by Teodora LUCA, Fully qualified Lawyer, L.P. LUCA Mihai Cătălin
Considering the definition provided by art. 5 paragraph 1 of the Government Emergency Ordinance no. 77/2009, by means of gambling we refer to any series of elements, including the computer system composed of software, hardware and means of communication, which serves or allows the organization, conduct or participation in gambling, if it independently generates the random elements that stand at the basis of gambling or if its destination is set by the manufacturer.
At first reading, the legal definition includes all equipment and devices that are used for the purpose of conducting gambling activity. However, it would be an obvious mistake to consider that any device used by the gambling organizer to provide its services is a means of gambling, and such an interpretation would unjustifiably extend its obligations regarding the production, purchase or sale of equipment, other than those dedicated, by construction or by the destination established by the organizer, to the gambling activity.
Therefore, the essence of the definition provided by art. 5 of the O.U.G. 77/2009 is the condition provided at the end of the legal text: series of elements (…) if it independently generates the random elements that stand at the basis of gambling or if its destination is set by the manufacturer.
Further, however, the legislator understood to distinguish between basic and auxiliary means of gambling, although the usefulness of such a distinction remains uncertain, given that the law does not provide for a different legal regime for each of the two categories.
Any material support, including computer software, that generates random elements that underlie gambling, is considered basic game means.
It is expressly provided by law that this category includes software, servers or other similar computer media that ensure the organization and unitary exploitation at the organizer level of the respective gambling, for those games in which the winners are established based on the results of events or competitions. which do not depend exclusively on chance.
In other words, for gambling that does not involve the generation of random items (as in the case of fixed odds bets, the result of which will occur), the basic means of gambling are the computer programs, servers or computer media used by the organizer of gambling.
Apparently surprisingly, the legislator states in the same paragraph that gambling software must contain a random number generator that determines the results of the games. In other words, only computer programs that generate random elements are considered basic game means, the definition coming back to the logic established by para. 1 in art. 5 of GEO 77/2009, previously presented.
In this context, it is important to determine which means of gambling are used for gambling where winners are not selected based on random elements generated independently by a system/device. From the previous text, it seems that the equipment dedicated to the activity are the servers that allow the unitary exploitation of the activity, since the computer programs used do not fulfill the legal condition regarding the generation of random elements.
The second category of game means (auxiliary game means) involves any material support, including computer support, which, even though it is not an integral part of the basic game means, competes with it in organizing and conducting gambling or participating in such activities.
If, from reading the first two paragraphs of article 5) of GEO 77/2009, a first big problem of interpretation regarding the identification of the means of gambling used for gambling activities that do not involve the generation of random elements was triggered, by establishing an additional category of means of gambling, the legal text gives rise to a new dilemma regarding the criteria of separation between the equipment dedicated to the activity and other devices used by the organizer, as long as it seems to include in the first category all the equipment of the organizer, since to a greater extent greater or less, directly or indirectly all are used for the purpose of conducting gambling activity.
As an example, in the category of auxiliary means of gambling are included the tokens, the impulses and the tickets.
However, in relation to the definition provided by para. 3 in art. 5), what would prevent the inclusion in the category of auxiliary games means of all the computer programs used by the organizer (including specialized accounting, legal or human resources programs), in the category of means of gambling?
And this time, we believe that the answer is the condition provided at the end of art. 5 paragraph 1) of GEO 77/2009, respectively the condition that they generate independently the random elements that are the basis of gambling or have this destination set by the manufacturer. As auxiliary game means are only a sub-category of game means, their definition cannot exceed the definition of the category of equipment to which they refer.
Most likely from the desire to avoid precisely the ambiguities that the analyzed text of law can give rise to, as we have shown previously, the legislator unequivocally provided in the art. 2) letter h) of the Methodological Norms for the implementation of GEO 77/2009, for the traditional games, the definition of the dedicated equipment, including in this category only the technical and/or IT means, which by its structural mode of operation does not allow its use for purposes other than conducting one of the traditional gambling activities, as provided in the Government Emergency Ordinance no. 77/2009, as subsequently amended and supplemented.
At the same time, according to GEO 77/2009, the task of the National Gambling Office was established to regulate by order the list of dedicated equipment, as well as the conditions that they must fulfill, but so far this order has not been issued.
The equipment dedicated to the organization of gambling must be approved by the Supervisory Committee of the O.N.J.N., may be manufactured by a resident or non-resident provided the manufacturer holds a Class II license issued by ONJN.
The law does not provide a procedure for approving the means of gambling by the Supervisory Committee of the O.N.J.N., other than their authorization for exploitation by the gambling organizers, and until now, in the absence of orders regulating the technical conditions for approval and certification, the means of gambling used in the traditional gambling activity have been evaluated either on the basis of the technical norms applicable in Romania by the Romanian Bureau of Legal Metrology, although such a possibility has been foreseen only for one year from the date of the modification of the GEO (term expiring in December 2015) and / or based on international standards.
In this context, the authority’s intention to regulate the technical conditions for evaluating the means of gambling used in traditional gambling activities is welcome, while also establishing their constructive and operating requirements.
A first step is the issuance of the draft Order on the minimum technical conditions for checking the means of gambling, with applicability for the slot-machines game means, notified to the European Commission on July 23, 2019, the stand-still period being extended, at the request of Austria and Spain, until January 23, 2019.
It is expected that with the issuance of this order, the authority will unequivocally define and regulate the operating conditions and the means of gambling used to perform the other types of traditional gambling, the technical conditions applicable to the computer systems used by online gambling are not excluded either.
Until the date of issuing these orders, the definition, approval and certification of traditional gambling means will continue to be regulated almost exclusively by the provisions of art. 5) of GEO 77/2009, although such regulation may prove, in specific cases, insufficient.