Islj 2009 3-4 - TMC Asser Instituut

Eurobets International Sports Betting S.A. (hereinafter, “the company”),
filed a judicial review against the Resolution dated 9th May
1997, of the Sub-secretariat of the Ministry of Finance and Taxation,
rejecting its previous appeal against ONLAE’s Resolution dated 3rd
January 1997, which denied authorisation “for the exercise of the activity
of national and international betting brokerage on sporting competitions.”
The basis for the case is that in 1996 the company filed 3 requests
for authorisation to open 3 betting brokers dealing with all types of
sporting competitions “through any of the existing forms of communication,”
including data transmission, with a nationwide scope (two of
the requests related to the Autonomous Communities of Madrid and
Aragón, but with nationwide scope). These 3 requests were rejected by
the ONLAE. This decision was subsequently ratified by the Ministry
of Finance and Taxation, as stated above.
The judicial review was resolved by the Madrid High Court of
Justice (Section 8 of the Administrative Disputes Chamber) in
Decision number 266/2000, dated 16th March of this year. In its resolution,
the Court rejected the company’s appeal, stating that:
• As a brokerage with nationwide scope was requested, “the public
body with jurisdiction to decide whether to authorise the request is the
ONLAE” and not the Interior Ministry or the Autonomous
Communities of Aragon and Madrid.
• The resolutions that reject the request for authorisation to exploit
the business of sports betting do not infringe the right of free enterprise
proclaimed in article 38 of the Spanish Constitution, as “the
Administration has ruled against the wishes of the applicant because
this is permitted by the national legislation applicable to this area,
which is the exclusive jurisdiction of the State.”
A.2. Judicial Review number 579/1997, filed by the company EURO-
BETS INTERNATIONAL SPORTS BETTING, S.A. against the
refusal of authorisation for the exercise of its activity.
In this case, the company filed a judicial review against the resolution
of the Ministry of Finance and Taxation of the Balearic
Government, dated 7th April 1997, which also rejected the request for
an authorisation “to establish a national betting broker dealing with all
types of sporting competitions through any of the existing forms of communication
(fax, computer, telephone, post, etc.) either directly or through
the different centres that offer the Data Transmission service throughout
national territory.” These bets were intended to be made between private
individuals regarding the results of all types of sporting events,
both within the country and in the rest of the world.
The judicial review was ruled by the Balearic Islands High Court
of Justice (Administrative Disputes Chamber, Sole Section) by virtue
of its Decision number 365/2000, dated 15th May of such year. In its
resolution, the Court rejected the company’s appeal, stating that:
• The request formulated by the company trespass the territorial limitation
to the jurisdiction of the Autonomous Community of the
Balearic Islands (and any other Autonomous Community, as it
requests authorisation with nationwide scope).
• Furthermore, the Royal Decree that regulates the transfer of jurisdiction
to the Autonomous Community of the Balearic Islands
expressly declares that the following shall continue to fall within
the jurisdiction of the State Government: (i) Charitable Sports
Pari-Mutuel Betting, national lotteries and gambling on a statewide
level and (ii) the authorisation and inscription of companies
operating on a state-wide level; and therefore the Autonomous
Community does not have jurisdiction in this area.
• The jurisdiction to resolve this request is held by the ONLAE.
• The resolution appealed against does not contravene the right of
free enterprise because “the business activity of exploitation of gambling
is subject to a legal framework involving limitations and a level
of government intervention envisaged by law and therefore the prior
requirement for licenses and authorisations does not eliminate or alter
the principle of free enterprise, but rather adapts it to the particular
characteristics of this activity.” Furthermore, the Court “considers
that there is no need to obtain the verdict of the Luxembourg Court of
Justice.
A.3. Judicial Review number 4593/1997, filed by the company EURO-
BETS INTERNATIONAL SPORTS BETTING, S.A. following refusal
of authorisation for the exercise of its activity.
On this occasion the company filed a judicial review against the
Resolution by the General Bureau for Home Affairs of the
Department of Justice of the Government of Galicia, dated 8th
January 1997, refusing its request for administrative authorisation
(presented on 22nd November 1996) to carry out the activity of
national and international brokerage, in the terms stated in the preceding
sections A.1 and A.2.
The judicial review was ruled by the Galician High Court of Justice
(Administrative Disputes Chamber, Section 2), by virtue of its
Decision number 1368/2000, pronounced on 2nd November of this
year. In its resolution, the Court rejected the company’s appeal, stating
that:
• In order to grant the corresponding administrative authorisation,
Autonomous Community Law 14/1985, regulating gambling and
betting in Galicia, demands that the type of bet or game is included
in the Autonomous Community’s catalogue of games (which is
approved by Decree). This catalogue of games shall specify, for each
game or bet, the names, types, items necessary, rules, conditions
and prohibitions and the corresponding technical regulations.
• Therefore, taking into account the terms of the request formulated
by the company, “it is not possible to grant authorisation for a type of
gambling or betting in the absence of the technical regulations necessary
for its conduction and practice,” as is the case here.
B. Regarding the application of the aforementioned Organic Law
12/1995, dated 12th December, regarding The Repression of Smuggling.
B.1. Decision number 81/1999, dated 29th September, of the Provincial
Court of Cuenca (Sole Section)
The Resolution accepted the appeal filed by the ONCE against the
Resolution of the Court of First Instance, which rejected a claim
made by this organisation against the association called Organización
Impulsora de discapacitados (OID), which carried out the production
and sale of tickets to participate in a daily draw, giving prizes to holders
of tickets that coincided with the results of the ONCE’s draw.
The Provincial Court declared that there was sufficient evidence to
believe that the events reported were illegal and therefore ordered continuation
of criminal proceedings. This was based on the following:
• Article 2d) of the Law for the repression of smuggling applies
penalties to anyone that operates with forbidden items (including
unauthorised gambling).
• The Constitutional Court has declared on several occasions “that
the modalities of lotteries with a nationwide scope, due to their status
as a state monopoly, are an ordinary resource of the state budget which
therefore makes them part of the General Tax Department and the
exclusive jurisdiction of the Central Government.”
• The State is responsible for the management and exploitation within
the whole of the national territory of the National Lottery
Monopoly, which includes any other games of chance related to it.
• This state monopoly is managed by ONLAE.
Therefore, without making a definitive judgement regarding the matter
(due to the procedural phase during which the aforementioned
resolution was issued), the Court considered that there was enough
evidence to believe that the activity of the OID was not authorised
and, this being the case, the tickets that OID marketed were a restricted
item (that the Smuggling Repression Law defines as “articles, products
or substances whose production, purchase, distribution or any other
activity is allocated by Law to the State”), so it were forbidden.
B.2. Decision number 403/2005, dated 24th June, issued by the Provincial
Court of Granada (Section 1).
This decision resolved an appeal filed by the Public Prosecutor and
the accused parties against a decision issued by Granada Criminal Court
number 5, by virtue of which certain representatives of the Andalusian
Association for Disabled People (Federación Andaluza de Minusválidos,
FAMA) were sentenced “as the authors of a smuggling offence relating to
A RT I C L E S
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