William O'Rorke (ORWL Avocats): "Not everyone can become a Jonum".
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William O'Rorke, partner at ORWL, looks back at the future Jonum regulatory framework and its uniqueness in the world.
How did Jonum come into being?
Before the advent of Web3 games, the situation was fairly straightforward. There were games of money and chance (casinos, sports and horse betting, table games) and these were subject to a very specific framework. But with the arrival of Web3 games, France pushed for a specific framework to avoid suffering the same fate as with the online betting sites that appeared in the mid-2000s.
What was the problem with online betting sites?
Online betting was regulated by European countries that were ahead of the game, which led to its transposition into European law and therefore by extension into French law. By taking the lead on the subject of Web3 games, France hopes to play an active part in creating the framework and controlling its transposition into European law to avoid having it imposed on it. This is probably what explains the about-face of the French National Gaming Authority (ANJ), which was initially very unfavourable to Web3 games, before changing its mind on the subject.
What was it that prompted the ANJ to take an interest in Web3?
Unquestionably Sorare. They are the key player. But they are not alone. There are around ten Web3 games in France.
How did the public authorities organise the development of the Jonum framework?
After much debate, the Inspectorate General of Finance proposed creating an exception to the gambling regime with the monetisable digital object games regime (Jonum). This should be more in line with these new types of games. This will make it possible to have on the one hand the online gambling we know today, which is highly regulated and taxed, and on the other a sandbox for experimentation for the Web3. But beware: not all players will be eligible.
Who can become a Jonum?
You will have to be part of a list of activities (fantasy games, etc.) maintained by the ANJ. Games that correspond to something already regulated by gambling will have no place, such as poker or roulette. And if the ANJ sees that there is no play value and that it is generating addictive behaviour, it will be able to ban.
What defines a Jonum from just a collection of NFTs?
There are no gambling criteria, but it is defined as a service that requires the use of an NFT with the aim of winning something in the form of NFTs or tokens issued by the operator (an important condition that distinguishes a Jonum from a gambling game where the winnings are rarely, if ever, products exclusively linked to the operator).
What are the main criticisms of the Web3 ecosystem?
Mainly on everything to do with the fight against money laundering and the financing of terrorism (LCB-FT). It is probably too cumbersome to subject Web3 gaming players to the same rules as casinos, banks or insurance companies, particularly given the size and maturity of the sector. Sorare will find it difficult to operate if players are asked to send a large amount of information about the origin of their funds, which may go as far as collecting tax forms. It remains to be seen how the implementing decrees will be translated.
Which players pushed for this measure to be included?
There was intense lobbying by many local elected representatives who have a racecourse or casino in their constituency. They carried considerable weight.
How does the ANJ position itself on the subject?
It was still aggressive 10 months ago, but I think it has evolved after meeting the players in the sector. She is no longer intent on hitting back hard and we sense that she is receptive to providing a more flexible framework for this experimental sector. But on the other hand, we also need to be aware that the ANJ is also listening to regulated gambling, and the latter are very powerful in France.
Traditional gambling is talking about unfair competition because Web3 games would not be subject to the same taxation as them...
In fact, there are no plans to align Jonum taxation. But there is a reason for this: traditional gambling is overtaxed because it makes huge profits and this is a way of making them pay for their monopoly. Web3 games are still in the experimental stage. I think it's a mistake for the traditional players to see them as new competition.
Becoming Jonum will have a cost for projects, what will that be?
First of all, there will be the obligation to have the skills in-house or externally to present the application to the ANJ. Next, the identity of the players and their age will have to be checked, and there will have to be transparency about the flows, and so on. All this has a cost. Between assistance with the application, which can be estimated at several tens of thousands of euros, the hiring of a compliance manager and an annual audit of the business costing around 20,000 euros a year, the bill can quickly climb.
This is still much less restrictive than a PSAN registration, which is imposed on platforms offering the purchase-sale of cryptos to the public...
On paper yes, because there will be no need for an official stamp on a game to exercise. But on the other hand, there is nothing to say that the absence of prior validation by the regulator will not prevent it from imposing sanctions after 6 months.
Is France expected at European level?
Yes, we are regularly contacted by foreign lawyers who want to know what is going to happen in France. You might wonder why the English haven't taken the lead on this, where gambling has historically been highly developed, but they were very affected by the Football Index scandal, which allowed people to invest in football players and earn money based on their performance. This had nothing to do with Sorare's mechanisms, but some people probably saw similarities, hence a certain caution on the subject.