Netherlands – Uncertainty remains for previous remote gaming violators

Netherlands – Uncertainty remains for previous remote gaming violators

 

Although last week, the Dutch Minister of Legal Protection published the Remote Gaming Decree (‘RGD’) for public consultation, i.e. secondary legislation to the new Dutch Remote Gaming Act,   uncertainty remains as to whether previous violations would prevent a successful application for a remote gaming license in the Netherlands.

 

In July 2018, the Minister clearly stated that previous violations of the Dutch gaming legislation would not automatically lead to a license to be denied, as such violation would not mean that that an operator is not reliable or irresponsible from the outset. Although previous violations do have a negative impact on the overall assessment, intention and future compliance must also be considered as well as for example the fact that the operator has licenses in other EU Member States. In other words, all aspects must be taken into account. Nonetheless, the Minster did emphasize already in July 2018 that operators that have been sanctioned by the Dutch regulator KSA, will not be eligible for a license when the remote gaming market will open up in the Netherlands. Further guidelines in this respect need to be developed by KSA.

 

In the explanatory memorandum to the draft RGD, the Minister further explains that previous violations – either in the Netherlands or abroad – can be a ‘heavy contraindication’ and is considered a reliability risk. However, the Minister states that for each individual violation the consequences for the reliability must be considered: “A minor and non-intentional violation committed has less value

than a deliberate, large-scale and long-term violation of the gaming legislation. It can also be important to what extent the operator has taken measures to prevent repetition.”

 

After this publication, the Minister met with the Senate’s Permanent Committee for Justice and Security. There, the Minster confirmed there that sanctions imposed do prevent obtaining a license. The Minister will ask KSA to further formulate procedures in this respect. These should also cover the period of time an operator will be excluded for obtaining a license

 

In other words, it seems to be clear that in case of previous sanctions imposed, operators won’t be able to immediately apply for a license; further guidance on the exact impact will follow. It is not clear though what the consequences will be for previous violations that haven’t been sanctioned. Given the Minister’s earlier statement in July, there may be hope for operators that have offered online games on the Dutch market but haven’t been sanctioned. Yet, we do see that in the past months, KSA has become really active in imposing new sanction. Uncertainty remains.

Netherlands – Secondary Legislation to Remote Gaming Act ready for public consultation

Finally, some movement with respect to the introduction of the Dutch Remote Gaming Act (‘RGA’).

Just before the summer break, the Minister of Legal Protection already announced that he wanted speed things up. He put his money where his mouth is, as last week, the Remote Gaming Decree (‘RGD’) was published for public consultation.

 

The draft RGD includes, other things, the following topics:

  • Licenses can be granted with respect to casino games (against other players or operators), and (sports and horse racing) betting. No licenses will be granted with respect to the organization  of lotteries.
  • Licenses will be granted for a maximum period of 5 years
  • Licenses will be granted within 6 months after application (which can be extended with another period of 6 months).
  • Main rule is that the operator needs to be based within the EU; however, under strict circumstances licenses may also be granted to operators outside the EU;
  • Strict rules apply with respect to the reliability of the holder of the license, the UBOs, the decision makers and the direct and indirect financiers, such based on their intentions, acts and behaviour in the past. More in particular, the following will be taken into account:
    • Gaming violations in the Netherlands and other jurisdictions;
    • Financial compliance with respect to sanctions and gaming tax;
    • Criminal, financial, tax or compliance records.
  • The license-holder must have a representative in the Netherlands in order to be able to comply with rules regarding de prevention of gambling addiction
  • Specific rules apply with respect to the operator’s landing page (e.g. only licensed games can be shown)
  • A separate administration must be in place with respect to the games that are licensed
  • An integrity policy must be in place  (including policies, proceedings and cooperation with other organizations to avoid match fixing)
  • A number of betting activities have been excluded from licenses, e.g. bets regarding an outcome that is negative or that can easily be manipulated (e.g. red cards) and bets regarding youth matches.
  • Prior to the acceptance of a new player the Central Register Gaming Exclusion be checked
  • A new player must always indicate the limits of its play behaviour, i.e. max. play limit, max. deposit, etc. and the operator must act accordingly.
  • Payment transaction between players and operator can only take place through a gaming account.
  • Further guidelines may come with respect to the appointment of an inspection authority regarding the games operated;
  • Advertising may not be addressed to people below the age of 24.

Operators and other stakeholders can provide their views before 6 November 2018.

Richard van Schaik

SWEDEN: The Swedish administrative court of appeal (Sw. Kammarrätten) upholds decision to impose fines against Swedish evening papers for providing links to offshore gambling services.

In September 2013, the Swedish Gambling Authority (Sw. Lotteriinspektionen) issued an injunction under a penalty of a fine of SEK 45 000 per day against the evening papers Expressen och Aftonbladet for publishing links to offshore operated gambling services.

The papers appealed the decision arguing that the Swedish Gambling Authority’s decision was in violation of Swedish Fundamental Law on Freedom of Expression (Sw. yttrandefrihetsgrundlagen) and that the prohibition against promotion of offshore gambling services was incompatible with EU law.

The Swedish administrative court of appeal concluded that gambling advertisements are of commercial nature and, as such, not protected by the Swedish Fundamental Law on Freedom of Expression. Furthermore, the court did not assess that the prohibition against promotion of offshore gambling services is incompatible with EU law. As such, the Swedish administrative court rejected the appeal and upheld the Swedish Gambling Authority’s decision to issue the injunction.

While the new Swedish gambling act enters into force on 1 January 2019 and the new license applications are currently being processed by the Swedish Gambling Authority, we expect the papers to appeal the decision to the Swedish Supreme Administrative Court.

If you have any questions regarding the decision or the new Swedish gambling legislation, please contact Christopher Büller (christopher.buller@dlapiper.com) or Jessica Lorne (jessica.lorne@dlapiper.com) at DLA Piper Sweden.

Getting The Deal Through – Gaming: Gambling regulation in Germany

Dr. Michael Stulz-Herrnstadt and Christoph Engelmann published the chapter on gambling regulation in Germany in the first edition of Gaming in the Getting The Deal Through series.

This chapter provides an overview of the laws and regulations that apply to gaming companies in Germany. Topics include: licensed and unlicensed gambling, licensing requirements for land-based and remote gambling, advertising restrictions and current developments affecting gaming operators.

You may download the complete chapter here.

Changes to UK gambling licence conditions and codes of practice

After having considered all the responses to the consultation on changes to the UK gambling licence conditions and codes of practice (hereinafter “LCCP“), the UK Gambling Commission has taken the decision to strengthen requirements on licensees in key areas.

Read the rest of this entry »

ITALY: Gambling advertising ban adopted, what to do now?

The law decree providing for the Italian gambling advertising ban was adopted, but a number of questions opened up as to its scope and legality. Read the rest of this entry »

SWEDEN: Council on Legislation has issued its opinion on the proposed new Swedish gambling act

The Council on Legislation has issued its opinion on the draft law, see https://www.lagradet.se/yttranden/En%20omreglerad%20spelmarknad.pdf (in Swedish).

On a general level, the Council on Legislation questions that the proposed act will create the flexibility or clear and predictable gambling regulation that the Swedish government wishes to achieve.

Moreover, the Council on Legislation directs criticism against the fact that the proposed act is focused on forms of gambling that have been developed in a monopoly market. In the Council of Legislations view, the focus on current forms of gambling creates uncertainty as to how other forms of gambling should be treated under the new gambling regime.

Aside from these general comments, the majority of comments made by the Council of Legislation concerns minor revisions of the wording in the proposed act. Thus, it appears that the official time plan is still within reach.

Pursuant to the official time plan, the following dates could be noted:

  • May 2018: Swedish Parliament is expected to approve the proposed act;
  • May 2018: The Swedish Gaming Authority is scheduled to hold an information meeting regarding the application procedure;
  • 1 July 2018: The license application procedure is scheduled to open;
  • 1 January 2019: The new Swedish Gambling Act is proposed to enter into effect.

If you have any questions, please contact Christopher Büller, Christopher.buller@dlapiper.com, at DLA Piper Sweden.

Presentation on German AML Act at Gambling Symposium

Dr. Michael Stulz-Herrnstadt and Christoph Engelmann will give a presentation on the new German Anti-Money Laundering (AML) Act at the 15th University of Hohenheim Gambling Symposium on 22 March 2018. Christoph Engelmann will speak about new regulatory AML requirements for online gambling operators. Dr. Michael Stulz-Herrnstadt will cover potential legal consequences due to the new provisions on administrative fine proceedings gambling providers face in the case of non-compliance.

Following their presentations, Dr. Michael Stulz-Herrnstadt and Christoph Engelmann will discuss the new legal framework with Johannes Güldner, doctoral researcher at the chair of public law, especially administrative law, Ruhr-University Bochum and Prof. Dr. Ihno Gebhardt, professor at the university of applied sciences for the police in Brandenburg.

The University of Hohenheim Gambling Symposium is one of the best-known German gambling events. During the course of the two-days symposium, speakers and panellists from the scientific community, authorities and consulting industry will take up current topics, scientific insights and the latest legislative and regulatory developments.

Top 5 gaming predictions for 2018!

Gaming operators, suppliers and regulations have been rapidly changing in 2017, but what shall we expect for 2018 and how to get ready to it? Read the rest of this entry »

DLA Piper Gaming event before the ICE. Come and join us!

DLA Piper gambling event will take place the day before the beginning of the ICE gaming conference in London.  Read the rest of this entry »

Further changes to PIT exemption for gaming players in Poland

By Aleksandra Kozłowska

 

Starting from 2018 PIT exemptions for gambling winnings were changed. In particular, all types of gambling (therefore, online casino as well) organized and run by an eligible entity under the gambling legislation in force in a Member State of the European Union or in another country belonging to the European Economic Area are PIT exempt only if the one-time value of winnings does not exceed PLN 2280 (only winnings in a poker tournament are subject to exemption without limitation). Moreover, the new provisions define the one-off value of winnings, which in the case of winnings in a casino or slot machine game leads to the conclusion that the taxable amount should be equal to lost amounts (according to the definition the taxable basis is equal to the amount earned, being the difference between the sum of the paid bids and the sum of the winnings paid during a one-off stay in a casino or a one-off slot machine game). Read the rest of this entry »

Spain: International liquidity for Poker finally approved

On 29 December 2017, the General Directorate for the Regulation of Gambling Activities (Dirección General de Ordenación del Juego – the “DGOJ”) announced on its website the signature by the General Director of the DGOJ of the Resolution by which the liquidity sharing between licensed online poker operators is authorised (the “Resolution”).

Today, 15 January 2018, the Resolution has been published in the Spanish Official Gazette and, consequently, from now on gambling operators with a Singular License for poker will be entitled to offer tables and tournaments involving users from the jurisdictions that have signed the Agreement concerning online poker liquidity sharing signed in Rome on 6 July 2017, under the terms established by such jurisdictions.

Following France’s steps, Spain is finally allowing the liquidity sharing between licensed online poker operators. This is certainly a very attractive opportunity for gambling operators who actually offer or who, in the light of the new call for tender, want to offer poker in Spain. On top of this, we will have to wait until the effective implementation of the liquidity sharing in order to see if this scenario could be extended to other online games.

ITALY: New online gaming licenses now available!

The tender for the award of new Italian online gaming licenses has now been launched, but operators have to hurry up! Read the rest of this entry »

Sweden: Legislative proposal sent to Council on Legislation for review

The Swedish Government proposed a new Swedish gambling act based on the proposal made by the government-appointed investigator in March 2017, and sent the proposal to the Council on Legislation (Sw. Lagrådet) for review.

In essence, the Council on Legislation will review whether or not the proposed gambling act is contrary to any existing legislative act before the proposal is handed over to the Swedish parliament for approval.

More information (in Swedish) can be found on http://www.regeringen.se/rattsdokument/lagradsremiss/2018/01/en-omreglerad-spelmarknad/.

If you have any questions, please contact Christopher Büller, christopher.buller@dlapiper.com, at DLA Piper in Sweden.

SPAIN: Re-opening of the market

On Saturday it has been published in the Spanish Official Gazette the resolution launching the call for tender for obtaining new general licenses for exploiting gambling activities in Spain. Singular and general licenses can be applied simultaneously.

As anticipated in a previous blog entry, this means that within the next one (1) year, interested parties can apply for obtaining new general licenses. Consequently, the deadline for submitting the corresponding applications will be 17 December 2018.

Once the licenses applications have been filed, the DGOJ will have a maximum time period of 6 months to review the applications and if applicable, issue the resolution granting the licenses on a provisional basis. Once the licenses have been granted on a provisional basis, operators will be allowed to go live.

Belgian Court rules on offering different classes of games through a single web domain

On 9 November 2017, the Belgian Constitutional Court ruled, in response to three joined cases referred to it by the Council of State1, that the Belgian Gaming Act violates the Constitution insofar as it allows the accumulation of the exploitation of several supplementary licences of different classes through one and the same domain name and the URLs linked to it. Patrick Van Eecke and Kaat Scheerlinck of DLA Piper provide detailed analysis of the three joined cases, the Court’s decision, and the implications of the decision for the Belgian Gaming Commission’s licensing process and the Belgian gambling sector in general.

Read full article (subscription)

Spain: new developments on gambling advertisement

Following the announcement of the publication of the draft Royal Decree regulating gambling advertising activities, we hereby highlight some of the main developments therein included:

1) Commercial communications related to bingo may be offered outside the allocated slot times established in Law 7/2010 of General Audiovisual Communications provided that (i) such commercial communications exclusively refer to bingo, (ii) the website’ URL published in the commercial communications exclusively has information related to bingo, and (iii) the operator platform duly separates the access to bingo from the access to other gambling games.

2) Commercial communications must include (i) a warning message stating that minors cannot participate in gambling activities and (ii) a warning message promoting responsible gaming. These warnings shall be displayed in the following way: (a) in case of commercial communications displayed through static means, these warnings shall be clearly visible; (b) in case of commercial communications displayed through dynamic or audio-visual means, these warnings shall appear at the end of the commercial communication for at least two seconds and shall ensure the proper perception of the message; and (c) in case of commercial communications displayed through radio media services, these warnings shall appear on at least one out of three commercial communications carried out successively by the same operator.

3) Social networks shall make available to its users filtering mechanisms allowing them to prevent receiving gambling commercial communications. In addition, these commercial communications may not be published through or addressed to profiles corresponding to minors.

4) The participation of well-known public figures on commercial communications is prohibited if their participation can be extremely attractive to minors. Apart from that specific scenario, well-known public figures may participate in commercial communications as long as such figure meets the requirements of sending a warning message promoting responsible gaming and stating that minors cannot participate in gambling activities.

It shall be noted that this preliminary draft Royal Decree is still subject to the public consultation stage, in consequence, the DGOJ invites all interested parties to make their contributions via e-mail dgoj.sgregulacion@minhafp.es, with the deadline for receipt of contributions being 12 January 2018.

Spain: New draft Royal Decree on gambling advertising

The DGOJ has just published a new draft version of the Royal Decree regulating gambling advertisement activities. Two years ago another draft was published but it was finally not passed due to certain changes on the Spanish authorities.

This new preliminary draft, even though is still subject to the public consultation stage, aims to ensure an adequate level of protection for gambling consumers, both in advertising and in gambling practices, as well as for other vulnerable groups like minors.

Within the public consultation phase that it has been opened now, the DGOJ invites all interested parties to make their contributions via e-mail dgoj.sgregulacion@minhafp.es, with the deadline for receipt of contributions being 12 January.

Update: German Sports Betting Regulation

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

The state parliament of Schleswig-Holstein announced that it will not approve the new State Treaty on Gambling. They want to push for an entire new law that includes licenses for online casinos as mentioned in their coalition agreement.

In addition the administration of North Rhine-Westphalia announced that it will not ratify the new law and that it stopped the implementation of the new responsibilities (the new law provides that North Rhine-Westphalia takes over the sports betting regulation from Hesse).

The consequence of this situation is that the new State Treaty will not enter into force on 1 January 2018 as planned. This is because the law provides that it will be invalid if it is not ratified by all 16 German states until 31 December 2017.

Until the German states find an agreement for a new law the current regulatory situation remains. Sports betting will be tolerated for EU-licensed operators as long as they comply with material regulatory requirements like advertising restrictions and AML obligations. This is now confirmed by several higher administrative courts like the ones of North Rhine-Westphalia, Saarland and Hesse.

Dr. Michael Stulz-Herrnstadt and Christoph Engelmann recently commented on the decision of the higher administrative court of Hesse in the German magazine “GRUR-Prax” 2017 p. 387; the article can be viewed here (in German, subscription based). Dr. Michael Stulz-Herrnstadt was also interviewed about the Schleswig-Holstein situation by the magazine “Online Gambling Lawyer“.

Announcement of re-opening of the Spanish online gambling market

As anticipated in a previous blog entrance dated on 12 September, the DGOJ has just published in its website the draft call for tender.

As a main difference from previous call for tenders, is seems that the time frame for operators to file their licenses applications will be of one (1) year from the publication of the call for tender in the Official Gazette (it has not been published yet) instead of one (1) month. Nonetheless, the maximum time frame for the the DGOJ to resolve on the granting of the licenses will remain the same, that is to say six (6) months from the date the application was submitted.

In this sense, the sooner a license application is submitted the sooner said license could be obtained and therefore the game operated. The rest of the applicable requirements are very similar to the ones applied during the previous two call for tenders. We will keep you updated on this process.

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