Pay or shame
On 7 November 2019, the Netherlands Gambling Authority
announced their new policy involving companies that refuse to pay the administrative fines (civil money penalties) imposed by this authority.
If the company does not pay the fine after a reminder, the Gambling Authority will not only start a procedure to collect the money penalty but will also publish the refusal of the company to pay. In conformity with legally required practice the company involved will be given the possibility to react upon the intention to publish this on the authorities’ website. This publication will be removed in case the administrative fine will be paid after all.
According to the authority part of the companies that offered illegal gambling the administrative fines was imposed for do not take responsibility with the refusal to pay. The avoidance of punishment is a strong indication for the unreliability of the company involved according to the Dutch gambling authority. The authority says that its purpose is to inform consumers and to warn them against possibly unreliable providers.
Of course, it is all in the frame. However, I seriously doubt whether the noble aim of informing and warning consumers is indeed the main or even real aim of the new publication policy of this authority. In reality, the authority does not have the legal means to enforce the payment of the administrative fine imposed on companies abroad. In line with similar policies of Dutch authorities on the regulation of Financial Services (AFM) and Banking (DNB) publication is used as a means to shame companies into compliance or payment. In European competition Law this gap existed even after the enactment of Regulation 1/2003. New regulation was needed and enacted not before the ECN+-Directive 1/2019 on 1 January 2019.
After all, in criminal law legal means are available in several EU and international criminal law provisions of mutual assistance in criminal matter. If the administrative fine were a civil law debt several EU and private international law provisions would be available. Unfortunately, the administrative fine imposed is a criminal punishment nor a private law debt. Although the problem of the transnational collection of administrative fines is known already for years, the European Union (that should solve this issue) has not made real and convincing efforts to fill this gap. The gap is even bigger on the transatlantic and global level.
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