The Game: Rebooted

Underregulated since Ukraine became independent in 1991, the gambling industry developed haphazardly in the country, making Ukraine a “grey jurisdiction” in Eastern Europe for games of chance. A comprehensive ban introduced in 2009 resulted in winding down legal businesses and boosted the development of illegal gambling. According to some estimates, the approximate turnover of illegal gambling operators amounted to at least EUR 1 billion a year.

Several unfruitful attempts at bringing gambling out of the shadow were made before the Ukrainian Parliament adopted The Law of Ukraine On State Regulation of Organising and Conducting Gambling (Gambling Law) on 14 July 2020.

The Gambling Law came into force on 13 August 2020, and after a 10-year fight to legalize this industry again, Ukraine finally returned to the green map of regulated jurisdictions.

It is worth noting that the Gambling Law does not regulate lotteries. They are not considered games of chance and are governed by the existing Law of Ukraine On State Lotteries with certain amendments.

Apart from the Gambling Law, the following are key legal acts:

•  Licensing Conditions for Casinos, Slot Machine Halls, Betting, Online Casinos and Online Poker (Licensing Conditions);
•  regulations relating to the state monitoring system of gambling operators;
•  technical regulations (to be developed soon);
•  Law of Ukraine On Preventing and Counteracting Legalization (Laundering) of the Proceeds of Crime, Terrorist Financing, and Financing Proliferation of Weapons of Mass Destruction of 6 December 2019;
•  Criminal Code of Ukraine, and
•  Law of Ukraine On Advertising of 3 July 1996.

Gambling Law: Key Developments

The Gambling Law regulates five major verticals:

•  Land-based casinos;
•  Slot machine halls;
•  Online casinos;
•  Betting (online and land-based, including on horse racing tracks);
•  Online poker.

Poker in poker clubs is not allowed, except for sport poker (not considered to be gambling). Land-based casinos may offer in-house poker games.

Gambling operators from different verticals shall comply with identical requirements, although additional rules apply to each of the gambling verticals.

The Gambling Law introduced a new regulatory body for the industry. The Gambling and Lotteries Regulation Commission (Gambling Commission) is the only licensing body in the gambling industry. It shares an oversight role with the State Tax Service of Ukraine.

The Gambling Commission also issues so-called B2B (servicing) licenses to gambling software providers.

The Gambling Law provides for state control and supervision of the gambling market through the introduction of the State Online Monitoring System, a set of programmes used to monitor the activities of gambling operators in real time. All operators shall connect their online systems to it. The system is currently under design and the Gambling Commission expects to launch it sometime in 2021.

Requirements for Gambling Operators

Those interested in starting a gambling business in Ukraine are now able to apply to the Gambling Commission for the relevant licences.

General requirements for a gambling operator

•  legal form: Ukrainian legal entity in the form of a form of LLC or JSC (although other corporate forms are also allowed);
•  share capital: the minimum share capital of UAH 30 mil (USD 1.1mil) is formed with monetary funds only and any additional equity contribution can be made in monetary form or in-kind;
•  guarantee of payment: during the license term a gambling operator shall have a bank guarantee or a deposit for the amount of 7,200 minimum wages (UAH 43.2 mil or USD 1.5 mil as of 1 January 2021);
•  impeccable business reputation: gambling operator managers and owners shall have: (1) clear records regarding breaches of AML, anti-bribery, financial services legislation; (2) clean criminal record, and shall not have Russian citizenship;
•  website: a website with a domain name in the .ua domain area is required.

Gambling operator may not:

•  be controlled by Russian residents;
•  have Russian residents as Ultimate Beneficial Owners;
•  have individual shareholders who are also considered UBOs of a Russian resident;
•  hold any stake in a Russian resident, and
•  have corporate shareholders registered in FATF-blacklisted countries (North Korea, Iran).

Additional rules related to specific verticals

Land-based casinos

•  may be located (1) in the case of Kyiv, in 5-star hotels with 150 rooms or more; (2) in other cities, in 4-star or 5-star hotels with 100 rooms or more; (3) in recreational locations outside cities with at least one 5-star hotel;
•  have a minimum casino area of 500 m² in 5-star hotels;
•  shall employ at least 50 employees;
•  shall install (1) in the case of Kyiv and other cities with a population of over 500,000– at least 10 gambling tables, including two roulettes and 50 slot machines; (2) in other cases — at least five gambling tables, including one roulette and 20 slot machines;
•  may not use slot machines manufactured before 2019 or supplied by Russian residents.

Slot machines halls

•  may be located in 3-star to 5-star hotels with 50 or more rooms (in the case of Kyiv), or 25 and more rooms in other cases;
•  have a minimum area of at least 300 m²;
•  may not be located in towns with less than 10,000 persons or in proximity (500 m or closer) to educational institutions, in residential buildings, etc;
•  One license allows installation of up to 250 slot machines.

Betting

Betting activities can be carried out both online and offline in betting shops via a single license.

Betting shops:

•  may be located in 3-star to 5-star hotels with 50 or more rooms (in the case of Kyiv), or 25 and more rooms in other cases;
•  have a minimum area of 50 m²;
•  Betting shops may also be placed at horse racing tracks.

Online verticals: online betting, online casinos and online poker

Requirements made of online gambling are unified across all verticals.

The main issues to consider are certification of the online systems of gambling operators and the location of their hardware used to provide services of the online system.

Online systems shall pass a certification process against technical regulations. As of March 2021, such technical regulations are under development. Before adopting the new ones, the market opted for certification of online systems for conformity with legacy rules that were applicable before the Gambling Law. Please note that the Gambling Commission does not require gambling operators to have their games certified independently.

We expect major developments in this area in 2021 with the adoption of technical regulations developed for gambling activities only and emergence of international certification brands in Ukraine.

The Gambling Law requires that the gambling operators use hardware based in Ukraine to maintain and operate their online systems. It is an obvious obstacle for foreign gambling operators considering entering Ukraine. The consolidated market position is that these norms will be modified by changing the provisions of The Gambling Law.

B2B Licenses

The Gambling Law introduced B2B licenses (or software licenses) to regulate provision of software-related services to gambling operators. Pursuant to The Gambling Law, resident business entities providing software services shall obtain a B2B license.

Despite a vague legal concept, it may be expected that introduction of B2B licenses will contribute to the development of new software solutions (software for fantasy sports, live casinos, etc.) and provide additional protection for those businesses engaged in the development of IT/software.

Licensed software providers may provide their services to both Ukrainian and foreign clients.

License Fees

Gambling operators may engage in one or several gambling verticals once they obtain the relevant licenses. The license term for each license is five years. Licenses may be reissued freely, subject to the gambling operator’s compliance with the Licensing Conditions.

License fees are based on the amount of the minimum wage as of 1 January of the year in which a license was granted and payable in equal tranches during the license term. It means that a license fee for a license issued in 2021 is fixed until expiry of the 5-year term and will not be affected by any increase in the minimum wage.

The entire 5-year license fees for the year 2021 are as follows:

•  Land-based casinos — UAH 360 million (USD 12.9 million) for casinos in Kyiv and UAH 180 million (USD 6.4 million) in other cases;
•  Online casinos — UAH 39 million (USD 1.4 million);
•  Betting — UAH 180 million (USD 6.4 million) and UAH 180 k (USD 6.4 k) annually per betting shop;
•  Slot machine halls — UAH 45 million (USD 1.6 million) and UAH 36 k (USD 1.2 k) annually per slot machine;
•  Online poker — UAH 30 million (USD 1.1 million);
•  B2B license — UAH 1.8 million (USD 64k).

In addition, casino operators pay the following annual equipment license fees:

•  gaming table with roulette wheel UAH 1,000,000 (USD 38,000);
•  gaming table UAH 540,000 (USD 19,000);
•  slot machine UAH 36,000 (USD 1,200).

Please note that the amount of the annual tranche of a license fee for an online casino license, betting license and annual payment for a slot machine is trebled until introduction of the state monitoring system.

It is worth noting that The Gambling Law provides for so-called ‘investment licenses’. Holders of such licenses may operate a casino situated in a newly-constructed 5-star hotel with 200 rooms (in the case of Kyiv) or 150 rooms (in other cases) and enjoy a 10-year grace period without payment of license fees. It is expected that these licenses will boost interest in developing certain regions and will bring new partnerships between leading casino operators and local developers to bring a world-class experience into one of the newest casinos in Europe.

As of March 2021, the Gambling Commission works on implementation of the mechanics for investment licenses.

Taxation of Gambling

The legacy tax regime that existed before The Gambling Law provides for a combination of gross gambling revenue tax (GGR) and corporate income tax (CIT). The GGR tax does not reduce profit before tax for CIT purposes.

Several draft laws were submitted to the Ukrainian Parliament to update this taxation scheme. In particular, Draft Law 2713-d (recommended by the Ukrainian Parliament’s Committee on Finance, Tax and Customs Policy) provides for the following tax rates:

•  GGR — 10% rate across all verticals;
•  CIT — 18% rate (amounts paid as GGR reduce the profit before tax for CIT purposes).

It would also abolish the trebling of annual license fees.

As to personal taxation, gambling wins above eight minimum wages will be taxed at 19.5% of the excess.

It is expected that the Ukrainian Parliament will adopt an updated taxation regime in Q1 2021.

Following Trends

The gambling market in Ukraine used to be known far beyond its borders. It is now reappearing on the radars of major international operators. As greenfield as it is now, Ukraine may become an outstanding jurisdiction to test the newest products on a 40-million people market in open communication with the regulator and the market.