SPAIN Trends and Developments Contributed by: Alla Serebrianskaia, Marta de Francisco, Sara Lao and Laura Llorca, Asensi Abogados
176/2023 of 14 March 2023 on the creation of saf- er gambling environments. Article 24 of this Royal Decree requires operators to adopt mechanisms and protocols to detect risky gambling behaviour based on objective indicators. Furthermore, its Final Provi- sion Three establishes that within two years from its entry into force, the DGOJ must develop a detection mechanism to be used by all licensed operators for this purpose. The aim of the draft Resolution is therefore to establish a mandatory mechanism, with common criteria and thresholds, applicable to all operators, allowing for a homogeneous categorisation of users at risk regard- less of the operator with whom they are playing. One of the most restrictive aspects of this new Reso- lution is that, when a player is categorised as “at risk” (definition which has yet to be developed by the regu- lator, but that carries restrictions such as only being able to use payment methods in their name and under their ownership), this classification will remain in place for a period of six months. As for the feedback received from operators, one of their biggest concerns is the immediate entry into force of the new mechanism. Operators have requested a transitional period to allow for its gradual implementation, while ensuring that compliance with the Resolution is not compromised. They also reflect on the inequalities arising from the measure, as its impact may vary depending on the operators’ techni- cal resources, rendering the new system, in their view, somewhat unfair. In addition, most operators are concerned about the increase in litigation that the application of the new model may entail, as it is unclear whether players’ complaints regarding their classification as “at risk”, as contemplated in the draft Resolution, will be han- dled directly by the DGOJ or by the operators them- selves. Last but not least, another recurring concern is the dis- proportionate nature of the measure and the risk that such a stringent model may unintentionally expose players to greater harm. By pushing them towards the unregulated market – where these protective meas-
ures do not apply – vulnerable players could be left without adequate safeguards. It is also noteworthy that a similar mechanism is being developed at a European level, in line with the agree- ment on markers of harm. At this point, we fully agree with the stance of the European Gaming and Bet- ting Association (EGBA), namely that evidence from across multiple European countries shows that when regulations significantly restrict the player experience, players will move to black market operators that lack basic consumer safeguards. Quite often, the players who migrate to these unsafe sites are those whom the regulations are intended to protect. Regulators must therefore bear in mind that the most effective way to safeguard players is by ensuring they remain within the safer, regulated market. Significant news on gambling advertising In April 2024, the Spanish Supreme Court issued its ruling 527/2024, partially granting the appeal filed by the Spanish Association on Online Gambling (Jdigi- tal) against the Royal Decree on commercial com- munications for gambling activities. In short, the court annulled several key restrictions contained in the regulation, concluding that they lacked sufficient legal basis and were disproportionate in relation to the constitutional right to free enterprise. As a result, the advertising framework for gambling was relaxed. However, the response to this Supreme Court ruling was swift: left-wing parties proposed to reinstate the provisions that were nullified through a Draft Law intended to modify the General Law on Public Health – a legislative text unrelated to either gambling or advertising. Following this initial attempt, the Spanish govern- ment drafted a General Law on Customer Services, which, among other important developments for the gambling sector (such as the creation of a Registry of Gaming Providers, to which we will refer later), seeks to reinsert the restrictions on gambling advertising set forth in the initial version of Royal Decree 958/2020, that were deemed void by the Supreme Court ruling. The draft law is currently in the final stage of its pas- sage through the Spanish Congress of Deputies and
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