The first instance ends with the Sentence of 31 March 2024 of the long-standing legal case started by a player who, wanting to collect the gaming account balance equal to from her dealer approximately EUR 30.000, after the disappearance of the dealer himself, he discovered that the guarantee issued was fake. The same player, with the assistance of Studio degli lawyers Marco and Riccardo Ripamonti of the Viterbo Court, had therefore turned to ADM, which in its opinion was responsible for not having noticed the falsity of the guarantee and, therefore, required to answer for it.
Upon refusal by the Monopolies, it was obtained by player an injunction, against which ADM however advanced opposition, with the patronage of the State Attorney's Office. Hence the cause. The reason obtained by the player was twofold, who in court successfully argued both the lateness of the State Attorney's opposition and the unfoundedness of the merits of ADM's arguments, which persisted in maintaining that it was not required to compensate anything.
The tenor of the ruling is very significant, given that the Court did not want to stop at the sole preliminary question of lateness, believing it also had to rule on the merits. The Judgment on this point is thus:
<Nonostante le superiori ed assorbenti argomentazioni che renderebbero superflua l’indagine del merito della vicenda, tuttavia, si osserva quanto segue. In the present case, the credit activated by monitoring arises from a balance of a gaming account established on the portal of the concessionaire amount is expressed and payable as it is not subject to terms or conditions. On the other hand, today's opponent itself, with its letter dated 14.6.2021 (See doc.12 attached to the file of the monitoring phase), activated the procedure at Banca BPER spa aimed at the enforcement of the guarantee previously given by the credit institution guaranteeing the dealer, which later turned out to be false. The matter in question originates from the fact that Mrs yyy was the owner of a "gaming account" established at the concessionaire xxxx, holder of concession no. zzz for remote gaming collection. Mrs. request for transfer, in your favor, of the entire remaining balance. However, the requests and warnings that yyy had addressed to the dealer had no effect. For this reason, on the basis of the credit, yyy obtained from the Court of Campobasso, on 11.11.2020, the issue of injunction decree no. 415/2020 against the company xxx, for the payment of the aforementioned sum, plus interest from the application to the actual balance, expenses and fees of the procedure. The injunction was notified on 20.11.2020, by certified email, at the Italian operational headquarters of company xxx, and was also provided with an executive formula on 15.01.2021. Subsequently, Mrs yyy carried out a movable seizure at the official Italian headquarters of xxx, but the attempt failed as the dealer, the seized debtor, was found to be untraceable. Therefore, since the attempt to recover the credit from the dealer had failed, yyy addressed its requests to the Customs and Monopolies Agency (...), warning them to pay the sum corresponding to the credit itself. This was followed by the letter from the Customs and Monopolies Agency dated 14.06.2021 with which it requested BPER spa to enforce the bank guarantee no. 053874932/1263/20 of 13 July 2020 (..), allegedly provided by BPER Banca SpA in the interest of xxx. However, the guarantee, later found to be false, had been issued pursuant to art. 15 of the agreement for the concession relationship relating to the operation of public games (signed pursuant to art. 24, paragraph 13, lett. To the. 88/2009), which requires the Concessionaire to provide a guarantee also in the form of a bank or insurance guarantee, precisely with the aim of ensuring "the correct execution of the activities and functions entrusted under concession, as well as the fulfillment of all obligations in comparisons of the players by the concessionaire". it follows that the burden of verifying the correct and authentic issuance falls on the Customs and Monopolies Agency, the control of which, both ex ante and ex post, is, in this case, completely omitted. For this reason, the aforementioned conduct falls within the scope of liability pursuant to art. 2049 cc invoked by the opposing party. And in fact, the SC, which intervened in a case similar to the one in question, with ruling no. 4026 of 20/02/2018 (Rv. 647950 - 01), established the principle according to which the power of "supervision" and "control" held by the Customs and Monopolies Agency: "brings with it, within the scope of the granting of public service, the existence of a relationship capable of establishing responsibility pursuant to art. 2049″. As known in jurisprudence, within the scope of the responsibility referred to in art. 2049 code. civil regardless of the existence or otherwise of a contribution in the production of the harmful fact, a "joint and joint responsibility" is established - towards the injured party - of the owner and the clerk, even where only one of them is the author of the damage (without prejudice, obviously, the right of recourse). (Cass., Section 3, Sentence no. 16512 of 05/07/2017). Therefore, the SC in cases similar to the one we are dealing with has, agreeably, identified a liability pursuant to art. 2049 of the Civil Code for the Administration, for illicit acts committed by authorized concessionaires. On the other hand, there is no doubt that the omissive conduct of the Customs and Monopolies Agency causally contributed to the materialization of the damage, not having adequately monitored the behavior of the Concessionaire. While the opposite party, in establishing a "gaming account", relied on the legal gaming system, trusting in its reliability, especially in terms of constant control and supervision.. The Court specified that: "the responsibility of the owners and clients" referred to in the art. 2049 cc, "is recognizable in the supervisory and control power of the principal such as to influence the conduct of the principal". According to the reasoning of the SC, shared by the writer of the present document, "in the concession of the management of online gaming, the Agency has a supervisory and control power" over the concessionaires and that this assumption is sufficient to bring the case back into the riverbed referred to in the art. 2049 cc On the basis of the preceding arguments, the opposition is unfounded and does not deserve acceptance. The costs follow the defeat>.
The lawyer Marco Ripamonti was very satisfied and expressed himself as follows: "A sentence that is not only impeccable in law, but of great civility within the gaming sector, which enhances and gives credit to the "legal gaming system". Who doesn't remember, after all, the reassuring image of the helm, an icon of the games management admirably managed by ADM, whose value is not affected in the slightest by this certainly regrettable affair. And it is this "safe game" system that has prevailed in our case, with the consequence that my unfortunate client will now be able to consider herself satisfied for having bet on "right package", that is, on this system and not on opaque and illegal gaming circuits, even if it should not be forgotten that several cross-border operators have been unfairly discriminated against for the purposes of free and legitimate access to the concession system. I am now certain that ADM, in consideration of the clear and clear ruling, will finally and with enthusiasm proceed to compensation in favor of my client, rewarding those who have, with conviction, relied on the legal and safe gaming system. A system that is not always understood and in which paradoxes often occur, such as the refusal of many credit institutions to have legal gambling operators among their customers as if they were outcasts or similar situations."
