Legislative project PL-x 54/2021 amending GEO 77/2009 on the organization and operation of gambling
by Loredana Dumitru, Junior lawyer, C.A. LUCA Mihai Catalin
The legislative initiative that we will analyze in the content of this article, registered for debate at the Chamber of Deputies under no. PL-x 54 / 01.02.2021 has as object of regulation the modification and completion of the Government Emergency Ordinance no. 77/2009 on the organization and operation of gambling, in the sense of establishing the task of all gambling organizers to compile databases, in a centralized electronic format, covering all self-excluded and undesirable persons at the level of the organizer.
Thus, according to the Draft Law, it is proposed to amend and supplement the Emergency Ordinance 77/2009 on the organization and operation of gambling as follows:
Article I, point 1 “In Article 15, paragraph 2, after point (c), a new point c1), is inserted, with the following wording:
c1) have the technical means to compile databases on self-excluded and undesirable persons.”
Article I, point 2 “Article 15 paragraph 6, letter d is amended to read as follows:
d) the organizers of the games of chance will identify the persons who enter the premises where the games of chance are organized and operated and will keep records, in electronic format, of their identification data. The databases set up at the level of the organizer are archived by his care and are kept for a minimum interval of 5 years from the establishment.”
Article I, point 3 “After Article 15, a new article is introduced, art. 151 with the following content:
Art. 15. the organizers of the games of chance draw up, in electronic format, the databases referring to the self-excluded and undesirable persons. The databases set up at the level of the organizer are archived by his care and are kept for a minimum interval of 5 years from the establishment”
Regarding the proposed amendments to art. I point 1 of the Project (concerning the completion of the provisions of art. 15 paragraph (2) of GEO 77/2009, regarding the conditions that economic operators must meet in order to obtain the authorization to operate gambling), we are of the opinion that, an additional period stipulating a transitional period for existing / ongoing legal situations (in this case determined by the existence of valid gambling licenses already issued), these unduly affect both the organization and operation of games of chance and the overall legal certainty in this field, representing for the recipients, contrary to the principle of legal accuracy and predictability, a danger which may arise from the law itself.
Apart from the other issues raised by the proposed regulation (which we will discuss below), we believe that in order for this proposed amendment to be in line with the principles of regulation and legislative technique, it should have been take into account the regulation of transitional and final situations, which take into account the rights and interests of the recipients of the proposal who already hold the necessary license and authorizations for the organization and operation of gambling.
Regarding the proposed amendments to art. I point 2 of the legislative initiative, according to which the organizers of gambling have the obligation to identify the persons who enter the premises where gambling is organized and operated and to keep records, in electronic format, of their identification data, we believe that they are unclear, as these provisions do not indicate what the notion of “identification of persons” implies, what data will be processed by the organizers in order to identify them, nor on the basis of which documents the identification operation will be performed.
Also, forcing gambling organizers to create and maintain databases containing all participants (registered at each entry to gambling locations) for certain periods is, on the one hand, disproportionate and unjustified, and on the other hand on the other hand, it cannot per se serve the purpose stated in the explanatory memorandum to the legislative initiative (namely to combat gambling addiction).
In view of this, the entry of gambling sites will only have the effect of hampering the work of licensed organizers and bona fide participants alike, creating the conditions for the transfer of players to the black market, which is contrary to the objectives of the proposal.
Regarding the proposed amendments to art. I point 3 of the legislative initiative, according to which gambling organizers must compile, in electronic format, databases on self-excluded and undesirable persons, we believe that these require clarification both as to the meaning of the terms “undesirable players” and “self-excluded” and as to the criteria by which these categories of persons would be determined.
These clarifications are necessary, from our point of view, so that the obligation can be respected by all the recipients of the law in a uniform way, according to precise and rigorous rules.
Also, as the legislative initiative proposes to transpose into the area of exploitation of traditional gambling the provisions already existing and currently applicable to the operation of remote gambling, which concern the category of self-excluded players, we consider that additional minimum provisions are needed regarding the effective self-exclusion of players, given the typological variety of traditional gambling.
Precisely because of this variety, we appreciate that it is important to note that the risk of developing addiction to gambling is different, depending on each type of activity, it is necessary that any prevention and control measures be adapted to it, determined on the basis of specialized analysis and not a superficial assessment.
It is clear from the explanatory memorandum to the draft law, which justifies the need for regulation by invoking the alleged protection afforded by the measures to persons suffering from gambling addiction that data to be processed on self-excluded players include data on their health status, qualified by GDPR as “special categories of data” (art. 9 para. (1) GDPR), the processing of which, in consideration of art. 9 of the GDPR, is prohibited, unless one of the situations regulated by par. (2) of the same article.
Of these, in the opinion of the way of regulating the Bill, in our opinion, only the situation in which „processing is required for reasons of major public interest, based on Union or national law, which is proportionate to the aim pursued, respects the essence of the right to data protection and provides for appropriate and specific measures for the protection of the fundamental rights and interests of the data subject ”(letter g).
The identification of all persons entering the premises of specialized gambling locations may lead to the large-scale processing of such special categories of data, which is why the processing is necessary to be, according to art. 35 of the GDPR, which must be subject to prior procedures in order to ascertain the impact of the expected processing on data protection.
In this sense, according to art. 35 of the GDPR, an assessment of the impact on data protection of data subjects is required, before processing, especially in the case “large-scale processing of special categories of data referred to in Article 9 (1)”. In this case, the processing is presumed to pose a high risk to the rights and freedoms of individuals.
Thus, we appreciate that, prior to the adoption of such regulations which may lead to the large-scale processing of special categories of data of data subjects, it is necessary to carry out an impact assessment on data protection in the context of the adoption of the normative act.
In view of all these considerations, although the initiative is welcome and additional measures to protect vulnerable consumers are needed, we believe that the Project needs to be revised and amended so that its provisions are easy to understand and implement, and the new provisions comply with all the rules governing the activity of gambling.