Teodora Luca, Avocat Asociat, Cabinet de Avocat Mihai LUCA
Although the legislator did not intend to explicitly define the concept of responsible organization of gambling, from the wording of the legislation in force results its intention to harmonize economic interests of the organizers of gambling with the need to require from them a responsible conduct, having the role to prevent business risks.
They are eloquent in this respect the provisions of art. 10 item 3) of the Government Emergency Ordinance no. 77/2009, according to which economic activity represented by gambling (…) will run under formulation and implementation, through implementing rules of this Law and other relevant regulations, of a framework for regulation and supervision of the supply and consumption of gambling, both traditional and remote, provided that the principles regarding the following are respected:
(i) protect minors and prevent their access to these types of games;
(ii) ensuring the integrity and transparency of the operations by and through the organizers of gambling, as well as a fair game system, permanently supervised and verified in terms of security and honest activities;
(iii) prevent and combat criminal activities that can be carried out through these types of games; (…)
(iiii) develop and implement a program to protect players against gambling addiction.
An essential role in the practical application of these principles is, according to the law, the responsibility of the foundation to be established in accordance with art. 10 item. 4) of the Ordinance, whose main objective is to ensure that the measures of socially responsible gambling, adopted by the European Committee for Standardization, are respected.
As the foundation fails to establish its prerogative to apply coercive measures to achieve the goal set by the law, ensuring the respect of the measures on the organization of responsible gambling will be achieved only by attracting voluntary organizers inside the programs and projects developed and promoted by the foundation, aimed at implementing the principles embodied in the provisions of art. 10 item. 3) previously cited. Supervision and effective control of how the principles previously cited are applied in the activity of the organizers rest with the National Office for Gambling, which, through its representatives (members of the Advisory Board), will acquire the status of founding members of the Foundation and, as such, will participate in setting the strategy and the programs of the foundation; it can not be ignored, of course, the fact that being the authority responsible for exercising control over the activities of gambling, the National Office for Gambling may require operators to apply the principles for the organization of responsible gaming and otherwise, to apply the penalty provided by law.
➤ The first goal of the legislator and, therefore regulated unequivocal in the legislation, is the protection of minors and prohibiting their access to these types of activities.
If in what concerns forbidding minors to access these locations and to means for participation in gambling, the law is very clear, establishing unequivocally that the child can not acquire the status of participant in gambling (according to Art. 7 item. 1 of the Ordinance) and, furthermore that the access of minors in the specialized location and at means of game or of activity are prohibited (under art. 7 item. 3), identifying other binding measures for the organizers, to ensure the protection of this vulnerable category, does not seem to be a simple action.
As long as minors can not access in any way the location or the offer of the gambling organizer, it (the organizer) is at least apparently unable to apply any other preventive measures.
However, the provisions of art. 12 of the Ordinance, defining limitations for promotional messages of the organizers of gambling, assess that they are allowed if they ensure compliance with all the principles laid down in art. 10 item. 3 of the Ordinance, including the one on the protection of minors and prohibit their participation in gambling, this latter mention being signaled visually.
➤ The principle of surveillance of operations carried out by the organizer of gambling in order to permanently ensure the proper an safe environment for the activity is translated into practice by establishing the responsibility of the organizers of the obligation to interconnect the means of playing into the centralizing computer system ensuring the transmission of the competent authority, in real-time, of the information regarding operations. To the same end, reporting obligations by the competent authority of the financial results of the organizer circumscribe, the submission to the National Office for Gambling of evidence of registration tax to the competent bodies or of evidence on payment of fees, so that the authority may supervise the activity of licensed operators and to ensure fair competition environment for their operations.
➤ The measures applicable to the organizer of gambling aimed at preventing and combating criminal activities that can be carried out through these activities are those related to customer identification, registration and verification of financial transactions undertaken, reporting transactions in the amount of over 15,000 Euro.
Although similar measures are found in the body of other legislation documents,(such as, for example, the Legislation preventing and combating money laundering and terrorism financing), most probably the aim of the legislator was to allow the authorities competent to obtain and correlate information from different sources.
➤ Develop and implement a program to protect players against gambling addiction can not be provided by the organizer individually, this being one of the main arguments for establishing the foundation under the provisions of art. 10 item. 3 of the Ordinance. However, a number of measures, such as for example, advising vulnerable persons to address specialized centers for addiction treatment, limiting access to gambling of the addicted person or creating the possibility for players to set limits on participation in gambling, all of the above can be applied individually, regardless of the type of activity performed, even if the law does not explicitly cover this obligation except in the case of online gambling.