The Council of State rejected - through a sentence - the appeal presented by a public gaming company against the Municipality of Bolzano and the Autonomous Province of Bolzano, in which it requested the reform of the sentence of the TRGA, Autonomous Section of Bolzano, n. 226 of 29 June 2023, which had rejected the appeal of the same company against the revocation of the provision with which on 11 June 2013 the CEO of the company had been authorized to manage a "dedicated room" located in Bolzano (...), due to the location of the room at an insufficient distance from sensitive places.
“Therefore – we read in the sentence -, (…) and Mr. (...) have lodged this appeal, articulating the following reasons:
Error in judging. Violation of the law. Lack of motivation. Serious and manifest arbitrariness and injustice. Incorrect evaluation of the instructional elements.
The "radius" criterion envisaged by LP n. 13 of 1992 would translate into a simple measurement in a straight line, but could not be considered a valid criterion for establishing the distances of gaming halls from so-called "sensitive places".
This provision would be affected by unconstitutionality due to violation of articles 3, 41 and 97 of the Constitution, given that, in contradiction with the objectives pursued by the provincial legislator, it would contemplate a virtual and not real criterion, such as that of the shortest pedestrian route, for which would not be able to offer adequate protection to the so-called "weaker groups".
The application of the rule based only on literal data would result in illogical consequences that are not proportionate to the purposes pursued and discriminatory with respect to the different economic activities involved.
Error in judicando for violation of the law and lack of motivation. Violation and false application of Directive 2015/1535/EU. Excess of power due to lack of or incorrect evaluation of the conditions. Excess of power due to lack of investigation.
The first instance sentence would not have entered into the merits of the alleged violation of Directive 98/34/EC, now EU Directive 2015/1535, and would not have addressed the issue relating to the expulsion effect of legal gaming from the Municipality of Bolzano; furthermore, the art. would have been violated. 41 Constitution.
The Municipality of Bolzano analytically counter-argued and concluded for the rejection of the appeal.
At the public hearing on December 14, 2023, the case was held for decision.
2. The appeal is unfounded and must therefore be rejected.
3. The appellants deduced the constitutional illegitimacy, due to violation of articles 3, 41 and 97 of the Constitution, of the art. 5-bis of LP n. 13 of 1992 where it provided for the "radius" criterion to measure the distance of the games room from sensitive places, given that this criterion would lead to a different effective distance, depending on the orographic or artificial obstacles present in the area.
The complaint is both inadmissible and unfounded.
3.1. The appellant party has not provided any proof or principle of proof of the fact that, following another criterion, such as for example the shortest pedestrian route, sensitive places compared to the games room are absent (...), so that there is no concrete interest in censorship and the question of constitutional legitimacy is in itself irrelevant.
3.2. In any case, the complaint is not worthy of acceptance.
3.2.1. The art. 5-bis, paragraph 1, first part, of LP no. 13 of 1992 provides as follows:
"For reasons of protection of certain categories of people and to prevent the vice of gambling, the authorization referred to in article 1, paragraph 2, for the operation of amusement and amusement arcades cannot be granted where the same are located within a radius of 300 meters from schools of any level, youth centers or other institutions frequented mainly by young people or residential or semi-residential facilities operating in the health or social care sector".
It follows that, due to the clear letter of the law, the Administration is required to apply the same following the "radius" measurement criterion and cannot apply other criteria at its discretion.
In other words, the administrative action is partially constrained here.
3.2.2. The question of constitutional legitimacy, as well as being irrelevant, is manifestly unfounded.
The Constitutional Court, in sentence no. 27 of 2019, highlighted, in accordance with previous rulings, the socio-health purposes of regional disciplines containing distance limits from sensitive places, therefore attributable to the matter of "health protection" and underlined that almost all the Regions have adopted provisions aimed at identifying sensitive places, providing minimum distances from them, ranging between 300 and 500 metres, for the location of gaming halls.
Therefore, it falls within the legislative discretion to establish the distance limits, with regard both to the measurement - so much so that the same, from Region to Region, fluctuates in a rather high range - and to the measurement method, with the only limit of reasonableness which, in this case, it is certainly respected, as the measurement criterion of the "radius" constitutes a questionable criterion, but certainly not implausible.
4. The Board believes that there is no violation of Directive 98/34/EC.
The provincial provisions in question, in fact, do not fall within the scope of the technical rules referred to in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998, now contained in EU Directive 2015/1535, which provides for a procedure for information in the field of technical standards and regulations and rules relating to information society services.
4.1. To this end, it is necessary to recall the following definitions contained in Article 1, point 2 of the Directive:
– “service”: any information society service, i.e. any service normally provided for remuneration, remotely, electronically and at the individual request of a recipient of services;
– “remote”: a service provided without the simultaneous presence of the parties.
In Annex V (Annex I in the new EU Directive 2015/1535), there is an indicative list of services not covered by the art. 1, point 2, second paragraph, and among the services not provided "remotely", in letter. d), "electronic games made available to a player present in an arcade" are indicated.
Furthermore, point 5 of article 1, by "rule relating to services", means a requirement of a general nature relating to access to the service activities referred to in point 2 and their exercise, in particular the provisions relating to the service provider services, to the services and to the recipient of services, excluding rules that do not specifically concern the services defined therein.
Therefore, on the basis of the described body of legislation, it is clear that the European provisions concern "remote" games, not also the devices referred to in the art. 110, paragraph 6, Tulps, physically installed in the gaming rooms authorized pursuant to art. 86 of the same Tulps, where the game is played in person by the player present in the game room.
4.1.2. Add to this what has already been highlighted by the Section in sentence no. 1618 of 2019, that is to say that “Articles 36, 49, 52 and 56 TFEU allow derogating measures regarding the free movement of goods and the provision of services "which are justified on grounds of public order, public security and public health". According to consolidated jurisprudence of the EU Court of Justice, restrictions on gambling activities can be justified by overriding reasons of general interest, such as consumer protection and the prevention of fraud and incitement of citizens to excessive spending linked to gambling. game, so that, in the absence of Euro-unitary harmonization on the matter, it is up to each individual Member State to evaluate in these sectors, in light of its own scale of values, the needs that the protection of the interests in question implies, and to the national judges to ensure , in a coherent and systematic way, taking into account the concrete methods of application of the restrictive legislation in question, that the latter truly responds to the intention of reducing gaming opportunities and limiting activities in this sector (see Court of Justice of the EU 22 October 2014, in cases C-344/13 and C-367/13; id., 24 January 2013, in case C-33/2013; id., 16 February 2012, in cases C-70/10 and C-77/10; as well as the EU Court of Justice, 30 June 2011, in case C-212/08, according to which «the objectives pursued by the national regulations adopted in the field of gaming and betting are, as a rule, linked to the protection of the recipients of the services concerned and of the consumers, as well as the protection of social order; such objectives fall within the category of imperative reasons of general interest that can justify limitations on the freedom to provide services; moral, religious or cultural considerations, as well as morally and financially harmful consequences for the individual and society which are linked to games of chance and betting may also justify national authorities having sufficient discretion to determine , according to its own scale of values, the provisions for the protection of the consumer and social order"). The Court of Justice has also ruled out the need for prior communication to the European Commission, pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 (which provides for an information procedure in the field of standards and technical regulations and rules relating to information society services), based on the observation that the principles of free movement and prohibition of limitation or restriction governed by the transparency and publicity rules of Directive 98/34 are neither absolute nor generalised, in particular the regulation of games of chance falling within the sectors in which there are considerable divergences of a moral, religious and cultural nature between the Member States, on the basis of which restrictions on the aforementioned gaming activities can be introduced if justified by imperative reasons of general interest, such as, for example, the dissuasion of citizens from excessive spending linked to the game itself (see ".
4.3. Specifically, the European Court of Justice, with the ruling of 24 January 2013, in joined cases C-186/11 and C-209/11, for what is most relevant here, ruled as follows:
"20 By its first and second questions, to be examined together, the referring court essentially wishes to know whether Articles 43 EC and 49 EC must be interpreted as meaning that they preclude national legislation, such as that at issue in the main proceedings, which grants an exclusive right relating to the conduct, management, organization and operation of games of chance to a single body, if, although the objective of the national legislation is either to limit the offer of gambling games or in promoting the fight against crime connected to them, the company which has been granted this exclusive right pursues an expansionist commercial policy.
21 It is common ground that legislation of a Member State, such as that described by the referring court, constitutes a restriction on the freedom to provide services guaranteed by Article 49 EC or on the freedom of establishment guaranteed by Article 43 EC, in that it establishes the monopoly of the OPAP and prohibits providers such as Stanleybet, William Hill and Sportingbet, established in another Member State, from offering games of chance in Greek territory (see, to this effect, judgment of 8 September 2010, Stoß and others, C 316/07, from C 358/07 to C 360/07, C 409/07 and C 410/07, ECR page I 8069, point 68 and cited case law).
22 However, it is necessary to evaluate whether such a restriction can be permitted on the basis of the derogatory measures, for reasons of public order, public security and public health, expressly provided for by Articles 45 EC and 46 EC, also applicable in relation to the freedom to provide services in under Article 55 EC, or can be justified, in accordance with the jurisprudence of the Court, by overriding reasons in the general interest (judgment of 19 July 2012, Garkalns, C 470/11, paragraph 35 and the jurisprudence cited).
23 In this sense, according to consolidated jurisprudence of the Court, restrictions on gambling activities can be justified by overriding reasons of general interest, such as consumer protection and the prevention of fraud and incitement of citizens to excessive spending. linked to gaming (Garkalns judgment, cited above, paragraph 39 and case law cited).
24 In this regard, the Court has repeatedly declared that the regulation of games of chance falls within the sectors in which considerable divergences of a moral, religious and cultural nature exist between Member States. In the absence of community harmonization on the matter, it is up to each individual Member State to evaluate, in these sectors, in the light of its own scale of values, the needs that the protection of the interests in question implies (judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C 42/07, ECR page I 7633, paragraph 57 and case law cited)".
5. With reference to the expulsion effect that would substantially derive from the application of the provincial law, it is necessary once again to recall what was established in the sentence of this Section no. 1618 of 2019, from whose conclusions the Board has no reason to deviate, which, following official technical consultancy and analyzing it in detail, has excluding that in the Municipality of Bolzano the law produces a so-called expulsion effect of lawful gaming halls from the entire municipal territory, both in terms of absolute ban from the individual municipal territory and in terms of reducing collections and revenues.
5.1. In fact, the ruling in question found that "in light of the findings of the two reports of the official technical consultant - drawn up at the conclusion of the expert operations in compliance with the guarantees of cross-examination and involving the need for a reconnaissance of the various municipal territories where the gaming rooms of the appellants are located - it must be excluded that the reported expulsive effect has occurred", having observed that "the simulations and surveys carried out by the official technical consultant have highlighted the persistent existence of a residual useful space within the individual municipal terrors, although generally limited, but still suitable and sufficient for the economic organization of the activities of the managed amusement arcades by today's appellant companies [see table 2.7. reported in the two expert reports, with the highlighting of the extension of the potentially available areas which allows the (re)location, in each of the municipal territories in question, the subject of the two groups of appeals, of exercises dedicated to gaming]".
5.2. Furthermore, the Municipality of Bolzano, in its defense statement, provided further useful elements to exclude the so-called expulsion effect from its territory, specifying that, following the entry into force of the partially interdictory regulations, numerous amusement arcades were opened (around one ten).
Furthermore, the municipal administration has specified that, where referring to the settlement area of the territory, the area available for the location of games in Bolzano, in application of the legislation referred to in art. 5-bis of LP n. 13 of 1992, is equal to 26,79%, so much so that it would have been substantially ascertained, through the consultancy carried out, that the distance value which would determine the absolute ban would be 600 metres, i.e. double what is foreseen by the law.
6. Finally, the Board notes that the provincial law provision restricts the freedom of economic initiative protected by art. 41 Constitution.
However, the constitutional principle of private economic initiative referred to in art. 41 of the Constitution, with a view to balancing interests and in the presence of reasonable assumptions, must be considered recessive compared to that of the art. 32 of the Constitution, which protects the right to health, where the psycho-physical health of citizens is endangered.
On the other hand, art. 41 of the Constitution, in enshrining the freedom of private economic initiative, provides that it cannot be carried out in conflict with social utility or in such a way as to cause damage to health, the environment, safety, freedom, human dignity. and, in the third paragraph, establishes that the law determines the appropriate programs and controls so that it can be directed and coordinated for social and environmental purposes.
This is the meaning of the provincial regulations in question, which tend to favor the protection, albeit potential, of the psycho-physical health of the categories most at risk over the full expression of the freedom of private economic initiative.
The Section, with the aforementioned sentence no. 1618 of 2019, in particular, highlighted that the regulation in question "plausibly achieves the balancing of the constitutional values at stake through the introduction of distanced localization criteria, suitable for preventively curbing the negative externalities of the business activity of legal gambling on public health, thus realizing, in the sector of reference, the clause of ... contrast with the social utility referred to in the art. 41, second paragraph, of the Constitution (which also includes the needs for the protection of health and public health), and thereby overcoming the restrictive rule of business activity the positive screening of reasonableness, in compliance with this general principle that can be identified from the art. 3 of the Constitution.
In fact, given that it must be considered established that the movement of gaming halls to peripheral areas and the lesser capillarity in their distribution lead to a significant reduction in gaming on entertainment machines mainly within the category of occasional/social consumer players, it is observed that, although according to the ctu's assessments this category of players is characterized by an absent or low risk profile with respect to the possibility of developing pathological gaming behaviours, the introduction of the distance meter, from the point of view of health protection, can well be considered a suitable and effective intervention to prevent forms of gambling addiction, to the extent that occasional gambling is interpreted as the initial stage of a process which, albeit in probabilistic terms, linearly leads to the development of an addiction. This interpretation, although controversial in the literature of the sector, still moves within the limits of technical-scientific reliability - in fact the expert witness, in the expert reports, acknowledges that «the three categories of consumers described [i.e., those of the social player, of the problem gambler and the pathological gambler; nde] are often implicitly or explicitly placed in a continuum that goes from social players to pathological ones and therefore interpreted by some scholars as different stages of a pathological evolution of gaming behavior which, however, must be considered as a sequence of phases of a linear process only for some subjects", citing correlative literature -, so that the regulation of distancing criteria from sensitive sites can be attributed, in a not implausible way, a preventive effectiveness in the fight against gambling addiction phenomena. On this point, it is necessary to specify that the discretion of the legislator should not be confused with the discretion (administrative and/or technical) of the public administration, in the sense that the former constitutes the explanation of the political choices of the bodies invested with legislative power and finds the its limits only in the superordinate norms of constitutional rank (and, possibly, in Eurounitary law), so that the same, once these limits have been respected (including the principles of reasonableness and intrinsic rationality), does not appear to be further questionable (in the context of a judgment of constitutionality)".
7. In conclusion, the appeal must be rejected as unfounded.
8. The costs of the proceedings following the defeat and, settled in total at €4.000,00 (four thousand/00), plus legal accessories, are placed, in equal measure (each for €2.000,00), to be borne by the appellants and to favor of the Municipality of Bolzano.
PQM
The Council of State in the jurisdictional seat, Section Six, definitively ruling, rejects the appeal in the epigraph (RG no. 5693 of 2023).
Condemns the appellants, in equal measure (each for €2.000,00), to pay the costs of the proceedings, settled in total at €4.000,00 (four thousand/00), plus legal accessories, in favor of the Municipality of Bolzano.
Orders that this sentence be carried out by the administrative authority”.
