Islj 2009 3-4 - TMC Asser Instituut

in Spain over the Internet or anyone that advertises them (we shall be
aware, for example, that even some of the most important football
clubs in the League Championship advertise these betting establishments),
which perhaps demonstrates the possible voluntary ingenuity
of the Spanish legislator when regulating this activity.
A.4. The “mandate” to the Government contained in the Law on
Measures to Promote the Information Society.
In these circumstances, taking advantage of a legislative reform to
promote the so-called Information Society, the legislator stated that
the government should formulate a Law to regulate gambling and
betting activities in Spain, particularly those carried out over the
Internet. Realistically, this is not exactly a mandate but rather a
desideratum or a reminder by the legislator to the government to regulate
and update the regulations regarding gambling and betting
(because so far no Law has been promulgated regarding this matter
and no project has been drawn up for this purpose).
In this sense, by means of the Additional Provision 20 (entitled
“Regulation of gambling”) of Law 56/2007, dated 28th December,
regarding Measures for Promoting the Information Society, it is stated
that:
“The Government should present a Project of Law to regulate gambling
and betting activities, in particular those carried out by means of
interactive systems based on electronic communications, which should
be based on the following principles:
1. It should ensure the compatibility of the new regulations with the
legislation applicable to other areas linked to the provision of this
type of services, and, in particular, the regulations for the protection
of minors, young people, groups of users that are particularly sensitive
as well as consumers in general, apart from the area of personal
data protection and services of the Information Society.
2. It should establish regulations regarding the exploitation of gambling
activities by interactive systems in accordance with the principles
of general European Union law.
3. It should create a system for the control of gambling and betting
services via interactive systems that guarantees market conditions
that are fully safe and fair for the operators of these systems and that
provide an adequate level of protection to users. In particular, it
should regulate the activities of those operators that already have
authorisation for the provision of the aforementioned services granted
by the authorities of any of the member States of the European
Union.
4. It should establish a system for the taxing of gambling and betting
services via interactive systems based on the origin of the operations
subject to taxation. The regulation must also envisage a system for
the distribution of taxes collected as a consequence of the exploitation
of gambling and betting services by electronic means in Spain
between the State Government and the Autonomous Communities,
taking into account the special tax system in Special Autonomous
Regions.
5. The activity of gambling and betting though interactive systems
based on electronic communications may only be carried out by
operators authorised to do so by the competent Public Authority, by
means of the granting of an authorisation following fulfilment of the
conditions and requirements established. Anyone that does not have
this authorisation may not carry out any activity related to interactive
gambling and betting. In particular, the necessary measures
should be taken to prevent the conduction of advertising by any
means and to prohibit the use of any method of payment existing in
Spain. Furthermore, the penalties envisaged in legislation regarding
the repression of smuggling should be applied to any gambling and
27 “Areas not expressly attributed to the
State by this Constitution may correspond
to the Autonomous Communities, by
virtue of their respective Statutes.
Jurisdiction over areas that have not been
assumed in the Statutes of Autonomy
shall correspond to the State, whose regulations
shall prevail, in the event of discrepancies,
over those of the Autonomous
Communities regarding any matters over
which they do not have exclusive jurisdiction.
State law shall be, in any event,
complementary to the Law of the
Autonomous Communities.”
28 This refers to the Tax Authorities.
betting activities carried out via interactive systems without the corresponding
authorisation.
6. Jurisdiction for the regulation of gambling and betting activities
carried out via interactive systems shall correspond to the General
State Government when it covers the whole of the national territory
or more than one Autonomous Community.”
That is to say, the wish stated by the legislator is that the future Law
regulating gambling and betting activities:
a) Tends to protect the rights of minors, young people and particularly
sensitive groups such as consumers and users.
b) Incorporates the standards and principles of European Union Law
regarding this matter.
c) Regulates the activity in Spain of operators that have authorisation
from a State in the European Union.
d) Establishes a system of tax collection and distribution and sharing
of these taxes between the State and the Autonomous Commu -
nities.
e) Respects the premise that only those authorised by the competent
authority may operate and that anyone that operates without
authorisation shall be punished in accordance with the regulations
regarding the repression of smuggling (in accordance with the
terms stated previously).
Finally (as stated in other previous regulations), this Provision defines
the area of jurisdiction that corresponds to the State and the
Autonomous Communities. I.e.: when an operator wishes to cover
the territory of more than one Autonomous Community or the whole
of the national territory, the jurisdiction to authorize this activity shall
rest with the General State Government.
B. Autonomous Community Regulations
As stated previously, article 149.1 of the Spanish Constitution (which
specifies the exclusive powers of the State) does not grant the State
exclusive jurisdiction over gambling. This being the case, how is it
possible to justify that in Spain gambling is controlled by a State
monopoly? As recognised by the Spanish Constitutional Court in its
Decision dated 23rd July 1998:
“despite the lack of express mention of Gambling in articles 148.1 and
149.1 of the Spanish Constitution in the Statutes of Autonomy, the constitutional
system of powers has attributed this area to the Autonomous
Communities [...]. Therefore, in accordance with article 149.3 of the
Spanish Constitution 27 and given that in article 149.1 the State does
not expressly reserve this matter, it may be stated that “the Autonomous
Government of Catalonia, in accordance with article 9.32 EAC, has
exclusive jurisdiction over casinos, gambling and betting, except
Charitable Sports Pari-Mutuel Betting (STC 52/1988, point 4 of the
legal grounds) and this includes jurisdiction over the organisation and
authorisation of gambling in the territory of the Autonomous Commu -
nity” (SSTC 163/1994, point 3 of the legal grounds and 164/1994, point
4 of the legal grounds), in this territory but not, obviously, that of any
game in the whole of the national territory given that article 25.1 of the
Statute of Autonomy limits the area in which it may exercise its powers
to the territory of the Autonomous Community. Furthermore, neither
the silence of article 149.1 of the Spanish Consti tution regarding
gambling nor the fact that the Statutes of Autonomy, including that of
Catalonia, state that they have exclusive jurisdiction over gambling
and betting can be interpreted as a total revocation of the State’s powers
in this area, as certain activities that other provisions of article 149.1
of the Spanish Constitution attributes to the former 28 are closely linked
to gambling in general, not just that reserved in article 149.1.14 of the
Constitution regarding the management and exploitation of the
National Lottery Monopoly in the whole of the national territory, [...]
In order to determine, therefore, the jurisdiction regarding this matter,
it is useful to remember that [...] “the tax monopoly [...] over the
Lottery extends to all other games of chance that may be related to it
and it assumes jurisdiction to authorise them.” And as “an ordinary
resource of the income budget and State Monopoly”.. it falls within its
jurisdiction by virtue of its control of the General Tax Authorities, [...]
A RT I C L E S
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