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Payment processing in the field of gambling
By Cristina Iacob,
Collaborating lawyer – Luca Mihai Cătălin Law Firm
As is already known, the conduct of gambling activities takes place under the condition that the economic operator obtains the license granted by the National Gambling Office (ONJN). The gambling legislation in force separately provides for licenses that can be granted to economic operators as follows:
– License granted to economic operators who want an effective involvement in the organization of gambling (eg: remote gambling, traditional);
– License granted to economic operators who want an adjacent involvement in the field of gambling through the provision of related services (eg payment processor, production and / or distribution of specialized software, affiliates, etc.).
The purpose of this article is to analyze the sine qua non condition for obtaining a second class license by economic operators carrying out related activities in the field of gambling in Romania, respectively payment processors.
In a general definition, the payment processor is represented by the company responsible for managing the credit or debit card transaction process, acting as an intermediary between the consumer bank and the merchant, allowing the transmission of information.
With reference to the field of gambling, according to the definition provided by art. 5 para. from the Emergency Ordinance no. 77/2009: are allowed as payment instruments that contribute to the exploitation of gambling, defined in art. 10 para. (1), the payment instruments used in the financial-banking system, money, including bank cards, provided that all means of payment used and money, including bank cards, used by the adult individuals participating in the game of chance contain information about the natural person who operated with the payment instrument. For remote or online gambling defined in art. 10 para. (1) lit. h) -m), the means of payment used and the funds, including cards, must be operated through a payment processor licensed by the O.N.J.N. The remote gambling organizer licensed in Romania will deposit the players’ funds only in bank accounts opened with banks on the Romanian national territory.
Also, according to art. 2 of the Methodological Norms for the implementation of the O.U.G. 77/2009 the activity of processing payments (respectively accepting deposits and withdrawals for online gambling platforms) may be carried out under the Class II License issued by the National Office for Gambling by:
(i) payment service providers as defined by Government Emergency Ordinance no. 113/2009 on payment services, approved with amendments by Law no. 197/2010, with subsequent amendments and completions, including payment service providers defined by Law no. 127/2011 on the activity of issuing electronic money, with subsequent amendments and completions, which carry out payment activities in the field of gambling; and or
(ii) traditional gambling organizers, which carry out in the name and on behalf of the remote gambling organizer operations for the withdrawal or withdrawal of funds from the participant’s gaming account, with the prior authorization of the gambling organizer Remote.
Although the payment processing activity performed by traditional gambling organizers involves the holding of an organization license and the authorization to operate gambling, it is clearly distinct from the activity of gambling.
Moreover, according to the definition provided by art. 2 of the Methodological Norms for the implementation of the O.U.G. 77/2009, previously cited, the activity of processing payments by companies holding a Class II license issued by the National Office for Gambling in consideration of the license for the organization of traditional games of chance, allows the operations of replenishment or withdrawal in/from the accounts registered games on online gambling platforms, the payment services not being equivalent to the gambling activity.
Thus, the documentation considered by ONJN for the issuance of the Class II License by the economic operators wishing to carry out the payment processing activity is the one expressly provided by the Methodological Norms for the implementation of the Government Emergency Ordinance no. 77/2009, both in the case of payment service providers authorized in advance by the competent bodies and in the case of traditional gambling organizers, which carry out payment processing operations in the name and on behalf of the remote gambling organizer.
At the same time, in the case of payment processors, the payment of the license fee is an essential condition for both obtaining and maintaining the validity of the license. According to art. 148 of the Methodological Norms for the implementation of GEO 77/2009:
(1) The second class license is granted, upon request, to economic operators who meet the conditions for carrying out each activity.
(2) The Class II license is valid for 10 years from the date of issue, subject to the payment of the following fees, as follows:
a) for the first year, until the 25th of the month following the month in which the documentation submitted by the economic operator was approved;
b) for the following years, at least 10 days before the end of the one-year period.
In conclusion, the activity of payment processors in the field of gambling, although closely related to the activities of online gambling (and in the field of gambling in general), cannot be confused with gambling itself or with traditional gambling.