The Advocate General (AG) has issued an opinion on this question to the Supreme Court. The case concerns gambling agreements with Dutch players that were entered into via the internet and the question of whether these are void due to a violation of the Gaming Act because the opportunity to participate in games of chance was provided without a licence.
Advice to the Supreme Court on agreements for games of chance offered without a licence
The main question is whether gambling agreements with providers of online gambling who did not have a licence for this are invalid for that reason. This is important for Dutch gamblers who have lost money through online gambling with illegal providers. If the agreement with those providers is void, then the gamblers who have lost money can reclaim their money.
The AG is of the opinion that the central question should be answered in the negative: gambling agreements entered into online without a licence are not invalid for that reason. A claim for reimbursement of the loss suffered is therefore not admissible on the grounds of undue payment. A conclusion by the AG is an independent legal analysis and also an opinion to the Supreme Court, which is free to follow it or not. The AG is a member of the Public Prosecutor’s Office at the Supreme Court. The Public Prosecutor’s Office at the Supreme Court is an independent part of the judicial organisation.
Legal framework for games of chance offered without a licence
The Gaming Act (hereinafter: the Wok) prohibits the offering of games of chance without a licence. Until 1 April 2021, there were no regulations for online games of chance and online gaming providers could not obtain a Dutch licence. On 1 April 2021, the Remote Gambling Act (the Koa) came into force, which became part of the Wok, and it was only from 1 October 2021 that a licence could be obtained. However, long before that, many people in the Netherlands were already gambling via the internet. Various players are now claiming back the money they lost from the gambling providers. They argue that the gambling agreements they entered into are invalid because the gambling provider did not have a licence.
Advice follows a number of rulings in favour of aggrieved gamblers
The text of the Dutch Gaming Act is unclear about the validity of gaming agreements concluded without the gaming provider having a licence. Various courts have issued (contradictory) rulings. Similar cases are also pending before the Amsterdam District Court and the North Holland District Court. The preliminary ruling of both courts is that agreements concluded with unlicensed providers are null and void and therefore invalid. However, prior to a final ruling, both courts want to obtain clarity by submitting preliminary questions to the Supreme Court. A preliminary question is a question from a court or court of appeal to the Supreme Court about the interpretation of a legal rule. This may be necessary if the Supreme Court has not previously ruled on that question. The questions must arise in a specific case that is pending before a court or court of appeal. A number of conditions apply to the submission of preliminary questions: an answer to these questions must be necessary for a decision to be made in the case in question, and the same question or questions must also be at issue in other related cases.
Opinion of the Advocate General to the Supreme Court
According to the Advocate General, the text, legislative history, legal system and objectives of the Wok do not indicate that the legislator intended to prohibit the conclusion of gambling agreements with the Wok. The Act only prohibits providing opportunities to participate in games of chance without a licence. Nor are there any indications that the Wok Act is or has been intended to affect the validity of gambling agreements concluded without a licence. In such cases, the legislator has only provided for enforcement through administrative and criminal law. According to the AG, public order or morality do not require that gambling agreements without a licence be deemed null and void. Moreover, the protection of consumer interests can probably also, and possibly better, be achieved with less far-reaching sanctions than nullity, such as the annulment of gambling agreements on the grounds of error or compensation for unlawful acts. Unlike nullity, the sanction does not apply in general but can be tailored to the specific case. In short, such agreements are not void and there is therefore no question of undue payment for the performance of that agreement.
Long period of illegal gambling without enforcement
According to the AG, a factor in all this is that gambling has been taking place on a large scale via the internet for a long time and that the legislative process to enable licences for this has taken decades. However, throughout this entire process and in enforcement policy, the possibility of the invalidity of gambling agreements has not been discussed. Finally, the enforcement policy emphasized the personal responsibility of gamblers. Therefore, it is not necessarily reasonable to assume that gamblers are entitled to reimbursement of their losses.
In summary, the AG is of the opinion that gambling agreements entered into online without the provider having a licence are not invalid for that reason. A claim for reimbursement of losses incurred is therefore not admissible on the grounds of undue payment.
Supreme Court has to decide on the validity of gamblingcontracts with illegal providers
The Supreme Court must now formulate answers to the questions posed by the courts. In doing so, the highest court is not required to follow the answers provided by the Advocate General who drafted the opinion. To be continued.