Islj 2009 3-4 - TMC Asser Instituut

estricted items” and, together with other pronouncements, ordered to
pay “a fine of 2,620,296,000 million pesetas (15,748,296.13 Euros) each.
Basically, the events judged (and proven) consisted in that, between
the months of March 1992 and September 1993, the aforementioned
association FAMA sold coupons of the so-called “cupón del minusválido
31 ” (disabled person’s coupon), which consisted in handing over cash
prizes to the holder of the winning ticket in combination with the
draw of the ONCE’s coupon.
By virtue of its Decision, the Court confirmed the Decision of the
Court of First Instance, declaring (among other pronouncements)
that:
• “The conduct attributed to the accused is the marketing of tickets for
lottery draws without any authorisation and with full knowledge of the
illegal nature of this activity.”
• “These tickets are restricted items in accordance with the Organic Law
regarding the Repression of Smuggling.”
• “The issue and sale of lottery tickets, draws and all activities related to
them are a state monopoly and, therefore, their marketing without
legal authorisation constitutes the criminal offence examined.”
• “The Lottery business is a state monopoly and the regulation that, consequentially,
prohibits the activities carried out by the accused does not
contravene the Treaty of Rome dated 25/03/1957 or the EU Treaty of
1992.”
• In the Decision of the ECJ dated 24/03/1994 (the Schindler case) it
is declared that “the establishment of prohibitions or restrictions to the
free provision of this service is compatible with the aforementioned
article 59 of the Treaty.”
• “The exclusivity of the game in the hands of the Tax Department determines
the prohibition of the sale of foreign lottery tickets.”
For all these reasons the Court confirmed the previous decision issued
by the Court of First Instance.
VII.- Conclusions
Many voices have been raised in favour of a state-wide legislative solution
that regulates the gambling sector in its entirety, enabling those
that are interested in exploiting this type of activity to compete equally
(which means, among other things, ending LAE’s monopoly) and
carry out their activity in the whole of the State. Ultimately, from the
government’s point of view, we understand that the real problem is
not so much the terms in which betting activity should be regulated
on a national level but rather the form in which the taxes resulting
from this activity would be distributed between each of the
Autonomous Communities and the State.
Up to this date, none of these initiatives has resulted in a Law regulating
the sector. In fact, despite the fact that in 1999 the Gambling
Sector Conference 32 was created, whose functions include serving as a
channel for co-operation and communication between the public
authorities with jurisdiction over gambling and proposing the adoption
of certain common criteria for action… the fact is that since its
creation ten years ago, the Gambling Sector Conference has only met
once, on the day of its creation… This exemplifies the regulatory situation
that exists today in Spain regarding sports betting.
However, this situation looks like it is about to change given that,
apart from the government mandate contained in the aforementioned
Additional Provision 20 of Law 56/2007, various bodies with political
power within the State have started to promote initiatives to achieve
this regulation. In fact, on 23rd December 2008, the PP Parliamentary
Group in Congress presented a Non-Legislative Motion 33 regarding
interactive gambling for debate during the Session. According to this
Non-Legislative Motion:
“1.Additional Provision 20 of Law 56/2007, dated 28th December,
regarding Measures for Promoting the Information Society, mandated
the government to prepare and present to Parliament a Project of
Law regulating gambling and betting activities, in particular those
carried out by means of interactive systems based on electronic communications.
2. The basic principles of this Project of Law were agreed by all of the
parliamentary groups, which voted unanimously in favour of the
transactional amendment to this Law.
3. Given the time that has passed since the approval of this Law (now
almost a year) without the Government having fulfilled this mandate
and the fact that it is not just useful, but rather absolutely
urgent to have a new regulatory framework regarding gambling and
betting activities carried out by means of interactive systems, it is
necessary to insist that new legislation should be proposed establishing
the basic principles for regulating a situation that exists without
any type of administrative control, without any tax being paid on
the earnings made and, even more seriously, without guarantees
regarding the protection of users in general and those that most
require protection in particular, such as minors.
Because of this, the PP Parliamentary Group in Congress presents the
following Non-Legislative Motion for debate during the Session:
The Congress of Deputies urges the Government, within a period of three
months, to submit to the General Courts a Project of Law regarding
interactive gambling, based on the provisions of Additional Provision 20
of Law 56/2007, dated 28th December, regarding Measures for Promo -
ting the Information Society.”
This is why it does not appear unreasonable to think that, within a
reasonable period of time, the government shall begin the corresponding
procedures for the promulgation of a Law that, in accordance
with the reiterated Additional Provision 20 of Law 56/2007, regulates
and establishes the regulatory framework for the conduction, on a
national scale, of sports betting, either in its traditional form (at
premises prepared for this purpose) or using new technologies via
online betting establishments. We will see if time proves us right. Alea
iacta est.
31 Clearly intending to make people confuse
it with the ONCE’s coupon called
“pro-ciegos”.
32 Created on 5th May 1999, according to
the Resolution dated 24th June 1999, of
the Technical General Secretariat of the
Interior Ministry.
33 www.congreso.es/portal/page/portal/
Congreso/PopUpCGI?CMD=VERLST&
BASE=puw9&DOCS=1-1&
DOCORDER=LIFO&QUERY=
%28CDD200902020139.CODI.%29#
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