Memorandum of Understanding Kansspelautoriteit - UK Gambling Commission
Memorandum of Understanding
Between the UK Gambling Commission and
Kansspelautoriteit (Netherlands Gambling Authority)
1.1 This Memorandum of Understanding (MoU) establishes a framework for cooperation and information sharing between the UK Gambling Commission (GC) and the Kansspelautoriteit (Netherlands Gambling Authority) referred to individually as ‘the Authority’ and collectively as ‘the Authorities’ throughout this document. It sets out the broad principles of collaboration and the legal framework governing the sharing of relevant information between the Authorities.
1.2 The shared aims of this MoU are to enable closer working between the Authorities, including their willingness to cooperate with each other, exchange of appropriate information, in the interests of fulfilling their respective regulatory functions.
1.3 The MoU is a statement of intent that does not create any legally binding obligations, confer any rights, or supersede domestic laws and regulations.
2 Functions and powers of the UK Gambling Commission
2.1 The GC is an independent, non-departmental public body, sponsored by the Department for Digital Culture, Media and Sport. Under the Gambling Act 2005 the GC regulates all commercial gambling in Great Britain, apart from spread betting, in partnership with local Licensing Authorities. The GC issues licences to gambling operators and has developed a framework of Licence Conditions and Codes of Practice (the LCCP) with which operators are expected to comply. The GC has a wide range of powers including the power to investigate suspected non-compliance of the LCCP and investigate and prosecute criminal offences under the Gambling Act 2005, including the offence of cheating at gambling. It has powers to void bets which were substantially unfair.
2.2 The GC has a statutory obligation to aim to permit gambling insofar as it thinks it is reasonably consistent with the pursuit of the licensing objectives, which are to:
- prevent gambling from being a source of crime and disorder, being associated with crime and disorder or being used to support crime;
- ensure that gambling is conducted in a fair and open way; and
- protect children and other vulnerable persons from being harmed or exploited by gambling.
The Gambling (Licensing & Advertising) Act 2014 requires all remote operators selling into the British market must hold a GC license to enable them to advertise to, and transact with, consumers in Great Britain (GB).
2.3 The GC also regulates the National Lottery under the National Lottery Act 1993 (as amended). The GC’s statutory duties in relation to the National Lottery are:
- to ensure that the National Lottery, and every lottery that forms a part of it, is run with all due propriety;
- to ensure that the interests of every participant in the National Lottery are protected; and
- subject to these two duties, to do its best in making sure that the proceeds of the National Lottery are as great as possible.
3 Functions and powers of Kansspelautoriteit (Netherlands Gambling Authority)
3.1 The Ksa is an independent governance body and is the supervisor and regulator of games of chance in the European part of the Kingdom of the Netherlands. The Ksa is funded by the industry through gaming levies. The Authority is governed by the Board of Directors and is managed by the Management Team.
The Ksa has a threefold task:
- protecting and informing consumers;
- prevention of illegal and criminal practices;
- prevention of gambling addiction.
The Ministry of Justice and Security bears the political responsibility for gambling policy in the Netherlands.
- The Kingdom of the Netherlands consists of four countries, The Netherlands, Aruba, Curacao, and St. Martin. Concerning gambling policy, every country maintains and regulates for itself. The Kansspelautoriteit is therefore not responsible for regulation and supervision in the Caribbean part of the Kingdom.
The Remote Gambling act, which is a modernisation of the Betting and Gaming Act, will make it possible for licensed operators to legally offer online gambling and for consumers to gamble online.
The objective is that issuing licences allows for the establishment of stringent conditions for online betting and gaming operators. These conditions, set out in a licence, are intended to protect players, combat gambling addiction and ensure the fairness of the game.
4 Scope and general provisions
The delivery of online gambling services is increasingly global in nature with operational infrastructure (including cloud and other technology services), management control and other core services increasingly dispersed. This amplifies the need for international regulatory cooperation to match the sophistication of global gambling commercial operations. This paragraph applies to land-based operators as well.
4.1 The parties will, where appropriate and on a case-by-case basis:
- promote a common understanding of, and co-operation between, both parties in support of their legitimate interests;
- share information effectively in support of their legitimate roles and responsibilities;
- engage on matters of mutual policy and operational interest; and
- provide operational assistance to each other.
4.2 The Authorities anticipate cooperation will be primarily achieved through on-going, informal, oral discussions, supplemented by more in-depth, regular cooperation.
4.3 The Authorities recognise the importance of close communication concerning gambling operators, and may communicate on a case by case basis, when appropriate regarding:
- general policy and supervisory issues, including with respect to regulatory, oversight or other program developments;
- issues relevant to the operations, activities, and regulation of applicable gambling operators;
- other areas of mutual supervisory interest; such as anti-money laundering (AML) or counter terrorist financing (CTF)
- mutual assistance in obtaining betting, gaming and other transactional data where cross border technical or platform architecture spans more than one jurisdiction or transactional data is based in one jurisdiction or another.
4.4 Cooperation may be most useful in, but is not limited to, the following circumstances where issues of common regulatory interest may arise:
- the initial application with an Authority for licensing. For the avoidance of doubt each Authority will make its own decision on licensing in line with its statutory objectives. The MoU does not include arrangements for passporting.
- the on-going supervisory oversight of gambling operators; including, but not limited to: material changes in management, financial standing, changes to business plans and material changes to technology architecture;
- regulatory approvals or enforcement action taken in relation to a gambling operator by one Authority that may impact the operations of the entity in the other jurisdiction. The Authorities recognise that there will be no fettering of approach or involvement in the regulatory outcome chosen.
4.5 Each Authority will, where such information is known and accessible to the Authority and can be lawfully shared, share information with the other Authority as soon as practicable, and in line with the regulatory process of each Authority, of:
- any known material event that could have a significant adverse impact on a gambling operator; and
- enforcement or regulatory actions or sanctions, including the revocation, suspension or modification of relevant licenses or registration, concerning or related to a gambling operator which may have, in its reasonable opinion, material effect on the gambling operator.
4.6 Where confidential material is shared between the parties, it will be marked with the appropriate security classification. If information with a security classification can be used in for example law suits or decisions taken by the Authorities will depend on the particular information shared, it will be determined on a case-by-case basis.
5 Dialogue and cross-border on-site visits
5.1 The Authorities recognise there will be considerable areas of mutual interest and opportunities to support better regulation. The Authorities commit to keeping each other up to date on both policy and operational matters through ongoing dialogue. This is of particular relevance in Licensing, Compliance, Enforcement, AML and Betting Integrity when there is regulatory overlap.
5.2 This dialogue will include discussing individual operators, operational practice and seeking opportunities to enhance compliance and reduce risk.
5.3 The authorities will ordinarily inform the other party of intended physical visits to joint licensees and provide relevant information prior to and post visit. The host authority may offer logistical support and will reciprocate with the sharing of relevant information.
5.4 If a formal request for assistance is made, each Authority will use reasonable efforts to provide assistance to the other, subject to its laws and overall policy to facilitate the conduct of inspections or examinations of gambling operators' facilities or equipment.
5.5 The authorities also acknowledge that, subject to their respective legislative and procedural arrangements and respecting confidentiality, an investigation, where it concerns suspected breaches of the law of both jurisdictions, may be conducted more effectively by the establishment of a joint investigation involving members from both Authorities:
- The Authority suggesting the joint investigation will advise the other Authority of the background to the request for a joint investigation, and liaise with the other authority to determine the likely objectives of the joint investigation, the expected resources required and the approximate duration of the proposed joint investigation. Each Authority will advise the other as soon as possible as to whether it will agree to such an investigation.
- If the Authorities agree to take part in a joint investigation, an agreed initial action plan will be prepared setting out, among other things, the objectives, expected duration, funding, publicity and accountability arrangements, management of the joint investigation, and allocation of responsibilities.
6 Confidentiality and use of Information
6.1 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. The Authority who is being requested to disclose information (the Requested Authority) is entitled to take a view on the necessity, proportionality and objective justification of such a request and the Requested Authority shall have the final decision on the extent of disclosure.
6.2 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.
6.3 Subject to any legal restrictions on the disclosure of information (whether imposed by statute or otherwise) and at their discretion, the parties agree that they will alert each other to any potential breaches of the relevant data protection legislation, within the context of this relationship, discovered whilst undertaking regulatory duties and provide relevant and necessary supporting information.
6.4 The Authorities will comply with the general laws they are subject to, including, but not limited to, local data protection laws; the maintenance of any prescribed documentation and policies; and comply with any governance requirements in particular relating to security and retention, and process personal data in accordance with the statutory rights of individuals.
6.5 The Authority that requests the information 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. If it is the decision of one of the Authorities to use confidential information supplied by the other Authority against an operator in a court case approval should be obtained on a case-by-case basis from the requested Authority. See also 4.6.
6.6 Except for disclosures in accordance with this MoU, each Authority will keep confidential to the extent permitted by law information shared under this MoU, requests made under this MoU, the contents of such requests, and any other matters arising under this MoU. The terms of this MoU are not confidential.
6.7 To the extent legally permissible, the Requesting Authority will notify the Requested Authority, as soon as reasonably practicable, of any legally enforceable demand from a third party for non-public information that has been furnished under this MoU. Prior to compliance with the demand, the Requesting Authority shall consult with the Requested Authority and shall assert all appropriate legal exemptions or privileges with respect to such information as may be available.
6.8 The Authorities intend the sharing or disclosure of non-public information, including but not limited to deliberative and consultative materials, pursuant to the terms of this MoU, but the sharing or disclosure of information will not constitute a waiver of privilege or confidentiality of such information.
6.9 Where confidential material obtained from, or shared by, the Requested Authority is wrongfully disclosed by the Requesting Authority, this party will bring this to the attention of the Requested Authority without delay. This is in addition to the obligations to report a personal data breach under the GDPR and relevant domestic legislation where personal data is contained in the information disclosed.
7 Legal basis for sharing information
7.1 Information shared by the UK Gambling Commission with the Kansspelautoriteit
The GC statutory function relates to the legislation set out at section 2, and this MoU governs information shared by the GC with the Kansspelautoriteit to assist with meeting those responsibilities.
This MoU is made in accordance with the Data Protection Act 2018 (DPA 2018), incorporating the GDPR. This MoU does not provide the legal basis to share personal information between the parties. If personal data is to be disclosed, it should be considered on a case-by-case basis and seek relevant advice from the data protection team.
Information may be shared between the GC and Kansspelautoriteit by virtue of:
- Schedule 2, Part 1, paragraphs 2 and 5 of the DPA 2018
- s30 of the Gambling Act 2005
- Article 6(1)(e) GDPR
- Case law
Paragraph 2(1) of Schedule 2 of the DPA 2018 permits the sharing of information between parties for the following purposes:
- The prevention and detection of crime,
- The apprehension or prosecution of offenders, or
- The assessment or collection of any tax or duty or any imposition of a similar nature.
Paragraph 5(2) of Schedule 2 of the DPA 2018 permits the sharing of information where disclosure of the data is required by an enactment, a rule of law or an order of a court or tribunal, (to the extent that the application of those provisions would prevent the controller from making the disclosure). With reference to paragraph 5(2) of Schedule 2 of the DPA 2018, s30 of the 2005 Act allows for limited exchange of information between the Commission and other parties subject to the conditions listed in that section.
The legal gateway provided by s30 does not override restrictions established by other Acts and the further use or sharing of information provided by another body may be prohibited. s30 is also subject to s352 of the Gambling Act 2005 which requires that nothing in the 2005 Act contravenes data protection legislation (as defined in DPA 2018).
Article 6(1)(e) of the GDPR allows processing of data where such processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
7.2 Information shared by Kansspelautoriteit with the UK Gambling Commission
Given article 34m (1), of the Netherlands Remote Gambling Act (Wet Kansspelen op Afstand), 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 Remote Gambling Act, before mentioned cooperation will take place according to an agreement signed by the Chairman of the Kansspelautoriteit with the state or jurisdiction concerned.
With regard to the control and transfer of personal data the Kansspelautoriteit will operate under the principles and specific requirements of the EU General Data Protection Regulations (GDPR), supplemented by the Dutch Implementation Act of the GDPR.
Given good, democratic, and transparent management, Dutch citizens have the possibility to request documents from the Kansspelautoriteit based on the Wet openbaarheid van bestuur (Freedom of Information Act). All documents received or dispatched, letters, decisions and reports are in principle public documents and must be made available upon request for anyone to read. However, access to public documents is restricted in some cases. For example, information with regard to the business and operating conditions of an operator are secret and may not be disclosed if disclosure could harm the person or organization whom it concerns. Also, information that could possibly harm the privacy in case of publication will not be provided based on this law. When information from the UK Gambling Commission is involved in such a request, the UK Gambling Commission will be informed and will have the opportunity to give its opinion concerning the request to make the information available to the public.
8.1 The Authorities will periodically review the functioning and effectiveness of the cooperation arrangements between themselves. The Authorities will endeavour to notify the other in advance where policy, legal and regulatory changes would, as far as can reasonably be determined, have a material impact in the other jurisdiction or might affect the operation of this MoU.
8.2 The Authorities will maintain an open dialogue between each other in order to ensure that the MoU remains effective and fit for purpose. They will also seek to identify any difficulties in the working relationship, and proactively seek to minimise the same.
This MoU enters into force on the date of signature of both parties. The MoU will stay in force until further notice or until amended by mutual agreement or terminated in writing by either of the parties, or in accordance with the Addendum to this MoU.
Date 30th April 2021 Date
René Jansen Sarah Gardner
Chairman Deputy CEO
Kansspelautoriteit UK Gambling Commission