Estonia: Regulation of sports betting under the new Gambling Act.

1. Introduction

One has to appreciate the history of Estonia when it comes to the subject of sports betting. Gambling of any kind was prohibited in the Soviet Union, although in all bigger cities the casino businesses were illegally organized even during the darkest days of communism. Therefore, the historical account of the legal regulation of gambling can be taken with regard to the past 14 years only, i.e., since the adoption of the first Lottery Act in 1994 (Loteriiseadus) and the first Gambling Act in 1995 (Hasartmanguseadus) by Estonian Parliament (Riigikogu).

Whether as a consequence of the mentality imposed by this history or due to certain other factors, the problem of gambling addiction is routinely overstated in Estonian society. Casino operators are frowned upon and it is not uncommon to hear the word 'mafia' used as an adjective to describe the gambling business, casinos in particular. The legal regulation of gambling was insufficient and inadequate up until 2009 when the new Gambling Act entered into force. Taking into consideration that the legislation was widely opened to criticism, and the social attitudes, the lack of any more comprehensive academic writing on the matter is surprising. The only substantial treatment of the subject is provided by the student Master Thesis submitted by Peedu in 2008, alas, dealing mostly with the provisions of the old Gambling Act of 1995 and the cases decided under it. (1) With a population of 1.4 million, and the short history of legislative action and enforcement in the field, Estonian courts have not had many opportunities to rule on this subject either. There are no English or any foreign language translations available for the new Gambling Act or for any of the national court decisions.

On May 1, 2004, Estonia joined the European Union. Gambling activity is an area that was not directly discussed at the accession negotiations. However, it is an economic activity within the meaning of the EC Treaty and is as such is affected by the accession. This means that the gambling legislation of the Member States should be in conformity with the Community legislation, in particular the internal market and competition rules.

This article will focus on the provisions of, and requirements placed upon, the organizers of gambling under the new Gambling Act and will, inter alia, place the emphasis on licensing of remote gambling and the activities of several offshore companies that create the legal problems for supervisory officials in Estonia. Other types of gambling and the key changes in their legal regulation will also be discussed. Lotteries, in respect to which the state has reserved a monopoly for itself, (2) are outside of the scope of this chapter but will be mentioned to the extent necessary for general understanding of their place in the organization of gambling.

2. The Problem of Gambling in Estonian Society

Due to several media scandals and the lack of proper lobbying in the government, the status of gambling, in particular the casino business in Estonia, is quite low in the eyes of the general public. There are two lobbying groups working at the opposite ends of the cause: Eesti Kasiinovastased (Estonian Anti-Casino Movement, hereinafter Kasiinovastased) supported by Eesti Hasartmangusoltlaste Uhing (Estonian Union of Gambling Addicts); and Eesti Hasartmangude Korraldajate Liit (Estonian Association of Gambling Operators, hereinafter EHKL).

Statistics about the number of the addicted gamblers differ substantially between the two interest groups. Whereas the biggest casino owner in Estonia says that the number amounts to 26,000 and that this is the number that includes not just casino gambling, it also those addicted to all other forms of gambling, Kasiinovastased puts that number at 50,000 compulsive casino gamblers. The respectable daily business newspaper Arileht talks of 70,000 casino addicts. They also point out that "casinos have caused the suicide of hundreds of people in Estonia, even murders of members of their family, including children. 42% of the dependants are considering suicide. In 2007 the research carried out by AS Turuuuring (Market Research) showed that 76% of Estonians and 81% of residents of Tallinn are in favour of banning casinos." (3)

Whereas it is not difficult to sympathise with the cause, there is another equally valid side of the story. Gambling, much like drinking alcohol and smoking cigarettes is a personal choice. As long as properly regulated and supervised in order to prevent the illegal use of profits and money laundering, there is no compelling reason to create further pressures on the government. In a letter addressed to the Minister of Finance in March 2008 Kasiinovastased expressed a serious concern in relation to the repercussions that may materialize because, in its view, the new Gambling Act favors casino interest groups. In mid-April 2008 they visited EU Parliament, European Commission representatives and NATO headquarters trying to draw the attention to their concern that there is no adequate control over the casino business and gambling market in many new EU and NATO Member States. This, in their opinion, leads to money laundering and other crimes, and possibly even provides support for terrorist activities. (4) On April 29, 2008, in the center of Tallinn Estonian anti-casino protest was organized with the purpose of bringing the entire casino business in Estonia under the control of the state. (5)

It is important to mention that sports betting and the lottery have not been the direct cause for these kinds of concerns and attacks as they are considered less socially harmful.

3. Relevant Legislation

Prior to the adoption of the new Gambling Act ('the Act') (6) two separate laws used to regulate the field: the Lotteries Act of 1994 and the Gambling Act of 1995. They provided for imperfect mechanisms of regulation and control in particular due to their inability to cope with the changes in the organization of the gambling industry. The practical problems that were unresolved were many, most notably the lack of regulation of remote gambling. The new Gambling Act was in the form of a draft proposal and a subject of debate over four years. The European Commission was informed of the draft legislation in the beginning of 2008 and Riigikogu finally adopted the new Gambling Act on October 15, 2008.

The objectives of the new Gambling Act are to impose stricter requirements for organizing gambling games in order to improve the quality of gambling services, enact measures for protection of players, and to decrease the negative consequences of the gambling and its influence on the society. (7) Amendments where made in order to effectively cope with the changed situation in the gambling sector and to make use of novel possibilities to supervise gambling organizers.

Entry into force of the act is split into three stages. Most of the provisions are already in force as of January 1, 2009. The next set of provisions, which will become effective on January 1, 2010, is the most important in the context of online sports betting. The organizers of remote gambling are given more time to study the impact of the new legal regime. For offshore companies offering online sports betting services to their clients in Estonia the impact will be profound. These provisions and their contribution to the regulation of remote gambling will be addressed later in detail. (8) Finally, provisions regulating electronic reporting and supervision of gambling systems, as well as those that set forth the requirements for games of chance machines will enter into force on January 1, 2011.

Apart from the new Gambling Act, which repealed the 1994 Lottery Act and 1995 Gambling Act, the relevant legislation includes a new Advertising Act (9) and a Gambling Tax Act that is currently undergoing review. (10)

4. Definition, Categories and Sub-Categories of Gambling

4.1. Definition

The Act defines gambling as having all of the following characteristics: a stake made by the player is the condition for participating in a game; players may win prizes as a result of the game; the result of the game is determined completely or partially by actions based on chance; or depends on the occurrence of an event not known in advance. (11) So there are three elements that need to be present; stake, prize and chance. If one of the elements is not present then we are not dealing with gambling. Additionally, Article 2(5) excludes games of skill in which the only prize is the opportunity to play again in the same game, as well as sports competitions, lotteries whose prize has a value of up to EUR1000, and promotional lotteries with a prize fund of up to EUR10.000. All are excluded from the definition of gambling within the meaning of the Article 2(1) of the Act. All other lotteries must be organized by state-owned monopoly. (12)

The basic three-element definition has not changed substantially in comparison to the old Gambling Act, thus, the Supreme Court decisions on the definition of gambling are applicable in relation to the new Act as well.

4.1.1. Stake

The Act defines a stake as "a sum of money paid for participation in a game or a monetarily appraisable obligation taken in return for the right to participate in gambling." (13) Before the Act came into force, the same concept was defined by the Supreme Court in the case 3-1-1-7- 06 (p-d 9.3-9.5). (14) Accordingly, a stake, within the meaning of Article 3 of the old Gambling Act, is the value of the object that the participant bets, in return for the right to participate in the game, and that he or she will lose on the basis of chance in case they do not get the said prize. The sums paid to acquire the right to participate in a draw do not amount to stake within the meaning of Article 3 of the old Gambling Act, if as a consequence of the draw the value of the personal assets placed as stakes to obtain the right to participate cannot be reduced. Only if there is a risk of reducing the value of assets of a player will there be a "stake."

Furthermore, according to the General Part of the Civil Code Act of 2002 (15), Article 66, property is "a set of monetarily appraisable rights and obligations belonging to a person unless otherwise provided by law." Article 65 of this Code provides that the value of an object is its usual value, meaning its average local selling price (market price). Furthermore, "objects are things, rights, and other benefits which can be the object of a right." (16) Therefore, betting a sum of money in return for which a participant receives the object or rights of the same value, or the exception from obligations of the same value, will not constitute the decrease in the value of asset and will not constitute a "stake."

4.1.2. Chance

The concept of chance under the new Gambling Act does not rely on a predominance test; instead, not only in the games in which the result is entirely dependant on chance (such as slot machines), but also in the games in which the result depends partly on chance (and partly on skill), will there be a "chance" within the meaning of the Act. In addition, the element of chance does not have to dominate over the skill to determine its outcome. This approach is reflected in the express language of the Article 3(4) that defines games of skill as games whose outcome depends predominantly on the physical skilfulness or skills and knowledge of the player. Thus, only a certain element of chance needs to be present for there to be a "chance." However, sports competitions (which by nature of sport industry always contain a certain degree of chance) are excluded from the categories of gambling.

4.1.3. Prize

The Act defines the prize as the right of a player to acquire money or other benefits having a monetarily appraisable value. (17) As should already be clear from the definition of gambling, Article 2(5) excludes certain types of prizes from the scope of the Act. In addition, Article 41 provides that the prize for a game of skill organized on a machine for a game of skill shall be an object that is not money and whose value is a maximum of EUR 50. The prize in an online game of skill cannot exceed EUR 50.

Once it has been ascertained that all the elements are present and that the case involves gambling within the meaning of Article 2 of the Act, the next step is to identify the category and sub-category of gambling in question.

4.2. Categories and sub-categories of gambling

The Act encompasses types of gambling that were previously insufficiently regulated or not regulated all. As a novel element lotteries and games based on "mental skills" are included in the Act as forms of gambling. Remote gambling is now specially regulated, and so are promotional lotteries.

According to Article 3 the categories of gambling are: 1) games of chance - games whose result depends on chance and which take place using a mechanical or electronic apparatus or through the agency of a game organiser; 2) lotteries - games whose result is determined completely by chance, where the prize fund forms up to 80 per cent of the sales price of the lottery ticket print run and results are revealed a maximum of three times a day or results or are revealed upon uncovering a field on a lottery ticket; 3) totos - games whose result depends on the prediction by the player of the occurrence, non-occurrence, or the manner of occurrence of an event, where the event with regard to which the player enters a stake is beyond the control of the organizer of the gambling, receiving the prize depends on whether the prediction comes true, the amount of the prize depends on the size of the stake and on the winning coefficient determined before the stake was placed (betting), or on the percentage of the stake pool determined by the organiser of gambling, the number of persons making the correct prediction, and the sizes of their stakes (totalisator), and; 4) games of skill - games whose outcome depends predominantly on the physical skilfulness or skills and knowledge of the player, and that are organized by using a mechanical or electronic tool.

The subcategories of games of chance are: 1) games organized on gambling tables and gambling machines to determine the outcome of which an electronic, mechanical or electromechanical device made for organizing gambling or the assistance of the game organizer is used, and 2) additional games of chance - which upon compliance with the conditions provided in the rules of the game afford the player at the gambling machine or gambling table the opportunity for a prize collected from the stakes from gambling machines or gambling tables, or otherwise predetermined prize.

The subcategories of lotteries are: 1) classical lotteries - lotteries where the results depend completely on chance and where the results of the lottery are revealed after the lottery organizer ceases to allow participation in the lottery; and 2) instant lottery - lotteries whose results are randomly determined on tickets before the lottery tickets are acquired by a player and whose result becomes known to the player upon uncovering the playing field after they acquire the lottery ticket.

Promotional lottery, which is not within a state monopoly and is not a category of gambling as long as it does not exceed EUR 10.000, and is a classical or instant lottery organized by a trader for the purposes of advancing the sales of goods or services, or for promoting goods, services or their providers. (18) Most importantly, the new Act thoroughly regulates remote gambling. Article 5 defines it as "the organisation of gambling in such a manner where the result of gambling is ascertained using electronic appliances and in which the player can take part via electronic device, including telephone, Internet and broadcasting." The court practice has confirmed that remote gambling is not an independent category or subcategory of gambling. (19) Instead, it is a manner in which organizers provide gambling services.

5. Share and Reserve Capital Requirements for Gambling Organisers

5.1. Share capital

According to Article 9 of the Act, games of chance may be organized by a public or private limited company whose share capital is at least EUR 1 million. Lotteries, except for promotional lotteries, may be organized by a completely state-owned public limited company founded for that purpose by the Government of the Republic whose share capital is at least EUR 1 million and whose shares are completely state-owned. Games of skill may be organized by a public or private limited company whose share capital is at least EUR 25.000. Totos may be organized by a public or private limited company whose share capital amounts to at least EUR 130.000.

However, more important than the share capital requirement is the requirement as to the specific legal form of company that can organize gambling. Public or private limited companies are not the only forms of company, and therefore, it would appear expressis verbis that the license would be refused to any undertaking that is not complying with the condition related to legal form. If a company from another Member State would be refused the license on the basis of lacking the required legal form it could possibly create the problems of compatibility with the EU internal market rules.

5.2. Reserve capital

The new Gambling Act obliges gambling organizers to create the supplementary reserve capital from annual net profit transfers or other transfers to reserve on the basis of legislation or articles of association. The minimal size of the reserve capital is set to one third of share capital. The lawmakers have released from this obligation organizers of totos in relation to the events in which the players place the stakes on the outcome of a horse race, and who are non-profit organizations specified by the Government of the Republic, the only statutory purpose of which are equestrian and equine related activities. Instead of requirements to create additional reserve capital, the net capital reflected in such non-profit organization's balance sheets has to constitute at least 2/5 of the value of their assets. (20)

6. Licensing Requirements

According to Article 2 of the old Gambling Act, the right to organize gambling belonged to the State, and it could then transfer this right in accordance with the conditions set forth in the old Act, including the issuance of the licenses. The new Act has deleted this article but the state licensing requirements as means of control have remained. In order to legally provide gambling services in Estonia, a person has to first obtain an activity license, and after that an operating license. (21) The decision of Administrative Court confirms that activity and operating licenses are interconnected and that without the operating license it is not possible to legally provide gambling services at a specific location. (22)

6.1. Activity license for organizing gambling

Applications for activity licenses are addressed to the Tax and Customs Board who decide within four months whether to issue or deny the license. According to Article 16 of the Act, an activity license entitles a person to apply for an operating license for organizing of the gambling. The activity license is issued for an unspecified term and is not transferable. A separate activity license is issued for games of chance, totos, and games of skill. This means that if one attempts to organize different types of gambling each one will be required to be licensed separately. It should be noted that there is no requirement to obtain an activity license for the organization of lotteries.

6.2. Gambling operating license

Article 22 of the Act provides that a separate operating license is issued for the period of 20 years: 1) for organizing one category of a game of chance at the address or ship of a gambling venue to be opened, to be marked in the decision on granting operating license; 2) for organizing toto, or at the address or ship of a gambling venue to be opened, to be marked in the decision on granting operating license; 3) for organizing games of skill at the address or ship of a gambling venue to be opened, to be marked in the decision on granting operating license; 4) for organizing a category or subcategory of gambling as online gambling; 5) for organizing a lottery, except a promotional lottery.

The operating license, except for the operating license granted for organizing lotteries and totos for non-profit associations specified in Article 9 (7), (23) shall be granted solely to the holder of an activity license. (24) An operating license for online gambling is granted for five years and instead of the requirement to provide an address for the venue in the application form, the online service providers have to supply the address of the server containing the software used for organizing gambling. The decision to grant or deny an operating license is made by the Tax and Customs Board, normally within two months.

6.3. State fees

The new Gambling Act has amended the State Fees Act. (25) Hence, Article 219 of the State Fees Act sets the amount to be paid at EEK 750.000 for organizing a game of chance, EEK 500.000 for organizing pari-mutuel betting, and EEK 50.000 for organizing a game of skill. (26) Article 220 of the State Fees Act provides that for reviewing an application for a gambling operating license, except in the case of a lottery, a state fee of EEK 50.000 shall be paid. In addition, for reviewing an application for operating license for lottery, a state fee of EEK 10.000 shall be paid. The fees have not changed significantly except for in the case of organization of totos where it has decreased by 33%.

6.4. Compatibility with Article 49 EC Treaty

While Estonian rules on licensing are applicable without distinction to domestic and foreign providers of gambling services, it remains a question as to whether the requirement to obtain an activity license for each category of gambling separately is compatible with the market access approach. Namely, it is not clear whether foreign service providers that are legally established in another Member State, and that already comply with the licensing requirements in their home state, would be the subject to an activity license only in respect to categories of gambling that they do not have a license for in their home state, or to double licensing requirements, i.e., in relation to categories already licensed at home. Looking at the practice of the Tax and Customs Board, who has investigated the case of triobet.com and inquired into the licenses issued by the Isle of Man, it would appear that the principle of mutual recognition would be respected as far as the situation where identical activity licenses are issued by the home states. However, given that the investigation took place at the time the legislation did not provide the powers to supervisory officials to block the sites of foreign remote gambling service providers, it does not follow that the investigation would cease without any results after January 1, 2010, and entry into force of the provisions of the Act related to remote gambling. (27) Furthermore, it also remains unclear whether Estonian legislation requiring separate licenses for different categories of gambling is justified and proportionate, and whether it would serve more than financial objectives. The complete lack of consideration for the control exercised by another Member States would probably be in contradiction to the basic substance of the economic freedoms in the internal market, unless justified and proportionate. This concern has also been voiced by the European Commission in the course of their review of the proposal for the new Gambling Act.

7. State Supervision and Reporting

Supervision over the organization of gambling is performed by police officials and Tax and Customs Board officials. An organizer of gambling must submit a report in electronic form on the organization of gambling every three months to the Tax and Customs Board. (28) The Act has made use of the novel possibilities to supervise the organizers via an electronic calculation and control system. (29) It is an electronic communication network connecting the gambling machines, or additional games of chance for organizing other gambling of the organizer of gambling, with electronic game equipment or game equipment used for organizing gambling in the form of remote gambling. The gambling table must be connected with an electronic calculation and control system, where settlements, or the game, are partially made by using electronic devices. The electronic calculation and control system is intended to guarantee registration and recording of information in a way that enables calculation of the organizer of gambling at any time, as well as the percents of payments made to players from the total amount of stakes for every gambling machine, gambling table connected to the system, and online gambling game. (30) Where the electronic calculation and control system of the organizer of gambling and the information system of the Tax and Customs Board are connected as described above, and in the case of promotional lotteries, there is no requirement to submit a report on the organization of gambling. (31)

In order to inspect the legality of an organization of gambling, supervisory officials are entitled to perform on-the-spot inspection of the organizers of gambling at its location or place of activity. (32) Civi and criminal sanctions are prescribed for violations of these provisions of the Act. (33)

8. Taxation under Gambling Tax Act

A gambling tax is paid by organizers of gambling. (34) Article 1 of the Gambling Tax Act provides that the gambling tax shall be imposed on amounts received as stakes in games of skill, totalisators, or betting provided for in the Gambling Act; gambling tables and gambling machines used for organizing games of chance provided for in the Gambling Act; amounts received as stakes in games of chance that are not organized on gambling tables or gambling machines; and, amounts received from the sale of lottery tickets when lotteries provided for in the Lotteries Act are organized. The reference to the Lottery Act here is obsolete as it is no longer in force. Gambling organizers argue that the term "amounts received as stakes" should be interpreted according to the net principle, i.e., that the prize money should be subtracted from the amount of stakes received in order to arrive at the taxable base. However, the proposition has no support in law, namely, in the explanatory memorandum to the Gambling Tax Act (35) that provides for the application of a gross-profit principle, meaning taxation of the amount of stakes without any such subtractions. This approach aims to avoid a situation where the entire amount received from a stake is paid out as prize money and there is no taxable amount left.

The Gambling Tax Act is currently undergoing review to align it with the new Gambling Act.

The tax period is one calendar month for lotteries and games of chance or skill. The taxable period for organizing betting or a totalisator shall be the period during which the betting or totalisator is organized, starting on the first day set out in the rules of the game for placing stakes, and ending on the last day set out in the rules of the game for awarding prizes. Tax declaration (even if it is not a taxable income) and tax settlement are due by 15th day of calendar month following tax period.

Specific rates are given in Article 6 of the Gambling Tax Act. The rate for organizing games of chance is EEK 7.000 per one gambling machine and EEK 20,000 per one gambling table. The tax rate for betting is 5%; for totalisator 5%; for a game of skill 18%; 18% for a game of chance that is not organized on a gambling table or a gambling machine; 18% for a passive lottery; 18% for an instant lottery; and, 10% for a numbers lottery. As has already been mentioned, the sports betting sites offering their services in Estonia, other than www.spordiennustus.ee, avoid paying these taxes as they are not in possession of an activity license, and are based in tax havens such as the Isle of Man and Malta.

Gambling taxes are paid into the state budget. It is the only tax collected by the Estonian Government which is 100% invested into different social causes and charitable purposes. Of the amount of the gambling tax paid into the state budget: 46% is transferred to the Cultural Endowment of Estonia and 63% of this amount is allocated for cultural buildings; 3.9% is transferred to the Estonian Red Cross; 12.7% is intended for regional investment aid programme which supports projects related to children, young people, families, elderly persons and disabled persons; and 37.4% is allocated for supporting projects related to sports, science, education, children, young people, families, medicine, welfare, elderly persons and disabled persons out of which 31.8% is meant for supporting projects related to science, education, children and young people, 22% for Olympic preparation projects, 10% for supporting other sports projects, 32% for projects related to families, medicine, welfare, elderly persons and disabled persons, and 4% for supporting cultural projects. The tax is administered by the Estonian Tax and Customs Board. In 2007, the amount of tax collected from gambling was EEK 403 million. (36) At this very moment over EEK 100 million in gambling taxes from casinos alone has gone to the state budget. (37)

9. Advertising of Gambling Services, Premises and Organisers

The new Advertising Act came into force on November 1, 2008. In comparison to the repelled act, additional restrictions have been placed on the advertising of alcohol products and financial services, while exemptions have been added to the advertising regulation of tobacco products and gambling. Article 21 of the Advertising Act regulates the advertising of gambling, gambling premises, and gambling organisers, (38) all of which are, according to its first paragraph, prohibited. However, the same provision goes on to add an exception for the commercials placed at: the premises of the gambling organizers; on board aircrafts and ships, as well as at airports and ports providing international transportation services; gambling locations in hotels; websites of gambling organizers; and, places of live sports events to which bets on the basis of totos can be made. In the case of lotteries, the exception applies for the lottery sales points and for advertising by means of broadcasting directly before or after the lottery program or during the commercial breaks of that program.

Trademarks of gambling may be exhibited outside of the abovementioned sites, inasmuch as gambling, gambling locations, or winning chances, are not depicted or referred to expressly on the trademark. (39) It is prohibited in advertisements to present gambling as something that is beneficial and in the public interest, or to imply that gambling enhances social status. Gambling advertisements must not call for participating in gambling or visiting gambling locations. (40) The new Advertising Act constitutes an improvement in regulation considering that the repelled act provided only that "advertising of gambling and casinos is prohibited except in locations where gambling is held" and that "advertising of gambling shall be understandable and unambiguous and shall not contain a direct appeal to participate in gambling." (41)

10. Regulation of Remote Gambling: Online Sports Betting

According to the classification provided by Schriever and Aronovich (42) it appears that Estonia employs a partly "protectionist prohibitive system" in relation to remote gambling. (43) This conclusion follows from Articles 16, 22, 52 and 56 of the Act, which taken together provide that an organizer of gambling needs to be in possession of both an activity and operating license; that the server containing software used for organizing online gambling must be located in Estonia and its proprietor must ensure supervision officials unhindered access to the server; that persons providing public data network transmission service or public data transmission network access service are obliged to prevent access through communications devices to online gambling without delay, upon learning of the illegality of the aforementioned gambling; and that persons intermediating payment are, upon learning of the illegality of the aforementioned gambling, prohibited from transferring payments to organizers of online gambling that do not conform to the requirements of the Act.

10.1. Industry

In the beginning of 2008 there were close to 700.00 Internet users in Estonia between the ages of 15-76, which means some 66% of the population in that age group. (44) The first attempt to deliver online sports betting services to the Estonian market was done by a company, Megapanus, that tried to establish a foothold in the Estonian gaming industry in 2001 but failed. The problem with Megapanus was that it offered only two or three games once or twice a week, which is not enough to develop and sustain gamblers' interest. The Estonian Olympic Committee (EOK) purchased Megapanus and from it created AS Spordiennustus. In close cooperation with Alands Penningautomatforening that owns 20% of the AS Spordiennustus, European Game & Entertainment Technology Ltd Ab, a Finnish supplier of Internet gaming solutions, has successfully delivered an Internet sports betting solution to the subsidiary of the EOK.

The company started its activities in the beginning of April 2004 with the two week test period investing EEK 10 million for the launch of the system. Its target group are young or middle-aged men in Estonia interested in sports and with average or above-average income. People aged 21 and over that have a personal code and a bank account in Estonia can register at AS Spordiennustus site www.fortuuna. ee and place bets on any sport event. Although in the initial period there were talks about plans to expand to the markets of two other Baltic states, the portal still remains in only the Estonian and Russian languages. In the first 19 days of its activity, AS Spordiennustus has paid out EEK 300,000 in prize money, and registered 1203 players. Today, there are 2300 registered users in Estonia out of which 70% are active, i.e., play at least once a week. EOK transfers all the profits directly to the development of sports in Estonia, and therefore, the portal can be seen as a supplementary means of support for EOK, and in turn, for Estonian sports. The share capital of AS Spordiennustus is just over EEK 2 million. The subsidiary has cooperation agreements with 10 media channels in Estonia, Basketball and Volleyball Associations, and with Phillips.

10.2. Licensing fiasco

The old Gambling Act did not allow for the organization of totos or any other gambling category on the internet, and it did not contain any provisions related to remote gambling. However, in April 2004 this lack of legal basis did not prevent the Financial Ministry from issueing a license to operate internet-based totos to AS Spordiennusuts. Later on, when the organizer of triobet.com asked for the license, it was refused due to the lack of legal basis. (45) Recently, however, the AS Spordiennustus had its license for fortuuna.ee renewed until May 8, 2018, on the basis of Article 27 of the Act, which gives the power to local governments to consent to the opening of a gambling venue. (46)

The only company in Estonia that provides online sports betting services and that has a license to operate is AS Spordiennustus. The remaining operators, such as owners of Unibet, Bwin, Bet24, Triobet (with shares owned by Baltic football leagues) and others, are offshore companies and they are not in possession of such licenses. They do not pay any taxes in Estonia either. On the one hand, these companies are doing nothing more than exploiting the benefits of the EU internal market. On a closer look they are exploiting far more than that. They make the prohibition to operate without a license obsolete for the companies registered abroad, but this is enabled by the technology in the sector the regulation of which is considered to be without the satisfactory solution anywhere in Europe. However, the most disturbing part concerning the arrangements in the online sports bet ting market is the fact that most of the companies flagrantly breach Article 21 of the Advertising Act. Even more disturbing is that the Estonian Consumer Protection Board (Tarbijakaitseamet), an authority in charge of supervision over the enforcement of the Advertising Act, is doing nothing to get the completely illegal commercials off the television. The aggressive advertising campaign coupled by the inactivity of the Consumer Protection Board that is aware of the breach but does nothing about it, places the only law abiding and ethical company, AS Spordiennustus, in a competitive disadvantage. Therefore, the breach of the Advertising Act has implications not just for mandatory provisions related to consumer protection, but also constitutes market distortion and significantly decreases the amount of profits to be invested into the development of local sports.

The Ministry of Finance, Tax and Customs Board, and the Office of Public Prosecutor do not hide that the situation is indeed problematic: (47)

The Public Prosecutor's Office explained (in response to the inquiry of the Estonian Tax and Customs Board, 19.07.2006), that the Public Prosecutor's Office is of the same opinion as given to the Ministry of Finance in 2004 (considering www.bet24.com): the territorial applicability does not extend to remote gambling, and the prosecutor's office will not commence any criminal proceedings against such operators.

Therefore, at present the Estonian authorities do not have any legal bases to hinder those operators (such as www.triobet.com). According to the response of the Public Prosecutor's Office (to the Tax and Customs Board, 21.06.2006 and to the Ministry of Finance, 27.09.2004) it does not matter that the web-site can be also found in the Estonian language. The language used does not prove that remote gambling is being operated in Estonia. (48)

The Estonian Tax and Customs Board asked the police to commence misdemeanour proceedings against www.triobet.com. Northern Police Prefecture did commence misdemeanour proceedings against www.triobet.com on 29.08.2007, but till now the Tax and Customs Board has not received any notice considering the proceedings. But because of the statements already given by the Prosecutor's Office, it is clear that it is not possible to hinder those operators at present.

According to the Constitution of the Republic of Estonia the courts remain the only institution with the competence necessary to provide authoritative interpretations on such matters. (49) Article 3 of the Constitution provides that "the powers of state shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith." There is no doubt that this limit on the powers of the state includes limits on the exercise of powers of administrative organs in carrying out their duty to implement the Act. As a matter of the simple constitutional doctrine of separation of powers, the lawmakers decide on all important questions, and the executive branch does not have a power to intervene into matters falling under the competence of legislative branch. This basic rule extends also to the issue of licensing the operators of remote gambling services. The question of the possibility to organize remote gambling in Estonia was a subject of two court decisions, alas, without any clear answers to remove the confusion and stop the debates. (50)

It remains to be acknowledged that the questions on legality and licensing of remote gambling are very soon going to become a thing of the past. Articles 52-56 of the Act will enter into force on January 1, 2010, separately from the rest of the Act, and will provide the legal basis for supervising officials to block the sites whose servers are located in another country using the help of banks and internet service providers. New questions relating to compatibility with EU internal market law are then likely to replace the current debates on legality and licensing of remote gambling.

11. Requirements for Games of Chance Operators and their Premises: Effects on the Casino Industry

A closer look at the changes brought by the provisions of the new Gambling Act reveals more stringent requirements for the organization and operation of casinos. At the same time, compliance with the new requirements favors big casinos and will force the small casino operators to close down. First, games of chance can no longer be located in residential houses. As required by Article 37(1) of the Act they would have to relocate to a separate building, or move to a premise in hotel, conference or entertainment center, or shopping centers that are not also residential buildings. (51) However, small gaming halls are often located in apartment buildings or basements. The explanatory memorandum to the new Gambling Act says that "casinos can be compared to theatres or cinemas in nature but not to the 'milk shops' which must be as close to home as possible." Venue requirements belong to the set of provisions that will come into force on January 1, 2010.

Second, Article 9(4) requires that all games of chance operators must increase their share capital to EUR 1 million, instead of EEK 2 million (ca. EUR128.000), which was applicable under the old Gambling Act. Organizers of gambling acting on the basis of activity licences granted must bring their share capital in line with the new requirements prior to the entry into force of the new act, by January 1, 2015 at the latest.

Third, Article 37(8) obliges the operators of the games of chance to register the players who enter their premises at the door. They have to ask for the identification card and record inter alia the player's name, personal ID number, and the date and time of arrival. The information thus collected is to be stored in the database for a period of five years. The operators will also have to install video surveillance inside and outside the premises. This requirement also plays into the hands of the big firms: the casinos currently complying with the minimum allowed size (8 slot machines) would have comparatively much higher costs to install this system of control and surveillance.

Finally, in comparison to the old Gambling Act of 1995 that imposed a requirement to have at least 8 slot machines in every casino, the new Gambling Act requires at least 40 slot machines. Taking into consideration that a slot machine costs about EEK 200,000, and that there are gambling taxes in amount of EEK 7,000 a month for each of them as opposed to the previous EEK 5,000, it seems pretty obvious that many places will not be able to comply with this requirement. Even if investment into the new slot machines and the taxes could be complied with, as a practical matter, the smaller casinos normally have no extra space for the new machines and would have to relocate to the premises prescribed under Article 37(1). The explanatory memorandum notes that the new minimum requirement could bring about the closing of 20 places. However, it was the opinion of the managing director of the EHKL that shortly after the law comes into force only half of the casinos in Estonia will remain on the market. The number of the casinos has fallen from 170 in December, 2007, to 148 in January, 2009, 143 in February, 2009, and 134 in March, 2009. Due to the economic crisis and the impact it has on the number of casino clients, this decrease seems to be the trend that is unlikely to be reversed any time soon. The shares of Olympic Entertainment Group, the owner company of the biggest casino operator in Estonia, on Tallinn Stock Exchange (Tallina Bors) have plum meted. On June 23, 2006, the market value of the undertaking was EEK 6.61 billion, on July 10, 2007, it rose to EEK 15.2 billion, and on September 2, 2008, it sharply dropped to EEK 4.9 billion. The managing director of the EHKL might eventually get closer to the truth than the drafters of the explanatory memorandum. At the same, the Estonian casino market will become more difficult to penetrate for new entrants.

Casino firms have started to prepare for the changes ever since the proposal. Some restructuring and merger activity has taken place already even before the adoption of the Act while it was still in the form of legislative proposal. (52)

12. Conclusions

The new Gambling Act aims to provide an attractive and trustworthy business environment for the organization of remote online gambling from Estonia. However, the possibility of banning access to the services by internet service providers and restrictions on transferring funds to locally unlicensed remote gambling operators, as well as the requirement for remote gambling operators to have a server physically located in Estonia, put in question the attractiveness of Estonia as a small market for foreign online gambling operators. Whether such restrictions are in accordance with EU internal market law, Article 49 in particular, is another question and the one that poses a legal problem that is by no means confined to Estonia.

* LL.M, LL.Lic. Lecturer in EU Law, Law School of the International University, Audentes Tallinn University of Technology.

(1) The work is available at http://dspace.utlib.ee/dspace/bitstream/ 10062/6835/1/peeduagris.pdf. Its author is a senior lawyer at the Estonian Tax and Customs Board, the authority in charge of licensing gambling operators.

(2) This follows from the Article 9(5) which provides that 'Lotteries, except for promotional lotteries, may be organised by a completely state-owned public limited company founded for that purpose by the Government of the Republic whose share capital is at least 1,000,000 Euros and whose shares are completely state-owned'.

(3) Source: http://www.arileht.ee/ uudised/434954.

(4) Source: maxkaur.blogspot.com/2008/ 04/uus-hasartmnguseadus-snnib.html.

(5) The video of a later Kasiinovastased protest which took place in July 2008 in front of the building of Olympic Entertainment Group, the owner of Olympic Casino, is available at http://www.nuffi.ee/video/hlzc88eGQM.

(6) State Gazette RTI, 06.11.2008, 47, 261. Available at www.riigiteataja.ee/ert/ act.jsp?id=13060644.

(7) Article 1 of the Act.

(8) See the paragraphs on online sports betting infra.

(9) State Gazette RT I 2002, 28, 158. Available at https://www.riigiteataja.ee/ert/act.jsp?id= 13061981.

(10) State Gazette RT I 2008, 15, 108. Available at http://www.riigiteataja.ee/ert/act.jsp?id=1 040649.

(11) Article 2(1) of the Act.

(12) Eesti Loto is the state-owned public limited company that organises lottery games in Estonia. For more on the company see www.eestiloto.ee.

(13) Article 2(2) of the Act.

(14) The decision is available at http://www.riigikohus.ee/?id=11&tekst= RK/3-1-1-7-06. It is worth mentioning that the concept of stake in this particular case was defined in relation to lotteries.

(15) State Gazette RT I 2002, 35, 216. Available at https://www.riigiteataja.ee/ert/act.jsp?id= 13111425.

(16) Article 48 of the General Part of the Civil Code Act.

(17) Article 2(3) of the Act.

(18) Definition under Article 6 of the Act. This type of lottery can go unregulated as long as its prize fund does not exceed EUR 10.000. See Article 2(5).

(19) Decision of Tallinna Halduskohus (Administrative Court) of 28 June 2007 in the case 3-06-1582.

(20) This follows from the Articles 9(7) and 10(1) of the Act.

(21) Articles 19-32 of the Act.

(22) Decision of Halduskohus (Administrative Court) in case 3-06-1582.

(23) 'Non-profit organisations specified by the Government of the Republic the only statutory purpose of which are equestrian and equine related activities.'

(24) Article 22(2) of the Act.

(25) State Gazette RT I 2006, 58, 439. Available at https://www.riigiteataja.ee/ert/act.jsp?id= 13160293.

(26) 1 EUR is equal to 15.64 EEK (Estonian krooni). Official exchange rates by Bank of Estonia.

(27) Discussed further below under paragraphs dedicated to regulation of remote gambling.

(28) Article 57(1) of the Act.

(29) The relevant provisions will enter into force on 1 January 2011 separately from the rest of the Act.

(30) Articles 58(1) and (2) of the Act.

(31) Article 57(2) of the Act.

(32) For more on the investigative power of the supervisory officials see Articles 66-73 of the Act.

(33) See Articles 74 - 101 of the Act.

(34) Article 2 of the Gambling Tax Act.

(35) 861 SE Available at web.riigikogu.ee/ ems/plsql/motions.show?assembly= 9&id=861&t=E.

(36) According to the Tax and Custom Board official statistics. See www.emta.ee/ ?id=14183.

(37) The Estonian Association of Gambling Operators has an instant calculator on its website http://www.ehkl.ee visited on 6 April 2009.

(38) Concepts which are interpreted in accordance with the Gambling Act. See Article 21(2) of the Advertising Act.

(39) Article 21(4) of the Advertising Act.

(40) Article 21(3) of the Advertising Act. Nevertheless, the commercials of illegal sports betting sites such as unibet.com, triobet.com and bwin.com are shown on the Estonian TV all the time, inviting people to participate! This is clearly in violation of the Article 21 of the Advertising Act. See paragraphs below on regulation of remote gambling.

(41) Article 19 of the repelled Advertising Act of 1997, as amended.

(42) E. Schriever and A.M. Aronovich 'Cross-Border Gambling on the Internet: Challenging National and International Law' Publications of Swiss Institute of Comparative Law, Genf: Schulthess Juristische Medien AG, 2004, pp. 105-141.

(43) This system is employed also by countries such as Denmark, Norway, Austria, Finland, and some others. Its defining characteristic is that the organisation of gambling is allowed only on the basis of the license issued by the competent body of that state and the online gambling services provided from foreign countries by organisers which are not in possession of such license are considered illegal.

(44) See www.riso.ee/et/infoyhiskond/ statistika/kronoloogiliselt_nov2007_ e-seire.

(45) Source: www.ohtuleht.ee/ index.aspx?id=212406. Consider also the provisions of Article 372 of the Penal Code: (1) Economic activities in a field subject to a special prohibition, or activities without an activity licence, other licence, registration or through an unapproved enterprise in a field where such activity licence, other licence, registration or approval of enterprises is required, are punishable by a fine of up to 300 fine units or detention. (2) Same act, if: 1) it is committed by a person who has previously been punished by such act; 2) danger to the life or health of numerous people is caused thereby, or 3) it is committed within a field of activity related to health services, handling of infectious materials, aviation, railway traffic or provision of credit, insurance or financial services, is punishable by a pecuniary punishment or up to 3 years' imprisonment. (3) An act provided for in subsection (1) of this section, if committed by a legal person, is punishable by a fine of up to 500 000 kroons. (4) An act specified in subsection (2) of this section, if committed by a legal person, is punishable by a pecuniary punishment. (5) A court may, pursuant to the provisions of [section] 83 of this Code, apply confiscation of a substance or object which was the direct object of the commission of an offence provided for in this section.

(46) The document available at tallinn.andmevara.ee/oa/ page.Tavakasutaja?c=1.1.1.1&id=113617.

(47) The following paragraphs are excerpt from email correspondence with Agris Peedu, senior lawyer at the Estonian Tax and Customs Board. 6 April 2009.

(48) In my response to this email I have pointed out that providing services in Estonian language coupled by the aggressive advertising on top Estonian TV channels in Estonian language should be sufficient evidence that the service is targeting the clients in Estonia. This was accepted as true, but the fact of lack of clear legal basis still remained.

(49) Available at http://www.president.ee/en/estonia/constitution. php.

(50) Namely, the decisions of Halduskohus (Administrative Court) in case 3-639/2002 and of Tallinn Ringkonnakohus (District Court) in case 2-3/100/2003.

(51) In addition, Article 37(2) provides that 'it is prohibited to open a venue for games of chance, pari-mutuel betting or games of skill in an immovable used by a preschool establishment, basic school, upper secondary school, vocational educational institution, hobby school, youth camp, children's welfare institution or youth work institution.

(52) For example, Olympic Casino bought Kristiine Casino and Monte Carlo bought Kasiino Paradiis.

by Katarina Pijetlovic *