Teodora Luca
In the light of the provisions of Emergency Government Decree no. 77/2009 on organizing and exploiting gambling activities and Methodologic Rules for enforcing Emergency Government Decree no. 77/2009
One of the main objectives of the legislative amendments initiated in December 2014 in the gambling field consisted in regulating the terms and conditions for the promotion of these activities, the interest of the law-maker clearly resulting from inserting the first amendments in art. 12 of the Decree, which stipulates as follows: Advertising and publicity of gambling activities authorized on the national territory shall take place in compliance with the principles provided under art. 10 para (3). The serial and the number of the license shall be visibly displayed on all promotional materials.
With a view to this article, the following shall not be considered acts having advertising, publicity or promotional character: all acts carried out by the organizers directly in their own locations and on their own internet pages. Publicity made by sending unsolicited electronic messages containing information regarding gambling activities to an unlimited number of persons is strictly forbidden.
Simultaneously, there have been amended the provisions of art. 26 of the Decree, regarding the penalty for contraventions consisting in the promotion of unauthorized gambling activities on the territory of Romania or resulting from breaching the legal provisions in force, the main sanction consisting in a penalty between 50,000 – 100,000 RON, doubled by the confiscation of all amounts generating from the illegality. The clear purpose of these amendments is to engage the liability of both bookmakers and service providers in charge with verifying in advance the legality of the operations to be made.
Therefore, all doubts whatsoever regarding the capacity of the bookmaker (i.e. legal person holding the license and the authorization to exploit gambling activities) to promote the activities carried out are removed, at the same time regulating the terms and conditions for executing any such activities.
The principles provided under art. 10 para 3 of the Decree, which may be subject to art. 12 are, of course, those regarding minors’ interdiction to take part in any such activities, as those regarding responsible gambling (assuring protection of vulnerable gamblers against gambling addiction).
In the light of these provisions, all promotion materials must contain: the serial and number of the license held by the beneficiary, minors interdiction to take part in gambling activities, promotion activities being allowed as long as they shall not allow addiction development.
These conditions were supplemented by the Methodologic Rules for enforcing Emergency Government Decree no. 77/2009, the provisions of art. 6 para 1 expressly stipulating the mandatory specifications in the promotion materials, the novelty element consisting in the obligation to display the logo of the National Department for Gambling Activities.
Moreover, there have been regulated the conditions regarding the display of promotion materials, being clearly regulated that they cannot be located either inside or on the fences/walls of educational establishments, socio-cultural or religious establishments.
Failure to observe the obligations to indicate the mandatory information, as well as failure to observe the display interdictions above mentioned shall be considered a contravention and shall be penalized with a fine between 10,000 -25,000 RON, as per the provisions of art. 151 para 1 and 2 of the Regulations, the Survey Committee of ONJN being entitled to apply, on the proposal of the control bodies and according to the consequences occurred, a complementary penalty consisting in suspending the exploitation authorization for no more than 6 months.
Special care shall be granted to the provisions of art. 3 para 3 of Government Decree, stipulating as follows: “Organization by economic operators of any acts for the promotion of traded goods and services, in case the name of the promotion act may inoculate to clients the idea to participate in gambling activities or in case the actual manner of performing them breaches the provisions of the hereby Emergency Government Decree is strictly forbidden.
In case the promotional action of an economic operator fulfills cumulatively the defining elements of the gambling activity provided under art. 3 para (1), the permit from O.N.J.N. must be obtained, except for advertising lotteries organized based on the Government Decree no. 99/2000 regarding the trading of products and market services, subsequently amended and supplemented. Until approving the Methodological Regulations, the approval stipulated by these provisions was applicable to all economic operators, other than bookmakers. Such approach has indeed its own reasons, taking into account that the Decree uses the term “bookmaker” (defined as per the provisions of art. 6) for any legal persons carrying out gambling activities as well as the fact that this very category of economic agents is already subject to a long approval process during the licensing and authorization procedures. As the purpose of this Regulation might consist in approving the promotion activities that might be interpreted as gambling activities, the subject of the approval could be only an economic agent, other than the bookmaker. In our opinion, the hypothesis provided in 2nd thesis of art. 3 para 3 (promotion of an economic operator fulfills cumulatively the defining elements of the gambling activity, provided under art. 3 para 1) could have never become achievable. In fact, it was (and still is) impossible for a promotional act to fulfill cumulatively the conditions necessary in order to be assimilated to a gambling activity: gaining financial prizes, usually money prizes, following public granting by the bookmaker of a potential prize and acceptance of this prize by the participant, by collecting a direct or dissimulated participation tax, the prizes being awarded based on the Gambling Regulation approved by the National Department of Gambling Activities, hereinafter abbreviated O.N.J.N., by random selection of the results obtained in the events that make the object of the gambling activity, regardless of how they were produced.
Even if we could accept that the promotional act involves additional taxes (although such an approach is against the promotion campaign), it is surely out of the question that within such a campaign, the prizes are granted based on the Gambling Regulation approved by the National Department for Gambling Activities, without fundamentally changing the very nature of the activity. The Methodologic Rules limited the category of actions requiring previous approval from ONJN, being established that bookmakers must obtain this approval if they assume use of manners to grant prizes specific to gambling activities, but only in case the campaign takes place outside bookmakers’ locations or websites.
Obviously, the approval is necessary only in case the manner of awarding prizes is specific to a certain gambling activity for which the bookmaker does not hold any authorization and only for the cases when the promotion campaign could not be included in the category of advertising lotteries, defined by Government Decree no. 99/2000 regarding the trade of products and market services, republished, subsequently amended and supplemented.
Nevertheless, it must be taken into consideration that this normative act is not destined to bookmakers as well and does not regulate the promotional activity carried out by them, case in which the exception provided under art. 3 para 3 of Emergency Government Decree no. 77/2009 could be only an example.
A special specification is necessary regarding the promotion of bonuses (the benefit which can be additionally obtained by the gambler, without collecting taxes or additional costs, under the terms provided in the Bookmaker’s Regulation, during a certain period of time or for certain events) granted by the bookmaker and which are allowed only in the bookmaker’s or in its affiliates’ own locations and website.
In our opinion, the main difference between bonuses and any other prizes granted during promotion campaigns is the indestructible relationship between the benefit granted and the gambling activity itself. If the bonus is granted by the mere participation in a gambling activity (even by involving the fulfillment of a certain condition, such as, for example, the registration of a betting ticket with a minimum number of events), the granting of the prize during the promotional campaign involves fulfillment of at least one formality in addition to the participation (such as, for example: the mere registration of the betting ticket in the campaign).
In our opinion, the interdiction to promote the bonuses granted is in perfect harmony with the efforts of the competent authority to raise awareness among both participants and gamblers regarding the development of the gambling activities, failure to observe it representing a contravention which is penalized with a fine between 10,000 -25,000 RON, as per the provisions of art. 151 para 1 and 2 in the Regulations, the Surveillance Committee of ONJN being entitled to apply, on the proposal of the control bodies and depending to the consequences caused, the complementary sanction of suspending the exploitation authorization for no more than 6 months.
In our opinion, one cannot exclude the possibility of applying the sanction to bookmakers that hold a provisional right to organize and exploit the activity, even if these provisions were not in force on their release day, with regard to the campaigns that took place after the day when the Regulations entered into force.
