Category Archives: Dutch legal entity

Remote Gambling Bill in the Netherlands

The Netherlands legal implementation of remote games of chance is progressing slowly. Especially for foreign providers of gambling games, business opportunities are on the horizon in the Netherlands now that the current market is dominated mainly by Dutch providers and the government considers competition in the current market to be desirable.

Dutch License online betting netherlands

Dutch licenses online betting under construction

In 2016, The Dutch House of Representatives adopted the bill on remote gambling. This legislation is currently pending in the Dutch Senate. The Netherlands Gaming Authority is preparing for the adoption of the Remote Gambling Act that will regulate online gambling In the Netherlands and provide a basis for the creation of a gambling licensing system, allowing Dutch players to take part in online gambling offerings in a safe and reliable environment.

Dutch gaming licensing slowly progressing

In the coalition agreement called “trust in the future”, the Dutch cabinet has subsequently included agreements that further strengthen the policy on online gambling. The following agreements are included:

  • When granting licenses for remote gambling, the license condition will be that the provider must in any way also be established in the Netherlands;
  • Attention will be paid to reducing gambling addiction when implementing the policy on gambling games, and;
  • Does the existing situation concerning the possibilities for the donation to sports and charities not be affected?

The Minister for Legal Protection announced this on behalf of the government halfway June 2018. Now that this part of the coalition agreement has been implemented, the legislative process can, according to the Minister, be resumed vigorously. It is therefore possible that the Senate will soon agree with the bill by means of the tightened Bill for Remote Gambling.

Netherlands registered office for gaming provider

According to the current jurisprudence of the Court of Justice of the European Union, it has been decided that providers without a branch within the EU a provider can only get a license if they have a branch in the Netherlands. As a foreign provider you will therefore have to set up a separate entity and establish it in the Netherlands. In addition, the presence in the Netherlands of a representative in the field of addiction prevention is required.

Prevention of gambling addiction

The government wants to pay attention to reducing and prevention of gambling addiction. The proposed measures are based on the so-called ‘stepped intervention model’. This means that the license holder provides the player with appropriate information and gives the player insight into his playing behavior. If a player exhibits risky gaming behavior, an appropriate intervention is carried out, such as offering a self-test or a personal meeting in which the player is redirected to professional help. As a last resort, the ‘Central Register Exclusion of Games of Chance’ will be introduced. Players who exhibit problematic gaming behavior or are addicted can be registered voluntarily or involuntarily in CRUKS.

The above obligations inevitably entail that the future provider of remote games of chance must actively collect data from there players. For the provider, therefore, a major challenge lies ahead in the careful processing of the extremely sensitive personal data of its players in line with the recently introduced European General Data Protection Regulation (GDPR).

Marketing restrictions on gaming

The current government believes it is important that new games of chance and the accompanying marketing should  not have a negative effect on vulnerable groups. It is therefore required that games of chance products be subject to a risk analysis for the prevention of addiction before they are offered. This also includes the effects on consumers of the intended recruitment and advertising activities for these products.

Betting rules for charity and sports

Finally, measures have been drawn up about charities and sports in the context of gambling. For example, to stimulate market developments, the government is reducing the compulsory payment for charities from 50% to 40%. The minister has indicated that charity organizations are supporting the new Remote Gaming Act. That’s a positive element because in the past these charities organizations were lobbying mostly against the new legislation. Hopefully, the new development will lead to a dynamic implementation of the new legislation.

Are you an international provider/operator of gambling and betting services? If you would like to know more about the latest developments regarding the implementation of the new bill on Remote Gambling, do not hesitate to contact Mark van Weeren on gaming licenses  in the Netherlands.

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A Foundation in the Netherlands

Dutch trust explained

A foundation (stichting) in the Netherlands is defined by law as “a legal person created by a legal act which has no members and whose purpose is to realize an objective stated in its statutes using capital allocated to such purpose”. The foundation is used  a lot for non profit organizations like school or hospitals, charities, sports organization and promotion purposes, relief organizations, as well a family foundation, as holding vehicle for shares or certificates of shares. The Dutch foundation is also uses as a vehicle for protection purposes against hostile take-over of public companies at the Dutch Stock Exchange. A Dutch business lawyer can explain the relevant aspects of the Dutch foundation.
Foundation Netherlands

Dutch Foundation

It is possible to pursue a purpose of private benefit. However, the purpose of the Dutch foundation cannot be to distribute the foundation’s profits to the founder or to members of its organs. The founders can be members of the board. Commercial activities are allowed if these are within the objectives of the foundation and are in general taxed. The regular company tax in the Netherlands will then be applicable.

Incorporation Dutch Foundation

Foundations are established by a Dutch Notary through a notarial deed by the containing the bylaws. The foundation will then be a legal entity and has  full legal capacity. The initial board of the foundation has to be specified in the deed. No governmental body is involved in establishing a foundation. Minimum capital is not required for the establishment or operation of a foundation. Regarding the purpose, there are no restrictions. The Dutch foundations can be established for public and private purposes. The only restriction is that the purpose cannot be to distribute the foundation’s profits to the founder or to members of its organs.

Company register in the Netherlands

Foundations are registered with the local Chamber of Commerce in the Netherlands. The deed of establishing of the foundation and the bylaws are kept at the register as well as the names and the addresses of the foundation itself, members of the board with powers of representation, representatives of the foundation and its founders. A Dutch attorney can investigate the foundation’s registration, the registered board members and it’s annual accounts.

Board of Dutch Trust

The board members represent the foundation towards third parties. The statutory provisions of the foundation could assign the right of representation to one or several board members and also to other persons who are not  board members. The board has the duty to maintain financial records and keep an administration. Within 6 months from the end of each financial year, the board must prepare a balance sheet and a statement of revenues and expenditures of the foundation. An external audit is only necessary for medium or large entities. That is the case is two of these items apply:; net sales exceeding € 8.8 million; average number of employees is above 50 and/or the assets exceed an amount of € 4.4 million. Each member of the board has an obligation towards the foundation to perform the duties assigned to him properly. For matters within the competence of one or more board members, each board member  is jointly and severally liable with respect to any shortcoming. Only if  the shortcoming is not attributable to a board member and he is able to proof that, then he may not be liable.

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Pre-judgment attachment under Dutch law

It is possible to attach assets of a debtor in the Netherlands before the Court procedure started. A Dutch attorney can prepare the attachment to seize assets available in Holland

Dutch Law Firm Free Advice

Attachment of Dutch Assets at short notice

This pre-judgment attachment (conservatoir beslag) is also effective and good pressure on the other party. Most often the attachment is used for recovery to pay claim and obtain to get security for this claim. All assets of the debtor are subject to attachment. Apart from the attachment for the collection of receivables (verhaalsbeslag) is it also possible to attach specific goods for the purpose of surrender (beslag tot afgifte) or attachment delivery of goods (beslag tot levering).It is also possible to make a third party attachment.

Garnishment of Dutch Bank Account

The funds in the bank of the debtor may be attached. So, goods held by a third party but to be delivered by the debtor may be attached. The third party, who is the target of the attachment, must declare within 4 weeks what he owes to the debtor.
To enforce intellectual property rights, it is also possible in case of alleged infringement of intellectual property rights, the attached assets for the purpose for preserving evidence (bewijsbeslag).

How to obtain a leaf for attachment in the Netherlands?

A Dutch lawyer can file the request to the competent court to obtain leaf for the attachment. The judge decided on the petition ex parte. Usually the defendant will not be heard by the judge. Only if the applicant request to sequestrate goods of the debtor, the judge will allow the debtor to respond to the filed request.

If the leaf for arrest for attachment is granted, usually is done under the condition the within 14 days from the date of the attachment the main proceedings of the underline claim are instituted.

Creating jurisdiction of the Dutch Court through attachment

In case the debtor is not domiciled in the Netherlands and the claimant can not obtain judgment in another country, which is enforceable in the Netherlands, then the attachment gives jurisdiction to the Dutch Court. For example: the Dutch Court can hear a case against a syrian oil company if an oil tanker of this company is attached in the Rotterdam harbor. The main proceedings are not attended then preliminary relieve proceedings may also qualify the main proceedings. This will be arbitration.

Legal Action to lift seized assets

The debtor who believes that the attachment is unjustified may start preliminary relief proceedings at short notice.

In all cases the attachment should be lifted if the debtor provides sufficient security in the form of a bank guarantee to a claim of the plaintive. The attachment will be lifted if the claim is without merit and if the attachment is considered this appropriate. An attachment will also be lifted if the formal requirements are not followed. However it is sufficient for the claimant to proof that the claim is not without merit and if a beginning of evidence is substantiated to the Court, it is very hard for the defendant to prevent or oppose the attachment. The pre-judgment attachment in the Netherlands is therefore very liberal compared to other countries. This attachment is used very often used by claimants.

Unlawful Garnishment under Dutch Law

If the claim of the claimant is not granted in the main proceedings, then the attachment was unlawful. The claimant is liable for all damages,  suffered by the party who was effected by the attachment. If the claim is only partially denied, then there is no liability for the claimant. If the claim is granted in the main proceedings, then pre-judgment of the attachment will be automatically be converted to an executory attachment. With the actual judgment of the claimant can then start execution of the arrested assets.

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Filed under Dutch Law Attachment of Assets, Dutch legal entity, Jurisdisction Dutch Courts