Government outlawry in gambling activity
By Anchidim Zăgrean, President of ROMBET
I have always argued that the regulation of gambling in Romania needs an urgent harmonization with European norms, with the principles and rules laid down in the documents of the European institutions, otherwise this activity tends to always remain the “Cinderella” and the “black sheep” of politicians and governors, for election campaign periods or urgent needs to cover holes in the state budget.
I had become, at one point, even optimistic and declared without reservation that: “We were happy to learn, from the direct meetings we had with the Minister of Finance, that the Ministry has in mind the achievement of these objectives, with real transparency towards by the economic operators, that is why in the next period, a Consultative Council with the representatives of the relevant associations will be established, at the level of the ministry, and then there will be sectorial meetings, in order to start the full revision of the fiscal system as well as the provisions of the special regulations of various activities, including gambling activities. In fact, this desire also emerges from the messages of the Minister of Finance, such as the one sent on the occasion of the participation in the event “Performers of the capital market for the year 2021”, organized by the Bucharest Stock Exchange, in which we find the availability of solving these problems and difficult situations that have arisen recently:
“In complicated situations, such as the one now, the most important thing is to find solutions for a real partnership between the state, citizens, economy and capital in order to identify the causes of vulnerabilities and strengthen the basic elements or pillars on which to build economy”, said Adrian Câciu.
The subsequent evolution, of putting into practice what was stated above, has shown that you should never believe in the promises of politicians, even more than that, you should expect that these promises will be fulfilled exactly the other way around and especially without any little respect for those who believed that politics can be done other than with the bard and government axe.
It is worth seeing a little how these necessary harmonizations were realized and especially how the government trio chose to support this activity, after two years of restrictions, during which the fees and taxes in this field of activity had to be paid:
1. License fee, for the organization of gambling, as of July 18, 2022, they have been “harmonized” out of the need to line the pockets of the newly appointed activists, who must be paid as they should be, and respecting all public statements that no fee is being raised, that it just isn’t done that way something during the period of economic crisis, the harmonization was done as follows: 1) for the Romanian lottery, an activity from its own backyard, the harmonization through growth is 117%;
2) for the fixed rate betting activity, the tax is harmonized increasing by 400%; 3) for slot machines an increasing harmonization of 375%; 4) for online gambling the government harmonization is 260%; etc.
2. Authorization fee for the exploitation of gambling, starting from July 18, 2022, they were “harmonized”, as follows: 1) for the Romanian lottery, an activity from its own backyard, the harmonization through growth is 111%; 2) for the fixed rate betting activity, the tax is harmonized increasing by 113%; 3) for slot machines an increasing harmonization of 128%; 4) for online gambling the government harmonization is 144%; etc.
3. Administrative fees in the form of: 1) documentation analysis fee: a) online games – 3,000 euros and b) traditional games – 500 euros; 2) license issuance fee – both types of games – 9,500 euros; 3) 150 euro gambling authorization request documentation analysis fee; fee for analysis of documentation, request for integration of new games/recertification of games on the remote gambling platform, 150 euros. It should be mentioned here that the National Gaming Office (ONJN) has its own budget and is financed from the state budget, through the budget of the General Secretariat of the Government;
4. Promotion fee, of gambling activities, representing 5% of the value of advertising contracts, a new harmonization but also an absolutely original Romanian tax invention, without any meaning, representing only a new way of Romanian government outlawry.
Of course, there remain a series of rhetorical questions; no one expects to receive any answers, to the discriminatory, abusive, arbitrary and discretionary way in which they acted to adopt the two normative acts (G.O. 15 and G.O. 16 of 2022):
1. Why was the principle regarding the certainty of taxation not respected, through the elaboration of clear legal rules, which do not lead to arbitrary interpretations, and that the terms, method and amounts of payment be precisely established for each payer, respectively that they can follow and understand their tax burden, as well as be able to determine the influence of their financial management decisions on their tax burden?
2. Why was the principle regarding the fairness of taxation or fiscal equity not respected to ensure that the fiscal burden of each taxpayer is established on the basis of the contributory power, respectively according to the size of his income or properties?
3. Why is it not respected that legislative proposals, draft laws and other draft normative acts will be accompanied, obligatorily, by a preliminary assessment of the impact of the new regulations on fundamental human rights and freedoms?
4. Why the draft normative acts do not include legislative solutions for transitional situations, in the event that the new regulation affects relationships or legal situations born under the old regulation, but which did not fully produce their effects until the date of entry into force of the new regulations, by the fact that on the date of their adoption, there were, in terms of validity, both organization licenses and authorizations for the exploitation of games of chance?
5. Why were the two ordinances adopted although art. 51 and 52 of the TFEU, point 25 of Directive 2006/123 as well as the jurisprudence of the CJEU establish as clearly as possible that the restrictions that can be imposed on gambling activities are exclusively regarding public order and consumer protection, the adopted rules added to the restrictions the level as well as the method of payment of fees and taxes, as also results from the explanatory notes of the two normative acts (G.O. 15 and G.O. 16 of 2022)?
6. Why were provisions of an arbitrary and discretionary nature adopted in the way of carrying out this activity, contrary to the provisions regarding free access to economic activities?
7. Why is the entire activity, of organizing and operating games of chance, conditional on the payment in advance of certain sums of the nature of taxes and fees, contrary to European regulations that limit the restrictions that can only be imposed for public order and consumer protection?
8. Why all taxes, in the field of gambling, can have an arbitrarily set level and discretionary payment terms, compared to other economic activities, given that they are defined by EU Regulation 549 from 2013 (mandatory to apply) as being taxes established as a result of the level of service provided from this activity?
9. Why were all the adopted changes made without respecting the principles of non-discrimination and non-differential treatment? Also, the neutrality of fiscal measures was not respected in relation to the different categories of investors and capital, with the form of ownership, not ensuring, through the level of taxation, equal conditions for investors, Romanian and foreign capital. On the contrary, through all the measures taken, the authorities created privileged conditions compared to their own activity, carried out through the Romanian Lottery, by violating, in this way, all the provisions regarding competition?