On Thursday, the Dutch Ministry of Justice and Security published its responses to written questions submitted by the Lower House Permanent Committe for Security and Justice on the secondary legislation that is to accompany the Remote Gaming Act.

In the case of the Remote Gaming Act, both houses of Parliament are required to agree on the proposed first-order secondary legislation, the General Administrative Order (AMvB), before the second-order secondary legislation, the Ministerial Decree (MR) can be drawn up.

With two notable exceptions, the Ministry’s response contained few, if any surprises.

1. Timeline

Although not the biggest surprise, it is certainly noteworthy that the Ministry continues to aim for the entry into force of the Remote Gaming Act on January 1, 2021. In recent weeks, land-based incumbents have lobbied hard for postponement of the Remote Gaming Act on account of the ongoing Covid-19 crisis.

“The government remains fully committed to the entry into force of the Remote Gaming Act on January 1, 2021,” Minister for Legal Protection, Sander Dekker wrote; adding, however, that “the possibility of some delay in the implementation process as a result of the Covid-19 pandemic cannot be entirely ruled out.”

Regarding the possible need for Covid 19-related delays, Minister Dekker referred specifically to the potential difficulties faced by land-based incumbents – who are currently in lockdown – to implement the Dutch national exclusion register (CRUKS) before the target date of January 1, 2021. Adding to the troubles of the land-based sector, the latest iteration of the General Administrative Order contained a new provision that required land-based amusement centers to implement a visitor registration system as part of their CRUKS-related obligations.

Despite the real possibility that the Remote Gaming Act will have to be postponed for a limited time due to the Covid-19 pandemic, it seems unlikely – based on the written questions and responses by the Ministry – that the political opponents of the Act will succeed in creating additional justifications for delay.

If delays in the implementation of the Remote Gaming Act do occur, entry into force of the Act will be delayed by one month at a time until all the implementation criteria are met.

However, according to the present schedule, the Act will still come into force on January 1, 2021, followed by the opening of the regulated online market on July 1, 2021.

2. Previously unlicensed operators required to purge customer database

Far more surprising was the Ministry’s concession to land-based incumbents that future-licensed online operators who were previously active in the unregulated Dutch market will be required to purge their customer database of the customers they acquired when they were operating without a license:

“Operators who, before the Remote Gaming Act came into effect, offered online games of chance in the Netherlands without a license, and who nevertheless, after an thorough reliability assessment by the Netherlands Gambling Authority, acquired a remote gaming license may not utilize their existing customer database of players in the Netherlands to offer online gambling services under the terms of said license.”

The Ministry offered the following justification for this new provision:

“This customer database, after all, was filled during a period in which remote games of chance were not regulated in the Netherlands, and without taking into account the new strict rules regarding, among other things, gambling advertising and player recruitment, the assessment of players during registration, and the rules regarding problem gambling prevention. Thus, the existing database therefore does not meet the requirements of the new regulations and, therefore, should not be used.”

Adding:

“This means that previously unlicensed operators, like the new entrants to the regulated Dutch online market, will have to fill their customer databases in accordance with the new rules; and therefore, must start out with empty customer databases.”

It should be noted, however, that, as currently phrased, this new provision will apply equally to the land-based incumbents. After all, their customer databases were also not built up under the “new strict rules.” Likewise, the land-based incumbents will be new entrants to the regulated Dutch online market who must start out with “empty customer databases.”

The Netherlands Gambling Authority will be tasked to capture this provision in specific licensing conditions.

The new rule will likely be a severe blow to the Netherlands-facing affiliate sector.