alan-littler2017 should be the year that the remote gaming bill (finally) becomes law and licence applications can be submitted to the Gaming Authority (towards the end of the year). Several significant stages have to be cleared first (see December 2016’s contribution).  Yet change is already taking place in the Netherlands, licences for “non-incidental” lotteries are now available. In December 2016, the Gaming Authority awarded five such licences for the period 1 January 2017-31 December 2021. Significantly there is a new kid on the block: Lottovate. The de facto monopoly enjoyed by the Nationale Postcode Loterij, BankGiro Loterij and VriendenLoterij, along with the Stichting Samenwerkende Non-profit Loterijen, has come to an end following the decision of Rechtbank Amsterdam of 12 May 2016. The Court ruled that reliance upon the Beleidsregel aanvragen kansspelvergunningen (October 2014)  [Policy Rules for Games of Chance Licence Applications] did not justify the restriction to EU law freedoms which resulted from restricting the number of licences to four. The Gaming Authority decided not to appeal.

A model licence can be found on the Gaming Authority’s website; in principle licences are valid for periods of five years and there is no cap on the number available. According to the model licence lotteries must be operated on a non-profit basis and 50% of revenues must go to good causes. Whilst the forthcoming regime for remote games of chance excludes online lotteries, holders of a “non-incidental” lottery licence can also offer their lottery services via the internet. Indeed, they can do so exclusively if they so wish as no particular sales channel is obligatory.

It will be interesting to see how much interest there is for such licences, in terms of prospective operators with domestic roots and those with relevant experience from abroad. A key point of the State Secretary’s letter of July 2014, in which reforms to the lottery sector were sketched, was to provide scope for new initiatives in this sector. No definition of a lottery is given in the model licence, other than that the offer must not be of the same form as a lottery for which an exclusive licence is reserved. No more than 69 “lotteries” can be offered per year under such a licence, so that lotteries maintain their “low frequency” character. Nevertheless, the general explanation accompanying the model indicates that this will not necessarily remain the status quo.

Clearly there is scope for change; will change be driven by operators or good causes? Will those good causes which feel that they have not done as well as they would have liked under the pre-2017 regime drive change? Will some attempt to derive funds from more than one operator? Selecting beneficiaries and distributing revenues has been, and continues to be, left to operators as opposed to a distribution body with some degree of independence. As the market for lotteries moves from a de facto monopoly to one with competition, in terms of the B2C offer, time will tell as to what effects this has on good causes as “consumers” of lotteries and their revenues. And importantly, as to how good causes will behave in this new market place for funding.

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