Islj 2009 3-4 - TMC Asser Instituut

then such a law constitutes a restriction on the freedom of establishment
and the freedom to provide services.
It however said that where national laws impose restrictive measures
on the ability to engage in the collection of bets, such restrictions
must be assessed on a case by case basis in order to determine whether
they are suitable for purposes of achieving the objective(s) invoked by
the member state concerned and whether they do not go beyond what
is necessary in order to achieve these objectives 13 .
The Court reiterated the need to distinguish on one hand, between
the objective of reducing gambling opportunities in so far as games of
chance are permitted, and on the other hand, the objective of combating
crime by making the operators who were active in the gaming
sector subject to control and channelling the activities of betting and
gaming. See Para 52.
In applying this criteria to the case beforehand, the court went on
to find on paragraph 54 of its ruling that “(…) in the present case,
according to the case law of the “Corte suprema di cassazione” ( the
Italian Supreme Court) that the Italian legislature is pursuing a policy of
expanding activity in the betting and gaming sector, with the aim of
increasing tax revenue, and that no justification for the Italian legislation
is to be found in the objectives of limiting the propensity of consumers to
gamble or of curtailing the availability of gambling”
The Court referred to the decision of the Tribunale di Teramo in
cases C-359/04 and C-360/04 which expressly excluded companies
such as the defendants whose individual shareholders could not be
easily identified from the tender licensing process and reiterated on
paragraph 64 that “Articles 43 EC and 49 EC must therefore be interpreted
as precluding national legislation such as that at issue in the main
proceedings, which excludes - and, moreover, continues to exclude - from
the betting and gaming sector operators in the form of companies whose
shares are quoted on the regulated markets”
In relation to the need to obtain police authorisation, the court
stated that member states cannot apply criminal penalties for failure
to complete an administrative formality where such completion has
been refused or rendered impossible by the Member State concerned,
in infringement of Community 14 . It came to the conclusion that the
defendants “had no way of being able to obtain the licences or police
authorisation required under Italian legislation because, contrary to
Community law, Italy makes the grant of police authorisations subject to
possession of a licence and, at the time of the last tender procedure in the
case which is the subject of the main proceedings, had refused to award
licences to companies quoted on the regulated markets. In consequence,
Italy cannot apply criminal penalties to persons such as the defendants in
the main proceedings for pursuing the organised activity of collecting bets
without a licence or a police authorisation” 15
The precedent issued by this court was to the effect that:
Articles 43 EC and 49 EC had to be interpreted as precluding
national legislation which excludes - and, moreover, continues to
exclude - from the betting and gaming sector operators in the form
of companies whose shares are quoted on the regulated markets.
Articles 43 EC and 49 EC preclude national legislation, which impose
criminal penalties on persons such for pursuing the organised activity
of collecting bets without a licence or a police authorisation as
required under the national legislation, where such persons were
unable to obtain licences or authorisations because that Member
State, in breach of Community law, refused to grant licences or
authorisations to them.
a particular type of betting. This grant feature relates to sports events
and other different games, such as numbers-based games.
This system, together with the limitations and restrictions coming
from the criminal legislation (Act n. 401/1989) ensured that state
monopoly on betting games was maintained until the ECJ decided to
intervene. In order to observe and respect the European Community
law as well as the ECJ case law, the grant system was amended in
detail in 2006.
The legal relationships between AAMS and the society or party
receiving the grant then became defined in depth in Act D.L. No.
223/2006, called the “Decreto Bersani). Under this Act, the parties
(AAMS and the private society) are specifically required to stipulate a
legal model contract, wherein the rights and obligations between
them. are established. The new “grant system” is characterised by:
More betting agencies; less obligations and overall restrictions on
who can organise and manage the betting games; less control and
involvement from the State. 17 .
Finally, we can say that the new granting system is directed to
observe, respect and implement the European needs and solutions 18 as
put forward in the “Gambelli” and “Placanica” rulings.
4.1. The New rules on the “granting system”
The introduction of the “new granting system” in 2006 has not solved
all the legal problems Italy faces with the European Court of Justices´
decisions on betting. The D.L. No. 149/2008 contains rules aimed at
implementing the statements and decisions from the ECJ. In particular,
it:
Maintains the same concession for the game called “Lotto”;
Establishes the procedural and economic rules for the selection of the
new granter of betting on horse races; Creates a money fund for
CONI and UNIRE in order to improve the quality and health of
competitors., and establishes contractual and economic rules for the
granting of betting machines such as video pokers etc.
5. The Administrative autonomy of the State - AAMS
The Administrative autonomy of the State - AAMS - manages the
activities related to the regulation and control of the entire gaming
market. AAMS was gradually assigned these functions of control as
legislation in this sector continued to develop. At the same time, the
AAMS carried on maintaining some of its more traditional responsibilities
in the tobacco manufacturing sector 19 .
The participation of the Italian Government in both the gaming
and tobacco manufacturing sectors played a big rile in maintaining a
balance between the collection of tax revenues and the safeguarding of
other important activities of public interest like consumer protection
and the fight against illegal gaming. Through its role in promoting
business cooperation’s and networking, AAMS has managed to create
a significant pool of wealth and employment. in Italy as a whole.
The key role played by AAM in the gaming sphere involves the
drafting of guidelines for purposes of ensuring the dynamic and
rational development of the gaming. It also ensures that all the concessions
licensed by it act in accordance with the rules and regulations.
AAMS continues to compare and contrast up and coming illegal
gaming practices in today’s world, and takes foresees the maximum
collection of revenues collected by the Government in this sector.
AAMS is in charge of collecting tax and excise duties in the tobacco
industry, whose distribution, tariff and retail price it regulates. In
addition to this, the AAMS carries out frequent operations to detect
4. History and features of the Italian “Granting System”
The expression “granting system” means the system through which
the AAMS grants third parties the licence to control activities and
purposes related to betting on sports event or not.
The granting system was initiated in 1948 16 , and has over the years,
undergone several amendments and modifications. The main important
feature of the system regards AAMS and its functional purposes.
AAMS can in particular sub- lease the licence to a third party, or a private
society, thereby enabling this 3td party to exercise and control of
13 Paragraph 49 of the decision.
14 Reference was made to Case 5/83 Rienks
[1983] ECR 4233, paragraphs 10 and 11.
15 See paragraph 70 of the decision.
16 Before the institution of the « granting
system » the Italian State managed all
the betting games as a monopolist.
17 See A. Corrado, Commento alla sentenza
Gambelli, in Guida al diritto, 2003,
97.
18 In that direction G.M. Ruotolo, Il
regime italiano del gambling all’esame
della Corte di Giustizia: rien ne va plus?,
in Diritto pubblico comparato ed
europeo, 2007, 1399.
19 The relevant information and data concerning
the AAMS as reported in the
present articles has been taken from the
AAMS website, www.aams.it (visited on
11 February 2009).
A RT I C L E S
2009/3-4 95