The Council of State rejected the appeal of a licensee for the collection of sports bets on line on horse racing and sporting events operating through its own network of gaming outlets located throughout the Apulian territory against the provision with which the Customs and Monopolies Agency had declared it "the authorization title limited to the XXXX sports gaming point has lapsed, to have "permitted, in violation of the specific commitments undertaken with the signing of the access agreement, for the illegal collection of bets to take place within one of its gaming points, in contrast with the provisions of law no. 401/89”, noting that the point did not collect bets on behalf of the company starting from 14 July 2015 and, therefore, for a period well in excess of the 90 days provided for in Article 4, point 7, of the agreement.
For the Council of State "The licensee is required to guarantee continuity of service at the individual sports gaming point of sale. The interruption of the service for a period of time exceeding 30 days, even non-continuously in the calendar year for sports gaming shops, or exceeding 90 days, even non-continuously in the calendar year for sports gaming points, determines the forfeiture of the right".
In particular, from the set of documents in the case it appears proven the violation by the appellant of the duty to supervise the collection of game in ways other than those authorized, as well as on the ban on intermediation in the collection of remote gaming, which cannot be attributed solely to the managers of the premises, who were in any case connected to the telematic systems and could only receive bets because they were connected to those terminals. There is an obligation for the concessionaire, in light of the provisions of the agreement ancillary to the concession, to ensure compliance with the prohibitions also by all the operators in its supply chain, determining full responsibility for the conduct of such subjects, not configurable as an objective liability or for the actions of others, but rather, in light of the aforementioned regulations, as a liability characterized by the profile of the personality deriving from the direct obligations of supervision and control
Furthermore, what was stated by the first Judge regarding the alleged illegitimacy of the sales point regularization acts is acceptable since the law that introduced the fiscal regularization by emergence and the implementing acts thereof do not prevent the regularization of collection centers that are already active as collection points of a dealer, placing for this purpose the sole condition that the collection of bets took place from 30 October 2014 for a bookmaker without a qualification. In this sense, the aim pursued by the Legislator of bringing the greatest possible number of subjects within the scope of legal gaming appears, in fact, to have been achieved even in the case in which it is permitted, as in the present case, to bring illegal phenomena to light, consisting of the illegal collection of bets in premises where a State concession was also active, which until then had not emerged also due to the lack of supervision of the concessionaires, who were in fact required, due to specific contractual obligations, to control their own network.
Likewise, in an agreeable manner, the TAR highlighted that the contested provision was supported by several justifying reasons which were autonomous, logically independent and not contradictory, a circumstance which exempted it from scrutinizing the further complaint formulated in the documents - proposed against the notation, added ad abundantiam by the administration, regarding the disputed violation of the continuity obligations in the collection of bets.
