Draft legislative proposal online games of chance in consultation, please click here to view the proposal.
Recently, the long expected draft legislative proposal for online games of chance was published. The legislative proposal enables the provision of online games of chance in the Netherlands, provided that a licence has been obtained for this.
The licence system is intended to create a regulated offering of online games of chance. To achieve this, stringent requirements are set to the licence (-holders).
The draft legislative proposal provides for an amendment of the Dutch Wet op de kansspelen (Betting and Gaming Act) and the Wet op de kansspelbelastingen (Betting and Gaming Tax Act). Significant is the introduction of a new betting and gaming tax rate of 20% for online games of chance. The proposed amendments also affect promotional games of chance, as the current tax exemption in that respect is lowered in the proposed amendment.
The draft legislative proposal will be open for consultation until 21 July 2013 and anybody who wishes this may comment on the proposal. These comments may be incorporated in the final legislative proposal.
In this newsflash we explain the legal and tax features of the draft legislative proposal.
I) Amendment to the Dutch Betting and Gaming Act
Remote Games of Chance
Remote games of chance include all games of chance in which the player participates using electronic means of communication. A feature of these games of chance is that there is no physical contact between the person providing it and the player. This distinguishes online games of chance from the "land based" games of chance. The draft legislative proposal does not include any restrictions on the kinds of games that may be offered remotely. In a general administrative order though, further rules will be set on the kinds of games that may be organised. For example, poker games, casino games and sports bets.
Granting of Licences
Any company meeting the conditions for licence granting may qualify for a licence for remote games of chance. The legislative proposal does not set any restrictions to the number of licences granted, but it is expected that the number remains limited as a consequence of the stringent requirements and costs set to it. Only "providers who can offer games of chance in a sound, reliable and verifiable way" qualify for a licence. This way, the applicant of a licence must be able to provide appropriate guarantees for the stability of the organisation, the reliability and expertise must be beyond any doubt and technical and operational requirements are set. The exact requirements are still to be set in lower regulations and may be formulated differently per kind of game.
The licence is, in principle, issued for the term of five years. A provider of games of chance who already has a licence in another EU or EEA member state is not automatically entitled to a licence in the Netherlands, but does have the advantage that, in particular circumstances, the licence can be granted through an abridged procedure.
Duty of Care Licence Holders
One of the objects of the draft legislative proposal is to direct players to a regulated offer with guarantees for consumer protection and against gambling addiction and crime. Licence holders also have a far-reaching duty of care in respect of players. For example, the licence holder must take the necessary measures to give the player as much notion as possible of his own gaming behaviour and inform him sufficiently about (the risks of) games of chance. In addition, the licence holder must take measures to help the player, if necessary, in mitigating his gaming behaviour. Pursuant to the present legislative proposal, a copy of his ID must be sent and a verification payment must be made when creating a player profile. According to the legislator, this will prevent minors from participating in the games of chance while at the same time fraud and crime are prevented.
Finally, the licence holder must inter alia have a .nl extension, means of preventing fraud and crime, protect the credit balances of players and advertise in a sound manner.
Central Register of Exclusions to Combat Gaming Addiction
Players showing risky gaming behaviour may be excluded from participation, either voluntarily or involuntarily. To register the (temporary) exclusion from participation nationally, the legislative proposal proposes the setup of a central register. This register will be managed by the Dutch regulator, the Betting and Gaming Authority. Supervision and Enforcement
The Betting and Gaming Authority will supervise the conditions set to the providers of games of chance. The draft legislative proposal provides the authority with far-reaching powers. The Betting and Gaming Authority will have inter alia the power to perform inspections of gaming systems, to place seals on business premises and objects and to enter and search houses.
Binding instructions may also be given to ICT-service providers to take down a website.
II) Amendments to the Dutch Betting and Gaming Tax Act
GeneralThe regulation of remote games of chance as laid down in the draft legislative proposal also affects the levy of betting and gaming tax. The Dutch Wet op de kansspelbelasting (Betting and Gaming Tax Act) is amended in a significant number of points.
Games of Chance, Tax Payer, Tax Base and Rate
In the past, the question arose whether poker must be considered to be a casino game. The legislative proposal emphasizes that poker, similar to the Betting and Gaming Act, must be regarded as a game of chance for the Dutch Betting and Gaming Tax Act.At present, in particular games of chance, like foreign casino games, the operator is designated as the tax payer, whereas in other games of chance the player has been designated as tax payer, like in the case of national promotional games of chance. For remote games of chance by operators with a licence, but also for national land based poker tournaments, it has been proposed that the operator will be the tax payer. The basis over which the tax is levied consists in the gross gaming revenue at the operator. This basis also applies to the levy on games of chance.
For remote games of chance by operators with a licence, a tax rate is proposed of 20%. This is lower than the regular rate of 29%, which applies to other games of chance. For example, in the case of remote games of chance by operators without a licence the person entitled to the prize is taxed at a rate of 29% over the monthly winning.
Levy on Games of Chance
It is noted that also the basis of the levy on games of chance will be amended. This levy is used to finance the Games of Chance Authority. Under the current act, the basis is the nominal value of the participation certificates for lotteries and the numbers of gaming tables, player terminals linked thereto and player places of slot machines. This basis cannot be used for remote games of chance. This is why the gross gaming revenue will also apply as base for the levy on games of chance.Lowered Exemption
The proposed lower rate for remote games of chance is financed by a lowered exemption for betting and gaming tax levied after the prizes. Under the current act, this exemption in principle applies to prize amounts up to and including EUR 454 per prize. The exemption is reduced to prizes amounting to less than EUR 250 per prize. This amendment will only enter into effect if the Netherlands obtains the approval from the European Commission for state aid to introduce a 20% rate for remote games of chance by providers with a licence. Promotional Games of Chance
The reduction of the exemption to EUR 250 also applies to the prizes of lotteries, competitions, bingo games and promotional games of chance. In particular, the lower exemption may be important for promotional games of chance as in practice in the case of promotional actions the prizes are usually kept under the current exemption threshold. These prizes might exceed the proposed threshold. The exemption applies per prize. Sometimes, multiple prizes can be won in one game of chance. It may be that somebody wins more than one prize in one game of chance; in that case all the prizes won are considered to be one prize. The exemption does not apply to games of chance provided by internet. In the case of the implementation of the proposed amendments, the general terms and conditions for promotional games of chance must be brought up to date.
III) Costs of Licence
The provider who wants to qualify for a licence owes a fee for the processing of the application. The costs hereof are estimated at an amount between EUR 35,000 and EUR 50,000. In addition, it is proposed that a fee is paid to the Ministry of Security and Justice for the exploitation of the licence, and a fee for an addiction fund. Furthermore, there is the option to introduce a minimum contribution percentage for sports, culture, social welfare or public health. Next Steps
Market parties and interested parties are invited by the Ministry of Security and Justice to comment on the legislative proposal until 21 July 2013 through the website www.internetconsultatie.nl/kansspelen_op_afstand. After the consultation round, the comments will be processed and an amended proposal will be discussed in the Council of Ministers and be submitted to the Council of State for its opinion. After the approval by the Council of State, the legislative proposal must be discussed in both the Lower and Upper House of Parliament. It is expected that as of 1 January 2015, the Betting and Gaming Authority will provide the first licences.
For more information you can contact Roelien van Neck (firstname.lastname@example.org) or Arnoud Knijnenburg (email@example.com). By phone you can reach them at +31 (0)70 353 8800.