Memorandum of Understanding Kansspelautoriteit - Autorité Nationale des Jeux (ANJ)
COOPERATION AND INFORMATION EXCHANGE AGREEMENT
Autorité Nationale des Jeux (ANJ)
The Autorité Nationale des Jeux (ANJ, the French Gambling Authority) and The Kansspelautoriteit (Ksa, Netherlands Gambling Authority) hereinafter referred to as the “Authorities”,
Considering that the gambling sector, in particular online gambling, requires a specific state supervision with regard to the issues of public order, public safety, the protection of minors, and the protection of the health of consumers;
Considering that this supervision must take into account the development of online gambling at an international level;
Considering that the document from the European Commission to the European Parliament, the Council, the Economic and Social Committee, and the Committee of the Regions called “Towards a comprehensive European framework for online gambling” published on October 23, 2012, identifies the key challenges posed by the co-existence of national regulatory frameworks within the internal market and seeks to formulate answers to these challenges in the form of actions to be primarily taken at the national level, among which promoting cross-border administrative cooperation between European Union Member States;
Considering that the Commission Recommendation of 14 July 2014 on principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online (2014/478/EU) recommends that Members States achieve a high level of protection for consumers, players and minors through the adoption of principles for online gambling services and for responsible commercial communications of those services, in order to safeguard health and to also minimize the eventual economic harm that may result from compulsive or excessive gambling;
Considering the need to ensure the respect of applicable laws and regulations in France and in the Netherlands in the field of online gambling;
Considering their willingness to provide each other the widest possible assistance in order to strengthen and to best coordinate their actions in this field;
Considering the opportunity to establish, for that purpose, an exchange of information and cooperation;
Considering the provisions of article L.320-3 of the French Home Security Code which specify that the State policy in the matter of gambling is aimed at limiting and regulating the offer and the consumption of games, and controlling the exploitation thereof in order to:
- prevent excessive or compulsive gambling and to protect minors;
- ensure integrity, reliability and transparency of gambling operations;
- prevent fraud or crime, as well as money laundering and financing of terrorism;
- ensure a balanced and equitable development of various types of games, avoiding destabilizing the business of the branches concerned;
Considering the provisions of article 34-XI of French law n° 2010-476, according to which, in the view of the control of the compliance to laws, regulations, and clauses of specifications by operators, the Chairman of the ANJ can conclude agreements on behalf of the State with the regulatory authorities of other Member States of the European Community or of other States Parties to the European Economic Area agreement in order to exchange the results of the controls carried out by these Authorities and by itself towards operators of online gambling and betting;
Considering that the Netherlands Draft Bill on Remote Gambling, approved on February 19, 2019, makes it possible to apply for a licence in the Netherlands for the purpose of offering online gambling. The Remote Gambling Act, which is a modernisation of the Betting and Gaming Act, will make it possible to legally offer and play online gambling. Legalisation and issuing licences create stringent conditions for online gambling. These conditions, set out in a licence, are intended to protect players, to combat gambling addiction, and to ensure the fairness of the game. Gambling is a high-risk product. The Ksa has a threefold task: 1) to regulate legal supply, 2) to prevent gambling addiction, illegality, and crime related to gambling, and 3) to protect and inform consumers.
Considering article 34m (1), of the Netherlands Draft Bill on Remote Gambling, the Chairman of the Kansspelautoriteit, cooperates with other authorities who are entrusted with supervision of the gambling laws in their state or jurisdiction, as far as necessary for fulfilling its task based on the law. Based on article 34m (1) of the Netherlands Draft Bill on Remote Gambling, before mentioned cooperation will take place according to an agreement signed by the Chairman of the Kansspelautoriteit with the state or jurisdiction concerned.
The authorities have agreed on the following:
Object of the agreement
The object of this agreement is to organise and implement cooperation and to set up an information exchange procedure between both Authorities, with the intention to strengthen enforcement, to improve regulation in the field of online gambling, and to fight against illegal gambling.
The exchange of personal data has to be in accordance with applicable European Union legislation regarding the protection of personal data (Regulation n°2016/679, “GDPR”) as well as with French and Netherlands national regulations concerning protection of personal data. Personal data that will be exchanged within the framework of this agreement will not be used by the requesting Authority in a way exceeding the purpose for which the requested Authority has been authorized.
For the purposes of this agreement:
- “Authority” means:
- The French Gambling Authority (ANJ);
- The Kansspelautoriteit (Ksa);
- “Requested Authority” means: the Authority requested for information pursuant to this agreement.
- “Requesting Authority” means: the Authority requesting information pursuant to this agreement.
- “Laws and regulations” means: all applicable laws and legislation in France and the Netherlands.
- “Online gambling” means: any form of gambling which involves wagering a stake with monetary value in games of chance, including those with an element of skill, that is provided by any means at a distance, by electronic means or any other technology for facilitating communication and at the only individual request of a recipient of the service.
- “Operator” means: any individual or corporate entity providing an online gambling offer.
- “Player” means: any person of legal age who takes part in online gambling.
- “Written notice” means: a written letter, fax, or an e-mail.
Scope of the cooperation
Given the purpose of the cooperation, the scope of this agreement will cover the exchange of information and the development of other activities with regard to:
- protection of consumers (e.g. issues related to player accounts; (enforcement) actions against illegal gambling, misleading advertisements, supervision, control of advertising and marketing, and problem gam(bl)ing);
- supervision and control of online operators (e.g. to share relevant information originating from reports or inspections of licensees; to share information pertaining to investigations, disciplinary sanctions (administrative fines, warnings etc.), and legal actions taken against licensees who hold licenses in both jurisdictions);
- licensing, compliance, and enforcement (e.g. share information about an applicant for a licence who already holds a licence in one jurisdiction and who is applying in the other. Is this applicant compliant to all the regulatory requirements of the jurisdiction in which a license is already held; co-operate in order to enforce administrative fines, warnings, and other measures);
- regulatory requirements include data protection (e.g. co-operate to establish a common understanding of the regulatory requirements, standards and processes enforced in both jurisdictions, especially with regard to online gambling, in order to prevent fraud, the financing of terrorism, money laundering, match fixing, and other crimes).
Content of the cooperation
- The requested Authority shall provide the requesting Authority with access to information it holds with respect to laws and regulations governing its activities and, when necessary and possible, shall implement any means and powers enabling to share the information requested, without charging any additional cost on players or operators.
- The provided information is intended to support the enforcement and supervisory tasks the Authorities have with regard to applicants and operators and the fight against illegal gambling. Such tasks particularly concern compliance with their obligations in the following fields as well as in any other field that could fall within the competence of the Authorities in the future: to open, to operate and to close players’ accounts, the fight against money laundering and the financing of terrorism, the fight against fraud (primarily collusion), supervision and control of advertising, consumer protection and the prevention of problem gambling, the integrity of online gambling.
- The information is shared in accordance with laws and regulations governing the activities of both Authorities.
- The cooperation set out in this agreement can be declined when:
- The request of the requesting Authority may infringe the sovereignty and/or the public order of the requested Authority;
- The dissemination of the requested information may affect the course of proceedings initiated by the requested Authority against an operator or a player;
- The information requested by the requesting Authority is not of the requested Authority’s exclusive competence.
Procedure of cooperation
- The request for cooperation is sent to the requested Authority in the form of a written notice.
- With respect to laws and regulations governing its activities, each Authority appoints a person empowered to act on its behalf for the implementation of the procedure of cooperation provided for by this agreement. Each Authority shall communicate without delay to the other Authority the changes of the empowered persons to exercise the aforementioned functions.
- Without prejudice to the provisions of paragraph 5 of this article, the requesting Authority clearly defines the requested information by specifying the required data as well as the purpose for which it will be used. It also specifies the (legal) framework in which it intends to use the requested information.
- The requested Authority shares the information with the requesting Authority, with respect to applicable protection of personal data regulations.
In case of sharing information, including personal data, the requested Authority shall ensure that this transmission fits into the scope of this agreement and that the principles of specific purpose of the cooperation procedure as well as relevance, consistency, and adequacy of shared information to the pursued purpose are respected.
- With respect to the laws and regulations governing their activities, the Authorities can spontaneously communicate to each other any other information that they believe to be relevant in the view of the exercise of their supervision and regulatory duties, to the extent that such notification does not include any personal data.
- If deemed appropriate, the Authorities could create working groups to strengthen the effectiveness of their actions. The composition, the terms of operation, and the terms of actions of these working groups are jointly determined by the Authorities.
Destination of the shared information
- The shared information cannot be used for other purposes than those agreed in the initial request.
- The requesting Authority may request that some of the shared information can be used for another purpose than indicated in the initial request. This request is submitted in the form of a written notice, must be justified, and shall indicate the concrete procedure in which the information will be used. The requesting Authority shall seek the expressed consent of the requested Authority, without prejudice to the respect for the purpose of this agreement.
- Requests have to be submitted in English.
Confidentiality of requests and the use of information shared
- The requesting authority may use non-public information obtained under this MoU solely for the purpose of supervising gambling operators and seeking to ensure compliance with the laws or regulations of the requesting authority, including regulating in the wider public interest to maintain confidence in the online gambling market. Information may also be used if it is required by law.
In case information provided contains personal data, the requesting Authority shall implement confidentiality measures required with respect to protection of personal data regulation.
- The requesting Authority may ask the requested Authority, in the form of a justified written notice, to waiver confidentiality concerning personal data. The reply shall be communicated in the form of a written notice. The requested Authority may demand certain conditions to a waiver. Such a waiver should comply with applicable laws and regulations in the State of the requested Authority, primarily with regards to protection of personal data.
- Without prejudice of the laws and regulations governing its activities, the requesting Authority shall destroy or return the personal data contained in the information provided by the requested Authority in case it is no longer needed for the purpose for which it has been shared.
- Should it be obliged by the laws and regulations to provide a third party with the information shared in accordance with this agreement, the requesting Authority shall immediately inform the requested Authority thereof. The requesting Authority shall use any means at its disposal to ensure the best protection of the confidentiality of the information concerned.
- Each Authority will operate under the principles and specific requirements of the EU General Data Protection Regulations (GDPR) (and relevant domestic law enacting such provisions) with regards to the control and transfer of personal data.
- This MoU should not be interpreted as imposing a requirement on either party to disclose information in circumstances where doing so would breach their statutory responsibilities. In particular, each party must ensure that any disclosure of personal data pursuant to these arrangements fully complies with GDPR and the relevant domestic law. The MoU sets out the potential legal basis for information sharing, but it is for each party to determine for themselves that any proposed disclosure is compliant with the law.
- This agreement is binding and attaching rights solely to both Authorities. No other person, entity, or group may avail itself of the provisions of this agreement.
Information on the development of national laws and regulations
The Authorities shall mutually and spontaneously inform each other about developments and changes in national laws and regulations governing gambling. They will be able to share information and thoughts about the extension of the scope of the cooperation.
Cooperation between the Authorities’ staffs
- The Authorities may organize working groups to facilitate information exchange among them, pursuant to the terms of Article 5, paragraph 6 of this agreement.
- The Authorities may proceed to a staff exchange with respect to laws and regulations.
- The staff of each Authority is informed of the characteristics of the relevant market on which the other Authority acts, namely on the occasion of training seminars.
- Colloquia, seminars and conferences can be organized and study reports can be published under the sponsorship of both Authorities, subject to prior agreement of both Authorities.
Relationship with other legal instruments
This agreement shall not derogate from any international or European instrument containing provisions on the subject-matter of this agreement of which the States having instituted the Authorities are or may in the future be parties.
- The Authorities will on an on-going basis review the scope and use of this agreement and will initiate revision if necessary.
- The Authorities agree that this agreement may be amended from time to time to include additional areas of cooperation between them and to accommodate changes in European Union law or the European Court of Justice’s interpretation thereof.
Each Authority shall bear the expenses it makes for the implementation of the provisions of this agreement. Both Authorities shall agree prior to any expenditure with regard to initiatives pursuant to Article 9 paragraph 4 of this Agreement.
Entry into force
This agreement enters into force on the date of its signature, and with respect to laws and regulations of France and the Netherlands.
Duration and termination
- This agreement is concluded for an indeterminate duration.
- This agreement may be terminated at any time by one of the Authorities, with respect to the laws and regulations governing its activity. Termination shall be effected in the form of a written notice. Requests for assistance formulated before termination shall be executed in accordance with this agreement.
Resolution of disputes
The application and interpretation of this agreement shall not entail, for or against the Authorities, rights or obligations that may give rise to any form of judicial or extrajudicial action. Potential disputes shall be resolved by consultation between the Authorities.
In witness whereof, the undersigned, being duly authorised thereto, have signed this agreement, in French and English.
Executed by the parties
Autorité Nationale des Jeux (ANJ) Kansspelautoriteit
Isabelle Falque-Pierrotin René JANSEN
Date: October 23, 2020