Current Regime

Curaçao originally introduced its remote gambling law in 1993 in what is known as its National Ordinance on Offshore Games of Hazard (Landsverordening buitengaatse hazardspelen, P.B. 1993, no. 63) (NOOGH).

In accordance with NOOGH, the Governor of Curaçao is authorised to grant remote gambling licenses for the exploitation of games of chance. Such licences were only granted to legal entities established in Curaçao (referred to as Master Licence Holders). These Master Licence Holders then started issuing sub-licences to operators under and subject to their licence.

As of 2019 the Minister of Finance is responsible, under the mandate of the Governor of Curaçao, for the supervision of the Master Licence Holders. The Minister of Finance has tolerated the sub-licensing regime, which is still in place today. In the same year the Curaçao Gaming Control Board (GCB) was appointed the AML/CFT supervisor for the remote gambling industry.

Post 2020 the GCB has been tasked with the licensing for and supervision of the remote gambling industry on behalf of the Minister of Finance.

Transitionary Regime

However, a new draft gambling legislation referred to as “Landsverordening op de kansspelen” or “LOK” for short is in the process of being reviewed and voted on by the Curaçao parliament.

In the interim and until LOK is voted through or further amended by the Curacao Parliament and subsequently implemented and made effective (could be late 2024), operators (i.e. existing sub-licensees) may apply for their own direct licence under the existing NOOGH law. Even if operators do not apply for their own direct licence during this interim period, sub-licences are encouraged to register as such (no costs involved).

The window for registration as an existing sub-licence and/or subsequent application for a direct licence will be open until the 31/03/24, thereafter will need to wait for new law (LOK) / application process.

There seems to be no-grandfathering of existing sub-licensees (i.e. those who have not already applied for their own direct licence) to a new LOK licence. Once the master licence under which it operates expires or LOK becomes effective whichever is earlier, a new licence will need to be in place.

However, any direct licences granted (if application is in by 31/3/24 deadline) will then be grandfathered to the new licence regime under LOK, holding provisional licence status until that LOK licence is in place.

Any sub-licensee who has not been registered on the portal by 31/3/24 will not be permitted to operate. It therefore seems that at least registration as a sub-licensee is a mandatory requirement.

From 1/1/24, upon obtaining a direct license from the GCB, a license holder is allowed to use a Digital Seal on their website issued by the GCB.  In addition, the GCB has the discretion to permit registered applicants who have submitted a license application for a direct license under NOOGH to display a Digital Seal of the GCB on their website pending their application being determined. Such Digital Seal may only be used by the applicant when the GCB has performed its initial due diligence on the applicant to a satisfactory degree, as stated in the Digital Seal Policy of the GCB. Such a policy will be published shortly

The direct licence fee (based on exchange rates as at 13/12/23) is €3,600 per month per applicant (covers up to 40 domains), along with a €18,500  fee on application.

Proposed New Regime (“LOK”)

Definitions

• Definition of Games of Chance requires all the 3 elements of entry fees, stakes or wagers; chance and prizes. Chance can be combined with skill under this definition up to the point where participants are able to exert a “decisive influence on the outcome”. In order words a game which is predominately determined by skill is not regulated under LOK, however sports betting and poker are expressly covered by the definition and therefore are caught by the regulation. This definition covers all forms of gambling such a gaming, betting and lotteries.
• Vulnerable Persons include: Under 18s, those addicted or at risk of becoming addicted to gambling; those who have been or have chosen to be excluded from gambling; bankruptees.
• A Key Person is defined as a natural person who, in name or in fact, indirectly or directly controls or exercises significant influence over the management, assets or the determination or execution of the operational policy of a licensee. As such this includes directors, but also (other) executives and compliance officers who have a key position in the operation of games of chance.
• Under the draft LOK, the GCB will continue under a new name, namely the Curacao Gaming Authority (hereinafter "CGA").

 

Presence Requirements

• An application for a licence (B2C and B2B) can only be made by a Curacao registered company with a Curacao registered office.
• As part of the substance and presence requirements, which are thought necessary to provide economic benefits to the jurisdiction and make licensees more accountable, applicants / licensees are also required to have a physical office in Curacao which is for its own exclusive occupation and is in actual use by it.
• The applicant / licensee should also have a server in Curacao available for storing critical data and reports as specified by the CGA.
• Finally, the applicant / Licensee must provide permanent, full-time employment, whether employed or otherwise, to at least one Key Person (as defined below) registered in the population register of Curacao. From the 5^th year of LOK taking effect there must be at a total of at least 3 persons (including a Key Person) in permanent, full-time employment, whether employed or otherwise in Curacao.
• However, there is an exception to the above presence requirements for “start – up” type applicants / licensees (and to address the scarcity of sufficiently skilled Key Persons and business premises in the local market), who qualify as set out below:
• established for 1 year or less; and
• do not have a beneficial owner who is, or has been, in the two years immediately preceding the submission of the license application, the beneficial owner of any other local or foreign provider of remote gaming or gaming-related services or goods; and
• in the calendar year immediately preceding the submission of the license application generated total gross gaming revenue (“GGR” defined as wagers less prizes) of less than NA20,000,000; and
• in the first three fiscal years following the issuance of the license, generate a total GGR of less than NA20,000,000.00 per year as determined by an independent financial expert.
  • The above exception only applies for 3 years, requiring the licensee to have the substance requirement in place by year 4.

 

Application Process

• The processing of a remote gambling application takes place in 2 stages. The first stage relates to the assessment of the integrity of the stakeholders (includes qualifying beneficial owners (those who control 10%+ of the shares in the applicant)) and Key Persons), as well as the assessment of the financial situation and viability of the applicant - requiring, among other things, a business plan. 
• The second phase relates satisfying all the other requirements of LOK.
• Within 8 weeks after receiving all required Phase 1 information and documentation, the CGA shall decide whether to further process the application to the second phase or to refuse the license. This period may be extended by a maximum of four weeks.

• If the CGA decides to further process the application in the second phase, all necessary information and documentation for the second phase must be submitted to the CGA within 4 weeks of this decision.
• The CGA shall decide within 8 weeks of receiving the complete application whether to issue the license or to refuse it. This period may be extended by a maximum of 4 weeks.
• With regard to the first and second phases, the CGA will determine whether or not the information and documentation submitted for this purpose is complete within two weeks of receiving it. If the applicant fails to submit all required information and documentation within four weeks of being requested to do so, the application will not be processed further. The deadline in the second sentence may be extended by up to four weeks.
• Pending the investigation in the second phase, the CGA may decide to grant a provisional gaming license for a maximum period of 6 months. This period may be extended by up to six months.

The Phase 1 and 2 application information and documents should address the following:

• the registered office, reliability and suitability of the applicant;
• the ownership and control structure within the group to which the applicant belongs;
• the identity, reliability and suitability of its Key Persons;
• the identity and reliability of its holders of qualifying holdings and ultimate beneficial owners (10%+ control over the share of the applicant);
• the liquidity and solvency of its business;
• the objectives of its business and the acceptability and feasibility of those objectives;
• the suitability, acceptability and reliability of the games of chance to be offered;
• The reliability, integrity, verifiability and suitability of its business operations and the means and methods used for offering the games of chance;
• the reliability and suitability of persons from whom he wishes to obtain services with a view to the games of chance to be offered;
• software applications on which the games of chance are offered;
• the adequacy and transparency of its measures to ensure responsible gaming offerings;
• the remote gaming system, and any software used in the operation of remote games;
• the suitability of its measures to prevent fraud or abuse of the games offered or other forms of crime.

 

Fees (based on exchange rates as at 13/12/23)

B2C Fees

• Application Fees €4,600 + one-off Due Diligence fees between  €125 and 250 per person (depending on role).
• Licence Fees paid on licence issuance of €24,600 plus Monthly Fee €2,050,
• Tax: 0%
• € 250 per annum per domain. A domain is a main/primary domain (within which a unique dynamic seal will be housed) and does not include mirroring or other domain access URLs that may be used for marketing purposes.
• Therefore, for B2Cs total annual license fee: €49,200 + €250 per domain
• Companies that are grandfathered in from direct license under the NOOGH to the LOK do not have to pay the €24,600 on enactment, rather that becomes due for the first time on the anniversary of their license

B2B Fees

• Same as B2Cs except they are no monthly fees and domain fees do not apply

Licensees will need to pay a premium (to be determined & assumed to be annually) toward a guarantee fund to underwrite the payment of prizes to customers.

 

Responsible Gambling

• Responsible gambling information should be provided and easily assessable. This should include the rules of the game, the chances of winning and the manner in which winners are chosen, so that players can make a well-considered choice for further participation.
• Measures (such as age verification) should be taken to prevent unlawful participation, including: sanctioned persons, Key Persons (see definition), Vulnerable Persons (see definition).
• Measures should also be taken to recognise and prevent Vulnerable Persons. This is not prescriptive where licensees are not expected to recognize every Vulnerable Person. However, prevention measures such as the facility for players to set a player profile with playing limits prior to playing will be expected.
• Customers who voluntarily identify themselves as problem gamblers and elect to be excluded must be blocked from playing for at least 12 months without change. i.e. this cannot be shortened at the request of the customer. It’s not clear is the same applies where customers are excluded by the licensee due to identified problem gambling behaviour.#

 

Suppliers

• Suppliers of critical services who are established in Curacao will need to have a supplier licence. The application process for B2B licences is similar to the B2C one
• Critical suppliers based outside Curacao will not need a licence but need to be registered with the CGA. Even game developers / providers supplying via an aggregator will need to be registered.
• There is a voluntary accreditation scheme by the GCA for those service suppliers based in Curacao, whereby they can demonstrate that their services meet certain quality requirements. These services include: marketing, legal, administrative, finance, tax, trustees, training providers, payment providers, IT, AML /CFT consultancy, blockchain / crypto, test houses/certification providers, ADR providers.

 

General Provisions

• The operating licence shall be valid for an indefinite period
• Under the draft LOK a gaming licensee can hold virtual assets and conduct cash, giro and digital monetary transactions. This confirms that the use of crypto-currencies is permitted
• No credit can be provided either directly or indirectly to customers, although this does not prevent use of credit cards.
• There must be a customer complaint process in place whereby a participant may complain to the licensee free of charge within 6 months of the occurrence of an incident. Within 1 week of receiving a complaint, licensee must confirm receipt and explain the manner in which the complaint will be handled. Within 4 weeks after receipt of the complaint the licensee must give reasons for either denying the grounds for the complaint or its assessment of the complaint. The licensee shall at all times offer its participants the possibility of alternative dispute resolution. The ADR shall be offered at the expense of the licensee.
• Licensees must keep operational manuals, which describe and address:
• description of the games of chance offered, gaming software used and the payment methods,
• description of the testing methods used periodically for quality control purposes;
• the method of storage of personal and other data of participants;
• description of website and App visuals and graphics
• description of technical measures taken in order to prevent the admission of those who aree not allowed to participate (under 18s, Key Persons, sanctioned persons, excluded persons etc;)
• schematic representation of the technical infrastructure, including disaster recovery;
• description of responsible gaming implementations
• most recent text of player general terms and conditions used;
• description of how the licensee settles disputes with participants
• Licensees must provide ongoing training on an annual basis to their employees covering among other things: mental well-being, anti-bribery, crime prevention, responsible gambling, anti-money laundering communication with players and responsible advertising.
• Licensee shall be required to submit to the CGA any information, intelligence and reports that the CGA deems necessary for monitoring compliance with LOK. This may include payment transactions, changes in the gaming account, intervention measures applied. This data will need to be provided in real-time (or close to it), where CGA may make use of a central monitoring database for this purpose. The reports in any case will consist of a change report, incident report and a player transaction report and a complaint report. The reporting requirement may also include, for example, the number of complaints handled by the licensee, broken down by subject of the complaint with an indication of the outcome of the complaint handling.
• There are high level marketing and advertising restrictions, specifically including the offering of bonuses, and based on the principals that such activities should not:
• encourage high frequency play;
• be misleading;
• be directed at vulnerable persons.

Factors to be taken into account when determining the above will include the quantity, duration, time, manner and the place where advertising activities are carried out.

 

Regulatory Supervision & Enforcement

CGA will have supervisory and enforcement powers, where the former include amongst other things, authority to:

• request all data and information;
• demand inspection of all business books and records
• enter all places except dwellings without the express permission of the occupant. 

CGA may establish cooperation protocols with national or international institutions, such as the Tax or gaming authorities of other countries.

CGA is authorized to provide confidential data or information obtained in the performance of its supervisory duties to another national or international supervisory institution; Inspectorate of Taxes; or the Public Prosecution Service to the extent necessary for the performance of public law duties and powers of these bodies. However, this sharing of information is not allowed where:

• the purpose for which the data and information will be used is insufficiently determined;
• the intended use of the data or information does not fit within the CGA’s framework of supervision;
• the provision of such data or information is not compatible with public order or the right of Curacao;
• the confidentiality of the data or information is not sufficiently guaranteed;
• the provision of the data and information is or could reasonably be in conflict with the interests that LOK aims to protect;
• there is insufficient guarantee that the data or information will not be used for a purpose other than that for which it is provided.

There are a number of circumstances where a licence may be suspended or revoked, one of the most alarming is where in the opinion of the CGA and as a result of an irrevocable decision by an authority in another country, it has been established that the licensee is acting in violation of the gambling regulations of that country. There are other circumstances where the CGA has to revoke a licence (i.e. not subject to the discretion of the CGA).

The CGA may attach conditions and restrictions to a gambling license which amongst other things may include:

• approval of equipment, software and locations used; the identification, verification and acceptance of players;
• the segregation and reservation of players' funds or the insurance of such funds;
• minimum and maximum wagers per person and per spin (or equivalent)
• outsourcing, especially as outsourcing of activities may entail major risks, through loss of (direct) control. Therefore in order to protect players the licensee must be able to directly manage the player base and transactions with players.
• relations with suppliers.

CGA has the power to impose an administrative order including remedying any violations, and/or the power to impose an order for incremental penalty payments and/or impose an administrative fine.

If you would like to know more about Curacao's new gambling law, get in touch with our team of experts at support@advennt.com or fill up our enquiry form at the bottom of our Contact page.