The Ministry of Consumer Affairs has reactivated the processing of the Draft Decree on Commercial Communications of lotteries and state-wide online gaming, sending a new text to the Commission for publication in accordance with the Directive (EU) 2015/1535 of 9 September 2015, laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services.

(Link to Communication)

(Link to text)

 

According to that Communication, the reasons behind the processing of the present draft remain the same as those of the previous notified version:

 

Thus, and firstly, the Royal Decree aims to provide an adequate level of protection for public interests (public health and public order) affected by gambling activities, in particular protecting minors and other vulnerable groups. It also aims to prevent gambling addiction and other risks related to gambling, as well as to protect consumers and users, participants and the general public. Secondly, it is intended to give gambling operators greater legal security through the establishment of transparent rules applied consistently across the industry, without undue discrimination against the stakeholders involved, together with the strengthening and adaptation of the monitoring, control and penalty system in the regulated areas by including the promotion of self-regulation and co-regulation in the administrative mechanisms

However, the amended version has modified several aspects of the text that was submitted in February to Public Information and to which we referred in previous comments (Please view previous comments here)

 

The amendments made are essentially the following:

 

  1. The most notorious change is the elimination of the possibility of broadcasting commercial communications during live events, from 8:00 p.m. onwards, which was initially allowed as an exception to the general time frame restriction of 1:00 a.m. to 5:00 a.m. However, the specific rules for “deferred” lotteries (broadcasting only prohibited during the time slots before or after children’s programming); and for pool betting, bingo and instant lotteries (broadcasting only prohibited during the time slots before or after children’s programming and during “enhanced protection” time slots for minors) remain the same.
  2. Incorporating operator’s distinctive signs (trademarks, logos) into sports equipment is banned, thus reducing sponsorships to the bear minimum
  3. As for promotional activities, such as bonuses, they are prohibited when directed at new players, and are only allowed for consolidated players.
  4. The systematic regulation of the use of commercial communications in information society services and social networks has been redrafted, further detailing the obligations and prohibitions that clarify the limits of their use and the responsibilities of those involved.
  5. As for the grammatical wording of the Decree, numerous stylistic substitutions have been included in terms of gender.
  6. The concept of “safe play” is introduced to replace the former “informed play”.

The emergency procedure, which, if accepted by the EU Commission, would involve eliminating the obligation of waiting three months before enacting the draft into Regulation, is justified by the indirect effects of the Covid 19 pandemic:

The reasons for the urgency of the measures in this draft are, firstly, the existence of serious and unforeseeable circumstances relating to the protection of public health and, secondly, on the public order aspect, the protection of minors.

The pandemic caused by COVID-19 has affected the social conditions in which gambling is practised in Spain. In particular, the serious economic consequences resulting from the necessary measures adopted to contain the disease are causing:

  1. An increase in the economic vulnerability of society as a whole, as a result of the extraordinary rise in unemployment produced and, consequently, a higher probability of gambling behaviour in an attempt to resolve economic problems;
  2. Directly linked to the above, an increase in the risk of problematic or pathological gambling behaviour starting or worsening.

In addition, the situations described are likely to arise in a social context that is substantially different from the context that existed before the disease appeared. The ‘new normal’ is characterised by strict and extraordinary containment and social distancing measures laid down by Royal Decree-Law 21/2020 of 9 June 2020 on urgent prevention, containment and coordination measures to deal with the health crisis caused by COVID-19, and is subject to the high probability of restricted social isolation measures being adopted in order to avoid the potential spread of the disease that might be caused by isolated outbreaks. These measures will necessarily involve periods where people spend more time at home and, as a result, an increase in the probability of greater exposure to advertising on audiovisual media and from the information society. This will have a serious effect on the groups identified as those mainly affected by the draft’s protective measures: vulnerable groups and minors.

In view of the above, and in accordance with Article 6(7) of Directive (EU) 2015/1535 (the notification Directive), it is considered that serious and unforeseeable circumstances have led to urgent reasons arising relating to public health and the protection of minors that render the provision on notification laid down in Article 6(1) to (5) of the Directive not applicable to this draft.”

In short, it is not necessary, in the opinion of the Spanish Government, to wait much longer for its approval by the Council of Ministers, which now depends solely on the legal prerequisite of the issue of the Council of State Report.

 

Gambling Law Area.

Loyra Abogados