Uniform, fair and non-discriminatory application of the legal provisions – utopia of the National Gambling Office 3m1j5b

In 2013, the creation of a specialised authority to monitor and supervise the gambling market was intended as a modern solution to the need to improve the legal framework and to ensure that the state has flexible control tools adapted to an industry that is developing around the technological component. 6k1636

by Teodora Luca, Senior Lawyer at C.A. Luca Mihai-Cătălin g4j3z

Teodora Luca 4x3y69

The role of the authority in of regulation and control of the field of gambling is unquestionable, although some of the orders provided for by law since 2015 have not yet been issued (mentioning in this context, by way of example, only the order that was to establish the conditions for the inclusion and removal from the blacklist of operators covered by the provisions of article 15 para. 4 letter c) of GEO no. 77/2009, which has not yet entered into the civil circuit due to the fact that it has not been published in the Official Gazette (the application of restrictions by the authority, on the basis of a normative act, which apparently produces effects at its level, raising serious suspicions of unlawfulness).

Amid the successive legislative changes that have concerned this field since 2022, it seems that the National Gambling Office is finding it increasingly difficult to ensure the fulfilment of its mission regarding the uniform, fair and non-discriminatory application of the legal provisions in force in the field of gambling.

One of the examples that we will emphasise in this article is the interpretation and application of the provisions of article 15¹ of the Government Emergency Ordinance no. 77/2009, according to which:

 (1) Gambling organisers are obliged not to allow access to the premises where gambling activities are carried out to self-excluded and undesirable persons who are included in the database on self-excluded and undesirable persons, created, managed and permanently updated by the National Gambling Office, database to which gambling organisers have access in real time.

(2) Applications for self-exclusion may be submitted to the National Gambling Office or to the gambling organisers. The gambling organisers are obliged to submit to the National Gambling Office the requests for self-exclusion, within two working days from the date of registration, and the lists containing the persons who, by internal decisions of the organisers, have been declared as inissible, together with the reasons for this measure, within 5 working days from the date of the drawing up or modification.

(3) Any activity involving the processing of personal data, carried out in application of the provisions relating to the organisation and conduct of gambling activity, for natural persons, shall be carried out in accordance with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).

In the initial version, adopted under Law 326/2022, in force until October 2023, the regulation had the following :

2. In Article 15 para. (6), point (d) is amended to read as follows:
3. d) gambling organisers shall identify the persons entering the premises where gambling is organised and exploited and shall keep electronic records of their identification data. The databases set up at the level of the organiser shall be archived by the organiser and shall be kept for at least 5 years after their creation.”.
4. After article 15, a new article is inserted, article 15¹, with the following content:

Article 15¹. –

Gambling organisers shall set up, in electronic format, databases on self-excluded and inissible persons. The databases set up at the level of the organiser shall be archived by the organiser and shall be kept for at least 5 years after their creation.”.

Both the first version of the text and the version intended to be corrected, adopted by G.E.O. 82/2023, created apparent compliance vulnerabilities for organisers, with the authority in turn having difficulty in determining their obligations.

In a first interpretation of article 15¹ of GEO 77/2009, the National Gambling Office has concluded that the obligations set out in the normative text are applicable also to online gambling organisers, the following press release is available on the authority’s website (https://onjn.gov.ro/relatii-publice/mass-media/comunicate-de-presa/):

Thus, according to the legislation in force, self-exclusion applies to all categories of gambling, without differentiating between different types of gambling activities, venues or gambling organisers. This means that once a gambling participant decides to self-exclude and submits a request to this effect to the NGO or to any of the licensed organisers, he/she will no longer have access to any form of gambling, applying both to those carried out in specialised venues, such as dedicated slot-machine halls, and to those carried out online.

This conclusion is not ed by the legal provisions. On a systematic and logical-grammatical interpretation of Article 15¹ of G.E.O. 77/2009, it follows that the obligation cannot extend to categories of gambling organisers who do not carry on their activity in the manner prescribed by law (namely in specialised venues).

It is obvious that online gambling organisers are not concerned by these legal provisions, the explanation for the omission of regulation being extremely simple: at the time of the adoption of Law 326/2022 and, subsequently, at the time of the legislative amendment adopted by GEO 82/2023, vulnerable persons had at their disposal protection instruments on online gambling platforms, which were however inapplicable to traditional gambling activities (which are carried out in specialised locations).

Between its role as an authority that ensures the implementation of the law in a uniform and non-discriminatory manner and the obvious difficulty to identify legal arguments for extending the obligation to categories of operators not covered by the text of the law, the National Gambling Office still seems undecided.

legislation

The aforementioned press release is prominently featured on the authority’s website, while in the section dedicated to social responsibility, players are urged to fill in and submit self-exclusion requests, the form explicitly referring exclusively to restricting access to specialised venues.

In the same uncertain manner, the National Gambling Office seems to have two different, diametrically opposed approaches when responding to some players’ requests on how to implement the provisions of article 15¹ of GEO 77/2009:

1. Under the current rules, self-exclusion currently applies to all categories of gambling, without differentiating between different types of gambling activities, venues or gambling organisers. This means that once a gambling participant decides to self-exclude and applies to the NGO or any of the licensed organisers, they will no longer have access to any form of gambling, whether it is conducted in specialised venues such as dedicated slot machine premises or online.
2. In view of the legal provisions applicable to the present case, cited above (Article 15¹ of GEO 77/2009 in conjunction with the provisions of Article 2 letter l) of GD 111/2016 – nn.), in order to self-exclude from remote gambling, the participants will have to follow the specific procedure provided by each gaming platform, thus having the possibility to use the facilities made available for this purpose by the remote gambling organisers, in accordance with the provisions of Article 132 para. 3) of the Annex to the G.D. 111/2016, as well as the provisions of the Game Regulations, and Conditions, relating to self-exclusion, accepted at the time of opening the game s.

The two interpretations were included in the content of two addresses sent by the NGO only a few days apart.

Analysing them in temporal logic, it might seem that the authority’s view has crystallised that self-exclusion from online platforms is executed by sending a request (preferably online) to each of the operators.

Unfortunately, after we received the address, the National Gambling Office sent the operators licensed for online gambling activity the excel table with the data of self-excluded persons (temporary substitute for the national of self-excluded persons, which must be istered by the authority), a sign that there is no uniform understanding of the legal provisions at the level of the authority and, consequently, no uniform application.

Clarification of the purpose and scope of these legal provisions, primarily at the level of the authority, is a necessity and a priority, all the more so as the National Gambling Office is preparing technical and legislative amendments aimed at implementing the provisions on the registration and execution of self-exclusion requests, this step being expected by players and operators alike.