Denmark
Horten Nina Henningsen & Mikkel Taanum
1.
OBJECTIVES AND STRUCTURE OF LEGISLATION
1.1 What is the current legal status of gambling in the jurisdiction?
Since 1 January 2012, the Danish gaming market has been partly liberalised. This part
liberalisation has made it possible to offer gaming products such as online and land-based
betting and online casino games to the Danish market. Lottery and bets on races with
pigeons, horses and dogs were not liberalised and are still under the monopoly of the
state-owned company Danske Spil A/S. The possibility of providing land-based gaming
machines at gaming venues and land-based casinos was maintained with the new legislation.
The Danish gaming market is governed by the Danish Gaming Act, which covers both
land-based and online gaming. The provision or organisation of games covered by the
Danish Gaming Act is subject to duty under the Danish Gaming Duties Act.
A licence is required to provide both land-based and online gaming in Denmark, and
parties wishing to provide gaming in Denmark must be prepared for a thorough application
process – see sections 3 and 4 for further details regarding the licensing process.
The main purposes of the current Danish gaming legislation are:
•
to maintain the consumption of gaming services at a moderate level;
•
to protect young people and other vulnerable persons from being exploited through
gaming or developing a gaming addiction;
•
to protect players by ensuring that gaming is provided in a fair, responsible and
transparent manner;
•
to ensure public order; and
•
to prevent gaming as a means to support crime.
2.
FRAMEWORK OF LEGISLATION
The Danish Gaming Act is divided into different ‘parts’. Part 1 sets out the purpose and
scope of the Act. Part 2 contains various definitions. Part 3 deals with the various licences
for the individual types of games, and Part 4 sets out the criteria for providing games. Part 5
contains the rules on duty of disclosure, sale and marketing. Part 6 contains the rules for
approval of managers and staff. Part 7 contains different administrative provisions on fees
etc. Part 8 sets out the requirements for the withdrawal and expiry of licences. Part 9 sets out
the rules regarding supervision and exchange of information between the Danish Gaming
Authority and other governmental bodies. Parts 10 and 11 contain the rules regarding
complaints over decisions made by the Danish Gaming Authority and the possibilities of
judicial review. Part 12 contains the penalty provisions and, finally, part 13 contains the
entry into force of the Act and interim provisions.
2.1 What is the legal definition of gambling and what falls within this
definition?
A ‘game’ is defined in the Danish Gaming Act as any activity that falls within one of the
categories of: (i) lottery; (ii) combination game; or (iii) betting.
These three terms are defined as follows:
(i) Lottery: ‘Activities in which a participant has a chance of winning a prize and where
the probability of winning is solely based on chance’.
(ii) Combination game: ‘Activities in which a participant has a chance of winning a prize
and where the probability of winning is based on a combination of skill and chance’.
(iii) Betting: ‘Activities in which a participant has a chance of winning a prize and where
bets are placed on the outcome of a future event or the occurrence of a particular event
in the future’.
If an activity falls within one of the above-mentioned three categories, it is considered a
game and thus the provision of such activities to the Danish market is thus considered
provision of gaming services.
Lotteries
A game where the winner is chosen at complete random, for instance bingo or lottery, is solely
based on chance and would therefore fall within category (i).
Combination games
In other games, skill may influence the outcome. For example, in poker the players are each
dealt a hand consisting of a number of random cards which they in turn must decide how to
play. Such games require both skill and luck which is why they fall within category (ii).
Betting
When betting on what team will win a certain match or whether it will gain entry to the
finals etc, the bet concerns the outcome of a future event or the occurrence of a particular
future event thus falling within category 3.
Skill games
Outside the range of the above-mentioned categories there are pure skill games such as most
sports activities, computer games or quiz shows where the chance of winning is primarily
based on skill. Skill games are thus not covered by the Danish Gaming Act and a licence is
not needed.
2.2 What is the legal definition of online gambling and what falls within
this definition?
Online gaming is defined as games that take place between a player and a gaming operator
through the use of remote communication. See above under section 2.1 for further details on
the definition of games.
Remote communication means communication that takes place without the player and the
gaming operator meeting physically. It may include use of the internet, telephone, TV, radio,
mobile telephone, videotext (micro-computer, TV screen) with a keyboard or touch screen,
or electronic mail. The games thus have to be provided and take place from a distance
(interactively).
Consequently, a game is not provided online if the parties meet physically in connection
with the conclusion of the agreement.
2.3 Please set out the different gambling products identified by
legislation.
The Danish Gaming Act identifies the following games:
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betting, including pool betting and betting exchanges;
•
casino games, including baccarat, blackjack, poker, punto banco and roulette;
•
lotteries, including class lottery and bingo;
•
gaming machines; and
•
pyramid schemes, the provision of which is illegal in Denmark.
2.4 Please list the different requirements for each gambling product,
including legal classifications for each; for example, is poker a game of
skill or game of chance?
As described above in section 2.1 gaming is an activity which falls within one of three
categories.
(i)
Lottery
A lottery is an activity in which the participants have a chance of winning a prize and where
the probability of winning is solely based on chance.
In the classic definition of a lottery the player pays a stake to the gaming operator and
gets or chooses some numbers (or symbols, etc) whereupon the gaming operator makes a
draw that decides whether or not the player wins. The drawing of numbers is randomised.
The player’s possible winnings depend on the number of participants in the lottery and the
numbers chosen by the other players.
The definition of a lottery in the Danish Gaming Act includes games such as Lotto, Joker,
class lotteries, bingo and scratch games. In such games the player does not have any
possibility of affecting the outcome of the game by the application of skill or ability. Solely
the element of chance (luck) decides the outcome of the game.
Lotteries that are subdivided into several classes with separate drawings in each class are
called class lotteries. A class lottery is divided into one or more classes, each with its own
separate draw. In a class lottery different ticket types are sold, eg whole tickets and half
tickets. The player’s stake and winnings are decided by the type of ticket bought.
As mentioned earlier, lotteries are still monopolised by the state-owned company, Danske
Spil A/S, as the authorised provider.
(ii)
Combination game
A combination game is categorised as an activity in which a participant has a chance of
winning a prize and where the probability of winning is based on a combination of skill and
chance. The definition of combination games covers a number of different types of games,
eg poker, backgammon, blackjack, rubber-bridge, whist and guessing competitions (eg
where the competition is decided by a draw or a similar element of chance).
A combination game is therefore a generic term for the games whose outcome is decided
by a combination of elements of chance, such as the dealing of cards, the throw of a dice,
draws, etc and the player’s skill/ability. Whether a game can be classified as a combination
game does not depend on the proportion between chance and probability. If an element of
chance is added to a game which otherwise is decided by skill only, ie by a draw being made
between the most skilled players, the game can be described as a combination game, as the
chance of winning in the game depends on a combination of skill and chance.
Casino games are described as a mixture of lotteries and combination games. Several
casino games are decided purely by chance such as roulette, punto banco, baccarat and
gaming machines (eg slot machines) offering cash winnings, while the chance of winning in
other games depends to a greater or lesser extent on the player’s skill, such as eg blackjack
and poker.
(iii)
Betting
A licence to provide betting under the Danish Gaming Act is a licence to provide betting
both online and from physical shops (land-based betting). Both ‘regular’ betting and betting
exchanges are allowed.
As mentioned earlier, bets on races with pigeons, horses and dogs are still monopolised
by the state-owned company, Danske Spil A/S, as the authorised supplier.
Online betting
Betting is an activity in which the participants have a chance of winning a prize and where
bets are placed on the outcome of a future event or the occurrence of a particular event in the
future.
The definition of betting includes betting on the result of future events and not on events
which have already taken place. The event on which a bet is placed could be eg a football
match, a tennis match, a general election or a song competition. Also bets placed on the
occurrence (or not) of a particular future event are defined as betting. The definition
therefore includes betting on events or occurrences which are not necessarily planned and
will not necessarily occur. Examples of such betting are bets on ‘whether the next prime
minister will be a woman’ or ‘whether a particular tennis player will win a Grand Slam
tournament in the next season’ (binary bets).
It is not permitted to provide betting on the result of lotteries. Therefore, it is not possible
for the holders of licences to provide betting on the result of lottery draws. Furthermore, it is
not permitted to provide betting on the outcome of casino games where the probability of
winning in the game is solely a matter of chance, eg roulette or gaming machines offering
cash winnings.
Betting where the entire or parts of the winnings depend on the size of the total stake pool
or are divided among the winners is called pool betting. In pool betting the size of a player’s
winnings depends on how the other players have placed their bets. In pool betting the players
compete for the entire pool of stakes or for winnings whose size has been determined in
advance. In pool betting, such as eg Tips12, Tips13 and Måljagt (products offered by Danske
Spil A/S), the size of the first prize depends on the total revenue on the game and on the
players’ bets. If more players have bet on the correct outcome of all matches on the pools
coupon, the first prize will be divided among these players.
Pool betting with fixed odds (ie the stake is multiplied by x) is not allowed, but in some
forms of pool betting, current odds are calculated which show the size of the possible
winnings when a bet is made.
Land-based betting
Land-based betting follows the same rules as online betting with the additional possibility of
providing betting on the result of electronically simulated sporting events.
2.5 Explain the system of regulation of gambling; which regulatory or
governmental body is responsible for the supervision of gambling? Which
body issues licences? Which body examines enforcement powers? Is
there any limit on the number or duration of available licences?
The Danish Gaming market is supervised by the Danish Gaming Authority, the Danish
Ministry of Taxation and the Danish Consumer Ombudsman.
The Danish Gaming Authority
The Danish Gaming Authority is an authority placed within the Danish Ministry of
Taxation. The Danish Gaming Authority is, inter alia, responsible for the administration
and granting of licences for betting, land-based casino and online casino as well as the
monitoring of the Danish gaming market.
The Danish Gaming Authority has published guidance in both Danish and English on its
website: www.spillemyndigheden.dk. These documents vary from legal guidelines to
technical descriptions, Q&As and newsletters.
The Danish Ministry of Taxation
A division under the Danish Ministry of Taxation called SKAT (the Danish Tax
Administration) deals with the registration of licence holders, inspection and collection of
gaming duties.
Furthermore, a department in the Danish Ministry of Taxation deals with legislative
issues and handles matters in relation to European regulation.
The Danish Consumer Ombudsman
As far as marketing is concerned, the Danish Gaming Authority and the Danish Consumer
Ombudsman have established informal cooperation in this regard as the Danish Consumer
Ombudsman supervises the compliance with the Danish Marketing Practices Act.
3.
ONLINE GAMBLING
3.1 To what extent can online gambling be offered in your jurisdiction? Are
licences available and, if so, for which gambling products? Please describe
briefly the licensing process, who may apply, whether licences are limited in
number and, if no licences are available, whether it is legal for online
gambling to be offered. In the case of EU jurisdictions, please state whether
there are any issues as to the legality of the local law at EU level. Please refer
to any relevant cases at ECJ level and explain any measures taken or
pending by the European Commission.
Online gaming licences in Denmark
Two different types of online gaming licences are available in Denmark: (i) a betting
licence; and (ii) an online casino licence. The betting licence covers both online and
land-based betting, see section 4 below.
A Danish licence to provide betting and/or online casino grants the right to provide
gaming to the Danish market.
As a starting point, the licence does not cover the provision of games to Greenland.
However, the licence can be issued to cover Greenland at no extra cost. If the licence is to
cover Greenland, the licence holder must ensure that specific information is available to
players in Greenlandic.
Licences are granted for a term of five years and there is no restriction on the number of
licences that may be granted to gaming operators who wish to provide gaming on the Danish
market.
Note that if a game is provided for free (ie no stake or payment is needed to participate),
the game may be provided without a licence.
The application fee is DKK 254,500 (approximately EUR 34,100) for each licence (2014
level); however, if the party applies for both a betting and a casino licence, the combined fee
is DKK 356,300 (approximately EUR 47,750) (2014 level). For companies with an annual
gross gaming revenue of less than DKK 1,000,000 (approximately EUR 133,500), a
‘revenue-restricted’ betting or online casino licence may be issued and the fee is DKK
50,900 (approximately EUR 6,800) per licence (2014 level).
Gaming operators have to pay an annual fee based on their gross gaming revenue, as well
as a weekly gaming duty, see section 5 below for further details regarding the gaming duty.
Requirements for applicants
Both physical persons and companies may apply for a gaming licence in Denmark if the
person or company meets the minimum legislative requirements.
Any person wishing to provide online gaming on the Danish market must:
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be at least 21 years old;
•
not have a legal guardian;
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not be subject to insolvency proceedings;
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not have been convicted of criminal offences, which render it probable that the person
will abuse the access to gaming; and
•
not have any due debt to public authorities.
If the person does not live in Denmark or in another EU or EEA country, the person must
have appointed a legal representative in Denmark.
Any company wishing to provide online gaming on the Danish market must:
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be established in Denmark or in another EU or EEA country or have an appointed legal
representative in Denmark;
•
the board and the directors must all meet the requirements for physical persons
mentioned above.
A legal representative must be approved by the Danish Gaming Authority and must meet
a number of requirements that are similar to the requirements for board members or
executive officers mentioned above.
If these minimum requirements are met, the applicant must further prove that it can
provide online gaming in a sound financial and professional manner.
The assessment is made by the Danish Gaming Authority based on a large number of
documents, which the applicant is required to submit. The Danish Gaming Authority will
consider the overall picture and, if they find that the necessary requirements are met, they
will issue either a conditional or an unconditional licence. See below for a more detailed
description of the application process.
To help applicants to get an overview of what is required the Danish Gaming Authority
has published a Guide on betting and online casino.
The Guide lists 11 duties related to gaming which the applicant must demonstrate its
ability to perform sufficiently:
‘1. Responsibility, risk and managerial prerogative relating to the operation of games.
2. Contracting with players.
3. Ownership of player data, including registration of players.
4. Player support.
5. Ownership of intellectual property rights relating to games.
6. Ownership of website/game client.
7. Operating the gaming system, including maintenance of hardware.
8. Owner or renter of the greater part of the gaming system (gaming infrastructure).
9. Control of collusion etc, money laundering and combat of the financing of terrorism.
10. Payment transfer services and underpinning of payment instruments.
11. Marketing of trademarks and/or games.’
The licence holder may outsource some of these duties to third parties, which may be
companies within the same group structure or external companies.
However, duties 1 and 3 above must always be performed by the licence holder and thus
never be outsourced to a third party.
The Guide addresses three types of third parties – sub-contractors, white label partners
and affiliates.
Sub-contractors may be used to perform some of the tasks mentioned above, for example,
they may be a platform provider or a payment provider and must only maintain and perform a
minority of the licence holder’s tasks.
How many duties can be outsourced to sub-contractors will be decided on a case-by-case
basis by the Danish Gaming Authority, but the licence holder must always have sufficient
infrastructure to provide online gaming on a sound financial and professional basis.
If the sub-contractor is also a white label partner, the sub-contractor will normally be
required to apply for an online gaming licence.
A white label partner is a third party marketing the licence holder’s gaming products; it
thus appears as if it is the white label partner itself that operates the gaming products, eg
through their own marketing and by use of their own domain names.
A white label partner does not need a gaming licence provided that it:
•
is not also a sub-contractor;
•
does not have (significant) influence on the licence holders’ operations or the gaming
accounts;
•
does not own the player database or the gaming system;
•
does not have access to the player information, besides what is necessary for marketing
of the gaming product; and
•
does not have any relation to registered players other than that necessary for marketing
of the gaming product.
The white label partner is not responsible for the gaming activities, but may become liable for
breach of Danish marketing legislation. See section 6 below for further details regarding the Danish
marketing rules.
White label partners may own the trade mark, which they use for branding their particular
website. A list of domain names related to every specific licence holder, including the white
labeller’s own domain names, is available at the Danish Gaming Authority’s website.
Prior to operating a white label, the contract between the licence holder and the operator
of the white label, has to be approved by the Danish Gaming Authority.
Affiliates advertise for the licence holder’s gaming products in other ways than white
label partners, eg by use of banner commercials or by offline marketing sources, eg hotels,
sports bars, cinemas etc.
Affiliates do not need a licence if they only advertise gaming products of one or more
licence holders and do not:
•
have any relation to the players;
•
own any player or game data;
•
do not own rights connected with the trade marks and sites they are marketing; and
•
own parts of the gaming system used for the game or the site they are marketing.
As for the white label partners, affiliates may be liable for breach of Danish marketing
legislation.
The application process
Any person or company wishing to apply for an online gaming licence in Denmark must
submit three different forms – the main application, Annex A (personal statements) and
Annex B (technical information).
The application and annexes must be filled out in Danish, but the related documentation
may be in either Danish or English.
In the main application the applicant must provide legal and financial information about
itself, including a description of the company structure. Further, the applicant must designate a
number of key persons to be responsible for different areas, eg the gaming system, change
management, etc.
In Annex A, executive directors and members of the board are required to submit
personal information, including name, address, civil status and experience with gaming.
In Annex B, the applicant must provide detailed information about its technical
capabilities and the gaming system. The applicant must perform a number of different tests
and submit certificates proving that these tests have been carried out by accredited testing
houses.
These three forms must be accompanied by an extensive amount of documentation, which
can easily consist of thousands of pages, including (but not limited to):
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criminal records and curriculum vitaes;
•
financial reports;
•
budget forecasts;
•
detailed descriptions of the applicant’s policies and internal procedures;
•
detailed description of the gaming system;
•
third party guarantees;
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bank declarations;
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•
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company chart;
list of sub-contractors;
white label contracts;
business plan;
licences from other countries.
After all of the necessary documentation has been submitted, the Danish Gaming
Authority will evaluate the submitted documentation in cooperation with its designated
accountancy.
The Danish Gaming Authority may choose to grant a full licence, grant a conditional licence
or reject the application. An applicant failing to submit sufficient documentation or failing to live
up to the requirements set by the Danish Gaming Authority will normally be given a chance to
take remedial action by providing the missing information before the application is rejected.
There is no refund of the application fee, which will be forfeited if the application is
rejected. If the applicant applies again, a new fee must be paid.
From the handing in of an application to the Danish Gaming Authority, the issue of a
licence will normally take approximately three to six months, depending on the information
provided by the applicant.
Other relevant information
The Danish Gaming Duties Act is currently under review by the European Court of Justice.
On 23 July 2010, the Danish trade organisation for gaming machines filed a complaint
with the European Commission regarding the different taxation of online and offline gaming
providers under the Danish Gaming Duties Act. On 20 September 2011, the European
Commission found that the duties were not in conflict with European Union state aid rules
The Danish trade organisation for gaming machines then filed a subpoena on 30 November
2011 against the European Commission in relation to its decision.
Even though this case is currently pending, the Danish Gaming Act entered into force on
1 January 2012, along with the Danish Gaming Duties Act.
At the time of writing (March 2014), there has been no further development in the case.
3.2 Is there a distinction between the law applicable to B2B operations
and that applicable to B2C operations?
Online gaming operators contracting with players directly – either through their own website
(B2C) or through a white label site – are required to hold an online gaming licence to
provide gaming in Denmark.
Online providers who do not contract directly with players, but only provide services to
gaming operators directly are not required to hold a licence.
3.3 What are the consequences for B2C or B2B operators who are active
in your jurisdiction without having obtained or applied for the required
permits, licences and approvals? What penalties and enforcement powers
are available in respect of the illegal operators? Please outline any
significant domestic decisions or enforcement actions that have been
taken by the relevant authorities in recent years.
The Danish Gaming Act criminalises the provision of illegal gaming in Denmark.
‘Illegal gaming’ may be the provision of gaming services on the Danish market without a
proper licence, but the term also includes the promotion of and advertising of such gaming.
Whether a gaming operator provides gaming to Danish players depends on the specific
marketing of the gaming operator. The main criterion is not whether the gaming operator actually
takes bets from Danish players, but whether the company markets itself towards Danish players,
eg by having a website in Danish and/or carrying out marketing campaigns in Denmark.
Advertising for illegal gaming covers all types of advertising directed towards the Danish
market. Even the mere reception of a sponsor payment from an illegal gaming operator may
be seen as illegal gaming in rare circumstances.
If a party commits a breach of the Danish Gaming Act it may be fined or in very severe
cases imprisoned.
3.4 What technical measures are in place (if any) to protect consumers
from unlicensed operators, such as ISP blocking and payment blocking?
The Danish Gaming Authority has the means to require internet providers to block access to
illegal gaming providers’ websites once an injunction has been issued by a Danish Bailiff’s
Court. During 2012, the Danish Gaming Authority dealt with about 50 gaming providers
operating illegal games on more than 100 websites. Most of these decided to comply with a
request from the Danish Gaming Authority to stop providing the games. However, 20
websites had to be blocked by means of an injunction from Danish Bailiff’s Courts.
The Danish Gaming Authority also has the means to require banks to block financial
transactions from or to an illegal gaming provider once an injunction has been issued by a
Danish Bailiff’s Court. However, at the time of writing (February 2014), the Danish banks
and the Danish payment service providers do not have the technical means necessary to
block financial transactions.
3.5 Has the legal status of online gambling changed significantly in recent
years and, if so, how?
The possibility of providing online gaming to Danish players has changed significantly with the
entry into force of the new Danish Gaming Act on 1 January 2012. The entry into force of the
Danish Gaming Act changed the provision of online gaming to Danish players from a monopolised
to a partly liberalised online gaming market.
3.6 Whilst acknowledging the inherent difficulty in predicting
developments in gambling law, what are the likely developments in online
gambling in your jurisdiction, both short term and long term? Are any
specific amendments under consideration? Have there been any recent
political developments, or do you envisage any in the near future? Are any
specific amendments under consideration? Are they likely to be adopted
and, if so, what is the time scale?
The partial liberalisation of the Danish online gaming market is widely considered a success,
and Denmark now has a well-functioning online gaming market. As of March 2014, there
are 40 holders of betting and/or online casino licences (nine of which are income-restricted
licences).
Financially, the partial liberalisation has also been a success for the Danish state. Thus,
the gross gaming revenue for holders of betting and online casino licences was DKK
2,045,000,000 in 2012 (approximately EUR 274,500,000) and 2,375,000,000 DKK
(approximately EUR 318,300,000) in 2013.
In addition, there are specific plans to amend the Danish Gaming Act and the Danish
Gaming Duties Act. The draft amendments are expected to be published in the autumn of
2014 and come into force in 2015.
Since the legislation and guidelines were published, there have been only minor
amendments, and the focus has mainly been on the interpretation of the legislation and
guidelines. At the time of writing (March 2014), the Danish Gaming Authority has issued a
public consultation regarding new and updated certification and technical documents. It is
expected that these documents will come into force during the autumn of 2014, with
amendments based on the received comments.
A player has to use an OCES-standard encryption, more specifically a Danish technical
solution named NemID, when registering on a licence holder’s gaming site. Furthermore, the
player needs to use the NemID to log in every time he/she wants to play.
The Danish Gaming Authority is currently considering whether changes should be made
in relation to the requirement for using NemID. This includes considering whether a more
situational access could be used without compromising safety. Furthermore, it is considered
whether an exemption should be made from the requirement to use NemID in case of a
breakdown at NemID.
3.7 Is the law the same in relation to mobile gambling and interactive
gambling on television? If not, are there any headline differences?
The law is in general the same in relation to mobile gaming and interactive gaming in
Denmark; however, there is one exception in relation to mobile gaming.
The requirement for players to use NemID when logging on to play (see the answer to
question 3.6 above), has not yet been adjusted to mobile telephones and other mobile
platforms (eg tablet computers). Thus, it is possible for online gaming operators to obtain
permission to provide gaming through such devices without the use of NemID.
This exception is only temporary ,and a solution where players have to use NemID when
logging on to play through mobile solutions and other mobile platforms is expected during
the first half of 2014.
4.
LAND-BASED GAMING
4.1 Please describe the licensing regime (if any) for land-based gaming,
and what products are included. Please set out what licences are available,
and the licensing regime for them.
Land-based gaming licences may be granted for casino games and betting. Further, a limited
licence covering only gaming machines or poker may be granted.
The land-based casino licence is valid for a term of 10 years and covers a variety of
common casino games such as roulette, baccarat, poker, blackjack and gaming machines
offering cash winnings.
See section 2 above for definitions of these games.
The betting licence covers both land-based and online betting, thus only one betting
licence per operator is needed. See section 3 above regarding online betting.
A betting licence is valid for a term of five years.
A limited land-based gaming machine licence is granted on an individual basis and may
be granted for an unlimited time period.
A limited land-based poker licence may be granted for gaming operators wishing to
provide public poker tournaments from Danish premises only. A land-based poker licence is
granted for a maximum of two years.
4.2 Please set out any particular limitations or requirements for (eg
casino) operators, such as a ban on local residents gambling.
The requirements for the different licences mentioned in question 4.1 are described in detail
in the executive orders relating to the Danish Gaming Act.
The operation of land-based casinos is heavily regulated in the executive order on
land-based casinos. The regulation concerns:
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the premises;
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requirement of identification by use of ID;
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the use of electronic calculation;
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opening hours;
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registration of players;
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rules relating to the casino staff;
the individual games;
the exchange of gaming tokens and settlement;
control of cash at the gaming tables, etc;
gaming technology equipment;
the tronce (tips);
annual accounts and audit; and
certain controlling measures (for instance the involvement of an independent third party
controlling the activity at the premises at all times).
Land-based betting is less regulated than online betting. The players do not have to be
registered in order to play, they do not need accounts, and the operator is not obligated to
enable them to set betting limits. There is no ban on local residents’ gaming.
However, when providing betting from a physical shop, there are requirements for
sending a clear message to the customers that only players above the age of 18 are allowed
to play, that gaming is potentially harmful, and that treatment for compulsive gaming is
available. The information must be in Danish.
Furthermore, the manager of the place must satisfy certain requirements, eg be at least 21
years of age, not convicted of a crime that may involve a risk that the manager will abuse his
access to working with games, and his conduct in general must not give reason to assume
that the gaming establishment will not be run in a fully responsible manner.
With regard to gaming machines there are detailed requirements for the technical
performance of the gaming machines in the Executive Order on gaming machines in gaming
arcades and restaurants. Further the operators of gaming machines must comply with
regulations regarding, for example, the premises and the staff at the gaming venues.
With regard to land-based poker licences, the gaming legislation contains regulations on
the persons or companies providing the poker tournaments and restrictions on the number of
tournaments that may be held. This poker licence may not be used for providing online
poker.
4.3 Please address the questions in 3.5 above, but in relation to
land-based gaming.
The passing of the Danish Gaming Act has to some extent changed the regime of land-based
gaming. Accordingly, land-based betting was liberalised with the passing of the Danish
Gaming Act in 2012. However, there has been no significant change in the legal status of
land-based casinos except that land-based casinos are now governed by the Danish Gaming
Act and the supervising authority is now the Danish Gaming Authority.
5.
TAX
5.1 Please summarise briefly the tax regime applicable both to land-based
and online gaming.
The Danish Gaming Duties Act contains the rules governing gaming duties. SKAT (the
Danish Tax Administration) is responsible for ensuring that the gaming operators comply
with the rules of the Danish Gaming Duties Act. All persons and companies holding a
licence to provide gaming on the Danish market are required to notify their activities for
registration.
The provision or organisation of games covered by the Danish Gaming Act is subject to
duty. under the Danish Gaming Duties Act. The calculation of the duty varies depending on
the type of game.
Game
Percentage
Duty period
Betting (both online 20 per cent of the gross gaming Weekly
and land-based)
revenue, defined as received
stakes minus paid out winnings
(in the following “GGR”)
For betting
exchanges (both
online and
land-based)
20 per cent of the amount
charged in commission
Online casinos
20 per cent of the GGR
For poker and other
cases where the gaming
operator’s profit is the
commission charged
20 per cent of the amount
charged in commission
Land-based
casinos
45 per cent of the GGR minus
Calendar
the amount of special tipping
month
chips plus an additional 30 per
cent on the part of the GGR that
exceeds DKK 4.0 million
(approximately EUR 538,000)
Physical gaming
machines in
restaurants or
gaming arcades
41 per cent of the GGR
For gaming machines in
restaurants an additional 30 per
cent on the part of the GGR that
exceeds DKK 30,000
(approximately EUR 4,025) is
added
For gaming machines in gaming
arcades an additional 30 per
cent on the part of the GGR that
exceeds DKK 250.000
(approximately EUR 33,600) is
added plus DKK 3,000
(approximately EUR 400) per
machine until 50 machines and
DKK 1,500 (approximately EUR
200) per machine exceeding 50
Weekly
Calendar
month
Non-profit lottery
Cash prizes
15 per cent of the amount that
exceeds DKK 200
(approximately EUR 27)
15 days
after the
result of the
lottery has
been
decided
Prizes consisting of 17.5 per cent of the amount that
goods or services exceeds DKK 200
(market value)
(approximately EUR 27)
Prizes in
connection with
free games (i.e.
games where no
stake is paid)
15 days
after the
result of the
game has
been
decided
Cash prizes
15 per cent of the amount that
exceeds DKK 200
(approximately EUR 27)
Prizes consisting of
goods or services
(market value)
17.5 per cent of the amount that
exceeds DKK 200
(approximately EUR 27)
Lottery and betting on races with pigeons, horses and dogs are, as mentioned earlier, under the
monopoly of Danske Spil A/S. The tax regime applicable to such gaming is therefore not
included in the above.
If the winnings are goods, it is the market value of the goods that is included in the gross
gaming revenue. If the winnings exceed the stakes in a duty period and the gross gaming
revenue becomes negative, no duty will be payable. If there is no or a negative gross gaming
revenue for one period, the duty must be declared at DKK 0. Negative gross gaming revenue
in one period cannot be carried forward for set-off against the positive gross gaming revenue
of subsequent periods.
Free games, bonuses and the like are regarded not as stakes but as marketing expenses.
Consequently, these costs and all other costs of the gaming operator that are not actual winnings
for the players cannot be deducted when calculating the gross gaming revenue.
In addition to the tax duties described above, a licensed gaming operator must pay an annual
fee for the licence. The size of this depends on the actual revenue, and is fixed in classes varying
from DKK 50,900 (approximately EUR 6,800) (2014 level) to DKK 1,527,000 (approximately
EUR 204,500) (2014 level).
Apart from taxes and fees, the gaming operator may also be liable to Danish income tax,
depending on the particular circumstances. In 2014 the Danish company tax is 24.5 per cent,
which will gradually be lowered to 22 per cent in 2016.
6.
ADVERTISING
6.1 To what extent is the advertising of gambling permitted in your
jurisdiction? Again, this should cover both land-based and online gaming.
To the extent that advertising is permitted, how is it regulated?
The Danish rules regarding advertising of gaming (land-based and online) are divided into
two categories: (i) the general advertising rules that apply to all marketing; and (ii) a specific
set of rules that apply to gaming alone.
General marketing legislation
The central piece of marketing legislation in Denmark is the Danish Marketing Practices
Act.
The Danish Marketing Practices Act includes provisions on comparative advertising, the
use of misleading or false statements, and communication with customers (e.g. the players),
etc.
The Danish Marketing Practices Act applies a very strict interpretation of the word ‘free’
when advertising. If the word ‘free’ is used, the product or service needs to be 100 per cent
free and not subject to limitations.
Pursuant to the Danish Marketing Practices Act, direct marketing, eg newsletters or
special offers to players, is generally illegal. Such marketing may, however, be used when
dealing with pre-existing players as long as the player consented to it after being thoroughly
informed of it when the player registered with the licence holder. The player should
furthermore – both on registration and afterwards – have an easy and free option to decline
further inquiries from the licence holder.
The Danish Consumer Ombudsman monitors advertising directed towards the Danish
market and can on his own motion initiate investigations regarding the legality of marketing
campaigns.
Specific gaming marketing legislation
In recognition of the fact that the provision of games is a sensitive area where aggressive
marketing of gaming products may directly generate an excessive consumption and
increased dependency on gaming, it has been necessary to impose limits on the marketing of
games that go beyond the limits imposed by the provisions of the Danish Marketing
Practices Act. Thus, in addition to general marketing legislation, the Danish Gaming Act
contains a number of specific rules relating to the marketing of gaming:
•
the chance of winning must be presented in a correct and balanced way, thus the player
will not get the impression that the chance of winning is greater than it actually is;
•
gaming must be presented as a form of entertainment;
•
gaming must not be directed towards minors or young people under the age of 18. This
applies both to the communication and the choice of media;
•
if a celebrity is used in an advertisement or in a marketing campaign, the celebrity must
not imply that his participation in gaming has contributed to his success, unless this is
actually true (eg poker celebrities); and
•
marketing must not have content which implies that participation in gaming promotes
social acceptance or is the solution to financial problems.
Considering the fact that the provisions of the Danish Gaming Act regarding marketing
contain supplementary rules in relation to the general provisions of the Danish Marketing
Practices Act, it will often be possible to judge cases regarding violation of the rules
governing the marketing of games based on the rules of the Danish Gaming Act without it
being necessary to involve the Danish Marketing Practices Act as well.
Further, the marketing of bonuses is regulated in the executive orders on the provision of
both land-based and online betting, and on the provision of online casino. A bonus will
typically be in the form of a welcome or loyalty bonus and will normally be a service,
money or better odds (when betting). When marketing a bonus, the gaming provider must
make sure that:
•
all information regarding the terms of the bonus is available in a clear and unambiguous
manner at the time when the offer is presented;
•
the bonus is paid into the player’s account immediately after the player meets the terms
for receiving the payment;
•
the player has at least 60 days to meet the terms of the bonus; and
•
a bonus offer is not given to individual players on terms that are different from offers
made to other players.
The Danish Gaming Authority has published a guide on the marketing of bonus offers by
the provision of betting and online casino. It sets out how the Danish Gaming Authority will
interpret the bonus provisions, and hence which practices the Danish Gaming Authority will
regard as lawful.
In relation to the use of sales promotion measures when providing betting and online
casino, the Danish Gaming Authority has also published a guide. The guide contains the
Danish Gaming Authority’s assessment of the licence holders’ access to use sales promotion
measures according to the gaming legislation.
Under the Danish Gaming Act, a national register of voluntarily excluded players, the
ROFUS (which is an abbreviation of the Danish words for ‘Register of Voluntarily Excluded
Players’) has been established. The register is maintained by the Danish Gaming Authority
and it is the obligation of the licence holder to take measures to prevent further marketing
material to be sent to a player who has excluded himself in the ROFUS register or on the
licence holder’s website.
Advertising illegal gaming is considered a criminal act under Danish law and is
punishable by fine or in the worst cases, imprisonment. This applies to all parties who direct
marketing towards the Danish market. Advertising in Danish will normally be considered to
be directing services towards the Danish market, but marketing legislation might also apply
to commercials and marketing campaigns in English directed towards the Danish market.
7.
SOCIAL GAMING
7.1 We believe this to be a growing area. Please decide under what
criteria social gaming is permitted in your jurisdiction. If games are free to
play or if there is no prize, are they legal without a licence? Please address
circumstances where virtual currency is used and can be won: ie currency
which is of no monetary or other value, save for as credits to take part in
games. The answer should address the question whether game credits or
virtual money can be exchanged for other prizes. Is any change to
regulation in the area proposed or envisaged?
Social gaming is often described as games consisting of structured activities which have
contextual rules through which users can engage with one another. Social games are most
often multiplayer and have one or more of the following features: turn-based; based on
social platforms for providing users with an identity; and casual.
As mentioned in section 2 above, the Danish Gaming Act applies to all activities which
fall under the legal definition of ‘games’. Accordingly, if a social game is considered an
activity constituting a lottery, a combination game or betting, and there is a prize to win, the
Danish Gaming Act applies.
If the games covered by the definition above are provided for free (ie, no stake or
payment have to be paid in order to participate), the games may be provided without a
licence.
If a stake or payment is required to participate in a game, a licence is required in order to
provide the game. As mentioned above in section 3, it is not possible to provide a game
which falls under the definition of a lottery, as lottery is still kept under a monopoly.
The Danish Gaming Act is silent on the subject of when and if virtual currency can be
given monetary value. It thus has to be decided on the basis of an interpretation of the Act
based on a description of the specific set-up.
However it is clear that if virtual currency is used for winnings and stakes, but is of no
monetary or other value, except as credits to take part in further games, such currency would
under the Danish Gaming Act not constitute a prize or a stake.
In relation to marketing through social media, the Nordic Consumer Ombudsmen has
issued a joint position available at
www.consumerombudsman.dk/Regulatory-framework/dcoguides/Social-media-marketing.