has no abolishing effect for other operators.
Following a press conference on 2 April during which the Polish Minister of Finance announced that a draft of the new Polish Gambling Act should be ready by the end of the month, the media has been discussing how it may regulate gambling in Poland. There is a suggestion that the new regulations will be based on the Danish model and that it will include a gaming tax of (depending on the source) between 10% and 20% of GGR.
It is suspected that the new regulations will extend the list of permitted online gambling activities from online betting to include online poker (including live poker) and online casinos. It is expected that there will be a moderate fee for obtaining a gambling licence and that advertising and sponsoring rules will be liberalized. As well as providing an additional source for the Polish government to finance its family support program “500+” (PLN 500 monthly for each second and next child in a given family), the new law should also encourage gambling operators to spend more on sponsoring sport in Poland.
On the other hand, it is also speculated that the new law may introduce more effective measures to prevent Polish residents from using websites of unlicenced operators, such as IP blocking or payment blocking. Totalizator Sportowy (a state-owned company) would like to have a back-tax introduced for offshore operators as is the case in Romania.
Last Saturday Minister of Finance mentioned that a draft of the new Polish Gambling Act will be ready by the end of April for further legislative work.
There are rumours that it may introduce a 20% gaming tax on betting revenue instead of the 12% turnover tax. Some sources speculate that it may also regulate poker, including online poker.
The income from the gaming tax will be used to finance the increased budget needs of the Polish government (including the family support program 500plus).
The Ministry of Finance has published information on its website about the technical documentation which should be presented by applicants applying for a Polish online betting licence.
According to the information published:
“The Gambling Activities Act does not contain a definition of the concept ‘technical documentation of a website’. The technical documentation should in principle have a relatively comprehensive, complete and exhaustive character. Considering the above, to make it easier for entities to submit an application requesting a permit, it is accepted that the technical documentation of a website (including an expert analysis) should in particular contain the following elements:
1) a list of elements of the system (physical, logical, functional outline, tabular list of servers, equipment etc.);
2) location of elements of the system (addresses of places where the elements of the system are, along with a short description of the location);
3) the flow of information between elements of the system (which elements are joined to which, in particular in operating on betting data);
4) equipment used (servers, disk matrices, safeguarding equipment, monitoring equipment etc.);
5) software used (operating systems, databases, application systems, CMS systems etc.), including its identification data, and particularly the producer’s data;
6) programming technologies used (Java, PHP, C/C++, etc.);
7) network and software security mechanisms (firewall, IPS, VPN, SSL, etc.);
8) mechanisms for creating spare copies, data archiving and restoration after a breakdown (equipment, carriers, copy creation policies, etc.);
9) archiving mechanisms in real time (manner of making copies, access, etc.);
10) physical security mechanisms (alarms, access control to server room, fire prevention systems, etc.);
11) mechanisms ensuring continuity of work (RAID matrices, air-conditioning, UPS, power generators, etc.).”
The link to the whole text of the information in Polish below is:
By Anna Wietrzyńska-Ciołkowska, Counsel, DLA Piper, Warsaw
The modified amendment to the Polish Gambling Act (described here) was officially published on 19 August 2015. It will come into force on 3 September 2015.
Its official Polish version can be found here: http://dziennikustaw.gov.pl/du/2015/1201/1
By Anna Wietrzyńska-Ciołkowska, Counsel, DLA Piper, Warsaw.
The website of the office of the Polish President recently published the information that last Friday, 31 July, the President signed the modified amendment to the Polish Gambling Act. The scope of the amendment is described in this earlier post.
The amendment will come into force 14 days following its official publication. Taking into consideration that on average it takes four weeks to have a signed bill published, we should expect the amendment to become binding law around mid-September.
By Anna Wietrzyńska-Ciołkowska, Counsel, DLA Piper, Warsaw.
Last Friday, 10 July, the modified draft amendment described here was adopted by the Senate (the upper chamber of the Polish Parliament) without any amendment. Once it is signed by the Polish President and published, it will come into force 14 days following its publication.
It is interesting that the representative of the Polish government presenting the modified amendment mentioned during the discussion that the Regulator is working on two further changes to the Polish Gambling Act to be processed and adopted by the next Parliament. One of them is said to introduce the possibility of blocking online gambling websites, while the other is to change the regulation of poker.
By Anna Wietrzyńska-Ciołkowska, Counsel, DLA Piper, Warsaw.
Further to our last post about the express mode of adopting the modified amendment to the Polish Gambling Act, there have been some further developments.
The legislative office of the Senat (the upper chamber of the Polish parliament) has announced a couple of amendments to the modified draft adopted in the Sejm (the lower chamber of the Polish parliament). However, they were not accepted by the Senat’s commission for budget and public finances at their last meeting on 23 June. The commission recommended the adoption of the modified amendment in the version originally adopted by the Sejm.
Voting on the modified amendment is scheduled for 8 July. If no amendments are added by the Senat, the modified draft will become final, and – after being signed by the president – it will become binding law within 14 days of publication. In the case of any amendments, the modified draft would have to be sent back to the Sejm for another vote. Since the new Polish president takes up office in August (and he is supported by the opposition party which was against the said amendment), it seems that the governing party will not risk extending the legislative process and will do its best to have it signed by the current president by the end of July.