1. What is "gaming" or "gambling" defined as? What elements of a game constitute gambling?
The relevant Maltese legislation, namely the Lotteries and Other Games Act (Chapter 438 of the Laws of Malta) (the "Act"), does not contain a definition of the term "gambling". The Act, however, does refer to a "game" and defines it as covering both a "game of chance" and a "game of chance and skill". These are subsequently defined as follows:
(i)"Game of Chance" means a game for money and, or
prizes with a monetary value, the results of which are totally
(ii)"Game of Chance and Skill" means a game for money and, or prizes with a monetary value, the results of which are not totally accidental but depend, to a certain extent, on the skill of the participant.
Both of the above would each constitute "gaming" from a Maltese law perspective, save for any "game" which does not offer a prize and/or a prize with a corresponding monetary value. "Games of skill" (wherein the outcome is dependent on the skill of the participant) fall outside the definition of a "game" for the purposes of Maltese gaming legislation and, at present, do not constitute an outright licensable activity by the Malta Gaming Authority ("MGA"). This position applies notwithstanding that a "game of skill" may be offered in consideration of a prize of money or money's worth.
This said, under the Skill Games Regulations (Legal Notice 31 of 2017), which have just come into force on the 24th January 2017, the MGA is empowered to give a ruling as to whether a game of skill is a "pure skill game" or a "controlled skill game", in which case such a controlled skill game would require a licence. The MGA makes such a ruling based upon a set of considerations laid down in the First Schedule of the aforementioned Regulations.
Moreover, the Remote Gaming Regulations (Subsidiary Legislation 438.04 of the Laws of Malta) which are applicable to gaming which is provided by means of distance communications, provide that the term "game" has the same meaning as defined in the Act above, however the term "gaming" is defined as follows:
The activity of "Gaming" is defined under the Remote Gaming Regulations as an agreement, scheme, or arrangement between two or more parties to play together at a game of chance in which a prize or reward consisting of money or some other item of value, worth, advantage, or opportunity is offered or can be won and become the property of the winner under defined conditions established for the purpose of the game.
2. Is gambling legally allowed in any form? If so, what types are allowed and briely de- scribe how each is defined and the requirements for each. List examples of existing licensed gaming operators.
Gaming in Malta is allowed and regulated by the Malta Gaming Authority ("MGA"). Presently, the Maltese legal framework on gaming caters for and regulates both land-based as well as remote gaming (i.e. carried out by means of distance communications).
As such, the particular types of gaming operations which are regulated in Malta are as follows:
An Advertising Lottery game is organised with the purpose of promoting or encouraging the sale of goods and/or services. This does not constitute an economic activity in its own right and any payments effected by the participants serve only to acquire the promoted goods and/ or services and are not a means of participating in the game itself.
The application form for an Advertising Lottery licence (accessible here) lists the requirements with which licence holders must comply. In order to be granted a licence, operators must provide company details as well as details regarding the proposed games and prizes offered. Licensees are also required to ensure that prizes shall not consist of money, cheques or similar documents and the retail value of such prizes cannot exceed €46,587.47. In addition, all pertinent advertisements must clearly quote the number of the MGA licence.
There is no publicly available list of persons who have applied and/or been licensed to provide an advertising lottery.
An amusement machine is any type of machine used for the purpose of playing games, exclusively for amusement purposes and not for gambling purposes and which is operated by the insertion of money or tokens and where, in the operation thereof, a successful player neither receives nor is offered any benefit other than the opportunity, if any, afforded by the automatic action of the machine to play the game again without the insertion of other money or amusement machine tokens. Such machines include billiards, pool, snooker or table-soccer tables unless operated electronically as well as "kiddie rides" including track rides, carousels and hydraulic rides.
Amusement machines need to be approved and registered in terms of the Amusement Ma- chine Regulations (Subsidiary Legislation 438.06 of the Laws of Malta). Operators require different licences depending on the type of activity the prospective licensee wishes to undertake. A Class 1 license is required to manufacture, assemble, sell, supply or operate an amusement machine, in Malta. A Class 2 licence is required to host amusement machines on a premises accessible to the public.
There is no publicly available list of persons who have been licensed by the MGA in terms of the Amusement Machines Regulations.
Commercial Bingo Halls
A commercial bingo hall is a premises which is authorised and licensed to operate commercial tombola (bingo) games. A "commercial tombola game" is a tombola game which is not operated by a non-profit organisation using a non-profit game licence.
The operation of commercial bingo halls requires a licence from the MGA. In the main, the applicable licence depends on the seating capacity of the "hall". This activity is regulated by the Commercial Tombola (Bingo) Regulations (Subsidiary Legislation 438.05 of the Laws of Malta). Applicants for these licenses must be companies registered in Malta.
From the information publicly available, it transpires that presently there are four licensed Commercial Bingo Halls locally, namely:
- Embassy Entertainment, Valletta
- Fair Play, Qawra
- Main Street, Paola
- Preluna Bingo, Sliema
There is no specific definition of a casino. The Gaming Act (Chapter 400 of the Laws of Malta) simply states that a casino is any premises in relation to which the Minister responsible for Finance has granted a concession.
In order to be granted such a concession, operators must pay such consideration deemed fit by the said Minister. However, operators also require a licence from the MGA. Such a licence may only be issued to companies registered in Malta which have the financial means and expertise to be able to operate a casino and whose directors and shareholders are persons of integrity.
At the time of writing, from the publicly available information, it transpires that the licensed land-based casino operators in Malta are the following:
- Casino Malta
- Dragonara Casino
- Oracle Casino
- Portomaso Casino
A "cruise casino" is defined as a "casino on board a cruise ship", which ship must have a mini- mum of three ports of call in three different jurisdictions that may or may not include Malta and has a minimum capacity of 150 passengers.
The operation of a cruise casino within the Maltese territory is regulated by the Cruise Casino Regulations (Subsidiary Legislation 400.03 of the Laws of Malta). These aforementioned regulations establish that no person may operate a cruise casino within the Maltese territory unless he is in possession of a cruise casino approval issued by the MGA.
There is no publicly available list of persons who are authorised to operate cruise casinos within the Maltese territorial waters.
A gaming device is defined by the Lotteries and Other Games Act as "any electrical, electronic or mechanical device, ticket or any other thing which is used or intended for use in connection with the operation, promotion or sale of a game and, or in gaming".
Different licences apply depending on the type of activity the prospective licensee wishes to undertake in accordance with the Gaming Devices Regulations (Subsidiary Legislation 438.07 of the Laws of Malta). The manufacture, assembly, repair, servicing, distribution or making available for use of a "gaming device" requires a licence Class 1 Licence. The distribution, sale or transfer of a gaming device requires a Class 2 Licence. A Class 3 Licence is required to host gaming devices while a Class 4 licence is required to operate the central system for such devices. There are, however, certain exemptions to the requirement of a licence (e.g. a coin-operated claw crane vending machine). These are established under the Fourth Schedule to the aforementioned regulations.
The only publicly available list of operators licensed under the Gaming Devices Regulations relates to Class 3 operators, and lists the following as authorised operators:
- Bestplay Gaming
- Bingo Ltd
- Media Games
The National Lottery is regulated by the Lotteries and Other Games Act (Chapter 438 of the Laws of Malta, previously defined as the "Act"). In Malta, Maltco Lotteries Limited ("Maltco") was awarded an exclusive concession by the Government of Malta to operate all National Lottery games, which licence lasts for ten years before being renewed. The scope of the National Lottery is defined in the exclusive licence and not in the regulatory framework.
In view of this, the MGA regulates the operations of Maltco, being the National Lottery licensee, and collects gaming tax from Maltco on behalf of the national Government.
Non-profit games (as opposed to "games" which do not offer a prize) are still required to be licensed by the MGA in order to ensure compliance with the law. These "permits" are issued by the MGA on behalf of the Public Lotto Department in line with the terms of the Public Lotto Ordinance (Chapter 70 of the Laws of Malta). The Public Tombolas Regulations (Subsidiary Legislation 70.02) as well as the Public Lotto Regulations (Subsidiary Legislation 70.03) are also applicable to non-profit games.
Applicants must submit applications for non-profit lotteries or non-profit tombolas at least 15 days before their commencement. The requirements of such applications and the conditions of such licence are established in the First Schedule of the Lotteries and Other Games Act (Chapter 438 of the Laws of Malta).
Non-profit games can only be organised by non-profit organisations. Furthermore, net proceeds must be directed towards a religious, sports, philanthropic, cultural, educational, social or civic purpose.
There is no publicly available list of persons who are specifically authorised to operate non-profit games.
Racecourse Bets and Sweepstakes
A racecourse bet is a bet on horse or dog races on grounds used for such purposes. Race- course grounds must be approved by a Racecourse Control Board which is appointed by the Minister responsible for sport. The Minister may also grant approval for a racing club to organise such races. The Lotteries and Other Games Act (Chapter 438 of the Laws of Malta) also provides that the MGA may grant a licence to such an approved racing club or person to operate racecourse bets or sweepstakes however this provision is not yet in force.
Presently, book-makers that operate on site (i.e. on track in the case of racecourses), and not online, are licensed by the Malta Racing Club, who themselves fall under the purview of the Executive Police of Malta.
Conversely, online racecourse betting and sweepstakes are licensable under the Remote Gaming Regulations (Subsidiary Legislation 438.04 of the Laws of Malta).
Remote gaming includes any form of gaming by means of distance communications.
Remote gaming is regulated primarily through the Remote Gaming Regulations (Subsidiary Legislation 438.04 of the Laws of Malta). Currently, different licences apply depending on the type of activity that the prospective licensee wishes to undertake. By way of elaboration, potential licences include:
- A Class 1 Remote Gaming Licence, which is a remote gaming licence examples of which would include casino-type games and online lotteries, whereby operators manage their own risk on repetitive games;
- A Class 2 Remote Gaming Licence, which is a remote betting office licence an example of which would include fixed-odds betting, whereby operators manage their own risk on events based on a matchbook;
- A Class 3 Remote Gaming Licence, which is a licence to promote and, or abet remote gaming from Malta, examples of which would include poker networks, peer-to-peer ("P2P") gaming and game portals; and
- A Class 4 Remote Gaming Licence, which is a licence to host and manage remote gaming operators, excluding the licensee concerned himself, whereby software vendors pro- viding management and hosting facilities on their platform. In essence, a Class 4 Licence may be understood as constituting a business to business ("B2B") gaming licence.
There are a large number of remote gaming licencees in Malta and a full list of the licensed operators can be accessed here.
It is likely that over the coming months the above-mentioned regulatory and licensing frame- work for Remote Gaming will change.
"Pure skill" games do not require a license and are subject only to general legislation such as consumer protection and data protection legislation. The recently enacted Skill Games Regulations (Legal Notice 31 of 2017) provides that the MGA is empowered to give a ruling as to whether a game is a "pure skill game" or a "controlled skilled game", in which case such a game would require a licence. The MGA makes such a ruling based upon a set of consideations laid down in the First Schedule of the aforementioned Regulations."
3. What legislation impacts upon gambling activity? Does it allow or forbid gambling?
The relevant legislation, regulations and directive relating to "gaming", including the circum- stances where a licence from the MGA is required, are listed below.
Legislation Relevant to Gaming Industry:
- Lotteries and Other Games Act
- Gaming Act
- Consumer Affairs Act
- Electronic Communications (Regulation) Act
- Data Protection Act
- Prevention of Money Laundering Act
- Prevention of Corruption (Players) Act
Regulations Relevant to the Gaming Industry:
- Poker Tournament (Locations) Regulations
- Fantasy Sports (Exemption) Regulations
- Remote Gaming Regulations
- Cash Controls Regulations
- Cruise Casino Regulations
- Directions Applicable to Gambling Advertising (Broadcasting)
- Skills Games Regulations
- Return to Player Directive
- Code of Advertising, Promotions and Inducements
- Computation of Real Income
- Directive on Inactive Accounts
- Gaming Parlours No Objection Certificate 2011
- Locations for Gaming Parlours Directive 2011
- Other Amusement Machines Directive
- Players' Liability Reporting Directive 2012
- Registration of Players Directive 2011
- Self-Barring Directive 2011
4. Are gambling licenses available?
If so, what types, and what is the process to obtain a license?
Yes, depending on the nature of the facilities/services, as well as the role undertaken by the
operator concerned (please refer to the answers to Questions 1 and 2 above).
5. If licenses are available, what time limits exist and how can licenses be revoked?
In general terms, the processes adopted for the issuing of licences depend on the type of "gaming" licence and the particular legislation on which it is based. For instance, currently a licence issued pursuant to the Remote Gaming Regulations is effective for a five (5) year period, but may subsequently be renewed for additional periods of five (5) years. On the other hand, a licence to operate a casino is effective for a ten (10) year period.
In terms of revocation, the MGA would be empowered to take such an action where the licence holder is either in breach of:
- A condition which has been incorporated in the licence; or
- Any of the provisions of the relevant Maltese "gaming" legislation (this may also addition- ally give rise to administrative fines).
6. Are there any limitations on the types of gaming that can be offered?
If so, please provide details.
The overarching rule is that found in Article 3 of the Lotteries and Other Games Act (Chapter
438 of the Laws of Malta), as follows:
"(1) Any game which originates from Malta or which is offered from Malta or which involves a transaction that is concluded in Malta, which is not an authorised game, or which is not authorised to be operated under any law in Malta other than this Act and regulations made there under, or which is not authorised to be operated under any law enacted by a member state of the European Union or a member state of the European Economic Area or by any other jurisdiction or territory approved by the Authority, is prohibited from being played by any person in Malta.
(2) The provisions of subarticle (1) also apply to any game offered directly or indirectly from abroad or from Malta to persons in Malta through a means of distance communication."
7. Are there any restrictions for gaming operators on any technology or machinery?
If so, please provide details.
There are no outright prohibitions on the use of particular machinery or technology in the provision of games. However, the hosting or operation of a "gaming" device, or otherwise making such device available for use, would be subject to a licensing requirement by the MGA (unless qualifying as an exemption).
Furthermore, in terms of remote gaming, providing hosting facilities or software which either abets or promotes remote gaming from Malta is a licensable activity in terms of the Remote Gaming Regulations. The MGA has the remit of ensuring that the technology used in the operation of the remote games is secure and trustworthy.
8. Are there reporting requirements for player account deposits or remittance of player winnings?
Yes. The various regulatory regimes mentioned above provide for the way licensed operators should report winnings.
Within a remote gaming context, such reporting requirements are specifically provided for under the "Players' Liability Reporting Directive" (2012) that were issued by the MGA to supple- ment existing regulations. In essence, this above-mentioned Directive requires each licensed (remote gaming) operator to submit to the MGA (i) the amount of player liabilities presently held, (ii) proof by bank statements that a corresponding amount of money is held in the client's account to meet player liability and (iii) a description, including appropriate documentation, of any funds in transit between the client and the operator. This is to be submitted by the 20th day of each following month.
As regards advertising lotteries, public lotteries and tombolas, operators are required to report the names of winners and the value of the prizes or winnings.
In so far as Gaming Devices are concerned, Regulation 16(s) of the Gaming Devices Regulations (Subsidiary Legislation 438.07) provides that operators in possession of a Class 3 licence shall keep a register with a record of the identity, winnings and transactions carried out by any one player who on any one day wagers, receives or pays amounts which in aggregate exceed €2000, which register shall upon request be made available for review by MGA inspectors.
9. What gaming tax levies are imposed? Are winnings or "takings" taxed?
The type of "gaming" tax levied by the MGA, including the amount thereof, largely depends and varies according to the nature of the licence, as well as the applicable licence class. For instance, in a remote gaming context, the following taxation rate(s) may be applicable:
- Class 1 License
- €4,600 - Per Month for the first 6 months
- €7,000 – Per Month for the entire duration of the licence
- Class 1 Licence operating on a Class
4 Remote Gaming Licence (Class 1 on 4)
- €1,200 – Per Month for the entire duration of the licence
- Class 2 Licence
- 0.5% – Of the gross amount of bets accepted in remote betting operations
- Class 2 Licence operating on a Class
4 Remote Gaming Licence (Class 2 on 4)
- 0.5% – Of the gross amount of bets accepted in remote betting operations
- Class 3 Licence
- 5% – Of real income
- Class 3 Licence operating on a Class
4 Remote Gaming Licence (Class 3 on 4)
- 5% – Of real income
- Class 4 Licence hosting and managing
other remote gaming operators
- Nil - For the first 6 months
- €2,330 – Per Month for the subsequent 6 months
- €4,660 – Per Month thereafter for the entire duration of the licence
- Class 4 licensee hosting and managing
an operator which is not in possession of the relevant Class 1, 2
or 3 licence in terms of the regulations, however hosting an EEA
licensed Business to Consumer operator
- €1,165 – Per Month per operator, paid by the Class 4 Licensee
Moreover, depending on the type of licence (e.g. whether it is a "gaming device" licence, a "casino" licence or a "remote gaming" licence), the applicable tax may be levied as a set amount or as a percentage of the gross revenue generated by the licensed operator.
Licensed operators of advertising lotteries are obliged to pay the Ministry of Finance a rate of duty of twenty five (25%) on the aggregate value of prizes offered in the game for which the licence is granted.
Licensed commercial bingo hall operators are obliged to pay to the MGA ten per cent (10%) on the value of every score sheet and thirty per cent (30%) on the total revenue from entrance fees in accordance with the Fifth Schedule of the Commercial Tombola (Bingo) Regulations (Subsidiary Legislation 438.05).
As regards casinos, the Gaming Act (Chapter 400 of the Laws of Malta) establishes that licensees shall pay a rate of tax based on the total gross takings of all games played at the casino. The Schedule to the Act establishes the applicable tax rates which vary according to the types of games offered by the casinos
The Gaming Devices Regulations (Subsidiary Legislation 438.07) provide that Class 3 licensees are obliged to pay a monthly gaming device placement tax consisting of the higher of €400 per gaming device or twenty per cent of the gross monthly proceeds generated from the relevant gaming device.
Permits to organise public tombolas sessions are subject to a duty of €34.94 while permits to organise a public lottery are subject to a duty equivalent to twenty five per cent (25%) of the value of the prize(s) offered in accordance with the Public Lotto Ordinance (Chapter 70 of the Laws of Malta). However, the Director of Public Lotto may grant an exemption to these duties when the public lottery or tombola is promoted and directed by any society, institute or private person and the net proceeds thereof are intended for religious purposes or for the furtherance of the Boy Scout or Girl Scout movement of for the encouragement of fine arts or for any other purpose approved in writing by the Minister responsible for finance.
As regards skill games, the Third Schedule of the Skill Games Regulations (Legal Notice 31 of 2017) provides that in regard to "controlled skill games" which require a licence issued by the MGA, the applicable rate of tax is five per cent (5%) of real income however the tax payable by a single controlled skill game operator shall not exceed €466,000.
The imposition of tax on player winnings falls outside the scope of gaming legislation.
10. What anti-money laundering and counter-terrorism financing measures exist and what is their impact on operators?
The primary sources of Maltese legislation on anti-money laundering and counter-terrorism financing are the Prevention of Money Laundering Act (Chapter 373 of the Laws of Malta) and the Prevention of Money Laundering and Funding of Terrorism Regulations (Subsidiary Legislation 373.03).
The MGA, being the supervisory and regulatory authority for "gaming" in Malta, is entrusted with and required to monitor the operation of all of its licensees, as well as report to the FIAU any suspected money-laundering or terrorist funding activity arising in this context.
Amongst its functions, the MGA is "to inquire into the suitability of licensees and the main suppliers thereof, and to ensure that those involved in the operation, promotion or sale of authorised games operated by such licensees are fit and proper persons to carry out their functions relative to such games;" (The Lotteries and Other Games Act, Article 11(c)) and "to use all powers vested in it by this or any other law to ensure that games and gaming are kept free from criminal activity, and to prevent, detect and ensure the prosecution of any offence against this Act, other than an offence arising under any provision of Part VIII."
In licensing a particular operator, the MGA will typically conduct a due diligence exercise over the ownership and controlling structure of the operator.
Furthermore, licensees are also generally bound to implement and maintain effective policies so as to ensure that proper fraud management, KYC and AML procedures underlie their operations as a pre-requisite to the granting of a licence by the MGA.
Is internet gaming offered to local residents prohibited when the website is hosted offshore by an offshore-licensed operator?
As mentioned in the reply to question 6 above, in order for an undertaking to offer games to residents in Malta, it ought to be authorised to be operated under any law in Malta or under any law enacted by a member state of the European Union or a member state of the European Economic Area or by any other jurisdiction or territory approved by the Authority.
The same principle is enshrined in Regulation 3 of the Remote Gaming Regulations.
12. Are the accessibility of an operator's website to local residents and advertisements targeted to local residents legal?
The relevant provision of law, namely Article 3 of the Lotteries and other Games Act applies the above-mentioned principle to games that are "offered directly or indirectly from abroad." The wide terminology used gives the MGA the power to take action against any form of offering of the unlicensed games to persons in Malta, including through the making available of a website which allows for per- sons in Malta to play games that are not authorized in accordance with the said principle.
13. Is it illegal for local residents to engage in internet gaming when (i) they are physically present in the jurisdiction; and (ii) they are physically outside of the jurisdiction?
If either answer is yes, will the operator incur any criminal liability?
The MGA is not empowered to take action against individual residents in Malta. However under Article 338 (ii) of the Criminal Code (Chapter 9 of the Laws of Malta) it is a contravention for any person who is in Malta to:
"except as is allowed by law. make or attempt(s) to make or is in any way concerned in the making of any bet of wager including a bet or wager connected with any game, sport or event occurring in Malta or elsewhere; or who is present in any place while such betting or wagering is taking place."
Although this provision dates back to the year 1913, it is still found in our Criminal Code and hence cannot be outrightly discounted.
14. Is it legal for local residents to make payment for internet gaming hosted by foreign websites by credit card, electronic fund transfers or any other means?
There is no provision under Maltese law that prohibits Maltese residents from making payment for internet gaming services purchased from foreign hosted websites in any particular manner.
This said, the Remote Gaming Regulations provide that remote gaming operators licensed by the MGA may only accept funds from a player by means of:
- Credit cards
- Debit cards
- Electronic transfer
- Wire transfer
- Any other method approved by the MGA
Currently, the MGA does not accept payment through crypto-currencies.
15. Are gambling debts legally enforceable?
Yes. Admittedly, Article 1713 of the Maltese Civil Code (Chapter 16 of the Laws of Malta) es- tablishes, as a matter of public order (and thus not subject to derogation), that "the law grants no action for a gaming debt, or for the payment of a bet." In addition, this above-cited legal provision also adds that Maltese law neither grants any action:
- For the recovery of any sum lent by any person who knew that such sum was intended for gaming; and
- For the recovery of any sum lent by any person interested in the game, for the payment of money lost at such game.
This outlined prohibition is then further reinforced through the ensuing provisions found under Articles 1714 – 1716 of the Maltese Civil Code.
Nonetheless, it has also since been reasoned that the scope and effects of Article 1713 et seq of the Maltese Civil Code should be understood as exclusively relating to and governing illegal gaming (gambling) transactions. In support of this position, the MGA has also, by means of a Public Notice, advanced that the enforcement and recovery of a gaming (gambling) debt should be possible at law where the gaming activity resulting in the debt was either licensed by the MGA or otherwise permitted or exempted from a licensing requirement. In particular, this position is based on Article 49(3) of the Lotteries and Other Games Act (Chapter 438 of the Laws of Malta) which pertinently provides that:
"The provisions of article 1713 of the Civil Code shall not prejudice –
- the right of a licensee, operator, permit holder or person referred to in subarticle (1), to
recover a debt arising from the acceptance of payment of a stake.....; or
- the right of a winner of a monetary prize under an authorised game or, as the case may be, under a game operated in terms of a permit granted under regulations made under article 78(3), to recover any debt arising from acceptance of payment of such prize..".
This means that a gaming (gambling) debt is indeed recoverable where the gaming activity resulting in the debt was regulated or exempted under Maltese gaming legislation.
16. Are there changes planned to existing gambling legislation?
If so, please provide details.
The most recent change to existing gambling legislation is the enactment of the Skills Games Regulations which came into force on 24th January 2017. Other proposed changes relating to outsourcing and cloud computing in the remote gaming industry are still in a consultation phase and it is therefore uncertain whether these will be enacted and what changes they will implement. Finally, it is expected that the licensing framework of remote gaming will be modified over the coming months.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.