LEGISLATIVE BALANCE OF 2019 IN THE GAMBLING FIELD by Nicoleta Baragan, Fully qualified lawyer and Loredana Dumitru, Junior lawyer, C.A. LUCA Mihai Catalin
(Continued from previous issue)
The gambling organizers are expressly targeted by the applicability of Law no. 129/2019, as reporting entities. In this capacity, they have a series of obligations, of which we mention, as a general rule, the reporting obligations, as well as the obligations to apply measures involving the customer knowledge, which we have dealt with extensively in a previous article.
However, in an attempt to punctually identify the situations that require the gambling organizers to apply the standard measures of customer knowledge, we consider it appropriate to turn our attention to the interpretation and application of the provisions of art. 13 paragraph (1) and (2) from the Law no. 129/2019.
Thus, from the interpretation of the provisions of art. 13 paragraph (1) and (2) we observe that two possible situations of applicability are generated, respectively: (i) on the one hand, by par. (2), the law-maker has explicitly established for the gambling organizers the obligation to apply the standard measures of customer knowledge at the time of collecting the gains, when buying or exchanging tokens, when carrying out transactions with minimum value representing the equivalent in lei of minimum 2,000 euro, in a single operation, and (ii) on the other hand, by par. (1) in art. 13 of the Law 129/2019, are regulated the situations in which the reporting entities (by reference to the generic category) have the obligation to apply the standard measures to know their customers.
From the analysis of the aforementioned provisions, we notice that the question easily arises whether the provisions of para. (1), which establish the situations of application of the standard measures of customer knowledge are also applicable to the gambling organizers, by including them in the generic category of the reporting entities, or if they have only the obligations provided by par. (2) from the same article.
In this respect, we asked for a point of view and obtained an answer from the National Office for Money Laundering Prevention and Fighting regarding the interpretation of the provisions of art. 13 paragraph (1) and (2) from the Law no. 129/2019 from the perspective of the applicability for the gambling organizers, which confirmed that the law-maker’s intention was to establish for the gambling organizers an exception from the application of art. 13 paragraph (1) from Law no. 129/2019, the obligation to apply the standard measures to know the client, coming down to the situations set out in art. 13 paragraph (2).
It is also important to mention that the National Gambling Office will issue the sectoral regulation in view of applying the provisions from the Law no. 129/2019.
Given that the legal deadline for the issuance of the sectoral regulation expired on November 20th and, from the information we have, the regulation is in a draft stage under the authority’s debate, we anticipate that the normative act will be adopted by the end of this year.
Next, we intend to review the stage of the projects under legislative debate, with a negative impact on the gambling industry.
The draft bill for the amendment and completion of the Government Emergency Ordinance no. 77/2009 regarding the gambling organization and exploitation, which we have analyzed in detail in another presentation, was tacitly adopted by the Senate, by fulfilling the deadline for debate and adoption, and was forwarded to the Chamber of Deputies, being registered under no. 559/10.28.2019.
We remind the fact that the main regulations proposed by the Project aim to impose restrictions on: (i) advertising spots and street advertising on gambling, (ii) conducting the activity in spaces located in buildings with housing destination or by reporting at a distance of minimum 200 m from the educational establishments, and (iii) the location at no less than 10 meters from the main entrance to the building of the spaces intended for smokers.
Considering that the regulations proposed by the Draft Bill would unreasonably make it difficult for the gambling organizers to carry out the authorized activities, as well as the arguments set out in the unfavorable opinion issued by the Economic and Social Council, which confirms this conclusion, the Project, in the form proposed, can only generate expectations of rejection.
The draft Bill for the amendment and completion of the Law no.196 from July 20, 2018 on the establishment, organization and functioning of homeowners associations and condominiums administration was also tacitly adopted by the Senate, by fulfilling the deadline for debate and adoption, and was submitted to the Chamber of Deputies, being registered under no. 565/10.28.2019.
This draft bill mainly proposes the following: (i) establishing the obligation to request a new written approval from the executive committee and the written agreement from the directly affected owners with whom it is neighboring, if the commercial space located in a building for the purpose of housing initially developed a certain economic activity, and subsequently the main object of activity of the economic operator was changed, and (ii) the possibility of suspending or ceasing the activity of the economic operators that develop the activity in spaces located in buildings with destination of dwellings, if the executive committee withdraws its written approval given for modification of the destination of the space or if the directly affected owners with which they are bordering horizontally and vertically withdraw their prior agreement because of the violation, repeatedly, of their rights by the operator’s economic activity or for public nuisance.
The expectations of rejection in this sense are also maintained for this legislative proposal, taking into account the conclusion issued by the Government of Romania of not supporting its adoption, the unfavorable notice issued on the project by the Economic and Social Council, as well as the rejection report issued by the commission referred to in first instance – the Commission for Public Administration, together with all the related arguments set out.
At the moment, both legislative proposals are under debate in the committees of the Chamber of Deputies.
Last but not least, we consider it relevant to mention the Draft Order available in the Decision Transparency section on the website of the National Gambling Office, a project which essentially aims to establish the minimum technical conditions for checking the gambling means, but which also regulates a number of requirements that compliance assessment bodies need to meet.
This Draft Order was also dealt with extensively in a previous article, therefore we only summarize the provisions that we consider of great interest for the compliance assessment bodies.
The draft Order provides, among other things, details on the form of organization under which a body intended for the compliance evaluation of the gambling means can operate, which must be established under the national law and have must legal personality. Practically, the compliance assessment bodies will be able to operate in Romania only as a Romanian company or a subsidiary of a foreign company.
At the same time, the Draft Order establishes the requirement that the compliance assessment bodies for gambling means must be certified/recognized and/or audited annually by the national certification body, RENAR, under the conditions established by the Regulation (EC) no. 765/2008 of the European Parliament and of the Council of July 9th, 2008 establishing the requirements for certification and market supervision in what regards the marketing of products and for the abrogation of the Regulation (EEC) no. 339/93.
We reiterate, for the readers’ information that both legislative proposals in the Chamber of Deputies and the Draft Order available on the website of the National Gambling Office are under debate and may be subject to change until the time of adoption.
In conclusion, although as it can be seen, gambling organizers have encountered difficulties throughout the year due to the regulations occurred in certain segments from the special legislation, but we are confident that despite them, the gambling industry will go on a maturity path and we are showing ourselves, on this occasion, more optimistic and hopeful that the next year will have a beginning without legislative incidents that are unfriendly to the industry.
