The Commission Recommendation on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online has been adopted by the Commissioners’ college today.
The aim of the Commission is to ensure that gambling remains a source of entertainment while recommending the Member States protection measures, information to the customer and commercial communication responsible rules to improve consumers protection. Any reference to land based gambling is excluded.
In the premises, it is referred to the absence of harmonisation at Union level and to the power of the Member States to set the objectives of their policy on games of chance and to define the level of protection sought for the purpose of protecting the health of consumers. However, as the rules and policies that Member States have introduced vary considerably the Recommendation is willing to encourage Member States to provide a high level of protection throughout the Union.
To set the scene, the recommendation defines online gambling service as “any service which involves wagering a stake with monetary value in games of chance, including those with an element of skill, such as lotteries, casino games, poker games and betting transactions that are provided by any means at distance, by electronic means or any other technology for facilitating communication, and at the individual request of a recipient of services” and operator as “any natural or any legal person allowed to provide an online gambling service and anyone acting in the name of or on behalf of such person”. These definitions are of utmost importance also in light of the difference within definitions among the Member States – in some countries, online gambling services are defined in order to include social games.
The Recommendation invites Member States to put forward responsible rules providing consumers with website pages’ information about online gambling and players’ accounts registration and activity processes in order to prevent the development of gambling related disorders, protect minors from accessing gambling facilities and discourage consumers from availing of offers that are not regulated.
As regards commercial communication of online gambling services, the Recommendation recognized “it can play an important role in directing consumers to the regulated offer” and therefore recommends the Member States to put forward responsible rules showing the identity of the operator and carrying correct information about online gambling including the risks of problem gambling, as well as appropriate warning messages also to avoid appealing to minors. The Recommendation welcomes the adotion of codes of conduct on these commercial communication principles.
In accordance with the definition of operator, the Recommendation states that “Member States that do not allow a specific online gambling service should not allow commercial communication for that service”.
Last but not least, the Recommendation contains a specific section dedicated to sponsorship by gambling operators. This sponsoship has suffered lack of legal certainty notably regarding the extent to which gambling advertising regulations apply to it. Now, the Recommendation indirectly invites sponsored parties to verify if the sponsorship is authorised, in accordance with national law, in the Member State where the sponsorship should take effect. As a general rule, it aims to avoid such sponsorship to affect or influence minors, also through the promotional material of the sponsoring party should not be used in merchandising designed for or mainly aimed at minors.
Notwithstanding the “soft-law” initiative as described above, the Commission has provided for a reporting obligation with a deadline from Member States to notify to it of any measures taken pursuant to this Recommendation, within 18 Months as well as annual data for statistical purposes, within 24 months. This could be seen as a major interference with the power of the Member States to define their own level of protection for the purpose of protecting the health of consumers and a legal base to challenge it.
