Applying prohibition of minors from participating in gambling
By Teodora Luca, Lawyer, Mihai Catalin LUCA
In the context of the constant increase of the concern expressed by the representatives of the National Office for Gambling towards the responsible conduct of gambling, unequivocally expressed as a special attention paid to the way in which the operators ensure the application of the ban on minors to participate in gambling, we proposed to analyze in this article the practical means available to licensed operators for its efficient implementation.
The prohibition of minors to participate in gambling is undoubtedly provided by the provisions of art. 7 para. 1) of the Government Emergency Ordinance no. 77/2009, regarding the organization and operation of gambling, the condition of adulthood being one of the defining elements for the notion of participant in gambling:
1) Participating in gambling means any natural person of legal age, at least 18 years of age, who wishes and has the legal right to participate in authorized gambling under the conditions of this emergency ordinance and specific regulations. Participation in the game implies unconditional acceptance of the rules of that game of chance.
In order to emphasize the importance of enforcing the prohibition applicable to minors, the legal text reiterates it in the same Article 7 (3):
(3) The access of minors in the specialized locations for the development of gambling, as well as their participation in any type of gambling are prohibited.
The task of implementation falls to the licensed organizers, the obligation being regulated by the provisions of art. 8 paragraph 5 of the Methodological Norms for the implementation of the Government Emergency Ordinance no. 77/2009 (…): The organizers are obliged to prohibit the access of minors in the specialized locations for the development of gambling, to the means of play or to the computer systems that allow the participation in the gambling. In order to establish the right to participate in the game of chance, the organizers may require participants to present an identity document.
In the light of these legal provisions, gambling organizers are obliged to take their own measures for the effective enforcement of the ban on minors 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 a minor, have often proved ineffective, with licensed organizers being sanctioned following a subjective analysis by those responsible for the criteria the basis establishes the need to apply measures to verify the age of the persons on the premises.
Although we are not aware of the existence of statistics in this regard, we appreciate that the degree of compliance of licensed organizers has increased, and access to minors in specialized venues for gambling has been limited, with the application, in addition to financial penalties for additional sanctions, respectively the one consisting in the suspension of the activity for a period between one month and 6 months.
Without disregarding the effort involved in the effective implementation of the ban by traditional gambling organizers, we consider that through the practical possibility that they have according to the law, to request the identity card to allow access to people at the location, the means for complying with the obligations provided by law are provided.
A special situation is that of online gambling operators, given that the measures adopted by this category of operators in order to implement the ban must be compatible with the possibility provided by law, limited participation in gambling conducted on specialized platforms before the identity verification procedure is completed.
The first of the measures to prevent minors from accessing gambling adopted by online gambling organizers is to prevent the registration of gambling accounts for minor users and to visibly display the applicable ban.
However, it is interesting to establish, in the analyzed context, what is the legal regime applicable to the activity carried out in the game account, after establishing the identity of the registered user, the organizer finds out that he did not have the right to participate in gambling.
The organizer will be able to know that the registered user has violated the applicable ban only after the submission of documents certifying the accuracy of the data provided when registering the game account, stage in which the game account is closed.
Depending on the legal regime applicable to the activity carried out on the minor, the amounts existing in the game account must be transferred by the organizer, as follows:
will be reimbursed to the holder (minor), considering the fact that they cannot have the quality of participant in the games of chance, according to the provisions of art. 7 para. 1 of the Government Emergency Ordinance no. 77/2009, on the organization and operation of gambling or if
will be retained and transferred to the state budget, in consideration of the intention to defraud the legal provisions, as it results from the interpretation of the provisions of art. 133 para. 2 related to the provisions of art. 129 para. 5 of the Methodological Norms for the implementation of GEO 77/2009 on the organization and operation of gambling.
Applying prohibition of minors from participating in gambling
As previously mentioned, the provisions of art. 7 para. 1 of the Ordinance establishes that by participating in gambling is meant any adult natural person, aged at least 18 years, who wishes and has the legal right to participate in authorized gambling under the conditions of this emergency ordinance and specific regulations, and according to the provisions of art. 7 para. 3 of the Ordinance, the participation of minors in gambling is prohibited.
It is undeniable that the legislature imposed an express restriction on the participation of minors and incapable persons (who do not have a legal right) in gambling activities.
If, on the date of registration of the account, inaccurate information is provided regarding the age of the holder (being declared an adult), and after registration, the account is replenished before their confirmation (respecting the limits provided by Article 129 paragraph 5 of the Rules) only at the time of sending the identity documents, the organizer will be able to find that, in reality, the user did not meet the condition provided by law for participation in gambling.
Given that the requirement of the capacity of the natural per son (his adulthood or his legal ability to acquire rights and obligations) is not met, the sanction imposed is that of absolute nullity of all acts performed by him, in the exercise of a quality that does not is legally recognized.
Following the application of the sanction of absolute nullity, all acts performed by the minor or the incapable person are considered null and void, the parties being reinstated prior to the commission of the illegal act, including the amounts submitted for participation in the game of chance, to be returned by the organizer.
Such an approach deprives the operator of the risks associated with sanctioning the person lacking full capacity.
This interpretation was not shared by the National Office for Gambling, which in the past recommended gambling organizers to consider that the minor’s participation in gambling is a violation of legal provisions (art. 7 para. 3 of GEO 77 / 2009) and, consequently, in the application of the provisions of art. 133 para. 1 point i) of the Norms and to order, consequently, the closure of the gaming account, with the consequence of withholding and transferring the existing amounts in the gaming account to the state budget.
In our opinion, the application of this sanction does not correspond to the purpose provided in the provisions of art. 7 para. 3 of the Ordinance, given that it implies an implicit recognition of the activity carried out by the minor or incapable until the moment of identification by the organizer.
In other words, such a sanction will have effect only for the future (from the closing date of the account), being implicitly confirmed its participation in gambling until the date of application of the measure (being transferred to the state budget the result of illegal participation in gambling).
Most likely, the authority’s recommendation took into account that the application of a sanction (even indirect), consisting in confiscating the existing amounts in the gambling accounts registered by minors, will ensure in the long run the reduction of the number of people who will try to circumvent the applicable ban.
We will not be able to analyze whether these measures will prove effective in the online gambling market, and the number of minors trying to participate in gambling by circumventing the applicable bans will be reduced, only to the extent that the authority decides to publish statistics based on relevant data collected from the organizers.
Applying prohibition of minors from participating in gambling
By Teodora Luca, Lawyer, Mihai Catalin LUCA
