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Lack of regulations contributes to the appearance of fraud and addicted players – Interview with Santiago Asensi, Partner, Asensi Abogados

April 15, 2009 2009

The recent suggestion asking the member states to hold talks on a “political solution” for online gambling-related problems instead of calling for a new legislation by the European Commission hasn’t gone well with a certain section of the industry.

And one of the main points of contention is related to the interests of those, who have deeply ingrained anti-gambling prejudices and, of course, ones with vested interests that are opposed to the opening up of markets in the EU.

In the context of MEPs having a huge majority voted against creating an EU-wide single market for online gambling, Santiago Asensi, Partner, Asensi Abogados, says the branding of the sector as a risk-factor in fraud and addiction does not benefit anyone.

“Currently, to maintain that the online gaming industry is built over that basis is absolutely unfair. This is a very poor argument used from long ago to justify state monopolies. The only factor that contributes to the appearance of fraud and addicted players is the lack of regulations, which is exactly the opposite of what the online sector is claiming for. It is a simple formula: the less regulated is the sector, greater opportunities for the “pirate portals”,” says Asensi.

“From a legal perspective, it seems that the Deputies that have voted in favour of the Schaldemose report are missing what the article 49 of the EC Treaty establishes and the interpretation of said article made by the ECJ in Gambelli and Placanica cases. Hopefully, this decision should not have any type of practical consequences, at least, in a short term,” he said, adding that in this regard, the Spanish regulators or politicians have not announced any step in favour of or against this report.

Asensi further says that unfortunately, the result of the ballot in the Schaldemose report is showing how far we are of an EU harmonised legislation.

“However, this result should cause a reaction in the stratum of the gaming industry: this is the right time for lobbiying and keep adding more pressure. The arguments that support the Schaldemose report are quite weak from a technical point of view and, obviously, this represents a clear opportunity in any legal battle,” he said.

Asensi also provide an update on the latest developments in Spain, the current approach of the established players from the region and much more. Excerpts:

Previously you had indicated that in accordance with the Law 56/07 on measures to develop the Information Society, Spain is preparing a new gaming law, which would be totally focused on the online market. What’s the latest on this or has there been any other significant development?

After the Act 56/2007, which was passed in December 2007, the Sectorial Gaming Commission (SGC), the body that groups all the gaming authorities from the state and all the different autonomous communities, celebrated its first meeting with regards to this question in June 2008. It was approved that LAE (the State Lotteries Monopoly) should take care of the reaction of the first draft. Since then, and further than what represents to act at the same time as operator and regulator, LAE has not involved any of the communities in this matter, even the creation of workgroups to report and support LAE’s draft was also approved in the same meeting.

As the time is passing by, the expectation about LAE’s first draft is exponentially increasing, not just between the gaming operators, mainly by rest of the agents that form the SGC. It is inexplicable why LAE is showing such inscrutability, not sharing any information of the draft of the bill with any of the rest of the SGC members. Moreover, this attitude is producing some unexpected reactions between the Spanish communities like Castilla-Leon and La Rioja, which have announced their own online gaming regulations, which, from my perspective, would be an enormous mistake.

How do you think companies need to approach a market like Spain at this juncture? What sort of advice would you give to them for encashing on opportunities in an earnest manner?

Even as the legal scenario still needs to be totally clarified, it’s a good moment for those companies that are not in the Spanish market yet to start to take positions. Frankly, I do not think that any of the online regional regulations announced will finally take place since none operator is interested in developing its activity on a regional basis. Sooner than later, the Federal regulation should impose to any regional one and, in this regard, the Act 56/07 is absolutely clear about licenses granted in the EU: they will be recognised in Spain.

My view is that the main debate should not be taking place at the absurd battle of “regional versus federal regulations”. Following the steps of the UK Gambling Act 2005, the inclusion of a white-list criteria that allows operators granted in other jurisdictions different than the EU to act in the Spanish market, as far as they reach and fulfill the appropriate standard levels in the main matters (protection of minors and the youth, compulsive players, data protection, advertising, etc.), is a much more interesting topic.

Thus, if a non EU gaming jurisdiction has enough credentials to be white-listed, it would make no sense to not allow the participation of its licenced operators in the Spanish gaming scenario.

Italy, along with parts of Spain, has been targeted by several British bookmakers as the government has begun to liberalise its betting shop industry. But in July last year, William Hill withdrew from Italy after 18 months, writing off £1m and agreeing to sell its embryonic joint venture. In this context, how do you think some of the relatively bigger and established gaming and betting companies are going to approach a market like Spain in the time to come?

At this stage, it should also be pointed out the experiences that companies like William Hill are having in the Madrid Community or the Basque Country at the moment is through JV with Spanish operators. From my perspective, this is a very good way to enter in new territories. While the British operator contributes with the know-how and the experience in the sports betting sector, the local partnership adds its knowledge of the market and network. In any case, I believe that this formula is at a very early stage to reach any final conclusion.

Also, how do you assess the current environment for international players especially the sponsorship initiatives of gambling companies? Also, in your opinion, which are the ways in which international gambling operators currently targeting consumers in Spain?

At this stage, I think there is no doubt at all that the gaming industry is giving a great helping hand to sectors like sport clubs and the advertising industry trough sponsorships, marketing campaigns, etc.

The international gambling operators are targeting consumers in Spain depending on the product that each one of them commercialises in.

While most of Bingo portals focus their marketing activity in online portals, sports betting operators look for opportunities in football or other sports.

In this regard, poker operators are opening the doors of TV advertising which was unthinkable earlier.


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