On the 20^th January, DLA Piper hosted the annual event where leading lawyers from Europe’s key gambling markets addressed the pressing regulatory challenges and dynamic litigation landscape facing the industry today. The event featured a keynote address by Mikel Arana, General Director at the Directorate General for the Regulation of Gambling (DGOJ). Arana provided a unique perspective on current regulatory developments and future trends impacting the Spanish market. His insights set the stage for a series of in-depth discussions on navigating the evolving gambling landscape in Spain. Below are the main take-aways of the event, which covered nearly 15 jurisdictions.

Increasing Litigation and Class Actions

One of the prominent topics discussed was the rise in litigation and class action risk across Europe. In Austria and Germany, civil claims and class actions have been brought following findings that gambling operators did not hold the necessary regulatory approvals, with the consequence that bettors have brought civil claims seeking to recover their stakes. The upcoming tender process for the online gambling license in Austria could reshape the industry and bring significant benefits the gambling sector in case the new government decides to introduce a multi-licensing model. In the Netherlands, many individual civil claims are being brought. Further, anticipating a Supreme Court judgment on the validity of online gambling agreements concluded with operators without a license, class actions have been announced. Similarly, the UK has seen a growing class action risk. Increasing scrutiny by regulatory bodies, antitrust authorities, advertising standards bodies, ESG claims, data and privacy claims, and shareholder actions, all represent areas of risk for those in the sector, across Europe.

Italy’s New Tender License Process for Online Gambling and Lotto

Italy’s new tender license process and regulatory requirements were also a focal point of the discussions. The regime introduces new nine-year online gambling licences, each covering up to maximum five concessions per group. Licenses will cost 7 million payable in two instalments: €4 million on the award and €3 million on the launch of operations, which must happen within six months of a concession’s approval. 

Applicants must meet eligibility criteria, which include a need to demonstrate proven expertise in operating gaming platforms in the European Economic Area (EEA), the presence of a legal or operational headquarters in an EEA country and the ability to show revenues exceeding €3 million over the last two fiscal years. Licensees will have to implement responsible gaming measures including loss and time limits, as well as introducing some automatic messages to warn the consumer of the gambling session's duration and spending level when a preset limit is exceeded. Also, operators shall invest an amount equal to 0.2 percent of their GGR net of gambling taxes in responsible gaming campaigns. 

The most urgent activities which are currently undertaken by the applicants are 

1. the subscription to the portal where the documents shall be lodged;
2. the request of clarifications to the competent Authority (ADM) in order to clarify the scope of the requests and the timeline and modalities for obtaining relevant certifications (e.g environmental and technological). 

During the application process, there were several challenges to the legality of the new tender process which are currently under the review of the Italian Administrative Courts but the deadline for application has not been extended so far. Therefore, in the uncertainty of the Court's decisions, applicants are required to prepare and file the applicable documentation in order not to be excluded from the market.

There is also an open window for application to the lotto tender. The €1billion Lotto European tender will guarantee the licensee net revenues of approximately €200 million for nine years, according to a report released by the Treasury alongside the decree. The final version of the tender is going to be published in the next few weeks. 

While, case law on Italian gambling advertising regulation is moving faster than the repeatedly announced change in the Dignity Decree. The ban’s impact on the gambling industry was multifaceted. On one hand, it limited the ability of operators to reach potential customers through traditional advertising channels. On the other hand, it encouraged the industry to explore new marketing strategies, such as leveraging data analytics for advertising through affiliation and comparative bonuses or by means of the advertising of the alternative line of business, such as news websites or payments services. 

Spain’s Focus on Player Protection

Spain’s regulatory landscape is increasingly focused on player protection, with the focus on ensuring a secure gambling environment, and substantial changes on advertisement regulation. The discussions emphasized the importance of safeguarding players while maintaining a balanced approach to market regulation. The General Director of the DGOJ, Mr. Mikel Arana, participated in the event and confirmed that the main objective of the regulator is ensuring a responsible gambling environment, to implement shared deposit limits and the adoption of measures to prevent underage gambling.

Advertising and marketing practices were also a significant area of concern. The Royal Decree on Commercial Communications of Gambling Activities introduced stringent restrictions on gambling advertising, sponsorships, and promotional activities. These restrictions include limitations on the times during which gambling advertisements can be broadcast and requirements for responsible gambling messages. Nonetheless, the Supreme Court published a Court ruling on April 2024 which has impacted on the advertising rules. In particular, the Supreme Court has removed some restrictions regarding prohibitions on celebrity endorsements, restrictions to the promotions to engage new customers as well as to the dissemination of commercial communications by gambling operators in information society services, video-sharing platforms and social media, something that has offered new opportunities to licensed operators in the Spanish market. 

Difficulties in opening competitive markets across Europe

Opening competitive markets in countries like Portugal, the Czech Republic, Poland, and Hungary can indeed be challenging due to several factors:

• Taxation: High tax rates and complex tax regulations can deter new businesses from entering the market. This can be particularly burdensome for small and medium-sized enterprises (SMEs) that may not have the resources to navigate these complexities.
• Dominant Market Positions: Established companies often hold significant market power, making it difficult for new entrants to compete. These dominant players can leverage their resources, brand recognition, and economies of scale to maintain their market positions.
• Regulatory Environment: Stringent regulations and bureaucratic hurdles can slow down the process of market entry and increase costs for new businesses.

Following the keynote address and panel discussions, attendees had the opportunity to engage in networking drinks. This provided a prime opportunity to connect with top industry voices and regulators shaping the future of gambling law in Europe. The event fostered valuable exchanges of ideas and potential collaboration, and it underscored the need for continuous adaptation and strategic compliance to thrive in this dynamic industry.