Introduction
Regulatory acts that confer a selective advantage without involving any transfer of state resources do not constitute State Aid. As is well established in the case law, Member States do not need to maximise revenue from granting licences, permits or authorisations when they act as regulators. Such licences, permits or authorisations may even be granted for free. Therefore, when a licensee pays no fee when such a fee is not legally required, it receives no State Aid even it enjoys an advantage.
Recently, the Commission had to determine whether what appeared to be a free authorisation for the provision of betting was in fact State Aid. Following a complaint, the Commission examined whether Belgium had granted State Aid to Ladbrokes, a gaming and betting company, through authorisation to operate “virtual betting” [e.g. on the outcome of football matches, horse racing, etc]. The complainants alleged that Ladbroke benefitted from an exclusive right for which it had not paid a market fee.
After carrying out a formal investigation, the Commission concluded, in decision 2025/1765, that no State Aid had been granted to Ladbroke because Ladbroke enjoyed no special or exclusive right and because it was not required to pay any fee. Therefore, it benefitted from no transfer of state resources.[1]
The relevant Belgian legal framework on games of chance and betting
Gaming and betting activities are regulated in Belgium and the implementation of the relevant regulation is the responsibility of the Gaming Commission. Providing games of chance or betting is prohibited without a licence of which there is a variety depending on the nature of the game or betting. Licences are issued by the Gaming Commission in accordance with the criteria laid down in the relevant law.
There are four classes, I – IV, of gaming establishments in Belgium: Casinos, gaming arcades, drinking establishments with games of chance and betting establishments.
Currently, offering online games of chance and bets requires an extra online licence. In order to obtain an online licence it is necessary for the operator to have a physical presence in Belgium. Only those operators who are licenced to operate in one or more of the classes of establishments listed above can obtain a licence to offer the same games of chance and bets online.
The reason for launching the formal investigation
In the decision to open the formal investigation procedure, the Commission considered that, on the basis of the information that had been submitted at that time by the complainants and Belgium, Ladbrokes may have received State Aid on the grounds that it obtained an advantage in the form of a de facto exclusive right to provide virtual betting in Belgium without paying an adequate fee for that right. The decision to grant that right was imputed to the Gaming Commission which is a public authority. During the time period covered by the Commission decision, the relevant Belgian law did not explicitly allow or prohibit online betting. Nonetheless, the Gaming Commission authorised Ladbrokes to provide online betting.
Commission assessment
First, the Commission explained that it rejected the argument of Ladbrokes that the complainants had no right to submit complaints. The Commission found that, as they operated on the same market as Ladbrokes, they were “interested parties” in the meaning of Article 1(h) of Regulation 2015/1589 and as “complainants” within the meaning of Article 24(2) of the same Regulation.
Next, the Commission examined whether indeed Ladbrokes had benefitted from a legal right. Ladbrokes was the first operator that launched a virtual betting activity in Belgium in 2011. “(177) When Ladbrokes decided to offer the service of virtual betting in Belgium, the Gaming Act [i.e. the relevant Belgian law] did not include specific reference to either online or offline virtual betting under the system of licences for games of chance.”
However, despite the ambiguity in the Belgian law, the Commission, taking into account confirmation by the Belgian authorities, considered, in paragraphs 178-185 of the decision, that the definition of games of chance also covered virtual betting even though the relevant law did not explicitly say so.
No requirement for authorisation
Then, the Commission examined whether the authorisation for virtual betting was granted by a decision of the Gaming Commission with binding legal effect and whether such a decision was legally required. “(186) According to the Union courts, State aid must be regarded as being “granted” within the meaning of Article 107(1) TFEU on the date on which the right to receive it is conferred on the beneficiary under the applicable national legislation, i.e. the national law must foresee effects for such an act to be enforceable under national law.”
“(187) In the case at hand, …, the role of the Gaming Commission is to control compliance with the law within the framework of the Belgian law and its implementing decrees. The Gaming Commission, while being part of the Belgian public administration, has an advisory role and the task to implement the existing regulation in the gaming sector adopted by the Belgian legislator.”
“(188) As stated in the Gaming Act, which defines the competences of the Gaming Commission …, the Gaming Commission does not have the power to create new rights to operators for gaming and betting operations. When it issues licences it must stay within the scope of the competences given to it by the Gaming Act and it cannot create new categories of licences”.
“(190) As to the meaning of an “authorisation”, the wording in the 2012 [Note issued by the Gaming Commission] indicates that the operators were not compelled or required, but rather encouraged (“it is preferable”) to request a specific authorisation to operate virtual betting offline. Specifically, the Gaming Commission did not refer to any provision of the Gaming Act as a basis for its “preference” expressed in the note (“it is preferable”, “in order to be able to closely monitor this development”).”
“(191) The Commission takes the view that the [written replies of the Gaming Commission to questions by gaming operators] were a mere confirmation that it could be considered that Ladbrokes, as a class IV establishment, was holding the relevant licences to operate virtual betting. In view of the interpretation given by the Gaming Commission, all class IV establishments with the relevant licence were entitled to provide virtual betting as it was covered by these licences … Therefore, Ladbrokes, as an operator of class IV … licences, was considered eligible to operate virtual betting without requiring any additional approval or a new licence by the Belgian authorities.”
“(192) Any class IV operator could have in principle send an “authorisation” request to the Gaming Commission at around the same time as Ladbrokes did, and it would then most probably have received the same interpretation. This possibility was however not foreseen for other classes, including the class II operators like the complainants, as they were not deemed to be eligible for the operation of virtual betting. The Commission notes that none of the complainants were establishments of class IV with the relevant licences and they did not submit such a request to the Gaming Commission.”
“(195) In view of the foregoing considerations, the Commission concludes that given that the Gaming Act did not require a special licence to be approved by the Gaming Commission for virtual betting, and that the … Note of 2012 did not require any specific authorisation, the administrative communication [by the Gaming Commission] granting “authorisations” did not produce a legal effect to the extent that such effect would be tantamount to a licence.”
No exclusive right
The next step in the Commission’s analysis was to determine whether in fact Ladbrokes enjoyed exclusive rights.
“(196) According to well-established case-law, Article 107 TFEU defines a State Aid measure by reference to its effects. It is therefore relevant to assess the effects on the market of the alleged measure.”
“(197) As regards online virtual betting, the facts show that the [views expressed] by the Gaming Commission did not produce the effect vis-à-vis other operators of granting exclusive rights to Ladbrokes, which could be assimilated to the effects of State Aid.”
“(198) As mentioned in recital (192), all operators of class IV with F1, F2 and F1+ licences were allowed to operate virtual betting without any additional approval or licence by the Belgian authorities.”
No transfer of state resources
The last part of the Commission’s assessment focused on whether Ladbrokes should have paid any additional fee.
“(215) The complainants argue that by failing to impose a fee for virtual betting services offered by Ladbrokes, the Belgian authorities favoured Ladbrokes by granting it a preferential treatment, hence a selective advantage … In doing so, the Belgian authorities would have foregone State resources.”
“(216) However, all class IV establishments with the relevant licence were in principle allowed to offer both offline and online virtual betting (recital (192)). The Commission notes that the Gaming Commission, or any other Belgian public authority for that matter, did not exempt Ladbrokes from a fee and did not release Ladbrokes from the obligation to pay a fee that would have been due. Instead, it appears from the Belgian authorities’ interpretation of the Gaming Act that there is no obligation for the operators to pay special fees for virtual betting.”
“(217) It is further noteworthy that there was no obligation for class IV establishments to hold, let alone to pay for a licence special to operating virtual betting, so that not imposing a licence fee for virtual betting is merely the consequence of the non-existence of special rules on virtual betting in the Gaming Act.”
“(218) The Commission further notes that with the adoption of the 2018 Royal Decree, offline virtual betting became regulated, but no special fee was foreseen for it. In fact, when the regulator acted by adopting the 2018 Royal Decree, it adopted a regulation which prescribed conditions for all eligible operators and did not forgo revenues for not requiring a special fee for operating virtual betting by Ladbrokes.”
“(219) Therefore, the Commission concludes that the Belgian State did not waive, nor forego, any resources which should have been paid by Ladbrokes for operating virtual betting since 2014. Hence, there is no link between the alleged exclusive right of Ladbrokes and a burden on the State budget through the non-imposition of fees.”
[1] The Commission decision was published in OJ L, 3/9/2025. It can be accessed at:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202501765
