The Dutch Remote Gambling Act (Wet online kansspelen op afstand) has officially been adopted with a majority vote of 44 out 75 by the Dutch Senate!
It is safe to say that the adoption of the RGA was no small feat. In the last few weeks, it became clear that there was still uncertainty and quite a lot discussion among the different stakeholders. Nevertheless, a big step was taken today by the Senate. After more than 2.5 years, the Dutch gambling market will now officially open its doors for (licensed) operators of online games of chance.
Next to the vote with respect to the RGA itself, the Senate also voted on six different legislative motions from members of the Senate. These motions mainly aimed to introduce a pre-determined cooling-off period for “bad actors” (2 years or 5 years were suggested) and stricter rules for the advertisement of online games of chance (including a complete advertising ban). Based on the vote, a) a cooling off period of 2 years for bad actors has been accepted, b) illegal websites can be blocked, c) the Minster is forced to consider before 1 September 2019 whether a complete ban for advertising for remote gambling would be an option and d) the Minister must investigate whether enough prevention measures have been taken against “young problematic players”.
What does this all mean for gambling operators who are potentially interested in joining or expanding its activities to the Dutch market?
In short: Remote Gambling Act
The RGA provides for a licensed regime for the offering of online games of chance aimed at the Netherlands. For parties who wish to apply for such license, the following key highlights of the RGA are relevant:
- Seat of the license holder – The license holder must have its principal establishment in any EU or EEA Member State. This obligation can be waived by the Board of Directors of the Dutch Gambling Authority (Kansspelautoriteit, “KSA”) if further conditions are satisfied. Furthermore, the license holder must be a public or a private limited liability company according to the laws of any Member State of the European Economic Area (EEA), or an European limited company;
- Prevention of gambling addiction – The license holder must implement measures to avoid gambling addiction, e.g. by identifying and adequately informing the players, monitoring their gaming behaviour, requiring a player profile which sets out the boundaries of that player and intervening where necessary. Where appropriate, operators must report a player with problematic gaming behaviour to the Board of Directors of the KSA for involuntary exclusion from participation in such games;
- Central register – A central register for the exclusion of participants to games of chance will be created. The license holder that may offer remote gambling cannot allow the participation of an individual that has no subscription with the license holder. Furthermore, the license holder cannot allow persons (a) under 18, or (b) that have an entry in the central registry for the exclusion of games of chance, (c) that have indicated (at their own initiative) that they have overstepped the borders of their gambling behavior;
- Access to the electronic means – Operators may be required to record and provide information and must give the supervisory bodies direct access to the electronic means used by them to organize the games;
- Tax regime – a uniform tax rate of 29% applies for all games of chance, i.e. both land based games of chance and remote games of chances.
- Compliance requirements – Furthermore, from the application it should be clear that both the requirement of the WoK are fulfilled, as the requirements from the Money Laundering and Terrorist Financing (Prevention) Act (“MLTFA“) are met. Also, the applicant needs to show it soundly manages its organization of the games of chance, in such a way that the supervision on the compliance with both the WoK and MLTFA is warranted. Thereto the applicant is required use appropriate means, processes and procedures. Appointment of a functionary or official in the organization that supervises compliance with the WoK and the MLTFA is required.
- Additional requirements – All other regulations on restrictions, provisions, duration and assignability of the remote gambling licenses will be stipulated in the Remote Gaming Decree (RGD), which is currently still in draft version. We previously wrote an article with respect to the draft RGD, in which the main topics are set out. This includes, among others, requirements regarding the reliability of the holder of the license, the UBO’s and decision makers, the requirement to have a representative in the Netherlands to comply with rules regarding the prevention of gambling addiction, and advertising rules. As the draft RGD is a ministerial decree, no further votes will take place and it is expected that the final adoption will shortly take place by the minister.
There are a few last steps to be taken in the legislative process: the final RGA will be signed by the King of the Netherlands, after which it will be ‘countersigned’ by the minister. After this, the RGA will be published (promulgated) in the Official Gazette. The date of entry into force will be regulated by a separate Royal Decree on the entry into force.
With respect to the license itself: it is not yet clear when exactly parties can apply for a license with the KSA and when the exact license requirements/application forms will be published. We received mixed information from the KSA in this respect (differing from summer 2019 to summer 2020). However, the KSA mentioned that more guidance will be published shortly.