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Gambling barriers in Portugal

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Portugal created a system of «gaming zones», in the framework of which gaming can be operated after obtaining a concession from the authorities.

This does not apply to lotteries and similar activities, because Portugal accorded a national monopoly on lottery and lottery-like gaming to the charity entity Santa Casa da Misericordia de Lisboa (SCML).

Internet gambling is not allowed in Portugal. The Government is currently examining a law proposal to regulate this activity. According to Art. 11 of the draft (presented to the Portuguese government by the Inspectorate General on Gaming in Portugal), only individuals who are resident in the Portuguese territory may have access to the interactive gaming system. However, access to the interactive gaming system by residents of States the legislation of which allows the practice of the same games to residents of Portugal, may be authorized by order of the Minister of Economy. Article 30 to the draft (Access to and publicity of interactive games exploited by foreign operators) provides that an administrative fine up to 100,000.00 euros shall be paid by whoever, in any way, enables access to interactive gaming systems with headquarters in foreign countries, or with headquarters in the Portuguese territory and operated by an entity that is not duly authorized under the terms of the Draft.

Lotteries

Lottery type gambling is the exclusive domain of a recognized charity entity: the SCML. This entity has established a relationship of trust with the authorities and the general public based primarily on social goals and its assistance to the disadvantaged, endeavoring to respond to the most pressing needs of all those who turn to it for help every day in the greater Lisbon area. The State awarded the exclusive right to operate lotteries to the SCML in order «to ensure their association with good causes, in recognition of the trustworthiness and credibility that [this institution] has demonstrated throughout its long history. The public has recognized and accepted social games since they were launched and this has helped SCML to implement programs and social assistance projects».

The games currently in exclusive operation of the SCML are the different lotteries– such as the Clássica, Popular and Instantânea (in which players win a pre-established prize) and the pari-mutuels (where players try to guess the results, and the amounts of the prizes are based on the total number of bets placed).

The first game to be operated was the Lotaria Clássica. Successively, new games were established, such as the Totobola, Totoloto, Lotaria Popular, Joker, Lotaria Instantânea, Loto 2 and Totogolo. In 2001, the SCML introduced a real-time betting system «which revolutionized its operations and placed it on a par with similar organizations in other countries».

Several provisions confirm the right of exclusivity afforded to the SCML

(Decreto-Lei n.º 282/2003 de 8 de Novembro: Art 2 of may be a barrier because it attributes exclusivity in the whole national territory to the SCML for exploiting remote gambling. Art. 11 may also be a barrier since ir punishes those exploiding by any electronic means the games exclusively attributed to the SCDL.DIPLOMA/ACTO: Decreto-Lei n.º 317/2002 (Rectificações) DATA: Sexta-feira, 27 de Dezembro de 2002 NÚMERO: 299 SÉRIE I-A EMISSOR: Ministério da Educação SUMÁRIO: Altera o Decreto-Lei n.º 84/85, de 28 de Março, que estabelece normas relativas à organização e exploração dos concursos de apostas mútuas denominados «Totobola» e «Totoloto» PÁGINAS DO DR: 8138 a 8143 in: Republicação do Decreto-Lei n.º 84/85. Art. 1 may be an obstacle to free circulation since it awards to the SCML the exclusive right to exploit lottery in Portuguese territory. Decreto-Lei nº 10/95 de 9 de Janeiro (modifica Decreto-Lei n.º 422/89, de 2 de Dezembro):Art. 160 forbids selling of betting tickets in places where tickets of a charity entity having the monopole on lotteries (SCML) are sold. In other cases, the organization of fortune games is conditioned to the payment of charity. )

(this also including the right of the later to use, on a monopolistic basis, the names of games such as «Totobola» and «Totoloto»).

(DIPLOMA/ACTO: Decreto-Lei n.º 317/2002 (Rectificações) DATA: Sexta-feira, 27 de Dezembro de 2002 NÚMERO: 299 SÉRIE I-A EMISSOR: Ministério da Educação SUMÁRIO: Altera o Decreto-Lei n.º 84/85, de 28 de Março, que estabelece normas relativas à organização e exploração dos concursos de apostas mútuas denominados «Totobola» e «Totoloto» PÁGINAS DO DR: 8138 a 8143 in: Republicação do Decreto-Lei n.º 84/85. Art. 1 may be an obstacle to free circulation since it awards to the SCML the exclusive right to exploit lottery in Portuguese territory. Art. 2 para 4 may be a barrier because it attributes to the SCML the monopolistic right to use the names «Totobola» and «Totoloto» and their respective signs.)

The law also provides for punitive measures for those selling or distributing tickets of foreign gaming, or publishing such activities. It also punishes the promotion, organization, exploitation or participation in games similar to the ones operated by the SCML.

(DIPLOMA/ACTO: Decreto-Lei n.º 317/2002 (Rectificações) DATA: Sexta-feira, 27 de Dezembro de 2002 NÚMERO: 299 SÉRIE I-A EMISSOR: Ministério da Educação SUMÁRIO: Altera o Decreto-Lei n.º 84/85, de 28 de Março, que estabelece normas relativas à organização e exploração dos concursos de apostas mútuas denominados «Totobola» e «Totoloto» PÁGINAS DO DR: 8138 a 8143 in: Republicação do Decreto-Lei n.º 84/85. Art. 22 may be an obstacle to free circulation since it imposes a fine on those selling or distributing tickets of foreign betting, or publishing such activities. Art. 23 may be an obstacle to free circulation since it declares illegal the promotion, organization, exploitation or participation in similar games.)

Casino Gaming

Portuguese law (Decreto-Lei n.º 84/85, de 28 de Março; Decreto-Lei n.º 422/89, de 2 de Dezembro modificado por Decreto-Lei n.º 10/95 de 19 de Janeiro), allows gaming in casinos (including gaming machines) established in specific gaming zones (the Azores, Algarve, Espinho, Estoril, Figueira da Foz, Funchal, Porto Santo, Póvoa de Varzim, Troia and in Vidago-Pedras Salgadas).

The games of chance allowed in casinos are:

  1. Banked games in single or double banks: punto banco baccarat, French banker, boule, cussec, banked écarté, French roulette and zero American roulette;
    b. Banked games in single banks: blackjack/21, chukluck and trente et quarante.
    c. Banked games in double banks: limited bank baccarat and craps;
    d. Banked game: keno;
    e. Non-banked games: chemin de fer baccarat, open bank baccarat, écarté and bingo;
    f. Games in slot-machines paying prizes directly in chips or coins;
    g. Games in machines that, although not paying prizes directly in chips or coins, develop themes characteristic of games of chance or show, as a result, scores that depend solely or mainly on luck.

The conditions of casino games are stated in advance by public law.

Operation can start after obtaining a concession.

In effect, Art. 9 to Decreto-Lei nº 10/95 de 9 de Janeiro (modifica Decreto-Lei n.º 422/89, de 2 de Dezembro) states that the right to operate games of chance is reserved to the State and may only be exercised by companies constituted as limited liability companies to which the Government grants the respective concession by means of an administrative contract. Concessions are awarded for fixed periods of time, but Art. 13 of Decreto-Lei n.º 422/89, de 2 de Dezembro modificado por Decreto-Lei n.º 10/95 de 19 de Janeiro, allows to extend the term of a concession by Governmental initiative or by request of the concessionaires. This may hurt the expectations of would-be candidates who planned to participate in the tender expected to be implemented when a concession arrives to its term.

Other games provided for by law are those taking place in Portuguese boats or airplanes navigating outside that State’s territorial waters. To this end, authorizations may be granted to companies that are owners or freighters of Portuguese ships or aircrafts, or to concessionaire companies of gaming areas with permission of the former. This can be done on the basis of Art. 6 of Decreto-Lei n.º 10/95 de 19 de Janeiro, which states that Portugal may authorize Portuguese naval enterprises or concessionaires to exploit gaming in Portuguese boats or air planes when sailing or flying outside the Portuguese territories.

Operating and practicing gaming away from casinos existing in recognized gaming areas without an authorization constitutes a crime. Slot machines can only be operated in casinos.

Machine Gambling Outside Casinos

It is forbidden to operate gaming machines outside casinos. Art. 162 of Decreto-Lei nº 10/95 de 9 de Janeiro (modifica Decreto-Lei n.º 422/89, de 2 de Dezembro) forbids exploitation of gaming machines that award money prizes on the basis of skills of the player. Are also forbidden machines that sell products that award money prizes.

Amusement machines are allowed.

(Decreto-Lei nº 316/95 de 28 de Novembro (amusement machines). Art. 20 attributes to the governors the power of refusing a license or its renewal on behalf of the protection of children and youth, to prevent criminality and to preserve or restore security, order or public tranquillity. Art. 22 § 1 limits to three the number of machines that can be installed in a place that is not completely devoted to exploitation of gaming. Decreto-Lei nº 310/2002 de 18 de Dezembro de 2002 (amusement machines) establishes that the license approval powers for gaming machines is handed over from the Portuguese 108 Regional councils to the 308 local Councils. This limits the free circulation of gaming machines between the Councils, because each time a machine has to be moved, a new license issued by the new council becomes necessary.)

Betting

On the basis of articles 159, 160 and 161 of Decreto-Lei n.º 422/89, de 2 de Dezembro, nonauthorized betting activities are proscribed.

Decreto-Lei nº 268/92 of 28 November 1992, regulates horse betting. Betting is allowed inside and outside horse racing fields, under the strict terms of legislation. Art. 1 to this Decree-law forbids betting on foreign horse races. Art. 22 forbids the advertising, the selling and the distribution of tickets of foreign horse races. Art. 13.10 impose on concessionary companies the obligation to promote the training of jockeys and other related professions in Portugal.

Racing fields must be operated on the basis of a concession attributed after the realization of a public tender.

Bingo

In Portugal Bingo can only take place in Bingo halls (specific areas), that are defined by public law in advance, as well as the conditions of the game. Portugal maintains a numerus clausus of Bingo halls.

Exploitation of Bingo outside casinos can be authorized in localities counting more than 20.000 voters. More than one Bingo can be authorized in localities exceeding 60.000 voters (at a rate of one Bingo for each 60.000 electors: Decreto-Lei n.º 314/95 de 24 de Novembro, Annex, Art. 3).

The same piece of legislation states, in Art. 4, that concessions to exploit Bingos may only be awarded to public entities, collective persons of public utility and enterprises of the tourist sector having a corporative legal personality.

Licenses are given for a limited period of time, under a public tender procedure. Finally, Article 5 para 5 establishes a preference in future adjudications of concessions to entities operating in the area of tourism.

Media Gambling Services

Art 21 of the Code of Publicity (CÓDIGO DA PUBLICIDADE Decreto-Lei n.º 330/90 de 23 de Outubro (Com as alterações introduzidas pelos Decretos-Lei n.º 74/93, de 10 de Março, n.º 6/95, de 17 de Janeiro e nº61/97 de 25 de Março, n.º275/98 de 9 de Setembro))  forbid all kinds of advertising where games of luck and chance are the essential part of the message. The provision makes an exception on behalf of games promoted by the SCML.

Art. 161 of Decree-Law No. 422/89, states that the operation, by commercial entities, of any kind of games similar to the ones mentioned in article 159 of the same Decree-Law shall not be allowed, with the exception of quiz shows, entertainment contests or other ones organized by newspapers, magazines, radio or television broadcasting stations operators and the advertisement contests for promotion of goods and services. Such contests may not cause any expenses to the player, other than the normal cost of postal and telecommunication public services without any value added, or the regular price of the newspaper or magazine with confirmed periodic publicity for more than one year, the expansion of which is intended to be promoted, or the purchasing price of the commodities or services intended to be publicized.

Call TV is considered a game of chance if the selection of the winner is done randomly. As such, it requires an authorization. However, if the activity includes an element of skill, it will not be considered a game of luck.

As a general rule, Call TV programs are based on premium rate phone calls that can be activated at the request of the costumer. According to Endemol, at the moment there is a discussion with the supervising authorities, which tend to qualify a game named Puzzletime as a game of luck (in consequence, no prize on money can be afforded). Endemol Portugal proposed to put graphics on air during the program, showing the evolution of the number of calls. The graphics should also include predefined levels that, when a line reaches the predefined level, the person that votes will be put through to the studio. According to Endemol, in this way the participation will be based on skill and but on luck.

Sales Promotional Gambling

Article 159 of Decree-Law No. 422/89, defines «games similar to games of chance and other forms of games» as «operations offered to the public, where the hope for gain lies both in the player’s chance and skills, or only in luck, the prizes being things with an economic value».

Whenever any kind of «games similar to games of chance or other forms of games» achieve such a public notoriousness that they may endanger morality or honesty, or where their respective results are questionable, the Government member who is responsible for home affairs shall take the necessary steps to protect the offended interests, by repressing or restraining the operation and practice of such games. The «games similar to the games of chance and other kinds of games» cannot develop any themes that are characteristic of authorized games of chance, namely poker, fruit, bells, roulette, dice, bingo, lottery by number or instantaneous lottery, football pools and lotto, nor replace with money or chips the prizes granted.

Article 162 of Decree-Law No. 422/89, forbids the operation of vending machines where the results depend exclusively (or mainly) on the player’s skills, and which grant prizes in money, chips or «things with economic value» – even if this value is small. An exception to this rule is when the prize consists in the free prolongation of the use of the machine due to the score obtained (amusement machines are ruled by specific legislation).

The vending machines intended to sell products, on which the amount spent must correspond to the commercial value of those products, cannot by any means (with or without an increase in price), grant prizes in money, chips or «things with an economic value».

The Consultant Council of the General Prosecutor of the Republic prepared a legal opinion (Legal opinion by the Consultant Council of the general Prosecutor of the Republic Nº Convencional: PGRP00001036 Parecer: P000111998 Nº do Documento: PPA199907081100, 1999 «The game of history» Data do Jornal Oficial: 03-01-2000.) according to which:

«The concept of «things with an economic value» in the sense of N° 1 of art. 159º of Decree-law n.º 422/89, of 2 December – as drafted by Decree-law n.º 10/95, of 19 January – does not include money, so in activities close to games of fortune and luck, such as the publicity contests art 161º of the cited Act)».

Sales promotional gaming must not collide with the rights of exclusivity of the SCML. Thus, with respect to a promotional advertising game consisting in the organization of a publicity contest, by installing a system of forecasts of results of drawings of numbers, with the aim of gaining prizes in money, the Consultant Council of the General Prosecutor of the Republic it was stated:

«The promotional advertising game called «Game of History» is, according to its rules, adjusted to promote in Portugal the British lottery called National Lottery, in breaking – if admitted that the functioning of this game is identical to the terms of the Totoloto – of n.º 1 of article 23º of the Law-decree n.º 84/85, of 28 of March. The mentioned publicity contest, by installing a system of forecasts of results of drawings of numbers with the aim of gaining prices in money (articles 1º, n.º 2, and 2º, n.º 3, of the Decree n.º 84/85), constitutes the organization and exploitation of a mutual contest essentially identical to the Totoloto and has the characteristics of that game, infringing n.º 1 of article 23º of the cited Law-decree and n.º 3 of the article 161º of Law- decree n.º 422/89»

Charity Gambling

In Portugal, Charity Gambling, mostly Charity lotteries, are defined as temporary games and are authorized, on case per case basis, by the Ministry of Internal Affairs. The Ministry of Internal Affairs has also the power to stop the organization of an authorized charity lottery if it becomes addictive or cause other social damage.”

Lotteries and similar gaming are exclusively attributed to the charity entity SCML (Decree-law nº 322 of 1991, Santa Casa da Misericórdia de Lisboa – Statutes / Inner Organization).

Article 160 of Decree-Law No. 422/89 provides that the operation of games similar to the games of chance depend on the authorization of the member of the Government responsible for home affairs, who will establish for each case the conditions deemed to be suitable, as well as the respective supervising regime.

Whenever tickets are to be issued, authorization shall be conditioned to the application of the corresponding net profit for charity purposes or other purposes of public interest, as well as to the prohibition of the respective operations to be carried out in places where lottery tickets or mutual bet bulletins of the SCML are sold.

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