The Netherlands – Update on the implementation of the Dutch Remote Gambling Act

Since the Dutch Senate voted in favour of the Remote Gambling Act (RGA) on 19 February this year, there have been several developments. In this newsletter, we provide an overview of these recent developments and will also look ahead to see what is to be expected after the summer holidays.

Developments since February 2019

Dutch Senate vote RGA – February 2019

As we previously reported (full post here), the vote in the Dutch Senate for the RGA took place on 19 February 2019. The RGA will only formally enter into effect after the King of the Netherlands signs it, countersigning by the minister and publication in the Dutch Official Gazette. The date of entry into force will be regulated by a separate royal decree. The current prognosis of the Dutch Gambling Authority (Kansspelautoriteit or KSA) is that the RGA will enter into force on 1 July 2020.

Update from the KSA – June 2019

At the Gaming in Holland Conference that took place in June 2019 in Amsterdam, the KSA revealed more details on the RGA implementation process (see our detailed report here). More specifically, the KSA (i) revealed the expected timeline of implementation, (ii) provided an update on the status of the secondary legislation process, (iii) gave additional pointers as to the licensing requirements and (iv) indicated that it would upload a new form in which prospective operators could indicate their interest.

The current prognosis is that the application process will open on 1 July 2020, with the opening of the market scheduled for 1 January 2021. On multiple occasions however, the KSA strongly emphasized that this is a prognosis. It is in no way a final timeline.

Furthermore, some of the major licensing criteria were discussed, including (i) participation in the central exclusion register (CRUKS), (ii) a catalog of operators’ games offering, (iii) announcement of a renewed guideline regarding an operators’ duty of care, (iv) financial conditions (among which a EUR 45.000 application fee and EUR 830.000 financial guarantee) and (v) the cooling off period (see below).

Finally, the KSA announced an updated interest form. 183 interested parties have completed this form, of which roughly one-third consists of experienced online operators (e.g. licensed abroad), one-third consists of land-based operators with experience in the Netherlands (and online experience abroad) and the remainder consists of small companies and lone wolves. Some of our clients informed us that they have haven’t notified the KSA but that they most likely will apply for a license. Therefore, the actual amount of parties interested in a license is higher than 183. The KSA expects that eventually approximately 90 licenses will be granted. We believe this is quite an optimistic number.

Updates on Duty of Care and compliance requirements – July 2019

In July 2019, the KSA provided new Duty of Care Guidelines for fulfilling land-based gambling operators’ duty of care (Duty of Care Guidelines). Furthermore, guidelines for complying with the Anti-Money Laundering and Counter-Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme, which is abbreviated to wwft) and the Sanctions Act were published (wwft-Guidelines).

The Duty of Care Guidelines currently only apply to land-based operators, but will eventually also apply to remote operators, once the RGA enters into effect. It is based on best practices, enforcement experience, formal decisions, scientific insights, the current Dutch Gaming and Betting Act, consumer protection regulations, the policies of other enforcement agencies and the RGA. The guidelines will be updated regularly.

The wwft-Guidelines provide guidance for gambling operators to comply with their wwft-obligations, which apply to every business. It should be read in conjunction with the general guidelines for compliance with the wwft and the Sanctions Act (which can be found in English here). However, the specific wwft-Guidelines for gambling operators will be prevailing.

Cooling off period clarified – July 2019

The broadly discussed cooling off period has been clarified by the KSA. It published a draft policy (to be found in Dutch here) in which it is clarified (i) what actively targeting the Dutch market means and (ii) what the cut-off date is.

Actively targeting the Dutch Market

Actively targeting the Dutch market takes into account elements that are part of the KSA’s prioritization criteria, which are, in short: (i) use of a .nl website, (ii) use of the Dutch language, (iii) use of payment methods that are common in the Netherlands, (iv) use of TV, radio or printed advertising directed at the Dutch market, (v) use of domain names that contain typical Dutch elements in combination with references to gambling (e.g. windmills or clogs in combination with ‘poker’ or ‘bingo’), (vi) use on websites of typical Dutch concepts (e.g. references to Sinterklaas, Kingsday or stroopwafels).

For an unbroken period of two years

The cut-off date for the assessment of this two year time frame is the time that the KSA receives the application for a remote gambling licence from the operator. The restriction also applies during the application process (i.e. if the KSA finds that the operator has not actively targeted the Dutch market for the two years preceding receipt of the application, but the operator does actively target the Dutch market during the application process, the operator would also not be eligible for a licence).

The policy is intended to lapse on 1 July 2021. Any admissible applications received by the KSA before this date will remain subject of this policy. Applications that are filed on or after (or become admissible after) 1 July 2021 will not be subject to this policy.

As this policy is still in draft, it is subject to change. Of course, operators will have to comply with other licensing requirements as well as set out in our earlier posts. We will provide updates on those requirements when those become available.

Holland Casino

Meanwhile, in May 2019, the proposal to privatise Holland Casino was repealed due to a lack of support in the Dutch Senate. Furthermore, the Dutch government is carefully exploring the possible reform of the Dutch lottery system (full report here).

Looking forward – what’s next?

As can be seen above, a lot has happened the last few months. Looking forward, we can expect the following topics to be discussed or clarified the coming months.

Secondary legislation

Following its consultation process late 2018, the draft Remote Gambling Decree (on which we reported earlier here) was expected to be sent to parliament before summer, which has not happened yet. We expect this to happen later this year. A Ministerial Order is also in the making.

Advertising

A hot topic, advertising in relation to online gambling is without doubt a decisive element. Early this year, during the vote for the RGA, it was discussed the minister would have to consider whether a complete advertising ban on (online) gambling would be an option. On this topic, it has been awfully quiet the past months. The Ministry is currently investigating the impact of an advertising ban, also taking into account the 80% channelization target. It is likely that updates will follow shortly after summer.

Consultation of application form

The KSA remote gambling programme manager, Amida Michael, has indicated (in Dutch here) that the licence application form is scheduled to be published for public consultation at the end of September 2019, depending on the timing of the secondary legislation.

Informing the market

The KSA expects to be able to fully inform the market four months prior to the opening of the application process. In the current prognosis of the KSA, this means that the KSA aims to be able to fully inform the market on 1 March 2020. This is four months prior to the current prognosis of 1 July 2020. Again, the KSA emphasizes that the date of 1 July 2020 strongly depends on the RGA formally entering into force.

Sharif Ibrahim and Richard van Schaik