The licensing processi Application and renewal
At the time of writing, the licensing process has been operational for nearly a full 12 months. This has provided the opportunity for primary and secondary legislation, as well as the Gambling Authority's various policy rules, to bed in from the perspective of preparing the application package. Given the relative freshness of the regulatory regime, challenges and issues in terms of compliance have yet to arise. All applications must be submitted via the Gambling Authority's specially designed application portal. The applicant is required to provide information pertaining to its broader corporate structure (and potentially beyond) and detail matters such as licences held, rejected licence applications, licences withdrawn and antecedents regarding criminal law and administrative matters (not only including fines, but notices and cease-and-desist orders and the like). A suite of policies must be provided upon application, regarding matters such as, but not limited to, advertising, responsible gambling and anti-money laundering. Testing and certification of the game system must be completed upon submission, and documents will be required regarding the obligatory control database (vault) and measures for the separation of player funds. The Gambling Authority will have six months within which to assess an application. While there is no B2B licensing, the B2C applicant or licence holder will be subject to outsourcing requirements that essentially ensure that the licence holder is in a position to pass the regulatory requirements on to those to whom it outsources activities. All licence applications are subject to a non-refundable fee of €48,000.
Other than for licences for non-incidental games of chance and those required for operating slot machines, all licences are exclusive and have been awarded on a semi-permanent or permanent basis (e.g., Holland Casino). The absence of a transparent licence allocation mechanism has generated considerable case law that resulted in the Sporting Exchange litigation mentioned above, which itself has spurred further cases in the years after the Council of State rendered its 2011 judgment. Following the Lottovate decision of May 2016, a transparent licence application procedure for non-incidental games was introduced.4 Licences are available for all legal entities with their statutory seat or HQ within the EU and EEA, and are available for up to five years. After completion of the necessary licence application form, the Gambling Authority will reach a decision within eight weeks, subject to additional questions being posed to the applicant. The cost for submitting a licence application is €28,000.
In terms of slot machine gambling, an exploitation licence, which has nationwide application, must be obtained from the Gambling Authority. A premises licence must be obtained from the relevant local municipality in which the slot machines are to be operated, in accordance with the requirements of the municipality. Exploitation licences are awarded for a period of 10 years, on the condition that the Gambling Authority is convinced of the integrity of the operator and those persons responsible for the daily operations, and the operator must also have a workshop or contract concluded with an entity that will undertake maintenance and repairs. An exploitation licence application costs €1,815, with annual charges for supervision (based on the amount of gambling on offer and the type of machines made available). The Gambling Authority must reach a decision within an eight-week period.ii Sanctions for non-compliance
First and foremost, enforcement of the prohibitions contained within the Act occurs on the basis of administrative law by the Gambling Authority, with criminal law being turned to only in instances where administrative law enforcement has failed or when a breach of the Act is accompanied by other criminal offences. On paper, it is also feasible for consumers who have knowingly participated in unlicensed games of chance to be subject to enforcement action. Doing so amounts to a breach of the prohibition in Article 1(1)(c) of the Act, which qualifies as a minor offence and could result in a fine of up to €9,000. In contrast to some other jurisdictions, in practice, this has not been made use of in the Netherlands.
Sanctions for non-compliance with Article 1(1)(a) of the Act (i.e., breaching the prohibition on offering unlicensed games of chance) and Article 1(1)(b) of the Act (i.e., breaching the prohibition on promoting unlicensed games of chance) are:
- Administrative fine awarded by the Gambling Authority. In line with the Gambling Authority's revised fining policy of October 2021, for a breach of Article 1(1)(a) the base fine is €600,000 and will rise depending on the circumstances. The maximum fine for either breach (both Article 1(1)(a) and (b)) is €900,000, or 10 per cent of the turnover during the previous year if this exceeds €900,000. Entities can also be subject to an administrative order on pain of penalty payments in case of non-compliance.
- Criminal sanctions (a breach of Article 1(1)(a) constitutes an 'offence' when committed with intent, and otherwise a 'minor offence'; and a breach of Article 1(1)(b) constitutes a 'minor offence'):
- Maximum fine of €21,750 (notwithstanding imprisonment).
- If the proceeds of the crime, or the value of the goods that were used to commit the crime, exceed one-quarter of €21,750, a maximum fine per incident of €90,000 may be imposed.
- If the above fine is not a suitable punishment as far as it concerns legal entities, a fine of €900,000 may be imposed.
Licence holders can be subject to administrative or criminal enforcement measures, and while an administrative order can be used to sanction all breaches of the Act, apart from breaches of the requirement to have a premises licence for slot machines, the Act determines per offence whether administrative or criminal sanctions are applicable.
Administrative enforcement measures are available to the Gambling Authority for a range of breaches, such as breaching licensing conditions and allowing participation by minors, and other matters including failing to abide by Article 4a of the Act, which requires licence holders to take measures to prevent 'as much as possible' addiction to the games of chance that they organise. Criminal sanctions are available when slot machine gambling is made available without the necessary licences, or machine models are used that have not been approved by the Gambling Authority.
Currently, games of chance are taxed at a rate of 29 per cent. The tax base varies, with two distinct camps within the land-based sector. In terms of other taxes, VAT is charged at 21 per cent and corporation tax is split into two bands. Should the taxable amount (taxable profit per annum less deductible losses) be less than €200,000, a rate of 16.5 per cent will apply, while the rate will be 25 per cent for taxable amounts of €200,000 or more.
Gambling tax is based upon gross gaming revenue (GGR) for slot machines and casino gambling. For all other land-based licensed offers, the prize constitutes the tax base. However, gambling tax is only due on prizes greater than €449. In practice, this pushes down the effective rate of taxation paid by some of the incumbents to single digits. However, sports and horse-race betting will see the removal of this tax-free threshold given the introduction of the remote gambling licensing regime.
Prior to 1 January 2018, the tax rate was 29 per cent. However, the delays that occurred surrounding the introduction of the remote gambling licensing regime entailed that for several years, and contrary to expectations, the state coffers did not receive income in the form of tax levied on locally licensed remote games of chance. Therefore, the tax rate was increased by 1.1 per cent for the then existing land-based licence holders, and returned to 29 per cent six months after the reforms to the Act took effect on 1 April 2021. The tax rate for remote games of chance, as paid by locally licensed operators, is thus 29 per cent of GGR. On top of this is the gambling levy of 1.75 per cent that applies for remote operators.
Following reforms in 2008, the Gaming and Betting Tax Act establishes that gaming tax is applicable on winnings from locally unlicensed international remote gambling; players are due to pay tax, again at a rate of 29 per cent, on gross earnings per month from operators outside of the Netherlands. Tax due must be calculated on a monthly basis and losses cannot be offset between months. Given issues surrounding compatibility with EU law, the tax is not due on winnings from certain offerings, such as remote poker when the operator is established within the EU.