THE Court of Naples has taken note of the self-defence annulment of the order injunction to pay a fine to an amusement arcade for violation of the provisions of the Balduzzi Law. The case concerned the opposition against the injunction order of 02.09.2021 against the owner of a games room and a renter of equipment to pay, jointly and severally, €50.000,00, as a consequent administrative sanction to the violation of the art. 7, paragraph 5, of Legislative Decree 158 of 13/9/2012, converted, with amendments, by law no. 189 of 08/11/2012, as at the entrance and inside the commercial establishment, an establishment where bet collection was practiced, the information material prepared by the local health unit was not displayed to the public.
The main reason for opposition relies on the declaration of unconstitutionality of the law applied. In fact, the obligations imposed by the art. 7, paragraph 5, of Legislative Decree 158 of 2012 were sanctioned by the second sentence of the subsequent paragraph 6, which was formulated as follows: "of the provisions referred to in paragraph 5 is punished with a pecuniary administrative sanction equal to fifty thousand euros imposed on the dealer; for the violations referred to in paragraph 5, relating to the devices referred to in the aforementioned article 110, paragraph 6, letters a) and b), the same sanction applies only to the owner of the room or game collection point; for violations in points of sale where the offering of betting is carried out as the main activity, the sanction applies to the owner of the point of sale, if different from the concessionaire".
Well, the aforementioned period was declared unconstitutional with sentence of the Constitutional Court n. 185 of 23.09.2021, which occurred after notification of the injunction order and pending the filing of the appeal.
The Court found that the retroactive effect of the ruling of unconstitutionality prevents the provision from being applied to the specific case at issue. Instead, it took the aforementioned annulment in self-defense and declared the matter of dispute to be over.
Since the declaration of unconstitutionality occurred after notification of the injunction order, the conditions for compensation of litigation costs exist (see Constitutional Court ruling 19/04/2018, no. 77).
To the foregoing it should be added that the other reasons for opposition would not have been accepted, as: – although it is true that paragraph 5 of the art. 7 of Legislative Decree 158 of 2012 does not provide that the information material must be posted, but simply displayed, it is equally true that the said material was only present inside the premises (placed "on the terminal operator's counter/partition", see service report, appellant doc. 3) and not upon entry; – the closure of the business on the previous day, in order to paint the walls, does not exclude the guilt of the perpetrator of the offence, who should have displayed the notices again at the entrance to the premises when reopening to the public.
