Dutch gambling practice in violation with EU-law

Dutch Gaming Licenses

Dutch Gaming Lawyers have challenged  clients to enter the Dutch Market. Licenses for lotteries are still granted to Dutch Lotteries only. The Netherlands have not opened up the gaming market. The Bill for Online Gaming should comply with the goals of the European Treaty. It’s strange that online lotteries do not yet qualify for licenses, while all other forms of gambling such as casinos and sports betting are provided for in the draft bill on remote gambling. Read this update on the Dutch Gaming Licenses.

Dutch online gaming in violation with EU-law

At a European level, the uniform gambling policy has not been harmonized. In the absence of secondary legislation, the General Treaty provisions, The Treaty On The Functioning Of The European Union (TFEU) apply. According to settled case-law of the Court of Justice of the EU (ECJ), lotteries and other forms of gambling are regarded as services. So the rules on freedom to provide services are applicable

Freedom to provide Gaming Services in the Netherlands

Article 56 TFEU requires the removal of any restriction on the freedom to provide services which means that the activities of the provider established in another EU Member State and legally perform similar services are prohibited, even if this restriction applies without distinction to domestic Providers and providers from other Member states. EU Member States may make limitations. It must be examined on grounds of justification. The treaty gives the Member states discretionary power regarding the organization and regulation of gambling. Member States themselves decide how they want to protect their citizens against negatively impacts on remote gambling. However, this discretionary power is not absolute.

European Court on gaming law

The ECJ has set limits to the free movement of services in particular gambling. For example, a Member State may impose restrictions only if it pursues a legitimate objective for the public interest. These measures should be proportionate, and appropriate to achieve the stated goal and also necessary, which means that the Member State may not take more stringent measures than is necessary to achieve the objective.

Online gaming Draft

In the current draft bill which went through the Dutch Parliament, online lotteries are excluded, the question is whether this restriction is in accordance with European law and justified. According to the explanatory memorandum, there is no substantial demand for online variants of the classic lotteries, so according to the Dutch government, there is no need to regulate this option by law.  We do not believe this is sound reasoning by the Dutch Authority. Foreign Gaming Companies should apply for licenses to proof the contrary.

Fair restrictions on gaming and betting?

In the draft Bill, the Netherlands is briefly aiming at three general goals.

  • Fighting against fraud
  • Fighting gambling addiction
  • Consumer protection

The above goals constitute a legitimate reason for the primary purpose of the draft bill, the design and layout of the existing demand for a legal and safe offer of online gambling. But in addition to this objective, the draft bill also seems to pursue economic objectives. This is not usual, according to settled case-law on gaming law of the ECJ, financial advantage is no more than a mere favourable side effect of the measure.

Proportionality and necessity in Dutch gaming regulation

The exclusion of online lotteries in the draft bill is based on no or hardly any further assumption that there is no sufficient demand for online lotteries. See the Explanatory Memorandum; there is no known question for online variants of classic lotteries that require canalization. This is a remarkable passage, where a Member State chose to impede a certain freedom, the burden of proof of justification for this barrier is indeed on the Member State. The Netherlands must therefore demonstrate that there is no or not enough question from a consumers point of view. This requirement weighs heavier as it determines that the market is almost liberalized for online gambling except for online lotteries. The only motivation that the consumer demand for online lottery products is low is insufficient and relates to further explanation. On the other hand, current Dutch licensed lotteries offer online products. This proves there is a demand for online lotteries in the Netherlands market.

Flaw in Dutch Gaming Law

It’s strange that online lotteries do not yet qualify for licenses, while all other forms of gambling such as casinos and sports betting are provided in the draft bill on remote gambling. That is not consistent legislation. If the government continues to assume it’s position, then the following situation will occur. What actually happens is that the illegal offerings with regard to online lotteries are becoming more attractive to the consumer, something that the Dutch government is trying to prevent. The constraint, as it is now, is insufficient to achieve the stated goal, so not justified in the current form. So the current legislation and the draft Bill do not take care of the business. The exclusion of remote gaming games in the draft bill seems not only inappropriate but also not necessary to achieve the stated goals. Awarding a license for online lotteries to foreign providers is, after all, a less extensive restriction than the currently proposed exclusion.

Lotteries should apply for licenses with Dutch Gaming Authority

Mark van Weeren has suggested a test case to challenge the restricted trade practices the Netherlands. Please call Mark on our office number to discuss to legal challenge for a license on the Dutch Gaming Market. Despite the wide discretion of the Dutch state, the exclusion of online lotteries as now underlined is an unjustified barrier to the free movement of services ex art. 56 TFEU. Betting Companies an Lottery Business should apply for Dutch Lottery License to open up the market. The online bill is still not through the Dutch Senate. For online gaming consultation with the gaming Authority is possible. Please get in touch with me if you wish to discuss any of this.

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Compliance and Data Protection Regulation (GDPR)

With the GDPR the work of compliance and data officers will not become sexier. Companies in the EU area and their lawyers should work on the compliance with the new requirements the General Data Protection Regulation (GDPR). In force as per May 25, 2017. My lawfirm has prepared clients for the GDPR requirements.

Legal Advice on GDPR Data Protection

Personal Data in Europe under GDPR

Companies using personal data of European citizens should work on the compliance with the new GDPR requirements. Companies should have privacy notices and policies and analyse the legal basis on which personal data is used. Some of the issues the GDPR brings on:

  • companies outside the EU targeting consumers in the EU will be subject to the GDPR
  • data processors have direct obligations to comply with
  • data controllers and processors must appoint a Data Protection Officer (the DPO)
  • a written record of processing activities should be maintained carried out on behalf of each controller
  • consent to processing of someone’s personal data must be as easy to withdraw as to give and must be ‘explicit’ for sensitive data
  • data subject will have a right to object if personal data is processed for direct marketing
  • data controllers must notify most data breaches to the DPA; Fines of up to 4% of total turnover can be imposed.

Regulatory and compliance on data processing has gone to the next level with the GDPR. Compliance and data officers will have extra work to do.

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Product liability claims in the Netherlands

The Dutch market is very challenging for new products. Always check the legal framework of the Dutch market. Therefor I will give a brief introduction to Dutch Product Liability.

Dutch law on Product liability

Apart from general negligence claims under Dutch law, a producer could also be exposed to claims made under art. 6:185 of the Dutch Civil Code, the provision for product liability in the Netherlands. Article 6:185 is an implementation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

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European Product Liability

My comment may also be taken as an indication of the position in other EU Member States, however it is expressly noted that these principles may have been implemented differently in other EU member states. For any claim or defense regarding product liability it is advisable to consult a Dutch attorney timely to discuss risks and caveats under Dutch law.

Procedure on defective product

Under article 6:185 of the Dutch Civil Code, a producer is liable to consumers (both the buyers and third parties) for any loss or damage caused by a defective product if there is damage within the meaning of article 6:185 of the Dutch Civil Code, unless the manufacturer can rely on certain exceptions set out in the same article. A product will be “defective” within the meaning of article 6:185 if it “does not provide the safety which a person is entitled to expect”; relevant considerations include the way the product is presented, reasonable expectations of its use, and the time when it was put into circulation. The burden of proof under Dutch law is on the claimant to prove that the presence of 1) damage, 2) defect, and 3) a causal relationship between the damage and defect of the product.

Online e-contract

Producer and Dutch Liability

Article 6:186(1)(b) Dutch Civil Code provides that a product will be defective if it fails to provide the safety that one might have expected of it, taking all circumstances into consideration. Article 6:185 provides for liability on the part of the “producer”. For the purposes of this article, a producer means a manufacturer of a finished product or component(s) of a product, a producer of raw materials, an “own brander” (anyone who by putting his name, trademark or other distinguishing sign or feature on the product holds himself put as its producer), or an importer into the EU; and, in case a producer cannot be identified: the supplier. Given the extremely broad definition of “producer” for product liability purposes, we are of the view that the Company (or its affiliates) will easily fall under the definition of the Product’s producer.

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How to sell your product in the Netherlands?

Set up shop in the Netherlands

I often receive mail from manufacturers interested to sell or promote their product in the Netherlands. I’m always willing and able to provide foreign companies with the necessary information for marketing the product in the Netherlands. Of course this depends on the nature of the product for the Netherlands.
online-transactie

Compliance Dutch Law

A compliance test for the product in the Netherlands at least deals at least with the following matters:

  • Compliance with Dutch law (and, to the extent applicable, EU law) regulatory/licensing requirements for the import and distribution of the Product in the Netherlands;
  • Procedures for import in the Netherlands and necessary permits if any
  • Risks of potential (civil) liability flowing from the use of its Product in the Netherlands.

Importing products in the Netherlands

Import regulations for the Netherlands may vary depending on whether or not the client plans to import the Products for direct distribution to consumers or whether they will instead be sold to distributors within the Netherlands. Of course I can help you out with contracts with Dutch distributors.

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Incorporation Company Netherlands

Investment in the Netherlands may be interesting. In particular because of a broad range of tax facilities for investors. A good legal system and affordable lawyers. Please ask Dutch business lawyer Mark van Weeren how to organize your investment in a vehicle in the Netherlands.
Business incorporation Netherlands
There are two types of legal entities in the Netherlands. First, there are legal entities which do not involve a corporate body. In that case the entire personal assets are liable for obligations and debts.

■ sole proprietorship (eenmanszaak in Dutch)

■ partnership (firm) (vennootschap onder firma in Dutch)

■ limited partnership (commanditaire vennootschap in Dutch)

■ partnership (maatschap in Dutch)

Dutch companies with corporate protection

Secondly, there are legal entities which do involve a corporate body. The participants are liable for the amounts invested. A legal entity has independent rights and obligations.

■ private limited liability company (BV or besloten vennootschap in Dutch)

■ public limited liability company (NV or naamloze vennootschap in Dutch)

■ association (vereniging in Dutch)

■ foundation (stichting in Dutch)

Investment netherlands attorney corporate lawyer

Advantages of doing business in the Netherlands

In contrast to other countries within the EU, non-Dutch businesses and individuals in the Netherlands are not subject to special conditions or restrictions when it comes to setting up a new enterprise. The entrepreneur can decide what form of legal entity is most appropriate for the enterprise. However, if you want your company to benefit from limited liability risks and attractive tax terms, it is advisable to choose the legal status of the Dutch private limited liability company or Dutch public limited liability company. A Dutch Notary can incorporate a company quickly.

Dutch company with limited liability

Private limited liability companies are popular with foreign investors for accommodating activities in and outside the Netherlands. As a stimulus measure for the Dutch business sector, the maximum corporate tax rate in the Netherlands was recently reduced to 25%. The Dutch Tax is very competitive by European standards. Special rules apply to companies that form a tax group and to companies that own more than 5% of another company.

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Short term rent restrictions unlawful?

Dutch Airbnb rentals get tough treatment

Short-stay rentals typically appear to be regulated at a municipal/regional level and thus differing regulations can be seen within a given country. The serious increase of short stay rental activity  in recent years, cities around the world are looking at ways to reform their regulations or have already taken actions to do so.

short stay rental

Scruffy Dutch law discourages landlords

Because the traditional regulatory frameworks were largely designed without these new additions to the short-term accommodation market in mind, there is a danger that they will be ill-adapted to application to Airbnb-style providers or that such providers may entirely fall outside of the scope of the regulatory framework. As a lawyer focused on human rights article 1 EP (European Protocol) comes in the picture, the right to property, in particular the right to derive profit from property recognised by the the European Court in the case Hutten-Czapska vs Poland.

A more social consideration is also used by the Court:
Property, including privately owned property, has also a social function which, given the appropriate circumstances, must be put into the equation to determine whether the fair balance has been struck between the demands of the general interest of the community and the individual’s fundamental rights.

Ban on airnbnb rentals unjusified

In my Dutch law firm we notice a increasing call from property owners that do not accept de local restrictions e.g. in the City of Amsterdam.  To my opinion the balance has gone to far in the protection mode and the basic right of the landlord to rent including short stay rent is infringed.

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Dutch cannabis policy at crossroads

Compliance with Dutch Cannabis Regulation

Once the Dutch cannabis policy was famous: too liberal, unacceptable, condemned by many. But now the signs are different. Even countries like the US and Belgium have more liberal policies to allow consumption and growing of hemp. The Dutch drugs policy is at crossroads. The tough political stance has deteriorated the cannabis policy so much that even the Dutch Courts do not support the government policy any more. Coffeeshop owners (who are allowed to do legitimate sales of cannabis in the Netherlands and keep a stash) and even growers are left off the hook. The Dutch Secretary of State responsible for this tough approach has stepped down for other reasons. So, the cannabis community in the Netherlands has high hopes that new policy will make life easier for growing cannabis and selling in to consumers.
Cannabis Colarado

Netherlands Marijuana law outdated

In an attempt to backup the tough policy the Dutch government asked a Dutch University to prepare a report on Dutch softdrugs policy in view of international treaties. The university report submits that all modalities for cannabis sales re in fact contravening international law. Also recent initiatives for cannabis social clubs are scrutinized: “In view of the various prosecution obligations ensuing from the UN Drugs Conventions and European law with respect to, in principle, serious criminal of-fences, it is hard to defend that criminal policy-based non-prosecution (penal tolerance) of cannabis cultivation for the supply of coffee shops is legally permissible on the basis of the expediency principle (. . .).”

Cannabis Social Clubs

The obligations to prosecute for joint cultivation and consumption in Cannabis Social Clubs, however, is less clear-cut, according to the report. Although such cultivation cannot be equated with cultivation for private personal use, the connection is such that states are at liberty to refrain from prosecution based on expediency considerations. The conclusion of the researchers is that permitting cannabis cultivation for the supply of coffee shops cannot be implemented on the grounds of the legal arguments provided by Dutch municipalities with due observance of the UN Drugs Conventions and the EU legal instruments.

Report on cannabis brings no new Dutch Cannabis Law

The report amongst others concludes: ”The various regulating modalities in the final part of the evaluation include regulated legalization (Uruguay and the US federal states Colorado and Washington), joint cultivation in Cannabis Social Clubs (Belgium, Spain and Uruguay), cannabis cultivation by non-profit growers, cannabis cultivation by licensed commercial parties, and cannabis cultivation for recreational use under the veil of medical or scientific programmes. The conclusion with respect to all these modalities for cannabis  is that the fight-against-drugs framework under international law leaves no room for legalization, decriminalization policy-based tolerance and/or any other regulating approaches. Only with respect to Cannabis Social Clubs, however, would a state less easily be in conflict with the obligations pursuant the UN Drugs Conventions and European law whenever that state would in fact just leave those Clubs untouched (thus without applying regulating measures or any explicit policy thereto).

Source: International law and cannabis, 2014, Ministry of Justice, the Netherlands, ISBN: 9789013124286

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