Gaming Law 2022 Comparisons

Market Vision

The national regulatory authority for gambling, the Netherlands Gambling Authority (NGA), published the definitive version of its so-called Market Vision on Games of Chance (Marktvisie kansspelen. Marktordening en markttoezicht vanuit de publieke belangen, or “Market Vision”) in January 2021.

In its Market Vision, the NGA notes that new operators might need to be given the opportunity to create attractive gambling offers. Furthermore, the NGA states it is obvious that (state-run) monopolies in some land-based sectors will have to be abolished eventually. This includes monopolies such as lotteries (including scratch cards), sports betting, horse racing and harness racing betting, and casino. Although such changes would require amendments to existing legislation, the Market Vision might very well signal an increased likelihood of future developments within these areas.

Enforcement Approach

On 1 April 2021, the long-awaited regulatory framework for remote gambling entered into force. The first operators went live in early October 2021. Now, in October 2022, the NGA has issued 23 remote gambling licences.

In September 2021, the NGA published its new approach towards locally unlicensed operators, which consists of amendments to the NGA’s fining policy and demonstrates a shift away from the established prioritisation criteria-based policy. In this regard, the following principles apply.

• The NGA will no longer focus solely on illegal operators themselves but will also investigate the entire chain of companies involved in the organisation of illegal online offerings. Payment service providers (PSPs) and software providers are mentioned. Previously, only affiliates had been targeted alongside operators.
• As the enforcement capacity of the NGA is not unlimited, the NGA will still set priorities. When setting priorities, the NGA will consider – among other things – the number of Dutch players at unlicensed operators.
• Additionally, the NGA will take into account public policy objectives when deciding where to use its enforcement capacity. These public objectives are consumer protection, prevention of gambling addiction, combating illegality and crime, and the protection of the licensed market.
• In terms of enforcement action against illegal operators, 2022 has seen a shift in the NGA's approach from serving administrative fines to imposing cease and desist orders that containing financial penalties for non-compliance.

The Remote Gambling Market One Year On

The remote gambling market was opened on 1 October 2021. A year later, the NGA considers this market “quite” stable. Recent additional restrictions and developments to the remote gambling market mainly revolve around addiction prevention and advertising. The increase in advertising in 2021 and 2022 for games of chance caused a backlash in society. To better protect vulnerable groups of people, further advertising restrictions have been put in place and are on the horizon (see 9.6 Recent or Forthcoming Changes).

With regard to the remote gambling licence application process, the leniency period for operators with a (previous) unlicensed presence in the Netherlands came to an end on 31 March 2022. Any applications submitted after 31 March 2022 are assessed based on the “default position” of the reliability assessment, meaning such unlicensed presence in the Netherlands will likely result in the rejection of the application (see 4.7 Application Requirements). It should be noted, however, that there are no policy rules from the NGA on applications submitted after 31 March 2022.

Remote gambling offers without a Dutch licence are prohibited. This prohibition applies to all locally unlicensed offers, regardless of the licence an operator may have in another (EU/EEA) jurisdiction. Licensed operators are permitted to offer various forms of remote gambling, as per the four categories explained in 4.4 Types of Licences. This section addresses how the regulatory regime shapes gambling offers pursuant to different product verticals.

Betting (in General)

Licensed operators are allowed to offer bets on the outcome of horse racing and harness racing, on the outcome of sporting contests, or events that occur during sporting contests. However, bets on negative events or events that can be easily manipulated (eg, yellow/red cards) are prohibited. Betting on events other than those occurring during sporting contests is prohibited. Spread betting is also prohibited.

Bingo

Short-odds, high-tempo bingo games are licensable as casino games.

Casinos

Operators are also allowed to offer casino games in which:

• the players play against the licence holder (eg, blackjack), including live casino games; and
• the players play against one another, including live casino games (poker games fall under this category).

Fantasy Sports, Esports and Virtual Sports

Esports betting is allowed, in principle. However, this is subject to the condition that the underlying sporting contest is organised under the auspices of a recognised (inter)national sports organisation. Until such a time that esports governance reaches this stage, licensed operators must refrain from offering bets on such competitions. This remains unchanged in 2022.

Fantasy sports betting is classed as sports betting and is thus permitted. At the same time, fantasy sports betting is only allowed if it is based on (elements from) sporting contests that fit the definition of a sporting contest. Furthermore, the underlying sporting contests must be organised in accordance with the safeguards against match fixing.

Bets on virtual sports are allowed when the outcome is determined by a random number generator. These bets are regulated as casino games, not sports betting.

Lotteries

Holders of a remote gambling licence are not permitted to offer lotteries remotely. Charity lotteries may be offered online, without having an offline offer, but they are not regulated as remote gambling.

Social Gaming

Social games that do not include prizes or premiums are not considered to be games of chance and thus fall outside the scope of the Betting and Gambling Act (BGA).

The land-based gambling market in the Netherlands consists of a mix of state-owned incumbents and private entities, and a multitude of licensing requirements. This section provides a general overview of licensable land-based games of chance. The individual licensing systems are explained further in 4.4 Types of Licences.

Readily Available Licences

An unlimited number of licences are available for slot machines. Slot machines can be located in cafes or restaurants targeted towards people over 18 years of age and in slot-machine arcades. Municipalities determine whether slot machines are permitted within their area and, if so, which other restrictions apply (eg, zoning, maximum number and opening times).

An unlimited number of licences are also available for charity lotteries; however, these licences are subject to conditions, including a prohibition on generating private profits. Furthermore, all such offers must be for the public good, with 40% of revenue going to good causes.

Semi-permanent Licences

Single licences exist in the field of horse race betting, sports betting, the instant lottery, and the Lotto. The Lotto is a game in which participants predict a given number of symbols from a predefined range and, subsequently, a draw is made. The instant lottery is offered in the form of scratch cards (krasloten), whereby prizes are allocated to tickets before sales commence.

Licences for these sectors are referred to as semi-permanent because they are valid for a period of five years and have been reallocated to incumbent licence holders in 2022.

Permanent Monopolies

Casino gambling (including poker) is offered by the state-owned Holland Casino, which enjoys a permanent monopoly. Furthermore, the state lottery licence was granted to the Staatsloterij BV in 2022 for an indefinite period. The latter effectively perpetuates the permanent monopoly that has long been enjoyed for offering what is essentially “the national lottery”.

Games That Are Exempt From the Licence Requirements

Several forms of gambling are exempt from the “prohibited unless licensed” approach, including small-scale gambling and promotional games of chance. Land-based bingo games can only be offered when they fall within one of these categories.

The BGA and the Betting and Gambling Tax Act (BGTA) are the primary laws that specifically regulate gambling in the Netherlands. The BGA incorporates a prohibited-unless-licensed approach, whereby it is prohibited to offer games of chance without a licence.

According to the BGA, “games of chance” consist of two elements:

• an opportunity to compete for prizes or premiums; and
• the designation of winners by a means over which the participants are generally unable to exercise a dominant influence.

A prize or premium is defined broadly. The definition includes monetary prizes as well as in-kind prizes. Payment of a stake is not required for a game to be considered a game of chance under the BGA, which increases the prospect of individual games being found to constitute gambling in the Netherlands when contrasted with other jurisdictions.

Land-based gambling is not defined separately in legislation. The BGA only mentions those games of chance for which one or more licences can be awarded.

Remote games of chance are defined by reference to the general definition of “game of chance”, as provided in 3.2 Definition of Gambling. Additionally, according to the BGA, the following two elements must be present:

• the game of chance is offered remotely, using electronic means; and
• participation must be without any physical contact with the operator.

Under the BGA, it is prohibited to:

• to offer unlicensed games of chance;
• to promote/facilitate unlicensed games of chance; and
• to knowingly participate in unlicensed games of chance.

Enforcement of these prohibitions takes place primarily by administrative measures, although there are no known cases of players being subject to enforcement measures for participating in unlicensed offers. There is an option to enforce via criminal law under specific circumstances, as detailed in the enforcement protocol between the NGA and the public prosecutor.

Following the amended BGA's entry into force, the scope of the prohibition on promoting games of chance has expanded to include the facilitation of such unlicensed offers. The expanded scope applies to providers of other intermediary services, too.

Breaches of the prohibitions against offering or facilitating unlicensed games of chance (as discussed in 3.5 Key Offences) can be sanctioned by an administrative fine, or a cease and desist order that is subject to a penalty for non-compliance. The NGA may also impose a binding instruction. The maximum administrative fine currently stands at EUR900,000 (or 10% of the turnover during the previous year if this exceeds EUR900,000).

Administrative fines regarding illegal operators are awarded in accordance with the NGA’s fining policy, under which the base fine is EUR600,000. However, if the offender's turnover in the Netherlands exceeds EUR15 million, the fine is 4% of turnover. The fine will be increased in certain circumstances – for example, in cases where illegal offerings are aimed at minors or where no information is provided on addiction prevention.

Criminal sanctions can consist of a fine (up to EUR900,000 for legal entities), imprisonment and community service. Please note that, as indicated, administrative law is the primary enforcement route.

It has been noticed in 2022 that the NGA generally imposes cease and desist orders (with a penalty payment clause) on unlicensed operators. It is expected that the NGA will use this or another of its enforcement measures when dealing with intermediaries who support illegal operators. See 11. Enforcement.

A recent change to Dutch gambling law is the ban on using role models in gambling advertisements. Although advertisements were allowed to feature role models at the opening of the market, as of 30 June 2022 this is prohibited. Only the sponsoring of sportspersons and teams of sportspersons is permitted.

Another recent change is the inclusion of electronic money institutions (EMIs) as permissible payment instruments.

At the time of writing (October 2022), more advertising restrictions are on the horizon. A ban on untargeted advertising is expected to enter into force in the first quarter of 2023.

The independent NGA is the regulatory authority concerned with the supervision and enforcement of the BGA. The NGA is also tasked with the award of gambling licences. For slot machines, a licence is also required from the local municipality.

The Dutch Customs and Tax Administration is the authority responsible for imposing and collecting taxes (including gambling tax) on behalf of the Dutch state.

As stated in 3.3 Definition of Land-Based Gambling, the BGA embodies a prohibited-unless-licensed approach. This means that all locally unlicensed gambling offers – apart from those forms that are exempt from licensing requirements (as referred to in 2.2 Land-Based) – are unlawful.

Prioritisation

In performing its enforcement duties, the NGA has discretion with regard to the moment at which it launches enforcement investigations. Therefore, enforcement action by the NGA against locally unlicensed remote gambling offers revolves around a non-exhaustive list of triggers or questions. The answer to these questions determines the priority of an investigation into a possible violation of the BGA.

These triggers/questions are:

• how many Dutch players make use of the illegal offer?
• how harmful is the illegal offer to the public objectives of the NGA?
• are there any illegal offers or other circumstances that could draw players away from the legal market?
• to what extent does the illegal offer target Dutch consumers?

This new enforcement approach entered into effect on 1 November 2021 and affected some major operators that were (passively) available on the Dutch market. Under the old enforcement approach, some operators sought to remain passively available on the Dutch market (eg, without targeting Dutch customers via advertising) up until the point that they obtained their Dutch licence. As of 1 November 2021, the old so-called prioritisation criteria no longer applied and any fines levied would likely be far higher than before.

Through reliance on the new prioritisation questions, the NGA merely seeks to prioritise its enforcement efforts. It is important to note that locally unlicensed offers that are not prioritised on the basis of these questions remain in breach of the law, even though the risk of enforcement might be mitigated.

Enforcement against Intermediaries

As of 1 April 2021, intermediaries such as PSPs and software providers clearly fall within the scope of the ban on promoting/facilitating unlicensed games of chance (see 3.5 Key Offences). The Dutch legislator prescribes the use of enforcement measures against intermediaries as an effective weapon in driving unlicensed B2C operators from the market.

At the same time, the legislative history underpinning the remote gambling reforms of 2021 suggests that administrative fines will not be the first port of call against an intermediary. Nevertheless, the NGA will decide which enforcement measure it deems most appropriate. The measures available to the NGA are described in 11. Enforcement.

With regard to licensing, after 31 March 2022, the leniency period for remote gambling applicants that have (had) an unlawful presence in the Netherlands no longer applies. Applications from operators with a (previous) presence on the Dutch market that are submitted after this date will – in principle – be rejected (see 4.7 Application Requirements).

Land-Based Gambling

The licensing systems for land-based gambling services are set out in 2.2 Land-Based. Given the nature of the semi-permanent and permanent licensing regimes, only slot machines and charity lotteries are explained further in this section.

Firstly, slot-machine operators can only operate machines for which a valid type approval has been granted. Secondly, operators must possess an exploitation licence from the NGA. Thirdly, slot-machine operators must obtain a licence from the relevant local municipality in relation to the premises in which the slot machines are to be located (premises licence).

Charity lottery licences can be divided into two categories: non-incidental and incidental. Non-incidental lotteries are awarded for a period of more than six months and a maximum of five years. Incidental lotteries are awarded for a period of six months and are allowed a maximum of 13 draws within that period.

For both incidental and non-incidental charity lotteries, 40% of revenue must go to good causes and operators are prohibited from generating private profit. Licences issued by the NGA are intended for lotteries with prizes amounting to a total of more than EUR4,500. Licences for lotteries with prizes totalling an amount of EUR4,500 or less are awarded by local municipalities.

Remote Gambling

In accordance with the BGA, an applicant can apply for four categories:

• casino games in which the players play against the licence holder (eg, blackjack);
• casino games in which the players play against one another (eg, poker);
• bets on events occurring during a sporting contest or on the outcome of a sporting contest; and
• bets on the outcome of horse racing and harness racing.

The permitted remote gambling services outlined in 2.1 Online fall into one of the above categories.

Land-Based Gambling

As explained in 2. Jurisdictional Overview, there is no cap on licences for charity lotteries and slot machines and, in reality, these are the only licences that can be considered “readily available” in the land-based sphere. However, in terms of slot machines, practice will be determined by the policies of local municipalities.

Remote Gambling

The number of remote gambling licences is unlimited, but applicants will have to fulfil strict requirements on subjects such as:

• the reliability of the applicant;
• separation of player funds;
• addiction prevention;
• digital communication (a control database located in the Netherlands);
• consumer protection; and
• payment transactions.

The offer of slot machines requires three separate documents, with different durations. Firstly, the slot-machine type approval will ‒ in theory ‒ remain valid unless the model has to undergo changes. Secondly, the exploitation licence is awarded by the NGA for a period of ten years. Finally, the premises licence is awarded by the relevant local municipality. For cafes and restaurants that target those over 18, these licences are usually valid for between one and five years. Different premises licensing regimes (with licensing periods between one and 15 years) apply for gaming arcades.

As mentioned in 4.4 Types of Licences, charity lotteries are awarded for a period of six months or for a longer period (in practice, five years).

Remote gambling licences are awarded for a maximum period of five years.

Given that licences are effectively only available for charity lotteries, slot machines and remote gambling, this section focuses solely on applications for these types of licences.

Reliability Assessment for Remote Gambling Applicants

One of the key requirements for remote gambling licence applicants is the reliability assessment.

This reliability assessment consists of a two-step approach: a reliability test and probity screening.

Reliability test

The first step in the overall reliability assessment is the reliability test based on the BGA and secondary legislation. The NGA will investigate whether the reliability of the applicant is “beyond any doubt”.

The reliability test includes relevant legal and natural persons, such as shareholders, directors, subsidiaries, and entities that are ancillary to the applicant. The Dutch legislator takes the view that the acts and omissions of persons involved in, or surrounding, the applicant entity can affect the reliability of the applicant itself.

Practice shows that the scope of the reliability test is broader than most applicants expect. In itself, this broad scope need not be a barrier to an applicant’s chances of success. Nevertheless, during the process of preparing a licence application, it can take some time to identify every person and entity that is considered relevant by the NGA.

Locally unlicensed presence

For applications made before 1 April 2022, an important element of the reliability test was the (previous) presence of the applicant on the Dutch market. For those applications, an unlicensed presence on the Dutch market would not – in and of itself ‒ render an applicant as lacking a sufficient degree of reliability.

Operators with an unlicensed presence that submit their licence application after 31 March 2022 cannot make use of this exception to the default position. As such, the applications of operators with a (previous) presence on the Dutch market submitted after 31 March 2022 will – in principle – be rejected. The reliability of these operators will not be considered “beyond any doubt”.

The NGA will also take into account the unlicensed presence of persons and entities surrounding the licence applicant. Whether an unlicensed presence of these persons will lead to rejection is something that cannot be answered in general terms. In its assessment, the NGA will take into account various circumstances, such as the relationship between the offender and the licence applicant.

Probity screening

The second step consists of a test based on the Public Administration (Probity Screening) Act (De Wet Bibob, or “the Bibob Act”). This test allows the NGA to assess:

• whether there is a danger that the licence will be used to utilise monetary benefits obtained or obtainable from criminal acts; and
• whether a criminal act has been committed in order to obtain the licence.

Where the NGA deems necessary, and in specific situations, it will ask for advice from the Bibob Agency (Landelijk Bureau Bibob), which specialises in integrity assessments and providing advice to government authorities.

Reliability Assessment for Land-Based Slot-Machine and Charity Lottery Licences

The above-mentioned reliability assessment for remote gambling applicants does not apply to land-based slot-machine (exploitation) licence applications and charity lottery licence applications. Moreover, no policy equivalent to the cooling-off criteria prevails.

However, applicants for these licences will have to fulfil requirements regarding integrity and reliability. The NGA’s investigation will include an assessment of the applicant's:

• finances;
• antecedents;
• organisational structure; and
• business relationships with other natural or legal persons.

Furthermore, applicants for land-based slot-machine and charity lottery licences could also be subject to a test based on the Public Administration (Probity Screening) Act. On 4 October 2022, the NGA published its policy rules on probity screening for land-based slot-machine applicants.

The NGA has six months to assess a remote gambling licence application. This period can be extended by another six months. Internally, the NGA divided the licensing process in two phases:

• information gathering; and
• decision-making.

During the first phase, the NGA allows a licence applicant to amend and improve application documentation in response to feedback and critique that it provides. Once the application dossier is considered complete, the NGA will move to the second phase. In this phase, the applicant is not permitted to change any application documentation (except in specific circumstances) and a decision is made on the application.

Licence applications for slot machines, incidental lotteries and charity lotteries must be completed within eight weeks. This period can be extended depending on the (additional) information required from the applicant.

Fees for slot machines consist both of the fees for premises and exploitation licences. According to the information provided by the NGA, premises licences are set by individual municipalities at a maximum of EUR22 (plus EUR34 per slot machine). The exploitation licence awarded by the NGA is subject to a one-off fee of EUR1,815.12 and an annual fee per player seat. (In 2022, this annual fee was EUR136 per player seat.)

Fees for incidental charity lottery licences depend on the total amount of the prizes that can be won:

• prizes totalling an amount more than EUR4,500 and up to EUR50,000 are subject to a fee of EUR500;
• prizes totalling an amount more than EUR50,000 and up to EUR500,000 are subject to a fee of EUR4,100; and
• prizes totalling an amount more than EUR500,000 are subject to a fee of EUR24,000.

The fee for non-incidental charity lottery licences, with prizes totalling more than EUR4,500, stands at EUR28,000.

Remote gambling licences are subject to a non-refundable licence application fee of EUR48,000.

As described in 4.9 Application Fees, the exploitation licence for slot machines is subject to an annual fee of EUR453.78.

Although not an annual fee as such, remote gambling licence holders must pay a levy of 1.95% of gross gaming revenue (GGR) in order to cover two things:

a designated 1.7% of GGR covers the annual costs associated with the NGA’s performance of its tasks; and

the remaining 0.25% covers costs associated with the addiction prevention fund.

A similar levy applies to lotteries (both incidental and non-incidental) with GGR above EUR1 million. The levy is applied progressively, in four brackets, on the basis of the lottery’s GGR.

As explained in 4.4 Types of Licences, a premises licence is required for slot-machine operators. These licences can be awarded by local municipalities. Specific requirements including opening hours, location and number of slot machines are determined by the relevant municipality in which the operator has its premises.

The existing 14 casinos within the Netherlands are all operated by the state-owned Holland Casino. Other venues calling themselves casinos are not actual casinos – that is, they are only allowed to offer machine-based gambling, rather than games that are supervised by human dealers.

Land-Based Gambling Monopolies

The land-based licensing systems were introduced based on the premise of a restrictive legal offer. The rationale was that open licensing systems should only be introduced in sectors where it was necessary. In 2011, the State Secretary for Justice and Security stated that there should be more room for an attractive gambling offer. However, most land-based licences (such as the State Lottery, the Lotto, the instant lottery, horse race betting and sports betting) are still awarded to a single operator on a permanent or semi-permanent basis. To date, legislative reform has only altered the regulatory landscape in terms of remote gambling.

As mentioned in 1.1 Current Outlook, on 21 January 2021 the NGA published the final version of its Market Vision on games of chance in the Netherlands. The NGA called for the abolition of land-based gambling monopolies, although any change of this magnitude will require amendments to primary legislation.

State Monopoly on Land-Based Casinos

An expected, one key reform was the end of the state monopoly on land-based casinos in 2019. Plans to privatise Holland Casino and remove its monopoly on land-based casinos eventually failed on 17 May 2019. The bill that was supposed to arrange the privatisation of Holland Casino and subsequent removal of the monopoly was under consideration at the same time as the bill on remote gambling. During the Senate debates in February 2019, several parties expressed doubts about the simultaneous liberalisation of the remote gambling sector and the land-based casino sector following the adoption of both bills.

As the Minister did not expect to a majority vote on the privatisation of Holland Casino, he asked the Senate not to vote on the bill. Eventually, the Minister withdrew the bill on privatisation completely on 17 May 2019. In a statement made on the same date, the Minister declared that privatisation was still preferred by the Cabinet. At the time of writing (October 2022), while some Members of Parliament have asked whether Holland Casino should be privatised following the many gambling advertisements, there are no indications as to when a bill will be (re-)introduced to this end.

As indicated in 2.1 Online, the remote gambling licensing regime allows the offer of most gambling verticals. Subjects that are addressed during the licensing process include:

• the reliability of the applicant (including shareholders and directors);
• financial continuity;
• the separation of player funds;
• addiction prevention;
• consumer protection;
• AML and CFT;
• integrity; and
• outsourcing.

An important restriction on the use of remote gambling licences is the prohibition of anonymous payment instruments. Payment instruments can – in principle – be used if those instruments have been issued by a bank, payment institution or EMI that is licensed in accordance with EU regulations.

Furthermore, operators are not permitted to offer lottery services remotely on the basis of a remote gambling licence. Games in which players can lose more than their stake are also prohibited.

Licence holders are permitted to operate multiple brands and/or domain names under one licence. A .nl domain is not required. At the same time, this option is somewhat restrictive given the obligation that the licence holder can only have a single player account per person, per licence.

Position on Foreign Jurisdictions

The remote gambling licensing regime is aimed at players in the Netherlands. Remote gambling services licensed in the Netherlands are not to be exported to other jurisdictions on the basis of the operator’s Dutch licence.

Remote gambling licences obtained overseas are not, and will not be, recognised in the Netherlands. Locally unlicensed gambling offers available to Dutch customers remain illegal even if the operator in question is licensed abroad. The Dutch Supreme Court, in its 2005 Ladbrokes decision, adopted a very low threshold for a gambling offer to be considered “available in the Netherlands”. There is no requirement in terms of specifically “targeting” the Dutch market, nor is it necessary for one or more Dutch residents to have actually participated in a particular offer.

The BGA does not include a licensing system for B2B service providers. In principle, therefore, service providers such as software suppliers and affiliates are free to provide their services to locally licensed remote gambling operators. Licensed operators will be responsible for ensuring that all suppliers comply with regulatory requirements flowing from the Dutch regulatory regime.

As such, B2C operators are subject to requirements concerning outsourcing. Licence applicants are required to submit their outsourcing policy to the NGA, which will assess this policy during the application process and investigate the risks associated with the outsourcing of certain activities to third parties. The NGA will specifically assess safeguards within an applicant’s policy and relevant contracts to ensure that all relevant regulatory requirements will be upheld (and standards met), despite the fact that the applicant intends to rely on third parties for particular elements of their operation. Furthermore, during the application process and thereafter, B2C operators must notify the NGA of certain tasks and activities that are outsourced.

Ultimately, licence holders remain responsible for advertising activities performed by affiliates.

Prior to the opening of the market, the NGA performed periodic investigations into affiliate marketing for locally unlicensed gambling offers, and affiliates have been subjected to cease and desist orders on the basis of Article 1(1)(b) of the BGA (ie, the ban on promoting/facilitating unlicensed games of chance). After the opening of the market, the NGA has intensified its enforcement against affiliates promoting locally unlicensed offers. In practice, the NGA allows affiliates 48 hours to discontinue all advertising activities for unlicensed operators.

Affiliate marketing for licensed offers is permitted. Affiliates servicing these operators are required to comply with advertising requirements under the BGA (and under secondary legislation) via the licensed operator. In light of the legislative requirements, the NGA published a Policy Rule on Responsible Gambling that also applies to affiliate marketing activities aimed at the Netherlands. The Policy Rule on Responsible Gambling replaced the existing Guidelines for Gambling Advertising 2016 (Leidraad reclame voor kansspelen), which also covers unlicensed offers and those with a role in advertising games of chance (eg, affiliates).

The proposed ban on untargeted advertising is likely to have a significant impact on affiliates, as the scope of the ban also covers untargeted advertisements via the Internet (see 9.6 Recent or Forthcoming Changes).

Neither the regulatory regime, nor the NGA, provides explicit guidance on the use of white labels. However, the requirements that are in place provide some information on white-label solutions that can or cannot be offered under the Dutch gambling regime.

Although licence holders are permitted to operate multiple brands and/or domain names under one licence, some white-label solutions are restricted by the “one player account” rule (see 6.1 B2C Licences) ‒ that is, a licence holder can only offer one player account to any individual player. Consequently, various actions (including responsible gambling measures) would, when taken in relation to one brand, apply to all brands that are supplied on the basis of the same single licence. In this scenario, the brands operating under the white-label licence will be unable to compete with each other.

The “one player account‟ rule, combined with the lack of a B2B licensing regime, makes life difficult for white-label providers that would ordinarily obtain a licence and offer turnkey solutions to other parties. The regulatory requirements basically entail that such a white-label provider would have to obtain a licence for each competing brand.

2023 may see the passing of the Digital Government Act, which permits the use of eIDAS instruments so that players do not have to upload their identity document.

Changes are expected in the area of advertising and addiction prevention (see 7.2 Recent or Forthcoming Changes and 9.6 Recent or Forthcoming Changes).

In terms of locally unlicensed offers, the NGA takes the position that operators are in breach of the BGA by being available to Dutch customers, even when such offers are only passively available. This means that operators who neither use geo-blocking instruments nor prevent the registration of Dutch customers are at a greater risk of enforcement measures being taken. However, in practice, the lack of geo-blocking measures has never been a standalone trigger for enforcement measures by the NGA.

The NGA has the ability to issue binding instructions to intermediaries such as affiliates and PSPs to hinder the ability of a B2C operator to reach consumers in the Netherlands. However, the NGA is not allowed to use a binding instruction in order to force a blackout of certain websites ‒ for example, via an IP or domain name system (DNS) block.

In relation to .nl domains, the NGA may contact the entity managing the registration of .nl domain names to ensure that unlicensed gambling content is no longer available in the Netherlands.

All licensed operators are subject to an “active duty of care” to prevent gambling addiction. Furthermore, land-based casinos, land-based slot-machine operators and remote gambling licence holders are required to have at least one addiction prevention representative for the Dutch market. According to the Remote Gambling Decree (RGD), the representative does not need to be a resident of – or be established in – the Netherlands. Instead, the representative must be sufficiently present in the Netherlands to carry out their duties. Further details are included in the Policy Rule on Responsible Gambling.

Furthermore, the BGA introduces several important new tools to combat gambling addiction. One of these tools is the CRUKS (Centraal Register Uitsluiting Kansspelen) system. Land-based casinos, land-based slot-machine arcade operators and remote gambling operators must check whether a player is registered in CRUKS before admitting the player. Players who are registered in CRUKS, regardless of whether registration was voluntary or involuntary, must not be granted access to these games of chance. In September 2022, 23,000 individuals were registered in CRUKS (of which 10 were registered involuntarily).

There are other requirements designed to protect players from engaging in excessive participation. Remote gambling licence holders, for example, may not personalise bonuses based on the behaviour of an individual player. This includes offering a bonus, as well as tailoring the amount of the bonus, based on the player’s behaviour. An example is offering a bonus when the player has incurred a significant loss or leaves the game. Furthermore, licence holders will not be able to offer an individual player a bonus for a certain period of time after a responsible gambling intervention measure has been taken. The more severe the intervention measure, the greater the length of the period of time during which no bonuses can be offered.

Both the legislator and the NGA agree that operators should do more when it comes to fulfilling their duty of care to prevent gambling addiction. One example is playing limits. Current regulations contain the requirement that every player has to set three limits (see 7.3 Gambling Management Tools). There is no upper ceiling to these limits.

The Minister is in favour of overarching limits (ie, a limit that applies across all licence holders). However, this is unenforceable, given the many technical and privacy implications. The Minister is therefore assessing and working on the implementation of upper ceilings to the existing “open” limits.

At the same time, the NGA is assessing whether the licence holders are carrying out their duty of care sufficiently. Results of this assessment are expected in the first quarter of 2023. This may result in further restrictions.

Knowledge of, and insight into, the current addiction prevention policy and the risk factors of specific games of chance are compulsory for managers and persons in key positions within the remote gambling licence holder's company. An operator’s addiction prevention policy must also be developed, applied and maintained in co-operation with addiction care experts. The addiction prevention policy must include descriptions of:

• how the licence holder co-operates with addiction care experts; and
• how information on addiction is provided to players.

As briefly mentioned in 7.2 Recent and Forthcoming Changes, a key requirement for remote gambling is the option for players to set limits for their gaming behaviour. These limits can refer to:

• the maximum duration of access to the player interface;
• the maximum monetary amount in deposits; and
• the maximum credit in the player account.

On 1 December 2020, the Netherlands implemented the Sixth AML Directive (EU 2018/1673). Currently, casinos and all remote gambling licensees fall within the scope of the revised Dutch Anti-Money Laundering and Anti-Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme (Wwft), or “the AML Act”). Other licensed operators are exempted from the AML Act requirements. The NGA issued a non-binding guidance document on the AML Act for remote gambling licence holders and land-based casinos.

No major changes to the AML Act are expected at this stage. In September 2022, the Minister of Justice and Security concluded that the Dutch AML regime has developed positively and that the basis of the regime is solid.

Relevant gambling operators will have to follow a risk-based approach with regard to drafting and implementing their AML policy.

An important consequence of AML obligations is the requirement for licence holders to obtain a (copy of the) player’s identity document during the registration process. In time, operators may implement eIDAS instruments in order to avoid the need for players to upload their identity document.

Furthermore, operators must demonstrate that they constantly monitor their business relationship with the customer and money transactions by means of customer due diligence (CDD) checks. CDD data on higher-risk players – for example, those from high-risk areas ‒ must be updated more frequently.

Unusual transactions, whether conducted or intended, must be reported to the Financial Intelligence Unit (FIU Nederland). Whether a transaction is unusual must be assessed on the basis of objective (ie, transactions reported to the police) and subjective (ie, reason to assume a connection to money laundering) indicators.

The NGA is also the regulatory authority concerning advertisements for gambling offers. As noted in 6.3 Affiliates, the NGA has taken action against advertisements for unlicensed gambling offers on the basis of the BGA.

The Advertising Code Committee (Stichting Reclame Code) is responsible for enforcement on the basis of the self-regulatory Dutch Advertising Code (Nederlandse Reclame Code) and the Advertising Code for Online Games of Chance (Reclame Code Online Kansspelen (ROK)) that entered into force on 15 December 2021. The former applies to the land-based operators, whereas the latter applies to remote gambling operators.

The Dutch Media Authority is the regulatory authority concerning advertisements on media services (ie, television, radio and video platform services).

The Decree on Recruitment, Advertising and Addiction Prevention (Besluit werving, reclame en verslavingspreventie kansspelen) contains the following broad definition of recruitment and advertising activities: “Any form of communication in which licence holders advocate their services or goods, directly or indirectly, whether or not with the aid of third parties.” According to the NGA, such forms of communication include “branded” content, sponsoring, advertising via social media channels, advertisements on search engines, banners, viral marketing and e-mail marketing.

Advertisements should improve responsible participation in gambling offers. Gambling advertisements must therefore include the applicable responsible gambling slogan, the minimum age of participation and reference to where further (responsible gambling) information can be obtained.

Remote gambling licence applicants must submit an advertising policy. This document will describe the applicant’s approach to shaping advertisements and engaging with third parties such as affiliates. Furthermore, the advertising policy will detail how the marketing team of an applicant is organised.

Currently, land-based operators are permitted to carry out sponsorship activities in accordance with the provisions of the Dutch Advertising Code. Under the secondary legislation, remote gambling operators are permitted to sponsor teams and individual athletes in return for the neutral mention or display of their name, trade mark, figurative mark or any other distinctive sign.

As explained in 3.5 Key Offences, advertisement activities for locally unlicensed gambling offers fall within the prohibition on promoting unlicensed games of chance (Article 1(1)(b) of the BGA).

Licensed offers are subject to a wide range of advertising restrictions. The offering of bonuses is permitted in principle and constitutes an advertising activity. This means that all advertising restrictions apply to bonuses and, in addition, specific bonus requirements apply.

Advertising must be prudent and balanced at all times, which means:

• it cannot be misleading, aggressive or irresponsible; and
• it must not incite excessive gambling.

For all readily available licences (eg, remote gambling and the instant lottery), the watershed period for gambling advertisements on television and radio is between 6am and 9pm.

Furthermore, advertising activities may not be targeted at vulnerable groups of persons (eg, minors, young adults, and persons suffering from gambling addiction).

Role models may not be used in advertisements for remote gambling, land-based casinos and slot machines. This ban includes the use of sportspersons and sports teams. Only the sponsoring of sportspersons and teams is permitted (see 9.6 Recent and Forthcoming Changes).

Prior to the regulatory changes that came into force on 1 April 2021, the NGA issued cease and desist orders for the advertisement of locally unlicensed remote gambling offers. The responsible entities were granted a period of 48 hours to comply with the order. Failure to comply resulted in a penalty of EUR1,500 for every day they remained non-compliant, with a maximum penalty of EUR21,000. Sanction decisions were also published on the NGA’s website.

Since the opening of the remote gambling market, the NGA has intensified its enforcement efforts against advertisement of locally unlicensed remote gambling offers. In 2022, several cease and desist orders have been imposed. The cease and desist orders in question were subject to a penalty ranging from EUR2,500 to EUR5,000 for every day the affiliate failed to comply with the order, with a maximum penalty of EUR12,500 to EUR25,000.

With regard to licensed offers, the NGA collected a penalty of EUR10,000 for non-compliance with a cease and desist order in 2021. The offender was an incumbent that was sanctioned for violating the ban on targeting minors with gambling advertisements. The incumbent's advertisements were visible on a website with an audience largely consisting of minors. This cease and desist order included a maximum penalty of EUR100,000. No cease and desist orders imposed on licence holders have been published in 2022. The NGA approach thus far to violations of advertising restrictions is warning the licence holder of the violation in question.

As of 30 June 2022, individual professional sportspersons, a team consisting of professional sportspersons and other role models cannot be used in advertisements. Only the sponsoring of individual professional sportspersons or a team consisting of professional sportspersons is exempt from this prohibition, subject to conditions. Before 30 June 2022, advertisements were allowed to feature role models, provided that they did not target minors and young adults.

A ban on untargeted advertising for remote gambling is on the horizon. On 10 July 2022, a draft decree was published, in which a ban on untargeted advertising is foreseen for the first quarter of 2023. This includes advertising on television, radio, in newspapers or other printed means of communication and in public spaces. Online advertising will also be banned, unless the advertisement is guaranteed not to reach vulnerable groups of persons.

The draft decree also proposes a ban on remote gambling licensees sponsoring programmes and events from 2024 and another ban on them sponsoring sports from 2025.

All licence holders (both land-based licensees and future remote gambling licensees) must inform the NGA without delay of:

• any relevant changes in the organisational structure of the company; and
• any relevant changes to the information provided in the context of the licence application.

The BGA, secondary legislation and the applicable licence award decision identify several changes that the BGA must be informed of by the relevant land-based or remote gambling licence holder. These triggers include:

• changes in shareholders and ultimate beneficial owners;
• the granting of suspension payments;
• changes in management positions;
• changes in the legal form of the licence holder;
• the transfer of its seat; and
• corporate acquisitions.

Most corporate control changes trigger a notification procedure but do not require the NGA’s pre-approval. However, the NGA will assess a notified change on the basis of the submitted documentation.

As indicated in 4.7 Application Requirements, the remote gambling licence procedure contains a strict reliability assessment. In the event of mergers, splits or changes of control, the NGA must be able to assess the reliability of the new shareholders and persons with effective control over the licence holder. Similar requirements exist for other licences.

As indicated in 3.6 Penalties for Unlawful Gambling, enforcement takes place primarily via administrative law. Prior to regulatory changes on 1 April 2021, the NGA generally issued administrative fines against operators and cease and desist orders against affiliates. The authors are also aware of instances in which the NGA has attempted to take action via the Netherlands Domain Registration Foundation (Stichting Internet Domeinregistratie Nederland (SIDN), which is the entity responsible for managing the registration of .nl domain names) to ensure that content relating to unlicensed remote gambling offers was no longer available in the Netherlands.

As noted in 3.5 Key Offences, the scope of the ban on promoting games of chance was expanded following the entry into force of the amended BGA. Currently, the NGA is able to use its enforcement capabilities against PSPs and other intermediaries.

One of the new enforcement measures for the NGA is the binding instruction. Binding instructions allow the NGA to demand that entities cease certain activities, including providing payment or advertising services to locally unlicensed operators. Following an amendment to the remote gambling bill in 2016, this binding instruction cannot be used against ISPs.

Another instrument is the public warning, which essentially boils down to naming and shaming. As of 1 April 2021, the NGA will also be able to undertake mystery shopping exercises, which was previously not the case.

Sanctions can effectively be enforced against:

• legal entities based in the Netherlands;
• foreign legal entities with assets in the Netherlands; and
• employees or contractors carrying out work in the Netherlands.

Enforcement of administrative sanctions can take place without a court order. Enforcement against operators and persons established abroad ‒ or persons passing through the Netherlands – is more difficult, as no general international law instrument exists for the cross-border enforcement of administrative sanctions.

Financial penalties can be enforced by the NGA on the basis of administrative law, without a court order. As noted in 11.2 Sanctions, the cross-border enforcement of administrative sanctions (including financial penalties) is more difficult. If a foreign entity is unwilling to pay, the NGA will hand financial penalties over to a bailiff/debt collection agency in order to pressure operators to pay. The NGA will also publish the refusal to pay on its website.

Although the NGA has the competence to enforce against natural persons for a violation of the BGA, it has not imposed such enforcement measures in practice.

According to the NGA’s Market Vision, social casino games that do not offer any prizes but only offer the opportunity to play longer fall outside the scope of the BGA.

Esports betting is only allowed when the underlying esports contest is organised by (or under the auspices of) the national sports organisations recognised by the Netherlands Olympic Committee (NOC*NSF) or by a comparable international sports organisation. Although conversations are underway to label esports as a form of sports, at the time of writing, there are no esports competitions that fulfil the criteria. As such, licensed esports betting is currently unavailable on the Dutch market.

Bets on fantasy sports may be offered but are subject to the same restrictions as esports betting.

Skill games do not qualify as a game of chance. Therefore, skill games fall outside the scope of the BGA and are thus unregulated.

Under the remote gambling regime, only payment transactions that have been issued by a credit institution, PSP or EMI – with a licence as referred to in Directive 2013/36/EU, Directive (EU) 2015/2366 or the Dutch Financial Supervision Act, respectively – are permitted. Furthermore, operators may only allow the use of those instruments that can be unambiguously traced to the individual player as a person. Therefore, it is the authors' understanding that gambling operators cannot use payment instruments that use blockchain technology or cryptocurrency.

Currently, licensed games of chance are taxed at a rate of 29%. It is the operator that is regarded as the tax subject under the BGTA, not the player.

Gambling tax is based upon GGR and commission/entry fee for land-based slot machines, land-based casino gambling, land-based sports betting and horse race betting, and all licensable remote gambling categories. For other licensed offers, prizes won constitutes the tax base. However, gambling tax is only due on prizes greater than EUR449.

All remote gambling licensees, and specific lotteries with a GGR above EUR1 million, pay an additional annual levy as referred to in 4.10 Ongoing Annual Fees.

There will also be a mandatory contribution to horse racing of 10% GGR from bets placed during each month on horse/harness races organised in the Netherlands.

For remote gambling, most anticipated reforms will occur with regard to advertising and addiction prevention (see 7.2 Recent or Forthcoming Changes and 9.6 Recent or Forthcoming Changes).

In the case of land-based slot machines, the NGA recognises in its Market Vision that it is necessary to modernise the slot machine regulations. The NGA recognises that Dutch regulation is behind in terms of how technology can be used. Although authorities understand the need to modernise and update slot machine regulations, no timeframe has been given for this.