European Gaming Lawyer magazine Autumn 2015 | Page 28

scope. Perhaps the Ministry of Security
and Justice will pick up the suggestion
from the Gaming Authority and deal with
other financial instruments in secondary
legislation which is due to come out for
public consultation in the autumn of this
year. The Dutch government could (again)
follow the example of Denmark. The Danish
Gambling Act explicitly stipulates that
products which fall within the definition of
financial instruments are explicitly excluded
from the scope of the Danish Gambling Act.
Getting back to the present situation and
the Optieclub-case: despite the reluctance of
the Gaming Authority to take any action, the
AFM continues to take the view that offering
binary options amounts to a game of chance
for which a licence pursuant to the Betting
and Gaming Act is required.

Court proceedings
Position Optieclub
Optieclub appealed the decision of the AFM
to reject their financial licence application
before the district court in Rotterdam. In
short, Optieclub argued that binary options
meet the definition of a financial instrument
and that under MiFID there is no room for
the AFM to take into consideration that
there might be a violation of the Dutch
Betting and Gaming Act as a ground for
denying the licence application.
Position AFM
It must be noted that the AFM did not
contest that (in this specific case) binary
options can be qualified as financial
instruments. However, as mentioned before,
the AFM took the position that the offering

28 | European Gaming Lawyer | Autumn Issue | 2015

of binary option