Draft Royal Decree on commercial communications for gambling activities.
Communication from the Commission - TRIS/(2020) 02619
Directive (EU) 2015/1535
Translation of the message 001
No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.
1. Structured Information Line
MSG 002 IND 2020 0443 E EN 09-07-2020 E NOTIF
2. Member State
3. Department Responsible
Subdirección General de Asuntos Industriales, Energéticos, de Transportes, Comunicaciones y Medio Ambiente.
Dirección General de Coordinación del Mercado Interior y otras Políticas Comunitarias.
Secretaría de Estado de Asuntos Europeos.
Ministerio de Asuntos Exteriores y de Cooperación.
C/ Serrano Galvache, 26, 4ª planta, Torre Sur (28071 Madrid)
Teléfonos: 91 379 84 64
Fax: 91 379 84 01
Dirección correo electrónico: email@example.com
3. Originating Department
Ministerio de Consumo
Secretaría General de Consumo y Juego
Dirección General de Ordenación del Juego
C/ Atocha 3, 28012 Madrid
4. Notification Number
2020/0443/E - H10
Draft Royal Decree on commercial communications for gambling activities.
6. Products Concerned
The draft affects the gambling sector in Spain
7. Notification Under Another Act
8. Main Content
The draft Royal Decree has been notified to the European Commission previously on three occasions:
1. Firstly, in 2015, under number 2015/0186/E;
2. Secondly, on 13 December 2017, under number 2017/0578/E;
3. Thirdly, on 2 March 2020, under notification number 2020/102/E.
This version of the Royal Decree, now notified again, consists of a preamble, thirty-seven articles grouped under four titles, seven additional provisions, four transitional provisions, a repealing provision and three final provisions.
The preliminary title, ‘General provisions’ sets forth the subject of the royal decree, which consists of the implementation of specific provisions of Law No 13/2011 of 27 May 2011, regulating gambling in relation to commercial communication, policies on responsible gambling and consumer protection. It also specifies both the subjective and objective scope of application, the objective scope covering all gambling activities conducted under State jurisdiction. Lastly, it introduces various definitions and provides a context for institutional collaboration and coordination between the authority responsible for regulating gambling and other relevant public bodies and organisations.
Title I ‘Commercial communications on gambling activities’ starts with the provision relating to the implementation of legislation set out in Article 7 of Law 13/2011 of 27 May 2011, going on to cover the various aspects related to advertising, sponsorship and all other forms of commercial communication for gambling activities. Chapter I thus contains the legal framework governing commercial communications and the general principles to be followed with such communications, including various mandatory ethical principles. Chapter II contains specific provisions, which affect certain forms of commercial communication, such as sponsorship or vouchers and other promotional initiatives or the prohibition of celebrities or public figures in commercial communications, free play applications or advertising exclusion systems. Chapter III, which contains specific provisions according to the different advertising channels offered, includes the most significant changes from the version previously notified.
Title II ‘Active information and user protection policies’ deals with the implementation of regulations for the provisions laid down in Article 8 of Law 13/2011 of 27 May 2011. In this regard, and in addition to the existing measures, a series of specific implementation mechanisms in this area has been included. Thus, in addition to a general provision on corporate social responsibility, a series of obligations and implementation measures to be applied by gambling operators has also been introduced, with the aim of preventing, detecting and, where applicable, reducing afflictions such as gambling addiction or dependence or other risks or problems associated with gambling. In addition, the regulatory and control powers of the competent State authority have been enhanced and various ways for operators to collaborate with the Administration have been planned.
Title III refers to the supervision, inspection and control system. Firstly, this title implements the provisions of Law 13/2011 of 27 May 2011 as regards aspects such as the requirements for ceasing communications or providing information, or the interaction between other supervisory bodies. In addition, the role of the bodies responsible for gambling supervision within the penalties system arising from gambling and audiovisual legislation is laid down. Mechanisms are also laid down to link the penalty system with the recognised co-regulation systems, with the aim of strengthening the usefulness and effectiveness of those systems. Specifically, a qualification is set out regarding the duty of care of gambling operators in relation to the advertising activity that may be carried out by all operators covered by the scope of this draft to which, in any event, the system of attribution of liability laid down in Law 34/2002 of 11 July 2002 on information society services and electronic commerce (transposing Directive 2000/31/EC into the Spanish legal system) will apply.
The first additional provision refers to the special conditions for the participation of certain underage persons in National Lottery draws (taking account of the established practice and tradition). The second additional provision repeats the special statutory arrangements for the supervision of the Organización Nacional de Ciegos Españoles (National Organisation of the Blind in Spain) by its supervisory board (Consejo de Protectorado), as well as certain specific details relating to the advertising this organisation produces in relation to its various gambling activities. The third and fourth additional provisions include similar advertising conditions for public-interest or charitable activities other than gambling that may be carried out by the State lotteries operator Sociedad Estatal Loterías y Apuestas del Estado or by non-profit organisations or foundations formed by gambling operators or linked to them. The fifth additional provision determines the specific regime for the communication of mechanisms and protocols for the detection of high-risk behaviour and the protocol in the event of detection by the year 2020. The sixth additional provision determines that operators have reasonable time to comply with the provisions on advertising of trademarks provided for in this regulation that are not owned by them or by the group to which they belong. As compared with the version previously notified, a provision has been added stating that operators may retain any trademarks or trade designations they had used prior to the entry into force of the draft decree.
Moreover, the transitional provisions set out the need to adapt the existing co-regulation systems to the system in the royal decree. Sponsorship contracts and advertising campaigns associated with famous or public figures shall also be adapted.
Finally, in the first final provision, certain provisions of Royal Decree 1614/2011 of 14 November 2011 are amended, all of which are related to the purpose of this regulation, the clarification of which has been deemed necessary. The second final provision empowers the Minister for Consumer Affairs to implement the provisions of this Royal Decree. To conclude, the third and final provision provides for the entry into force of this regulation, which is set for the day following its publication.
9. Brief Statement of Grounds
The reasons that have led to this draft are the same as applied to the previous version notified.
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.
10. Reference Documents - Basic Texts
No basic text(s) available
11. Invocation of the Emergency Procedure
12. Grounds for the Emergency
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.
14. Fiscal measures
15. Impact assessment
16. TBT and SPS aspects
No - the draft is neither a technical regulation nor a conformity assessment procedure.
No - the draft is neither a sanitary nor phytosanitary measure.
Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
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Please find attached Jdigital's contribution regarding Spanish notification 2020/443/E.