The Gambling Law Review: Netherlands
Article 1(1)(a) of the Betting and Gaming Act (the Act) defines games of chance as 'an opportunity to compete for prizes or premiums if the winners are designated by means of any calculation of probability over which the participants are generally unable to exercise a dominant influence'. A prize or premium is to be understood as anything that has an economic value and thus includes in-kind prizes as well as monetary ones and may well entail that the definition of a game of chance also captures social gaming. Payment of a stake is not required.
In its prevailing format, the Act only defines those games of chance for which one or more licences can be awarded for the offering thereof. These are explained in greater detail under Section II.iv. No general categories such as 'betting' or 'gaming' are used.
On 1 April 2021, amendments to the Act entered into force, along with key pieces of secondary legislation, introducing a full regulatory regime for remote gambling in the Netherlands. On the same date, the Gambling Authority opened the licensing process. While only one licence type is available, depending on the scope of each application made, the licence can cover sports betting, horse race-betting, casino games where players play against each other and casino games where players play against the house. The regime thus covers poker, casino games, slot machines, sports betting (fixed odds), exchange betting, pari-mutuel betting, live betting and short-odds bingo, while online lotteries (including long-odds bingo), spread betting and betting on non-sports events are prohibited. The following are also permitted: offering bets on virtual sports (where the outcome is generated by a random number generator, these are considered as casino games), fantasy sports (regarded as sports betting) and e-sports are also allowed in principle, subject to conditions being satisfied. At the end of March 2022, 18 licences have been awarded, with a significant number in the pipeline.
ii Gambling policy
The regulation of gambling is guided by offering a legitimate alternative to unlawful offers through which demand can be 'channelised'. However, the use of monopolies per type has been implemented in the land-based sphere so as to reduce competition between operators with a view to preventing the excessive consumption of gambling services. Prior to the introduction of some forms of gambling, legislative texts reveal that the generation of revenues (e.g., for sports) was a key motivating factor. There is no cap on the number of remote gambling licences available, but strict regulatory requirements have been enacted to achieve the same regulatory objectives.
In addition to the introduction of the regulatory regime for remote gambling, another key line of reform was set to be the dissolution of Holland Casino's monopoly on the provision of casino gambling and the privatisation of this state-owned operator. However, following criticism from the Senate, the bill making privatisation possible was withdrawn in May 2019. However, the privatisation of Holland Casino and the state-owned lottery operator, the Nederlandse Loterij, are not off the table.
Gambling is not regulated with a view to it being exported.
iii State control and private enterprise
At present, the land-based Dutch gambling landscape is populated by a mix of state-owned and private entities operating alongside each other, within their clearly defined market segments.
Space for private operators, in terms of the land-based market, is found within the good causes lottery sector, the slot machine sector and the horse-racing totalisator. While holders of licences for non-incidental games of chance (good causes lotteries) are private entities, it must be noted that operators of such licences are prohibited from generating private profits. Scope for the generation of private profit is restricted to slot machine arcade operators.
The remainder of the licensed land-based gambling market is supplied by state-owned operators. The existing 14 casino venues are operated by state-owned Holland Casino, while various entities under the umbrella of the Nederlandse Loterij operate the state lottery, sports betting, lotto and instant lottery (scratch cards). In April 2016, De Lotto was taken over by the Staatsloterij, resulting in the formation of the Nederlandse Loterij. While the Staatsloterij is a publicly owned operator, De Lotto was a private non-profit making foundation. This takeover, and thus expansion of the state's gambling operators, conflicts with earlier pronouncements that providing gambling is not a task for the state.
Operators with a presence in the EU/EEA can apply for a remote gambling licence, and this market sector offers the greatest scope for private enterprise on the Dutch gambling market in terms of B2C activities. B2B suppliers are active across the remote and land-based sectors. Both the Holland Casino and the Nederlandse Loterij were the amongst the first 10 operators to receive remote gambling licences, and thus be eligible to 'go live' in October 2021. To date, the vast majority of new entrants have been private operators, and this will only continue. Not all of these are, or will be, new to having a licenced presence in the Netherlands as many of the land-based slot machine operators are also entering the remote market.
iv Territorial issues
The Gambling Authority is the sole body competent to award licences that enable the exploitation of games of chance in the Netherlands. This thus encompasses all of the exclusive licences, as well as licences for non-incidental games of chance and the exploitation licences for slot machine operators, and remote games of chance. Local municipalities are empowered to award premises licences for slot machine operations within their geographical areas and establish limitations on such venues in local ordinances (e.g., a cap on the total number of venues, opening times).
v Offshore gambling
Other than the forms of gambling explicitly exempt from the prohibition on unlicensed games of chance, all unlicensed forms of gambling that are made available in the Netherlands are unlawful. In terms of the legality of the offer, it is irrelevant whether such offers originate from within the Netherlands or outside. Further, it is irrelevant whether the offer is licensed or unlicensed elsewhere, or originates from within the EU or EEA or further afield.
With a view to the introduction of a licensing regime for remote games of chance, and subsequently channelling 80 per cent of the market into operations regulated at the national level, initially the Netherlands was not aggressive in seeking enforcement against operators present on the Dutch market. Historically, enforcement has been guided by the 'prioritisation criteria' which as of 1 June 2017 took on the following form, whereby one of the following elements would prioritise an operator for enforcement:
- offering games of chance on a website available in the Dutch language;
- offering games of chance on a website ending with a .nl URL;
- using radio, television or print media advertising targeted at the Netherlands;
- using a domain name that refers to gambling and is associated with the Netherlands (e.g., 'Clog Bingo');
- the presence of symbols that contain elements closely associated with the Netherlands (e.g., windmills);
- using payment methods closely associated with the jurisdiction; and
- the absence of geo-blocking measures.
Compliance with the criteria only reduced likelihood of enforcement. It did not alter the unlawfulness of the offer under Dutch law. As of 1 January 2020, another potential trigger for enforcement action came into force, namely the requirement that operators visibly verify (using 'an objective means of proof') the age of Dutch players before the registration process was completed.
During debates in the Senate, in February 2019, when the amendments to primary legislation passed their final hurdle, a motion (the 'Postema motion') was passed calling for operators present on the market to be subject to a two-year cooling-off period in order to be eligible for a remote gambling licence. This eventually resulted in the Gambling Authority's 'cooling-off criteria', as embodied in the Remote Gambling Policy Rule. Given delays for the legislative reforms entering into force, operators with an unlicensed presence in the Netherlands in the eight years prior to an application must be able to demonstrate 33 months' worth of compliance with the cooling-off criteria in order for their licence not to be rejected on the basis of such an offer. The cooling-off criteria consist of the same conditions as the prioritisation criteria, save for the geo-blocking requirement. Reliance on the cooling-off criteria provides an exception to the general rule whereby an unlicensed presence would otherwise entail that the applicant lacks a suitable degree of reliability. In order to rely on the criteria, the 33 months must end and the application must be submitted on or before 31 March 2022. After this date, applicants will not be able to rely on the Gambling Authority's leniency, and any previous unlicensed offers are expected to result in the rejection of an application.
As of November 2021 the prioritisation criteria lost their significance in shaping when the Gambling Authority would commence enforcement action, as they were replaced by more open criteria for determining whether to commence proceedings against locally unlicensed offers, with these criteria being:
- whether the illegal offer targets Dutch consumers;
- the number of Dutch players making use of the illegal offer;
- the degree of harm that the illegal offer poses to the public objectives of the NGA; and
- whether the illegal offer, or other circumstances, could draw players away from the legal market.
Legal and regulatory framework
i Legislation and jurisprudence
Dutch gambling law permits a range of gambling products to be offered pursuant to the Act, which was initially introduced in 1964 and has been subject to various amendments in the decades since. Article 1(1)(a) of the Act performs two key functions: it establishes that it is prohibited to offer unlicensed games of chance in the Netherlands and provides the definition of a game of chance. This prohibition is flanked by two further prohibitions, that on promoting unlicensed games of chance (Article 1(1)(b) of the Act) and that on knowingly participating in such games (Article 1(1)(c) of the Act). The definition of a game of chance contains two elements, namely: (1) prizes or premiums can be won; and (2) winners are determined by a process over which, generally, they cannot exercise a dominant influence. A March 2022 decision by the Council of State shows that where a game (this case concerned FIFA Ultimate Team) includes packs containing randomised content, the packs cannot be viewed in isolation from the rest of the game, and consequently the packs do not form games of chance in their own right.2
There are several forms of gambling that are exempt from the requirement to be licensed and, therefore, can be offered without the provider breaching Article 1(1)(a) of the Act, conditional upon applicable conditions being satisfied. Such forms include promotional games of chance and small-scale gambling.
In terms of the scope of the prohibition on promoting unlicensed games of chance, a January 2019 decision of the District Court of The Hague confirmed that it includes activities typically undertaken by affiliates. Case law had established that the prohibition does not include payment services; however, this has been superseded by regulatory reforms. The prohibition on promoting unlicensed games of chance expanded on 1 April 2021 so as to capture the facilitation of these games, and it encompasses a broader range of service providers than just those involved in advertising alone, such as payment service providers and software providers.
A key case that has been influential in shaping discourse in the Netherlands is Sporting Exchange.3 Following the judgment of the Court of Justice of the European Union in the preliminary reference proceedings in Case C-203/08, where the court held that the lack of a transparent licence allocation procedure for an exclusive licence is incompatible with the freedom to provide services unless the holder thereof is a private operator subject to strict control or a public operator subject to direct control, the Council of State rendered a game-changing decision. In its judgment of 23 March 2011, it held that neither the holder of the single sports betting licence nor that of the horse-race betting licence were under suitably strict control so as to justify the lack of a transparent licence allocation procedure. Subsequent judgments of domestic courts have reiterated this position, notwithstanding changes that were made to the governance of De Lotto in an attempt to bring it under sufficiently strict control. The takeover of De Lotto by the Staatsloterij, a state-owned entity, does not automatically justify the lack of a transparent licence process for De Lotto's licences; De Lotto must be deemed to be under direct control.
This line of case law also resulted in the introduction of a transparent licence allocation process in 2016 and 2021 for the award of the single horse-race betting licence. The 2011 decision has also shaped legal discourse around the licensing process for the licences for non-incidental games of chance (e.g., charity lotteries), as well as filtering through to the level of local municipalities in terms of premises licences for slot machine arcades.
ii The regulator
The Gambling Authority, which is based in The Hague, is an independent regulatory organisation tasked with the supervision and enforcement of the Act, including the award of licences available pursuant to the Act.
iii Remote and land-based gambling
While land-based gambling is permitted and regulated, remote gambling is no longer prohibited, given the introduction of a legal basis for the Gambling Authority to award remote gambling licences. The associated legislative changes entered into force on 1 April 2021.
iv Land-based gambling
The provision of casino gambling is subject to a monopoly, held since its inception in the 1970s, by Holland Casino, which is owned by the state. Holland Casino operates 14 venues nationwide, providing both table and machine gaming.
Amusement arcades and machine gaming
In contrast to the entire land-based market, save for licences for non-incidental games of chance, the slot machine sector is the only one to which no cap on the number of licences applies.
In order to operate a slot machine arcade, an exploitation licence is required from the Gambling Authority, while a licence is also required from the relevant local municipality in relation to the premises in which the slot machines are located. Licences can be awarded to cafés and restaurants that are targeted towards those over 18, as well as to premises that are dedicated to the provision of such games of chance. Local municipalities are competent for deciding whether slot machine arcades are permitted within their municipality, and if so, how many, where, and other restrictions such as opening times.
Two monopolies prevail in the field of (land-based) betting: that for sports betting, as operated by Lotto BV, which is part of the Nederlandse Loterij, the public lottery operator; and for horse-race betting, which is operated by ZEbetting & Gaming Nederland BV (for whom the licence was renewed in March 2022). Both licences are of the type referred to as 'semi-permanent', given that they are valid for a period of five years and have been reallocated to the incumbent holders.
Other offline forms include the lotto, whereby participants predict a given number of symbols from a predefined range, from which a draw is then made. Lotto is offered pursuant to the same licence as that for sports betting. Another form, also offered by Lotto BV, albeit subject to a different exclusive semi-permanent licence, is the instant lottery. This is defined as a lottery whereby prizes are allocated to winning tickets before sales commence. It is offered in the form of scratch cards.
An unlimited number of licences for non-incidental games of chance are available. Traditionally, only four semi-permanent licences were awarded on the basis of this provision; however, this de facto cap was successfully challenged in domestic legal proceedings, also following the Sporting Exchange line of reasoning. All games licensed on this basis must be for the public good, with 40 per cent of revenues going to good causes.
v Remote gambling
As of 1 April 2021 remote gambling licences are available for casino games and sports and horse race betting. There is no ceiling on the number of licences, and applicants/operators are not required to have land-based operations, nor a land-based presence, in the Netherlands in order to be eligible. All applicants who have been subject to the cooling-off requirements, due to having had an unlicensed remote gambling offer in the Netherlands in the eight years prior to submitting their application, were for all intents and purposes required to submit their applications by 31 March 2022. For those who have had an unlicensed presence and submit after this date, the Gambling Authority will not apply any 'leniency' to their applications, and the unlicensed presence will weigh extremely negatively against the applicant. In essence, it is expected that their applications will be rejected. Those without a previous unlicensed presence on the market can apply at any time; there are no application widows as in other jurisdictions.
vi Ancillary matters
In terms of slot machines, a type approval system applies, and it is illegal for an unapproved machine to be present on the Dutch market. Different categories of machines are approved for use in Holland Casino venues, slot machine arcades, and in cafés and restaurants. The type approval system also applies for skill-gaming machines.
vii Financial payment mechanisms
Remote gambling operators are restricted in the type of payment instruments that they can use for transactions with their players. The payment instruments must not be anonymous, and must be held in the same name as the holder of the player account and issued by an EU/EEA licensed credit institution, payment services provider or (as of 1 July 2022) electronic money institution.
The licensing process
i 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.
Those remote gambling operators who offer betting must have measures in place to tackle match-fixing. Requirements pertaining to the prevention of match-fixing are quite extensive, and require that operators monitor the risks associated with match-fixing before, during and after each event. Certain competitions are excluded from the need for a risk analysis prior to the event; this is the 'white list', with the Dutch Eredivisie being one example. There are certain competitions on which bets cannot be taken and certain events during a competition on which bets cannot be taken, such as a double fault in tennis, and these matters are contained within a blacklist. Yet, essentially, operators must not take bets on events that are vulnerable to match-fixing, for example, due to the fact that participants are unpaid or the event is not recorded.
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.
Advertising and marketing
Advertising of locally unlicensed games of chance is prohibited pursuant to Article 1(1)(b) of the Act. This provision is not a dead letter; the Gambling Authority has taken enforcement action against affiliates advertising the services of remote gambling operators active on the Dutch market in breach of Article 1(1)(a) of the Act.
Article 4a of the Act provides that licence holders are required to take measures so as to prevent addiction arising through the products that they offer and to ensure that advertising activities are carried out in a careful and balanced way so that excessive participation can be avoided. This provision of the Act is fleshed out by secondary legislation, notably the Decree on Games of Chance: Recruitment, Advertising and Addiction and the similarly titled Regulation. Further provisions on advertising can be found within the Dutch Advertising Code. Particularly detailed requirements are imposed upon remote gambling operators, and advertising has to tie in with the potential for gambling addiction associated with the operator's products. Advertising, including offering bonuses, will also be suspended in relation to an individual player should an operator undertake a responsible gambling 'intervention'; the more severe the intervention, the longer the period during which bonuses cannot be offered to that particular individual.
The year in review
2021 is to be noted for the long-awaited introduction of the licensing regime for remote games of chance. Following the entry into force of the legislative amendments on 1 April 2021, the Gambling Authority immediately accepted applications, and those who submitted by 14 April 2021 could deliver certain documentation at a later date (in contrast to subsequent licence applicants). This meant that the Gambling Authority was able to award licences to 10 successful applicants at the very end of September 2021. These licence holders were able to go live as of 1 October 2021. Given the need for operators who have had an unlicensed presence on the market to demonstrate that they have 'cooled-off' for 33 months prior to submitting their applications, a number of applications were submitted in the last months of 2021 and the first quarter of 2022. It is expected that many more licences will thus be awarded in the second and third quarters of 2022.
With the market opening in October 2021, by the end of the year there was pushback from parliament against the degree of advertising, particularly that on television and involving well-known personalities, and the two state-owned operators were the heaviest spenders in this regard.
In order to temper the volume of advertising for remote games of chance, additional restrictions around advertising will be introduced during 2022. This will, over the course of the year, coincide with new remote gambling licences being awarded and more parties making a market entry. Given that an increasing number of operators will become operational, the regulatory regime will start to bed in from a compliance perspective. The Gambling Authority will thus become occupied with supervising licensees and applying the regulatory requirements in practice; thus at the time of writing it remains to be seen what the prevalent issues will be, as well as the Authority's enforcement style. This includes the scope for dialogue and discourse should questions of interpretation arise. It will be also be interesting to see how the Gambling Authority addresses applications post-31 March 2022 from those who have had a marginal number of operators from the Netherlands in the past; what will the Authority consider to be a proportionate response? And, continuing on the topic of unlicensed offers, given that as of autumn 2021 the Gambling Authority departed from solely relying on the prioritisation criteria to determine when enforcement against unlicensed offers is called for, it also remains to be seen how this enforcement will shape up as the licensed market begins to mature. This is particularly important now that the Gambling Authority can engage in mystery shopper exercises and has a clear legal basis to take enforcement action against suppliers.