Explanatory Memorandum to the Anti-Money-Laundering Law of 18 September 2017 - Articles 2 to 4
The draft Article seeks to transpose as closely as possible the definition of “money laundering” in Article 1, paragraph 3 of Directive 2015/849 without making any substantial changes to the content of the definition of “money laundering” as referred to in Article 5, § 1, of the Law of 11 January 1993. The money-laundering operations included in the draft Article correspond, as in the past, with the criminalisation of money-laundering practices in Article 505, first paragraph, 2°, 3° and 4°, of the Criminal Code.
Directive 2015/849, and the draft Article, define the tangible and moral element of the laundering of money with, at the centre, the illicit origin of the funds and assets, in other words the fact that they are acquired through criminal activity or through involvement in criminal activity, as defined in Article 3, point (4) of Directive 2015/849.
The criminal activities referred to in the present draft Law are those stated in Article 4, 23°.
Article 1, paragraph 3 of Directive 2015/849 considers money laundering as an intentional offence and further specifies that such an offence can be established based on objective actual circumstances. The crime of money laundering as defined in Article 505 of the Criminal Code, is an intentional offence. It is not therefore a case of negligence. Money-laundering conduct, within the meaning of the draft Article, is deemed to be of an intentional nature, as was already the case in the past, given that the draft Article refers to funds or assets which are known to have been acquired from criminal activity. This being preventive legislation, the intentional nature of the money-laundering conduct is important for the law enforcement component of combating money laundering but has no further consequences for the obligations of the entities which are subject to the ratione personae scope of the present draft Law.
Pursuant to the draft Article, and as was the case for the Law of 11 January 1993, this draft Law applies to a certain number of acts qualified as “money laundering”.
These concern the conversion or transfer of money or other property, knowing that this is derived from criminal activity or from an act of participation in such activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any persons involved in the commission of such an activity to evade the legal consequences of their action; they also concern the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of money or property, related thereto; they also concern the acquisition, possession or use of money or assets known to be of illicit origin; finally, they also concern participation in, association to commit, attempts to commit and aiding, abetting, facilitating and inciting the commission of any of the aforementioned deeds or acts.
Money laundering is also regarded as such, as was the case in the past and in accordance with Directive 2015/849, even where the activities which generated the funds or assets to be laundered were carried out in the territory of another Member State or in that of a third country.
The draft Article transposes Article 1, paragraph 5 of Directive 2015/849 by closely following the aspects of the definition of “terrorist financing” as included in Article 3 of the aforementioned Directive as well as in Article 5, § 2 of the Law of 11 January 1993. This definition is in line with the definition of terrorist financing referred to in Articles 1 to 4 of Framework Decision 2002/475/JHA of the Council of 13 June 2002 on combating terrorism, replaced by Directive 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Framework Decision 2002/475/JHA of the Council and amending Council Decision 2005/671/JHA, and in Article 2 of the International Convention for the Suppression of the Financing of Terrorism entered into in New York on 9 December 1999.
This definition also takes account of the new requirements of the Interpretive Note accompanying Recommendation 5 of the FATF on the prosecution and application of criminal sanctions for terrorist financing as approved at the plenary meeting of the FATF of October 2016. According to this Interpretive Note, the characteristics of the terrorist financing offence should meet the following requirements:
- terrorist financing offences should extend to any person who wilfully provides or collects funds or other assets by any means, directly or indirectly, with the unlawful intention that they should be used, or in the knowledge that they are to be used, in full or in part: (a) to carry out one or more terrorist acts; (b) by a terrorist organisation; or (c) by an individual terrorist;
- criminalising terrorist financing solely on the basis of aiding and abetting, attempt or conspiracy is not sufficient to comply with this Recommendation;
- terrorist financing offences should extend to any funds or other assets, whether from a legitimate or illegitimate source;
- terrorist financing offences should not require that the funds or other assets: (a) were actually used to carry out or attempt one or more terrorist acts; or (b) be linked to one or more specific terrorist acts.
In its advice, the Council of State asks whether “it is appropriate to refer to ‘other material assets’ next to ‘funds’”, which is not the case in the first Article, paragraph 5 of the Directive.”. The Government notes in this respect that these words are only missing in the French version of the Directive. The Dutch version of the Directive clearly reads ‘gelden en andere vermogensbestanddelen’ [funds and other assets]. The reference to “other material assets” is necessary to cover any other form of financing, not only financing with money but also with other assets, as required in the Interpretive Note of Recommendation 5 of the FATF on the charge of financing of terrorism as adopted in the plenary meeting of the FATF in October 2016.
In the glossary to the 40 FATF Recommendations, the term ‘funds or other assets’ is defined as follows: “The term ‘funds or other assets’ means any assets including, but not limited to, financial assets, economic resources (including oil and other natural resources), property of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such funds or other assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, or letters of credit, and any interest, dividends or other income on or value accruing from or generated by such funds or other assets, and any other assets which potential may be used to obtain funds, goods or services”.
Equally, Articles 140 and 141 of the Criminal Code on the financing of terrorism refer to financing using any kind of material asset.
The Law of 14 December 2016 amending the Criminal Code as regards the suppression of terrorism amended, inter alia, Article 141 of the Criminal Code on terrorist financing to better take into account the requirements of the FATF.
The new Article 141 of the Criminal Code reads as follows: “A prison sentence of five years to ten years and a fine of one hundred to five thousand euros will be imposed on any person who, in any way whatsoever, directly or indirectly, provides or collects material assets, including financial help, with the intention that these be used or in the knowledge that these will be used, in whole or in part,
1° to commit or contribute to an offence as referred to in Articles 137 and 140 to 140septies; or
2° by another person where the person who provides or collects the material assets knows that this other person is committing or will commit an offence as referred to in Article 137.”
The FATF extended the characteristics of the terrorist financing offence, as referred to in Interpretive Note to Recommendation 5, to thereby adhere to the obligations arising from Resolution 2178 (2014), adopted by the United Nations Security Council on 24 September 2014.
Point 6 of Resolution 2178 (2014) states that Member States must ensure that the qualification of the criminal offences in their domestic laws and regulations is sufficient to provide the ability to prosecute and penalise these in a manner duly reflecting the seriousness of the offence with regard to: (1) their nationals who travel or attempt to travel to another Member State, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training; (2) the wilful provision or collection of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to finance the travel of the individuals referred to in point 1.; (3) the wilful organisation by their nationals or in their territories, of the travel of the individuals referred to in point 1.
The Interpretive Note to Recommendation 5 takes over the requirements of point 6 of Resolution 2178 (2014) in a new § 3 which determines that the financing of terrorism includes financing the travel of individuals who travel to a State other than their State of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training. In view of the new requirements of Resolution 2178 (2014), the Law of 20 July 2015 strengthening the fight against terrorism added an Article 140sexies in the Criminal Code to reinforce the combating of terrorism by making it punishable for persons to travel abroad or come to Belgium with the purpose of committing a terrorist act. Point 17 of Resolution 2253 (2015), adopted by the United Nations Security Council on 17 December 2015, states that the Security Council welcomes the recent FATF Reports on the Financing of the Terrorist Organization ISIL (published in February 2015) and Emerging Terrorist Financing Risks (published in October 2015) that include discussion of the ISIL threat, that it specifically welcomes further the FATF clarifications to Interpretive Note to Recommendation 5 on the criminalisation of terrorist financing to incorporate the relevant elements of Resolution 2178 (2014), specifically clarifying that terrorist financing includes the financing of the travel of individuals who travel or attempt to travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, and highlights that FATF Recommendation 5 applies to the financing of terrorist organisations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act, and point 19 “clarifies that the obligation in paragraph 1 (d) of Resolution 1373 (2001) applies to making funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of terrorist organisations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act”.
As a consequence, the draft Article includes all of these requirements in its definition, without referring to specific offences. It includes all possible forms of financing of the offences referred to in Articles 137 and 140 to 140sexies. The financing of all costs, including for travel with such purposes, is therefore also specifically covered. The references to these aspects in the present draft Law, rather than to specific offences, as was the case in the past, ensure better inclusion of the spirit of this preventive legislation which does not refer to any specific provisions of the Criminal Code but rather more generally to specific types of crime, approached in a broad and accessible sense.
The fact that, in accordance with Article 1, paragraph 6 of Directive 2015/849, the knowledge, intent or purpose required to qualify acts of money laundering and terrorist financing, must be able to be established based on objective factual circumstances is repeatedly confirmed by Belgian case law. We do not deem it necessary to transpose this provision in a preventive law.
Article 4 of the draft Law includes the definitions that are important for correct understanding and application of the Law. This Article takes over the definitions provided in Article 3 of Directive 2015/849 and supplements these. The terms defined hereby are commented where necessary in the comments to the specific provisions in which these terms are used.
Taking into account the considerable number of definitions, it seems preferable to group them in this Article based on the nature of the concepts in question. The terms are consecutively defined where they relate to:
- the acronyms and abbreviations used to refer to money laundering, terrorist financing and financing of the proliferation of weapons of mass destruction (points 1° to 2°);
- the relevant European legislative acts (points 3° to 6°);
- States (points 7° to 9°);
- international organisations or European national authorities that exercise powers in the area of AML/CFT (points 10° to 17°);
- persons and groups subject to the obligations under AML/CFT (points 18° to 22°); and
- the essential notions used in the specific provisions of this draft Law (points 23° to 40°).
Draft Article 4, 23°, determines what “criminal activities” should be understood to mean.
“Criminal activity” should be understood to mean any kind of involvement in the commission of a serious offence as defined in Directive 2015/849.
As stated in Recital 5 of Directive 2015/849, the preventive measures laid down in this draft law should address the manipulation of money derived from serious crime and the collection of money or property for terrorist purposes. Just as in the past, the legislator did not want to impose a scope to the obliged entities as broad as that of Article 505 of the Criminal Code, which covers the capital gain from any offence, irrespective of the nature or seriousness thereof.
The third Directive, which is Directive 2005/60/EC of 26 October 2005, already provided for a broadening of the definition of predicate offences of money laundering, by adapting the definition of serious crimes to that contained in Framework Decision 2001/500/JHA of the Council of 26 June 2001 regarding money laundering, the identification, tracing, freezing, seizing, and confiscation of instrumentalities and the proceeds of crime.
Apart from terrorist offences, terrorist financing, drug trafficking, organised crime, fraud to the detriment of the financial interests of the EU and corruption, “serious crimes” in the Directive are also at least understood to include “all acts which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards Member States that have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months”.
The following can be read in the preparatory work to the Law of 18 January 2010 amending the Law of 11 January 1993 on preventing use of the financial system for purposes of money laundering and terrorism financing, and the Company Code, which transposes the aforementioned third Directive into Belgian law: “A large number of the new obligations from Directive 2005/60/EC are already integrated by the Law of 12 January 2004 into the Law of 11 January 1993. Consequently, no amendment is necessary to the Belgian system for combating terrorist financing and for indicating the money-generating criminal activities that could lead to money-laundering practices. The current list of criminal activities in Article 3 of the Law of 11 January 1993 is sufficiently broad to cover all offences punishable under Belgian law with a minimum prison sentence of more than six months”. (Parliamentary documents, Chamber of Representatives, 52-1988/001, p. 12).
In Article 3, point 4), f), Directive 2015/849 provides for a further broadening of the definition of predicate offences of money laundering by adapting the definition of serious forms of crime to those adopted by the FATF in February 2012, i.e. by expressly including tax offences: “all offences, including tax crimes, relating to direct taxes and indirect taxes and as defined in the national law of the Member States, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards Member States that have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months”.
It should be noted that the Law of 15 July 2013 containing urgent provisions on the fight against fraud had already amended the Law of 11 January 1993 by replacing the term “serious and organised tax fraud where particularly complex mechanisms or procedures of international scale are applied”, as a predicate criminal phenomenon of money laundering with the words “serious tax fraud, organised or otherwise”.
The purpose of the amendment was to adapt the definition of tax fraud, as applied by the Law of 11 January 1993, to the new Recommendations of the FATF of February 2012. Since their review in February 2012, these Recommendations also encompass “serious tax crime”. Every country can decide, in accordance with their own domestic legislation, how to define these crimes, as well as the nature of every special aspect based on which they can be qualified as serious offences. In this way, the new Recommendations of the FATF are equally more specific and contribute to enhanced coordination between the tax authorities of the countries in question.
The seriousness of the tax crime can be assessed on the basis of the confection and/or use of falsified documents, but also the significance of the amount concerned by the transaction and the abnormal nature of this amount in view of the activities or the equity of the customer. In the new definition of tax fraud, the level of organisation is one of the criteria for determining the seriousness thereof, without it being a necessity for its qualification as a crime.
The legislator has clarified the terms “serious” and “organised” fraud in the explanatory memorandum to the Programme Law of 27 April 2007 (Parliamentary documents, Chamber of Representatives 51-3058/1, p. 52), which is referred to in the explanatory memorandum to the Law of 15 July 2013 (DOC 53 2763/001, p. 8):
- The serious nature of the fraud primarily relates to:
- “the confection and/or use of false documents;
- the significance of the amount concerned by the transaction and the abnormal nature of this amount in view of the activities or the equity of the customer”.
- The organised nature of the tax fraud is defined as “the use of an arrangement that provides for consecutive transactions and/or the intervention of one or more intermediaries, where either complex mechanisms are used or procedures of an international scale (even if they are used at a national level). The complex mechanisms can be identified from the use of simulation or concealment mechanisms which, inter alia, make use of corporate or judicial structures”.
It its judgments 13/2015 of 5 February 2015 and 41/2015 of 26 March 2015, the Constitutional Court was moreover of the opinion that the definition of serious tax fraud, organised or otherwise, was sufficiently clear.
In view of the fact that the Council of State and the Constitutional Court are of the opinion that the term “serious tax fraud” is defined sufficiently clearly, a change in the law to further define these terms is no longer necessary. (CRIV, 54, COM 145).
The introduction of the Social Criminal Code by the Law of 6 June 2010 (Belgian Official Gazette of 1 July 2010) also justifies the addition of social security fraud in the list of underlying offences included in the draft article. Undeclared work, benefit fraud, and breaches of the legislation on employing foreign workers, are some of the most typical and simple forms of social security fraud. Social security fraud can also, however, be much more complex, for example because some cases clearly demonstrate an organised nature. Social security fraud constitutes a serious risk to society. The fight against social security fraud tackles phenomena that lead to unfair competition, to loss of revenue for the State, to poor employment conditions and that affect social security revenues. Of course, there are major risks associated with social security fraud both for employers and employees.
To delineate this notion, Articles 232 to 235 of the Social Criminal Code can be used (without expressly referring thereto). These Articles punish the commission of forgery and the giving of false statements to either unlawfully obtain a social benefit or incite obtainment thereof, to unlawfully keep a social benefit or incite the keeping thereof, or to pay no or less contributions than those owed by the person concerned or another, or incite non-payment or underpayment thereof.
The conduct referred to in Article 232 to 235 of the Social Criminal Code is punishable by a level-4 penalty which is “either a prison sentence of six months to three years and a criminal fine of EUR 600 to 6 000 or one of these punishments alone, or an administrative fine of EUR 300 to 3 000” (Article 101 of the Social Criminal Code).
Such conduct forms the criminal social-security-fraud phenomenon not currently included in the list of predicate offences that form the basis for the powers of the CTIF-CFI. None of the offences listed appear to “encompass” social security fraud, taking into account the specific nature thereof. This is why the draft Article includes social security fraud as a fully-fledged criminal phenomenon.
Even though computer fraud (the notion referred to in Article 504quater of the Criminal Code) is already included in the criminal phenomenon of fraud, it is preferable to include it in the list of predicate offences. Persons who commit computer fraud seek the obtainment of an unlawful financial advantage for themselves or others by entering, editing, deleting or by any other technological means changing the use in a computer system of data saved, processed or transferred using a computer system. This criminal phenomenon is a concern for a number of reasons.
The most recent activity reports of the CTIF-CFI clearly show that fraud is one of the major crimes (320 cases reported in 2013, 278 in 2014 and 314 in 2015). A major part of these cases relate to “mass fraud”, a form of fraud in which criminals use methods of mass communication such as the internet, that allow a great number of potential victims to be reached at the same time, to then ask for money to be sent for various reasons. In 2013, the CTIF-CFI identified the fact that, in the case files handled, fraud (mostly fraud committed using phishing or hacking of bank details) usually concerned fairly small amounts. However, in 2014, there were several dossiers concerning fraudulent transactions for several million euros.
The CTIF-CFI has identified that fraud is becoming ever more complex and professional. Fraudsters manage to gain access to emails or staff computers of large companies in order to collect confidential information about ongoing financial or commercial transactions. They subsequently send fraudulent emails to those with power of attorney, which appear to be genuine because confidential information on the company’s commercial activities was obtained beforehand, asking them to quickly transfer very large amounts (sometimes several million EUR). These transfers later turn out to be fraudulent. These business leaders are then urged in repeated phone calls to carry out these transfers.
Over the last few years, the CTIF-CFI has forwarded numerous case files in which criminals used computer fraud to commit fraud, hence the importance of specifying this as a separate crime under the predicate offences (see, inter alia, the 21st activity report of the CTIF-CFI, 2014, page 57 and the activity reports of 2013-2015 - statistics section).
The list of serious forms of crime included in this draft Article hereby complies with the requirements of the 40 FATF Recommendations, as revised in February 2012, and therefore also the requirements of Directive 2015/849.
The list of serious forms of crime is sufficiently broad to encompass all punishable acts, including tax crimes relating to direct and indirect taxes, which are punishable by deprivation of liberty or a detention order for a maximum of more than one year, or by deprivation of liberty for a minimum of more than six months, as referred to in Article 3, point 4), f) of Directive 2015/849.
Just as in the Law of 11 January 1993, the text of the draft Article does not refer to specific provisions of criminal law, but more generally to specific forms of crime, by using terms from normal day-to-day language use with their generally accepted meaning.
The Constitutional Court confirmed in its judgment No 10/2008 of 23 January 2008 that these terms were sufficiently self-explanatory to enable the institutions and persons referred to in the Law of 11 January 1993 to identify whether the source of the funds suspected to be subject to money laundering is illegal within the meaning of the law, and that these terms were therefore sufficiently clear and precise to comply with the principle of lex certa.
Moreover, the draft Article replaces the notion of ‘trafficking in illegal labour’ with the notion of ‘smuggling in human beings’. This does not concern a change to the powers of the CTIF-CFI but rather a necessary correction to better understand the reality of the fight against this criminal phenomenon. Trafficking in illegal labour was introduced into the Law of 11 January 1993 to tackle the rising number of dossiers relating to illegal workforce agencies in the building sector, so the focus on illegal labour seemed appropriate at the time. However, experience has shown that this concept does not allow the CTIF-CFI to encompass every situation with which it is confronted in the analysis of its case files. For example, what happens with the traffic of migrants with no “labour” dimension?
Given that the concept of trafficking in illegal labour is too restrictive, it is moreover not in line with the approach applied to preventive areas (the Belgian Federal Migration Centre, Myria, the Interdepartmental Unit to coordinate the combat against trafficking in and smuggling of human beings) and law-enforcement areas (police, correctional courts). This approach is based on distinguishing between human trafficking and human smuggling without limiting it to illegal labour. The CTIF-CFI, represented since 2014 within the Interdepartmental Unit to coordinate the combat against trafficking in and smuggling of human beings may not, in the law that forms the basis for its powers, use a definition of criminal phenomena that differs so much from that extended by the other authorities represented within this unit.
Whilst human trafficking, also included in the list of criminal phenomena, entails violating the rights of the individual (exploitation of humans, for example for labour, work in the sex industry, forced begging, or by being forced commit crimes against their will), human smuggling is a violation of the rights or security of the State. It entails illegally crossing State borders and offering help with entering or staying on the Belgian territory with the intention of obtaining an abnormal gain. This primarily concerns people smugglers who organise the illegal entrance of persons, in exchange for considerable sums of money, under exceptionally dangerous circumstances. This only concerns foreigners who come from third countries outside the European Union (in view of the rules on free movement of people that apply within the EU).
In draft Article 4, 23°, t) the words “the provision of investment services” is replaced by the words “the provision of banking services, financial services, insurance services”, so that the criminal phenomenon under point t) now reads as follows: “the provision of banking services, financial services, insurance services or funds transfer services, or currency trading”. This change does not entail an extension to this underlying criminal phenomenon. However, it is justified by the difficulty faced by the CTIF-CFI when forwarding reports of persons offering insurance services or granting loans (consumer or otherwise) without having an authorisation to do so. This change makes it clear that all banking, financial and insurance services are referred to.
The inclusion of other regulated activities is, however, an extension to this underlying criminal phenomenon, as referred to in Article 4, 23°, t), because these are activities for which a law or regulation lays down conditions for access, outside the financial sector.
The draft Article therefore not only refers to financial activities but also regulated activities illegally exercised outside the financial sector, such as accounting, legal and property activities, gaming activities or any other economic activity.
Just as in the past, the draft Law only applies to the money-laundering behaviour referred to in draft Article 2 insofar as it relates to one or more of the offences listed in draft Article 4, 23°. As regards the interpretation of the criminal behaviours listed, the preparatory work for the Law of 11 January 1993 and for the Law of 7 April 1995 amending it, continues to apply to this draft Law. The preparatory work for the Laws of 11 January 1993 and 7 April 1995 is clear and precise as regards the option elected by the legislator. In this respect, it suffices to cite, in the explanatory memoranda to both these laws:
- “The financial undertakings or persons concerned do not have to ask themselves whether they are aware of a breach of a specific provision of the Criminal Code or a specific law – they are, moreover, not equipped to investigate this, ...” (Parliamentary documents, Senate, 468/1, B.Z. 1991-1992, explanatory memorandum, p.8).
- “In response to the comments from the Council of State, the Government points out that the Law of 11 January 1993 does not specifically refer to one or the other provision of the Criminal Code or of specific laws, but more generally refers to forms of crime described by terms from normal language usage in their standard meaning. The reasons for this choice are explained in detail in the preparatory work to this Law. Hence – “The financial undertakings and persons do not have to ask themselves whether they are aware of a breach of a specific provision of the Criminal Code or a specific law – they are, moreover, not equipped to investigate this, - but they do have to ask themselves whether they are aware of dealing with a particular type of crime or criminal”. Account has also been taken of the fact that these forms of crime are less exemplified by the deeds than by the context in which these deeds were committed. These are the main reasons why the Government and the legislator have not followed the advice of the Council of State on the draft that has become the Law of 11 January 1993 on this point”. (Parliamentary documents, Senate, 1994-1995, 1323-1, pages 2 and 3).
Article 4, 36° of the draft Law defines games of chance. To define games of chance, reference is made to the Law of 7 May 1999 on games of chance, gaming establishments and the protection of players.
As a result, for the aforementioned Law of 7 May 1999, “games of chance” are defined as “any game in which a stake of any kind is committed, leading either to the loss of that stake by at least one of the players, or a win of any kind whatsoever for at least one of those players or operators of the game, and where the course of play, selection of the winner or determination of the size of the win depend completely, or even partly, on chance”.
For the application of the present Law, a number of games, mutatis mutandis with the Law of 7 May 1999 on games of chance, gaming establishments and the protection of players, are not deemed games of chance, although they do strictly speaking fit in with the definition thereof. These exceptions are the practice of the sport itself, games in which the only advantage given to the player is the right to play again up to five times for free, and card games or board or parlour games played outside class I and II gaming establishments and games operated in amusement parks or by fair operators in connection with funfairs, trade fairs or other fairs on similar occasions, including games that are organised occasionally and maximum four times a year by a local association for a special event or by an unincorporated association with a social or charitable aim, or a non-profit association with a social or charitable aim, and only requiring a very minimal stake and offering the player or gambler only a low-value material advantage.
Finally, lotteries within the meaning of the Law of 31 December 1851 on lotteries and of Articles 301, 302, 303, and 304 of the Criminal Code are not deemed games of chance for the application of the present Law.