The Dutch Council of State (CoS) has upheld an appeal submitted by Betfair and Unibet which claims that the allocation procedure carried out by the Netherlands Gambling Authority (NGA) did not give other parties ‘a fair chance’ of obtaining a totalisator licence.
Under Article 24 of the Betting and Gambling Act, the NGA is permitted to grant one totalisator licence, which in the past was ‘consistently and privately granted to ZEbetting & Gaming Nederland B.V.’
Both Betfair and Unibet had objected to the granting of the licence to ZEbetting, highlighting that the allocation procedure was ‘in violation with, among other things, the transparency requirements in Article 56 TFEU’, thus limiting access to the market for other operators.
In April 2019, the District Court of The Hague backed the NGA, stating that Betfair and Unibet’s objections could be dismissed ‘on the ground that the objecting parties should have taken part in the allocation procedure’.
However, a CoS ruling found that Betfair chose to not take part in the allocation procedure as ‘it believed the allocation procedure to be fundamentally flawed’.
In its judgement, the CoS stated that it was the NGA’s responsibility to provide fair frameworks in which competitors could challenge ZEbetting for its totalisator licence.
Furthermore, CoS underlined that in its remit that as a regulatory body, the NGA should have made necessary adjustments to its allocation procedure, once it was clear that processes could not meet EU competition laws.
Concluding its judgement, the CoS has ordered the NGA ‘to render a new decision in which the appellants’ objections are dealt with substantively’.
Amsterdam law firm Kalff Katz & Franssen commented on the judgement: “It will be interesting to see how the NGA will defend its allocation procedure which it used to grant the totalisator licence, especially given the great task that lies ahead: the procedure for granting remote gambling licences in 2021.”