CONTRIBUTION OF GAMBLING ORGANIZERS TO THE FUND AGAINST ADDICTION 35fw
Teodora Luca 4x3y69
by Teodora Luca, Senior Lawyer at CA Luca Mihai Cătălin
According to Art. 10 para. (4) and Art. (6) of the Government Emergency Ordinance no. 77/2009, the organizers of gambling have the obligation to contribute to the financing of the activity of the National Gambling Office, within the sphere of actions regarding the prevention and combating of the risk of addiction to gambling and the increase of the degree of social responsibility in the field:
(4) An activity fully financed from own revenues is established within the N.G.O. in accordance with the provisions of Law no. 500/2002 on public finances, as subsequently amended and supplemented, for the promotion of compliance with the principles and measures regarding socially responsible gambling, as regulated by the provisions of Art. 2 of the Government Emergency Ordinance no. 20/2013 on the establishment, organization and functioning of the National Office for Gambling and on the amendment and supplementation of the Government Emergency Ordinance no. 77/2009 regarding the organization and exploitation of gambling, approved with amendments and supplements by Law no. 227/2013, as subsequently amended and supplemented. The own revenues are constituted from the contributions of licensed gambling organizers, with the following annual contributions:
(i) licensed remote gambling organizers from class I – 500,000 euros annually;
(ii) legal entities directly involved in the field of traditional and remote gambling licensed from class II – 15,000 euros annually;
(iii) remote state monopoly gambling class III – 100,000 euros annually;
(iv) licensed traditional gambling organizers, as follows:
– for lottery games: 200,000 euros annually;
– for video lottery games: 100 euros for each machine annually;
– for mutual bets: 50,000 euros annually;
– for fixed-odds betting: 200,000 euros annually;
– for exchange betting: 100,000 euros annually;
– for gambling games characteristic of casinos: 4,000 euros annually for each gaming table;
– for poker club games: 5,000 euros annually for each club;
– for slot-machine games, the following phased contributions shall apply:
- 300 euros annually for each slot authorized during 2024;
- 500 euros annually for each slot authorized during 2025 and subsequent years;
– for bingo games conducted in gaming halls: 5,000 euros annually;
– for bingo gambling games organized through television network systems: 500,000 euros annually.
The uncertain nature of the obligation continues to raise a number of practical issues regarding enforcement, with the successive amendments to the legal text also contributing to the difficulty of the collection process.
Thus, the payment deadline for the contribution, initially correlated with the payment deadline for the license fee, was amended, with the due date being set annually after the first anniversary of the license on December 15, and subsequently on January 25 of each year.
As a result, the first inconsistencies in the manner of applying the legal text emerged. Starting from October 2023, the enforcement of the obligation has become even more difficult for certain categories of gambling organizers, following the substantial increase (in some cases by 10,000%, namely from 5,000 euros annually to 500,000 euros annually for online gambling organizers); an even greater difficulty was recorded regarding the method of calculation and payment of the obligation for slot-machine gambling organizers, for whom the contribution was established per gaming device, without the due date being amended.
According to the legal text, the obligation to pay the contribution is due on January 25 of each year; although the number of gaming machines may vary during a calendar year, the legislator omitted to regulate this particular situation, leaving it to the operators and the authority to determine the actual method of implementation. This has led to a situation where, for some of the exploited gaming machines, the organizer owes the fee in advance, while for others, a few months after the start of exploitation.
Another interesting contradiction regarding the regulation of the obligation is the establishment by law of the nature of the claim (which, according to Art. 10 para. 5, is a “budgetary claim”), although this definition contradicts its nature, since the contribution is not owed to a public budget but constitutes a source of financing for the budget of the National Gambling Office, as unequivocally established a few lines above, within the same regulation (“An activity fully financed from own revenues is established within the N.G.O. (…). The own revenues are constituted from the contributions of licensed gambling organizers, with the following annual contributions (…).
The authority’s attempt to determine the character of a “budgetary claim” in relation to the subsequent obligation of the N.G.O. to transfer 70% of the collected amounts to the state budget (itself susceptible to unconstitutionality, by reference to the provisions of Art. 139 para. 3 of the Constitution) has no legal basis, being evident that the nature of the main payment obligation of gambling organizers is not determined by the mandatory actions established in the responsibility of the National Gambling Office, due only after the collection has been made.
A particular issue that continues to arise in practice concerns the method of calculating the obligation for the first year of the license, regardless of whether the obligation is established as a lump sum (per activity) or for each gaming machine.
According to Art. 10 para. 6 of the Government Emergency Ordinance no. 77/2009 regarding the organization and exploitation of gambling:
(6) The payment deadline for the contribution provided for in para. (4) is as follows: for the first calendar year of granting the license, within 10 days from the date of approval of the documentation, and for subsequent years, until January 25 of each calendar year.
From the analysis of the aforementioned legal texts, it results that the value of the contribution was established by the legislator considering a reference period of 1 license year, ideally equivalent to the calendar year (i.e., the period between January 1 and December 31).
In the event that the license becomes valid after January 1 of the year, the gambling organizer owes the fee proportionally with the period of the calendar year during which it holds the right to organize and exploit the activity.
Given that the payment obligation is correlative to the company’s right to organize and exploit the activity (the contribution being owed by companies holding the license to organize the activity), interpreting the provisions of Art. 10 para. 4 of the Government Emergency Ordinance no. 77/2009 exclusively from a literal perspective, namely by referring solely to the phrase annual contributions, would lead to an interpretation incompatible with constitutional principles, as levying the contribution for periods during which the company did not hold a license to organize gambling would amount to unlawful expropriation and would create discriminatory situations between persons in the same circumstances.
For clarification, the contribution (in the same amount) would be owed both by companies whose licenses become valid on January 1 (and which operate throughout the entire calendar year/12 months), and by companies whose licenses become valid later during the same year and which operate during shorter periods of the same calendar year (11 months or even 1 month).
This interpretation cannot be accepted as it would create obvious discriminatory situations between operators. Moreover, as previously mentioned, for the period of the calendar year during which the license did not produce effects, operators could not be obliged to pay the contribution, as this would amount to unlawful expropriation.
From the systematic interpretation of the legal norms, it results that the obligation to pay the contribution due in advance, after the approval of the license issuance request, is determined proportionally with the period of the calendar year during which the license is to produce effects.
In addition, the provisions of Art. 10 para. 4 of the Government Emergency Ordinance no. 77/2009, which establish the obligation of full (annual) payment, are applicable to licensed gambling organizers, meaning they apply after the license enters into force; the contribution owed under the condition that the license issuance request has been approved by the authority, but without being conditioned by the license entering into force, is not regulated in the sense of an annual payment, the legislator’s intention being precisely to allow proportional payment according to the period during which the company holds the right to carry out the activity.
This interpretation is reinforced by the provisions of Art. 10 para. 61 of the Government Emergency Ordinance no. 77/2009, through which the legislator regulated, exceptionally, the only situation in which the contribution is owed in full for the entire calendar year, although the gambling organizer did not carry out any activity:
(61) In the event of the termination of the license validity, for any reason, the annual contribution provided for in para. (4) is owed in full per calendar year, regardless of the moment of its termination.
In other words, only if, after entering into force, the license terminates, regardless of the reasons for termination, the organizer will owe the full contribution for the entire one-year calendar period.
Although the legal text does not explicitly make this distinction, the reasons underlying the termination of the license imply an action or inaction by the gambling organizer (including in the form of a request for license renunciation), which leads to the termination of the license before the expiration of its validity period, the text establishing a genuine sanction (the collection of the contribution in the amount set for the entire reference period, even though the activity has ceased) at the expense of the gambling organizer.
Considering the rule of interpretation exceptio est strictissimae interpretationis (exceptions are of strict interpretation), reiterated by the provisions of Art. 10 of the Civil Code (Laws that derogate from a general provision, that restrict the exercise of certain civil rights, or that provide for civil sanctions shall apply only in cases expressly and restrictively provided by law), the situation regulated as an exception (in this case, the collection of the full contribution for the calendar year, although the company does not carry out activity throughout the entire period) can only apply in cases expressly prescribed by law (namely, only in the case of the termination of the effects of the gambling license during the calendar year). Therefore, the contribution owed within 10 days from the approval of the license issuance request, that is, before the license enters into force, cannot be calculated for the entire calendar year, but must be calculated proportionally to the period of the calendar year during which the license will be in force and produce effects.
Until now, the authority has avoided clearly specifying how the contribution should be calculated and paid, while simultaneously initiating a series of actions to collect these amounts. In order to ensure the uniform enforcement of the rule in accordance with the letter and spirit of the law and, consequently, to ensure the efficient collection of funds intended for social responsibility actions, it is necessary and urgent to issue clear instructions regarding the manner of interpretation of the law.
