Obligation of gambling organizers of notification of affiliate contracts
By Ana Calancea, Lawyer
C.A. Luca Mihai-Cătălin
In the following we propose an analysis of the provisions of art. 12 para. 2 of the contents of GEO no. 77/2009 on the organization and operation of gambling (hereinafter referred to as GEO 77/2009) in order to determine what changes are made to the initial data under which the license for the organization or operation of online gambling has been issued which must be brought to the attention of the National Gambling Office.
According to art. 12 para. (2) “Gambling economic operators shall notify the O.N.J.N., within 48 hours by filing online or within 5 working days from the date of registration, for filing by mail or at the O.N.J.N. registry, of any changes to the data. under which the gambling license or gambling license has been issued, as the case may be.”
From the way in which the normative text was drafted, it appears unequivocally that the purpose pursued by the legislator is bringing to the attention of the National Gambling Office only situations that are likely to change the considerations envisaged by it for the issue of the organization license and the operating license.
According to the legislation in force, the initial data / considerations considered by the O.N.J.N. for the issuance of the license for the organization and the authorization to operate the online gambling activity are those expressly and unequivocally provided by the provisions of art. 15 of GEO no. 77/2009, respectively:
„(1) To obtain a gambling license from the O.N.J.N. the following conditions must be met:
A. For traditional gambling, must:
a) economic operators to prove:
(i) existence as the main object of activity “organization of gambling”;
(ii) the existence of the opinion of the police bodies granted to the legal representatives, as well as to the associates / shareholders of the legal person;
(iii) the establishment of the subscribed and paid-in share capital and the guarantees in the amount provided for in this emergency ordinance;
b) the legal representatives of the legal person to submit a declaration on their own responsibility stating that:
(i) the economic operator has not been convicted by a final conviction for which rehabilitation has not taken place;
(ii) is not in a state of incompatibility under the law;
(iii) the identity of the real beneficiaries, as defined in Law no. 656/2002 for the prevention and sanctioning of money laundering, as well as for the establishment of measures to prevent and combat the financing of terrorism, republished, with subsequent amendments, as well as the fact that they were not convicted by a final conviction for which he did not rehabilitation has taken place for an offense provided for in this emergency ordinance or for another offense committed with intent for which a sentence of at least 2 years with imprisonment has been applied and is not in a state of incompatibility, as regulated by law;
(iv) no administrative action has been taken against the legal person – such as the cancellation, revocation or suspension of the license or the entire activity carried out by the gambling operator, for a period of one year before the date of application for the license;
(v) there have been no shareholders and / or directors in the last 3 years in the companies that have declared bankruptcy;
c) legal representatives of the legal person to file criminal records or other documents issued by the competent authorities in whose area of competence is the last known domicile / registered office, showing that no legal decision has been issued against any of the legal person’s legal representatives. final conviction for failure to rehabilitate, in Romania or in a foreign state, for an offense under this emergency ordinance or for another offense committed with intent to serve a sentence of at least 2 years with the prison;
d) the economic operator has applied the request for the authorization to operate gambling in the category of those regulated by this emergency ordinance and under the conditions imposed by it.
B. For remote gambling, economic operators must provide cumulative proof:
(i) of the conditions provided in let. A;
(ii) that they have a bank account for depositing players’ funds opened with a Romanian bank;
(iii) that the central computer system of the organizer has a system of registration and identification of participants in the game, as well as a system for real-time storage and transmission to a mirror server and a firewall, located in Romania and made available free of charge to the O.N.J.N., of the simultaneous gambling sessions, of each participation fee placed by each player, as well as the winnings paid to each player. (…);
(iv) that the software used for remote gambling, as well as any new version of the software used for remote gambling, have been previously approved by the O.N.J.N., based on tests performed by a licensed laboratory;
(v) the existence of an “authorized representative” of the company, if it is registered in another Member State of the European Union or in another signatory to the Agreement on the European Economic Area or in the Swiss Confederation, (…);
(vi) that the game server and the firewall ensure the storage of all data regarding the provision of remote gambling services, including registration and identification of players, bets placed and winnings paid. (…);
(vii) that communications equipment, other than that of providers of electronic communications networks and services, as defined in Government Emergency Ordinance no. 111/2011, approved with amendments and completions by Law no. 140/2012, as subsequently amended and supplemented, must perform both the geographical location of the IP address and the identification of the date, time and duration of the game session of the player who registered himself as a participant in a game on the organizer’s website. (…);
(viii) that communications equipment, and the central point where the central computer system of the organizer will be located are in the territory of Romania or in the territory of another Member State of the European Union or in the territory of another Member State of the Agreement on the European Economic Area or in the Swiss Confederation;
(2) In order to obtain a gambling license, the economic operators must prove that:
a) hold a gambling license valid on the date of application for a gambling license or have applied for a gambling license;
b) the proposed space is registered at the trade register office by the organizer concerned in accordance with the legal provisions in force for carrying out commercial activities in real estate and meets the requirements set out in the rules of application of this emergency ordinance;
c) the proposed space is not located within an educational establishment, including its related campuses, cultural, art, health, social, religious and similar establishments or within the delimited perimeter intended for them; (…);
d) the casino activity is to be organized in non-residential buildings or in locations that are part of hotels with a classification, according to the national regulations in force, of at least 3 stars;
e) the means of play and the proposed locations / spaces meet the conditions set out in this emergency ordinance and in the rules for its application;
f) the slot machines are connected by means of independent computer programs, unique at the level of the organizing company, with the obligation to centralize in a centralized computer system located on the territory of Romania the information to highlight: each connected game means, the location where is exploited, the total participation fees collected and the total prizes awarded, including jack-pot. (…);
g) the betting rooms will be operated by means of independent computer programs, unique at the level of the organizing company, regardless of the number of locations where the activity takes place, with the obligation to centralize in a centralized computer system located in Romania the information to highlight each connected game terminal, total participation fees collected and total prizes granted. (…);
i) have all the technical equipment to provide support for the organization and transmission of these types of games of chance obligatorily on the Romanian territory, for the remote gambling defined in art. 10 para. (1) lit. h) -n), with the exception of this provision by economic operators authorized in this field in a Member State of the European Union and who have the technical equipment necessary to operate in a Member State of the European Union, with the obligation to connect them to a computer system mirror centralizer connected to O.N.J.N. (…);
j) the additional conditions that must be met by the economic operator in order to obtain the license to organize and the authorization to operate remote gambling provided in art. 10 para. (1) lit. h) -n) shall be regulated by the rules for the application of this emergency ordinance. ”
As is easy to see, among the initial data / considerations on the basis of which O.N.J.N. granting the license to organize and the authorization to operate remote gambling is not found and information on suppliers or affiliates.
However, the recent practice of the Office has shown that the organizers of remote gambling must inform the authority, within the time limit provided for in the text of the law, of concluding any affiliation contract with licensed companies class II, the situation which, from the point in our view, it exceeds the purpose pursued by the legislator in enacting the norm.
At the same time, the provisions of art. 122 para. 3 of the Methodological Norms does not establish additional conditions for the issuance of the authorization to operate the activity, but lists the documents that must accompany the application for its issuance.
Such a conclusion is unequivocally apparent from the wording of the text, (To obtain a license to organize and operate remote gambling, economic operators will submit the documents provided in annex no. 6a) and annex no. 7 as well the following documents in Romanian: (…), but also the fact that the list of suppliers cannot be a condition of authorization and, therefore, cannot be subject to the analysis of the authority, the economic operators having the freedom to decide the conclusion or termination of the legal relations according to the general law.
Exceptions to this rule are expressly provided by law and may not be extended to similar situations (by way of example, Article 138 of the Methodological Rules provides that The economic operator applying for a remote gaming license must be certified by a specialized software or gaming platform, which has a Class II license issued by ONJN).
An interpretation by reduction to absurdity would lead to the (unacceptable) conclusion that the authority could refuse to grant the operating license on the grounds that the company did not conclude affiliation or other contracts listed in the text of the law or that the application was rejected. it could be motivated by the conclusion of contracts with certain suppliers.
In addition, we specify that the obligation to notify the authority regarding the conclusion of the promotion contract in the affiliation system with the gambling organizer rests with the affiliate, according to the provisions of art. 150 para. 3 letter c) of the Methodological Norms, according to which:
c) the act of the affiliate who does not communicate to ONJN, within 15 days from the date of conclusion, the affiliation contract concluded with a remote gambling organizer.
If the notification obligation had been provided by the provisions of art. 12 paragraph 2 of GEO 77/2009, would have been devoid of substance and purpose for the affiliate to expressly provide a similar obligation, but with a different term.
However, given the fact that non-compliance with the provisions of art. 12 para. (2) constitutes a contravention, being sanctioned with a fine from 20,000 to 40,000 lei, our recommendation is that, until the clarification of the interpretation of the provisions in question, the organizers of remote gambling to bring to the notice of the Office, in addition to the changes the initial date on which the online gambling license or operating license was issued, and the conclusion of affiliate contracts.