Islj 2009 3-4 - TMC Asser Instituut

which includes the state monopoly as a historically defined institution,
and therefore the State Government is responsible for the management
and exploitation of the Lottery in the whole of the national territory.
This determines, in turn, by virtue of the aforementioned monopoly
system regarding this game of chance, the prohibition of lotteries,
draws, raffles, betting and other similar games without the authorisation
of the State Government [...]
This is why we stated that, in accordance with article 149.1.14 of the
Spanish Constitution, the State is responsible “due to its consideration
as a source of state Tax Authority, for the management of the National
Lottery Monopoly and the power to organise lotteries with a national
scope,” as well as “as far as they imply a derogation of the monopoly
established in favour of the State, to grant concessions or administrative
authorisations for the holding of draws, lotteries, raffles, betting
and random combinations only when their scope covers the whole of
the State’s territory” (SSTC 163/1994, point 8 of the legal grounds); and
216/1994, point 2 of the legal grounds).”
The foregoing means that this jurisdiction regarding gambling is
shared with each of the Spanish Autonomous Communities that,
except Ceuta and Melilla, have exclusively assumed, in their Statutes
of Autonomy, jurisdiction for gambling 29 in their territory. Further -
more, the relationship between State regulations and Autonomous
Community regulations, in this case, is based on the principle of regulatory
jurisdiction rather than regulatory hierarchy, which means
that the regulations of the State do not prevail over those of the
Autonomous Communities and each are only valid within their area
of application.
Therefore, the State has jurisdiction regarding gambling and betting
when these exceed the territorial scope of an Autonomous Community or
when these have a national scope, and the Autonomous Communities
have exclusive jurisdiction regarding gambling and betting when its
scope is limited to their territory (excluding charitable sports parimutuel
betting, as they do not have jurisdiction on it).
Up to this date, of the 17 Autonomous Communities that make up
Spain, only two of them (the Autonomous Community of Madrid
and the Autonomous Community of the Basque Country) have
expressly regulated the activity of the so-called “betting establishments.”
This regulation is that contained in Decree 106/2006, dated
30th November, approving the Regulation of Betting in the Community
of Madrid and Decree 95/2005, dated 19th April, approving the
Regulation of Betting in the Autonomous Community of Euskadi, respectively.
By way of summary:
B.1. The regulations of the Community of Madrid:
1. Regulate, within the territory of the Autonomous Community,
“bets on sporting events, competitions or other previously determined
events.”
2. Grant the corresponding autonomous body the power to “authorise
the organisation and marketing of betting, as well as betting establishments
and areas.”
3. Ban the participation of minors, the participations of those for
whom a prohibition from accessing games has been applied for, as
well as the participation of professional sportsmen and women and
trainers (to avoid sport-related fraud), managers and staff of betting
establishments, directors of the entities participating in the event
that is the object of the bets, referees and judges involved in the
competition, etc...
29 For example, article 9.32 of the Statute
of Autonomy of Catalonia approved in
1979 established its exclusive jurisdiction
with regard to “Casinos, gambling and
betting, excluding Charitable Sports Pari-
Mutuel Betting.” In turn, the new
Statute of Autonomy of Catalonia
approved in 2006 states, in its article
141.1, that “The Autonomous
Government of Catalonia has exclusive
jurisdiction regarding gambling, betting
and casinos, if the activity is carried out
exclusively in Catalonia, including,”
among others powers, “the creation and
authorisation of gambling and betting, as
well as its re gulation.”
30 One of main criticisms of these regulations
is that it is technically very difficult,
if not impossible, to fulfil this
requirement.
4. Require that companies that wish to obtain authorisation to organise
and market betting must fulfil the requirements of the Decree
(among others, have Spanish nationality or that of any of the member
states of the EU, have a tax address in the Community of
Madrid, provide a deposit of 12 million Euro, etc...
5. With regard to the remote provision of these services, it is stated
that providers of this service must have a secure computer system
for the organisation and marketing of bets that is capable of ensuring
that the terms of this Decree are respected. I.e. among other
things, they must guarantee that bets are not placed outside the territory
of the Community of Madrid 30 .
B.2. Regulations of the Autonomous Community of Euskadi:
1. Aim to regulate, within the territory of the Autonomous
Community, bets on the events included in the catalogue attached
to the regulations.
2. Include prohibitions on betting that are similar to those described
in the preceding section a).
3. Prohibit bets that are made without authorisation or based on
events that are not included in the catalogue attached to the regulations.
4. State that the adjudication of authorisations shall be carried out by
public tender.
5. State that the awardees of the tender must have a share capital of at
least 1 million Euros, be from a country that is a member of the
EU, have their registered address in the Autonomous Community
of the Basque Country, etc... Furthermore, the awardees must provide
a guarantee of 500,000 Euro.
6. The authorisations shall be granted for a period of 10 years.
It can be seen that both Decrees regulate the activity of betting in a
very similar way. Perhaps the most noticeable difference is the fact
that the Community of Madrid’s regulations are based on the principle
of free competition whilst the Basque Country’s regulations are
based on administrative concession with a limited number of licenses
(during the first public tender, held on 2nd May 2007, only 3 licenses
were granted).
According to the AEDAPI, so far in Madrid the first companies to
open betting establishments have been Victoria (owned by Codere
and William Hill), Sportium (Cirsa and Ladbrokes), Intralot Iberia
and W1nners (an Alliance between Bwin and Betbull). For its part, in
the Basque Country, the companies that have obtained a license have
been Victoria (Codere, William Hill and Gabascar), Reta (made up of
Basque gambling operators) and Kiroljokoa (also made up of Basque
operators, linked to the Basque Ball game).
It seems fair to say that these disorganised Autonomous Commu -
nity regulations will never be enough to regulate the betting sector in
Spain and, in any event, they will limit the growth of the sector, preventing
it from equally competing with foreign markets. Now that we
live in a “Global Village”, as famously expressed by McLuhan, it is
absurd to consider regulation that divide the sector by Autonomous
Communities, in which a single operator cannot operate in the whole
of the country unless it obtains authorisations from each of the 17
Autonomous Communities. The truth is that this does not look like
a very logical or efficient solution.
VI.- Examples of Case Law
In contrast to the situation in other countries, it could be said that in
Spain there have not been any large legal disputes regarding sports
betting. Perhaps this is due to the regulatory situation described and
the reduced flexibility of the Spanish system. However, pursuant to
the content of this work, it might be useful to highlight the following
cases (some are related to gambling in general rather than sports betting),
which confirm the regulatory situation described above:
A. Regarding requests for authorisation to exploit sports betting made
by some private operators in Spain.
A.1. Judicial Review number 1183/1997, filed by the company EUROBETS
INTERNATIONAL SPORTS BETTING S.A. against the refusal of
authorisation for the exercise of its activity.
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