Teodora Luca – Avocat
C.A Luca Mihai Cătălin
In the context of the constant increase in the concern expressed by the National Gambling Office representatives towards responsible gambling, unequivocally expressed as a special attention given to the way operators ensure the application of the minors’ ban on gambling, we intended to analyze within this current article the practical means available to licensed operators for its effective implementation.
The prohibition of minors to participate in gambling is undoubtedly provided for by the provisions of Art. 7 par. 1) of Government Emergency Ordinance no. 77/2009 on the organization and operation of gambling, the condition of being full age as one of the defining elements for the gambling player notion: 1) Gambling Participant means any major person aged 18 or over who wishes and has the legal right to participate in authorized gambling under the terms of this Emergency Ordinance and specific regulations.
Participating in the game involves the unconditional acceptance of the rules of the gambling game.
To emphasize the importance of putting into practice the prohibition applicable to underage people, the legal text reiterates it in the same Article 7, paragraph 3:
(3) The access of minors to specialized gambling venues, as well as their participation in any type of gambling, is forbidden.
The task of putting into practice rests with licensed organizers, the obligation being regulated by the provisions of art. 8 paragraphs 5 of the Methodological Norms for the Implementation of Government Emergency Ordinance no. 77/2009 (…): Organizers are required to prohibit the access of minors to specialized gambling venues, gambling facilities or computer systems which allow gambling. For the purpose of establishing the right to participate in gambling, organizers may request participants to submit an identity document.
In the light of these legal provisions, gambling organizers are required to adopt their own measures for the effective enforcement of the ban on minors from participating in gambling by prohibiting their access to specialized locations.
In practice, the set of measures adopted by the organizers, centered around the idea of verifying the identity of each person suspected of being under aged, have often proved to be ineffective, licensed organizers being sanctioned as a result of subjective analysis by the persons responsible for the criteria based on the need to apply measures to verify the age of people in the location.
Although we are not aware of the existence of statistics in this respect, we believe that the degree of compliance of licensed organizers has increased, however, and the access of minors to specialized gambling venues has been limited, with the application, in addition to pecuniary sanctions, of complementary sanctions, namely that of suspending the activity for a period of one to 6 months. Without detracting from the effort involved in the effective enforcement of the ban by traditional gambling organizers, we believe that by virtue of the practical possibility they are required by law to request an identity card to allow people to have access to the site, the means for observing the obligations provided by the law shall be provided.
A particular situation is that of online gambling operators since the measures adopted by this category of operators for the purpose of implementing the ban must be compatible with the possibility provided by law for limited participation in gambling carried out on specialized platforms before the identity verification process ends.
The first of the gambling prevention measures taken by online gambling organizers is to prevent the registration of gambling accounts for minors and to display the applicable ban notice.
It is, however, interesting to establish, in the context under consideration, the legal regime applicable to the activity of the gambling account, after establishing the identity of the registered user, the organizer learns that the user was not entitled to participate in the gambling game.
The organizer will be able to know that the registered user has violated the applicable ban only after submitting the documents which certify the accuracy of the data provided when registering the gambling account, stage in which the game account is immediately closed.
Depending on the legal status applicable to the activity performed on the minor, the amounts in the game account must be transferred by the organizer as follows: will be reimbursed to the holder (the under aged person), considering that they can not be a participant in gambling, according to the provisions of Art. 7 par. 1 of Government Emergency Ordinance no. 77/2009, on the organization and operation of gambling or if will be detained and transferred to the state budget, considering the intention to fraud the legal provisions, as it results from the interpretation of the provisions of art. 133 par. 2 reported to the provisions of art. 129 par. 5 of the Methodological Norms for the implementation of GEO 77/2009 on the organization and operation of gambling.
As mentioned above, the provisions of Art. 7 par. 1 of the Ordinance stipulate that a gambling participant means any major physical person aged 18 or over who wishes and has the legal right to participate in gambling authorized under the terms of this Emergency Ordinance and the specific regulations, and according to the provisions of art. 7 par. 3 of the Ordinance, the participation of minors in gambling is forbidden.
It follows unambiguously that the legislator has introduced an express restriction on the participation of minors and incapacitated persons (who have no legal right) to gambling activities.
If, at the time of the account registration, inaccurate information on the holder’s age is declared (being declared as an adult) and post-registration, the account is fed prior to confirmation (subject to the limits laid down in Article 129 paragraph 5 of the Rules) ;only when the identity documents are transmitted, the organizer will be able to ascertain that in reality the user did not meet the statutory conditions for participation in the game of gambling.
Given that the requirement of the capacity of the individual (being an adult or its legal ability to acquire rights and obligations) is not fulfilled, the sanction imposed is that of the absolute nullity of all the acts performed by it, in the exercise of a quality that is not legally recognized.
Following the application of the absolute nullity sanction, all acts performed by the minor or incapacitated person are considered null and void, the parties being restored to the situation prior to the execution of the unlawful act, including the amounts submitted for participation in the game of gambling, which must be returned by the organizer.
Such an approach lacks the operator of the risks associated with penalizing the person with no full exercise capacity.
This interpretation was not shared by the National Gambling Office, which recommended gambling organizers to consider that the minor’s participation in gambling is a violation of legal provisions (Article 7 paragraph 3 of GEO 77/2009 ) and, consequently, pursuant to the provisions of Art. 133 par. (1) (i) of the rules and, consequently, have the closure of the gambling account, with the consequence of retaining and transferring the amounts existing in the gambling account to the state budget. In our opinion, applying this sanction does not correspond to the purpose stated in the provisions of art. 7 par. 3 of the Ordinance, as it implies an implicit recognition of the activity carried out by the minor or incapacitated until the identification by the organizer.
In other words, such a sanction will only have effect for the future (since the account closure date) and its participation in gambling was confirmed by the date of application of the measure (being passed to the state budget as a result of illicit participation in gambling).
Most likely, the authority’s recommendation has taken into account that applying a sanction (even indirectly) consisting of seizing existing sums in gaming accounts registered by minor persons will in the long term ensure the decrease of the number of people who will try to bypass the applicable ban .
We will not be able to analyze whether these measures will prove effective at the online gambling market and that the number of minors trying to participate in gambling by bypassing the applicable ban will be reduced only to the extent that the authority will publish official statistics, Based on the relevant data collected from the organizers.
