This week, a court judgment was published in which an appeal against a decision to impose a € 130,000 and € 50,000 fine for offering online gambling targeted to the Netherlands was rejected. The Dutch gambling regulator (Kansspelautoriteit, “KSA”) imposed such fines back in 2014 for violation of the Dutch Betting and Gaming Act (“Act”). The subsequent administrative objection initiated by the violators was rejected in 2015.
Claims of the action
The violators (plaintiffs) brought the action before the district court The Hague, alleging that:
- One of the plaintiffs could not be regarded as offender of the Act;
- The Act is nonbinding due to conflicts with the principle of freedom to provide services under EU law; and
- KSA’s enforcement policy is arbitrary, ambiguous and contrary to the principle of equality.
In short, the court rejected all claims by ruling as follows.
- The court considers both plaintiffs to be an offender of the Act, since they were closely interrelated. There was not only a shareholder relationship, but both plaintiffs were mentioned on the illegal gambling websites at stake. Besides, the KSA imposed a significant lower fine on the plaintiff that was less involved in the illegal actions.
- Furthermore, the court ruled that the Act cannot be considered contradictory to EU law. Member States are in principle free to determine the objectives of their national gambling policy and to define the desired level of protection of national players. In this context, the court notes that the Netherlands currently does not grant licenses for offering remote gambling.
- Lastly, the court notes that plaintiffs indisputably met one or more of KSA’s prioritization criteria at the time of the warning letter sent by the KSA. Due to failure to comply with KSA’s requests, it was entitled to take enforcement actions accordingly. Moreover, the court had taken the seriousness of the violation (e.g. number of games offered, prize / bonus amounts) and the degree to which the violation could be attributed to plaintiffs into account where the amount of the fines are concerned. Therefore, the court held that the facts and circumstances of the case do not proof that the fines imposed were disproportionately high.
In conclusion: the appeal with respect to KSA’s decision to impose fines was rejected as unfounded. Please find the full decision here.