Gaming in Netherlands: overview

Gambling in The Netherlands is regulated under the Betting and Gaming Act 1964 (Wet op de kansspelen) (BGA), taking a prohibited unless licensed approach. Games of chance are taxed in accordance with the Betting and Gaming Tax Act 1961 (Wet op de kansspelbelasting) (BGTA).

Relevant secondary legislation includes:

General definition

Under Article 1(1)(a) Betting and Gaming Act 1964 (Wet op de kansspelen) (BGA) games of chance are defined as those that “provide 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, unless a licence has been granted therefore, under this law”. In contrast to definitions of games of chance in other jurisdictions there is no requirement for the player to have placed a stake. In other words, consideration is not required.

Players must compete for a prize or premium and this equates to anything having an economic value. This includes monetary prizes and prizes in kind. The definition may also capture social gaming and games of chance in which the prize only has a value within the gaming environment (often enabling further play instead of payment) and services from which it is impossible to cash out as these will not necessarily always fall outside the scope of the definition.

The outcome of the game must be determined by chance over which participants in general are unable to exercise a dominant influence. Unsurprisingly this has given rise to case law on whether particular games are games of chance or games of skill. For example, poker has been the subject of conflicting case law (see Question 4).

The prohibited unless licensed approach means that a licence has to be granted before a specific form of gambling can lawfully be offered. The BGA provides specific grounds on which the competent authority can award such licences.

Online gambling

The Remote Gaming Bill defines remote gambling as those opportunities that satisfy the definition established in Article 1(1)(a) of the BGA and which are “provided at a distance using electronic means of communication and in which a person participates without having any physical contact with the party providing this opportunity or the party which makes space and resources available for participation” (Article 31(1)). This definition appears not to align the scope of remote gambling to a single or specific means of distance communication, or use of particular apparatus.

The prohibited unless licensed approach and the lack of any legal basis for remote gambling licences to be awarded combine to make all games of chance provided remotely in The Netherlands unlawful. However, some incumbents with land-based licences are also permitted to offer their licensed services through the internet. This is often referred to as the e-commerce exception, under which the internet is seen merely as an additional sales channel. The product offering under this route should reflect that available offline. Yet in some instances the e-commerce offering is broader than the land-based offering.

The lack of a licensing regime for remote gambling is due to be rectified. The Remote Gaming Bill is currently pending before the Senate (Eerste Kamer) of the Dutch Parliament. The remote gambling market is currently expected to open in early 2018.

Despite the unlawfulness of remote gambling, a considerable market exists. In light of the upcoming regulation and licensing of remote gambling the KSA has, since June 2012, prioritised enforcement efforts against providers of (locally) unlicensed remote gaming in accordance with prioritisation criteria. Enforcement efforts are directed towards operators offering online games of chance using any of the following means:

As those operations that do not involve any of the above are still unlawful, the KSA’s approach has received much criticism in parliament. However, it is generally understood that compliance with the KSA’s criteria means that an operator will not be subject to enforcement measures during the transitional period before regulatory reform takes effect. Yet the apparently clear boundaries of this approach have been blurred with the KSA also referring to a risk-based approach to enforcement and issuing warnings around online advertising directed towards The Netherlands and related to national and international events, including sporting events, in 2014 and 2016. Furthermore in 2016 the KSA eradicated gambling apps from Netherlands facing app stores. The KSA’s approach was most recently spelled out in its Enforcement Policy (Handhavingsbeleid) of October 2016. Furthermore, early December 2016 saw the KSA publish a press release in which it stated that operators in breach of the prioritisation criteria would no longer receive a warning letter before the commencement of enforcement proceedings.

Land-based gambling

There is no generic definition of land-based gambling. Definitions of specific forms of gambling are provided for in the BGA when establishing the legal foundation for the types of licences that can be awarded.

On 1 April 2012 the Kansspelautoriteit (KSA), an independent regulatory authority, became operational. It is responsible for the issuing licences, supervision and enforcement. Once regulatory reforms are completed it will be responsible for the licensing of remote gambling. Policy formulation is the task of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie).

See box, The regulatory authorities.

Available licences

For all land-based gambling, apart from the slot machine sector, all licences are exclusive and to date have been awarded on a semi-permanent or indefinite basis. Not all licences discussed below are necessarily available. This section describes the situation ahead of regulatory reforms covered elsewhere (see Question 2, Online gambling).

Exclusive permanent licences, licence holder, licence title and date are:

Exclusive semi-permanent licences, licence holder, licence title and date of validity are:

The following five Article 3 BGA licences (see Question 4, Article 3 non-incidental games of chance) have been awarded (with licence holder, licence title, and dates of validity):

Eligibility

Given the indefinite nature of current casino and state lottery licences no licensing procedure exists for these two licences.

The lack of a transparent licence allocation procedure for the exclusive semi-permanent licences has long been a source of contention and litigation. Historically this has also been true in relation to Article 3 BGA licences, given the effective cap on the number of available licences, automatic renewal of licences to the incumbent operators, and lack of published eligibility conditions. Traditionally, Article 3 licences were valid for five years, but plans to amend the licensing procedure have resulted in renewals for two to three years (see Question 16, Land-based gambling).

In August 2016, a licence application procedure was introduced for Article 3 licences and this will enable new market entrants to arrive in 2017. However, it is also possible to obtain such a licence for the remainder of 2016, with such a licence expiring on 31 December 2016. Article 3 licences can only be awarded to a legal entity that has its statutory seat or headquarters within the EU or European Economic Area. These licences are available for operations from 1 January 2017, with the licence duration of up to five years commencing on the date of award.

Application procedure

The procedure for an Article 3 licence entails the completion of the licence application form and providing the necessary documentation. The Gaming Authority (Kansspelautoriteit) has eight weeks in which to reach a decision.

Duration of licence and cost

The following fees apply for an Article 3 licence application to be processed, based on the total value of the prizes:

Article 3 licences available from 1 January 2017 will be valid for a period of up to five years.

Restrictions

Holland Casino is not free to offer any form of casino gaming but only those that are specified in the Beschikking Casinospelen. Restrictions also apply to the types of slot machine allowed across its venues. Permitted games are French roulette, American roulette, blackjack, baccarat/chemin de fer, punto banco, sic bo, money wheel, red dog, keno, poker and Casino War.

Restrictions apply to stakes and prizes. Generally speaking stakes must be no less than EUR5 and no greater than EUR10,000. However, in each venue there must be at least one game with a stake of less than EUR5 and another with a stake of no more than EUR2. Different limits apply to slot machines in Holland Casino venues. The highest permitted stake is EUR50 and no more than EUR150 can be played in a single game. At least three seconds must pass between the start of one game and the next. Prizes must constitute at least 80% of stakes.

State Lottery. The following limits apply to the operation of the State Lottery under the Beschikking Staatsloterij:

Lotto. Under the Vergunning Sportprijsvragen en lotto the following restrictions shape the lotto gaming offer:

• Up to 483 lotto games offered annually.

• The maximum stake per lotto is EUR30.

• Players cannot spend more than EUR100 per day on e-commerce participation.

Sports betting. Sports betting licences operate under the following restrictions:

Horse-race betting. Restrictions under the Vergunning Totalisator 2015/2016 limit the licence holder to taking bets on horse-races organised on Dutch soil under the auspices of the Stichting Nederlandse Draf- en Rensport or those organised abroad by a similar local body in that jurisdiction. Two pools can be organised:

Bets can be taken on course or in betting offices, betting cafés, casinos, slot machine arcades and also through e-commerce. In contrast to sports betting, caps on the amount that can be bet do not vary according to a player’s age. Instead, there are two categories of betting product:

The licensee is obliged to pay 2.5% of total stakes taken over the course of a year to the Stichting Nederlandse Draf- en Rensport.

Instant lottery. Under the VergunningInstantloterij a maximum of 120 million instant lottery tickets (scratch cards) can be sold per calendar year in retail shops. Orders for tickets can be taken in writing or electronically. No ticket can cost more than EUR30 and at least 47.5% of total stakes should be returned as prizes over a calendar year.

Current Article 3 games of chance are all subject to the same conditions defining the nature of their three respective lottery products:

Under each Article 3 BGA licence, 50% of ticket sales must be given to good causes and operators are able to determine the beneficiaries, provided they are within the following eight areas of general interest: health, international aid, art and culture, civic and social, environment, nature and animals, and sport and recreation.

Rules on the design of games of chance offered under BGA Article 3 will be amended for licences awarded as of 1 January 2017. These new conditions are to be found in the model licence of 2 August 2016 (Modelvergunning Artikel 3 WOK). Defining features of Article 3 licences are:

The nature of the lottery draw itself is not defined, although it cannot be a form already covered by an exclusive licence (for example, an instant lottery). These games of chance cannot be operated on a for profit basis.

Anti-money laundering legislation

Currently, the Prevention of Money Laundering and Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme) applies to Holland Casino.

To understand the future remote gambling licensing regime in The Netherlands it is necessary to consider the Remote Gaming Bill. The Bill will establish a regulatory framework within the existing Betting and Gaming Act 1964 (Wet op de kansspelen) (BGA), which will be supplemented by secondary legislation. At the time of writing this secondary legislation has not been made available in draft form for consultation. Therefore, detailed information about the regime is lacking.

Available licences

An unlimited number of licences will be available and will fall into one of two categories: sports betting and casino gaming. The following are expected to be licensable:

The following will not be licensable remote gambling activities:

Eligibility

To be eligible to apply for a licence an applicant must be a public limited company or a private limited liability company (or local equivalent) established within the EU or European Economic Area (EEA). However, the board of the Gaming Authority (Kansspelautoriteit) (KSA) can waive the EU/EEA establishment requirement for third countries if local law offers sufficient guarantees in light of the objectives of the BGA.

An applicant must demonstrate that its remote games of chance will be offered under a sound, reliable and verifiable operational management which will also ensure compliance with the BGA and other legislation, including that relating to anti-money laundering.

Secondary legislation will establish requirements that will also have to be met pertaining to safety, confidentiality, honesty, continuity, reliability, verifiability and suitability of the management processes which will also have to be met. The reliability of the applicant entity, and individuals determining its policy, must also be beyond any doubt.

Application procedure

At present the KSA estimates that each licence application will take four to six months to process. Information about the actual process is not available at the time of writing.

During the passage of the Bill through the House of Representatives (Tweede Kamer) of the Dutch parliament the State Secretary of Security and Justice stated that the KSA will have a margin of discretion when assessing the reliability of operators. It is generally understood that those that have complied with the prioritisation criteria and have not been subject to enforcement measures will be eligible for a licence (subject to the consideration of their application on other points), even if they are unlawfully present in the Dutch market before the introduction of the licensing regime.

Duration of licence and cost

Remote gambling licences will be valid for a limited period, most likely five years. The licensing fee is expected to be EUR40,000, although this has yet to be confirmed.

Pending the publication of draft secondary legislation there is a lack of detailed information about requirements that will be imposed on remote gambling licensees. During the final stages of the Remote Gaming Bill passing through the House of Representatives in July 2016 a number of amendments and motions where passed. Motions express the will of the House without directly amending the Bill; government has to respond in substance and explain why, if it is indeed the case, it diverts from the position which the House has advanced as a motion. Undoubtedly these changes will have an impact on the final regulatory regime. Some amendments and motions are less practical than others. For example, one motion calls for a time slot for online advertising rather like those that exist for advertising on television.

Prohibitions

Remote gambling operators will only be able to provide their services to those who have reached 18 years of age and are not listed in the central database of excluded players. Restrictions on the nature of the permitted offer, advertising, bonuses and so forth will be set out in secondary legislation.

Restrictions

A licensee must only provide gambling services to a new customer once that person has set limits to their play (although it is understood there will be no mandatory upper limit). A licensee will have an active duty of care to monitor and analyse player behaviour, and ultimately, not permit a customer to log in to their services if it is reasonable to expect that harm will arise due to excessive participation or addiction. Secondary legislation will provide clarity on this.

Anti-money laundering legislation

The Prevention of Money Laundering and Terrorist Financing Act will apply to holders of a remote gambling licence.

The future regulatory regime will only license the B2C operator. The B2C operator will then be responsible for ensuring that all B2B entities involved in supplying services for the licensed activity are compliant with Dutch law. Licences for B2B operators are not foreseen. During the transitional phase until licensing, the Gaming Authority’s (Kansspelautoriteit) (KSA) approach to enforcement primarily addresses B2C operators.

Given the absence of a full regulatory regime for remote games of chance no such technical measures exist to protect consumers from (locally) unlicensed remote gambling operators. Currently the Gaming Authority (Kansspelautoriteit) (KSA) has concluded covenants with payment services providers and media companies to hinder the ability of unlicensed operators to reach the market. For example, although this is not a technical measure, the covenant with payment services providers states that a provider will terminate services to an individual operator once that operator has been served with a fine for breaching Article 1(1)(a) of the Betting and Gaming Act 1964 (Wet op de kansspelen) and that fine has become irrevocable.

There are other intermediaries involved in the provision of games of chance. The reformed regime will expand the current prohibition on promoting unlawful games of chance and the KSA will be able to issue binding instructions to intermediaries involved in facilitating locally unlicensed games of chance. However, following a July 2016 amendment to the Remote Gaming Bill (see Question 2, Online gaming) the KSA will not be 11. What differences (if any) are there between the regulation of mobile gambling and interactive gambling on television?able to require DNS blocking.

The Gaming Authority (Kansspelautoriteit) (KSA) is enforcing the prohibition on remote games of chance in accordance with its prioritisation criteria. In addition, the KSA has ensured that remote gambling apps have been removed from a major app store, at least in terms of the specific offer facing The Netherlands. Presently there would appear to be an increased risk of enforcement measures for operators if they offer their services via an app in The Netherlands. However, in practice, the chances of finding a platform host for an app targeting The Netherlands are low.

Both mobile gambling and interactive (television) gambling will fall within the definition of remote gambling in the forthcoming regulatory regime (see Question 2, Online gambling).

Whether specific provisions will arise in relation to mobile gambling, as compared to other forms of remote gambling, remain to be seen. Various calls arose from the House of Representatives to ensure that the remote gambling regime would not permit the provision of gambling services via television. A July 2016 amendment to the Remote Gaming Bill will see public television broadcasters prohibited from broadcasting programmes that offer the opportunity to participate in games of chance.

Social gaming is not expressly regulated under the Betting and Gaming Act 1964 (Wet op de kansspelen) (BGA). However, social games may nevertheless fall within the definition of a game of chance (Article 1(1)( a) , BGA). Questions surrounding this point often arise in relation to games in which it is impossible to cash out or receive a prize in kind. Assuming that the outcome of these games is determined by chance, the key point is whether the game involves a prize or premium.

Briefly, the notion of a prize or premium can potentially take on a very broad meaning. The Betting and Gaming Tax Act 1961 (Wet op de kansspelbelasting) defines a prize as being any goods which can be assigned a value in the course of trade (Article 3(2)). It has been suggested that a trophy is also a prize for these purposes.

Virtual currencies are more likely to constitute a prize or premium if they enable participation in the game in question to be continued in lieu of a player purchasing additional currency with real money. Virtual currency won through participation in a game of chance may derive its value from the fact that it enables play to continue if this play would otherwise have to be paid for. In other words, even if no prize can be cashed out from the virtual gaming environment, the fact that the virtual currency merely facilitates further play does not offer a watertight guarantee that it will not be considered as falling within the scope of Article 1(1)(a).

The Dutch Civil Code establishes that gambling debts are not enforceable, unless there has been fraud, deceit or a scam. This lack of enforceability does not apply to prizes or premiums arising from gambling licensed under the Betting and Gaming Act 1964 (Wet op de kansspelen).

Land-based gambling

Land-based gambling is taxed at 29%, applicable to two different bases. This rate applies to gross gaming revenue from:

While taxation of remote gambling is explicitly provided for in the Betting and Gaming Tax Act 1961 (Wet op de kansspelbelasting), it is highly unlikely that any such offer exists at present.

For other forms of land-based gambling, tax is levied at a rate of 29% of the prize value. However, taxation applies only to prizes above a threshold of EUR449, which means that operators’ effective tax rates are far lower than the headline 29%. While participants are liable for the tax due on a prize, providers are required to withhold the relevant amount when paying out the prize.

Online gambling

Remote gambling will be taxed at a rate of 29% gross gaming revenue. Originally the Remote Gaming Bill proposed a rate of 20% but political wrangling pushed this up to the headline rate applicable to land-based gambling.

At present, residents of The Netherlands are liable for gambling tax on remote gambling winnings from (locally) unlicensed operators. In these circumstances gambling tax is due at 29% but based on gross earnings per month. However, this does not apply to remote poker if the operator is established within the EU.

Under Article 1(1)(b) of the Betting and Gaming Act 1964 (Wet op de kansspelen) (BGA) it is prohibited to promote unlicensed games of chance, that is those games that fall within the scope of Article 1(1)(a) BGA. “Promote” is understood to cover advertising, although there is considerable uncertainty as to whether it also covers other services (such as payment services) which facilitate the provision of unlicensed games of chance. There are strong arguments to suggest that the current prohibition is limited to advertising.

Land-based gambling

Existing rules relating to the advertising of gambling are found in the Dutch Advertising Code (De Nederlandse Reclame Code), and secondary legislation, notably the Decree on Games of Chance: Recruitment, Advertising and Addiction (Besluit werving, reclame en verslavingspreventie kansspelen), which entered into force on 1 July 2013 and the Regulation of the same title (Regeling werving, reclame en verslavingspreventie kansspelen).

Broadly framed provisions found within the Code address three core areas:

Both the Decree and the Regulation are based on Article 4a of the BGA, which establishes that a licence holder is obliged to take measures to:

Examples of current restrictions on advertising include:

Online gambling

The Code is due to be revised in light of the licensing of remote gambling. Under the authority of Article 4a BGA, as yet unpublished secondary legislation will also impose specific requirements on providers of remote gambling.

Advertising was a hot topic during discussions before the House of Representatives around the passage of the Remote Gaming Bill. A number of related amendments and motions were proposed, and some were passed. Two motions that were passed include one calling for a prohibition on advertising for live-betting and another that calls for a time slot for online advertising, rather like that which prevails for television advertising. How these motions will be implemented in practice remains to be seen.

Widespread regulatory changes are planned, given the government’s plans to modernise the entire regulatory regime for games of chance. The most advanced plans relate to remote gambling (seeQuestion 2, Online gambling), with reform of the casino sector and the introduction of a transparent licensing regime for the (semi-permanent) lottery licences to follow. There have also been hints at the privatisation of the Staatsloterij. Although the licensing process for remote gambling should commence by early 2018, part of the offline market will already be open to new market entrants as of 1 January 2017 given developments in case-law (see below, Land-based gambling). See Question 17 for reform of the casino market.

Land-based gambling

The government had intended to reform the lottery licensing system, to make it more transparent (compliant with EU law) and provide scope for innovation in the sector, once the regulatory regime for remote gambling was in place. However policy development has been overtaken by litigation. Litigation has established that the lack of a transparent licence allocation procedure was in breach of EU law; both in 2008 regarding Article 3 licences and in 2011 regarding betting. The decision on betting was made by the Council of State (Raad van State) following a preliminary reference to the Court of Justice of the European Union in C-203/08 Sporting Exchange.

In May 2016 the lack of transparency in the licensing regime was raised again, this time in relation to licences under Article 3 of the Betting and Gaming Act 1964 (Wet op de kansspelen). In essence the Gaming Authority (Kansspelautoriteit) (KSA) rejected a licence application on the basis that a ministerial policy rule provided that no new providers should be permitted to enter the market and that licences should be awarded to incumbents until 2017. This was said by the competent court to be an inadequate justification for failing to consider the licence application. Ultimately the KSA decided not to appeal the decision and this explains the emergence of the licensing procedure in August 2016, with the possibility for new market entrants as of 1 January 2017.

Although the government takes the line that the provision of gambling is not a task of the state, the publically owned Staatsloterij merged with De Lotto in April 2016. The new entity trades under the name Nederlandse Loterij, providing the state lottery, lotto, sports betting and the instant lottery.

On 29 November 2016 opened the preliminary stage of the licence application procedure for the exclusive (land-based) horserace betting licence. At the time of writing it is foreseen that the licence will run from 15 April 2017 for a period of five years.

Online gambling

There have been no changes in the legality of remote gambling in recent years, although the KSA’s approach to enforcement under the prioritisation criteria has been noted above (see Question 2, Online gambling).

Given such circumstances it is pertinent to note that the Amsterdam Court of Appeal (Gerechtshof Amsterdam) (Court), in a decision of 25 October 2016, held that the fact that games of chance were offered in breach of the prohibition on unlicensed games of chance did not render a contract between a player and remote gambling operator void or voidable. Moreover the Court went so far as to state that such games of chance were not socially undesirable, illegal or punishable in light of various factors, including the prevailing approach to enforcement.

Other

There are no other legal developments to mention here.

Land-based gambling

Please see Question 2 for a discussion of the Remote Gaming Bill.

Reform of the casino market will see the privatisation of Holland Casino and monopoly based supply being relinquished. Holland Casino currently holds 14 venues and will have to give up four of these. Two additional new venues will become available. Having divided The Netherlands into five regions each region will have two to three casinos and, to ensure that competition takes root, ideally (at least) two providers per region should emerge. The criteria on which it will be decided which four venues Holland Casino must let go of have not yet been published. At present the new licences will be valid for 15 years. The necessary legislative reforms and privatisation of Holland Casino should take place during 2017, with the casino market opening in early 2018.

All of the semi-permanent licences are due to expire on 31 December 2016. This reflects earlier statements made by the Ministry of Security and Justice that a transparent licensing procedure will be introduced for these licences as of this time. However, as already described (see Question 17, Land-based gambling), due to litigation a transparent procedure has been introduced for licences under Article 3 of the Betting and Gaming Act 1964 (Wet op de kansspelen) (BGA), with scope for new market entrants arising on 1 January 2017. Litigation has also resulted in the introduction of a licensing procedure for the horserace betting licence (to be operable on 15 April 2017), although whether it will prove compatible with EU law remains to be seen. As of early December 2016 no announcements have been made with regards to the sport-betting, lotto and instant lottery semi-permanent licences, which is quite remarkable given their expiry date.