The Council of State in jurisdiction (Section Fifth) rejected the appeal proposed by the Municipality of Cavernago (BG) against an operator, represented and defended by the lawyer Cino Benelli (in the photo), for the reform of the sentence of the Regional Administrative Court for Lombardy, separate section of Brescia (Second Section), rendered between the parties.
The operator had challenged: a) the provision of 10 July 2018 of the Police Commissioner of Bergamo in the part in which it provides for the issuance of the license for the collection of bets pursuant to art. 88 TULPS that "it is mandatory to observe the municipal timetables in force"; b) the resolution of the Cavernago municipal council n. 12/2018 containing "approval of regulations to combat the phenomenon of gambling addiction deriving from forms of legal gaming"; c) the art. 6 of the aforementioned regulation, and of the single regulation draft for combating the phenomenon of gambling addiction, approved by the Assembly of Mayors of the Territorial Area of Seriate on 27 November 2017.
With an appeal for additional reasons, the appellant Company had also challenged the order of the Mayor of the Municipality of Cavernago with which the interruption of the game with the devices referred to in the art. 110, paragraph 6, letter. a) and b) of the TULPS from 23.00 pm to 9.00 am. The appealed sentence partially accepted the appeal, ordering the annulment limited to the art. 6 of the Regulation to combat the phenomenon of gambling addiction deriving from forms of legal gaming (approved by the Assembly of Mayors of the Seriate Territorial Area on 27.11.2017 and by the Cavernago City Council with resolution no. 12/2018 of 5.3.2018. 4) and the trade union ordinance of the Municipality of Cavernago n. 1.8.2019 of 110 concerning the regulation of the operating hours of gaming machines referred to in art. 6, paragraph 18.6.1931, letter a) and letter b) of the TULPS (Rd 773 n. XNUMX).
The sentence:
- rejected the exception regarding the lateness of the challenge to the regulation on gambling addiction (approved on 5.3.2018 and published on the notice board of the Municipality of Cavernago from 9.3 to 24.3.2018), as the interest in the challenge arose with the appellant only after the issuing of the license by the Bergamo Police Headquarters on 10.7.2018 and only after the issuing of the union order pursuant to art. 50, paragraph 7, Legislative Decree no. 267/2000, to connect the opening of the gaming room with the operation of the electronic devices;
- rejected the challenge to the license issued on 10.7.2018 by the Bergamo Police Headquarters, deeming the obligation imposed by the latter to respect the opening hours regulated according to the decisions of the Municipality of Cavernago, based on the express competence provided, in point, in the hands of the Local Authorities pursuant to art. 50, paragraph 7, Legislative Decree no. 267/2000;
- accepted the request for annulment of the regulation on gambling addiction, limited to the art. 6, and union ordinance no. 4 of 1.8.2019, as the expected time limitation (from 23,00 pm to 9,00 am) integrated an approach that was inconsistent with the data collected and with current legislation, which deprives the license issued by the Police Headquarters of a significant portion of its economic content without affecting the particular risk factor for players.
In the sentence of the Council of State we read: “With the first reason the appellant argued the erroneousness of the sentence in the part in which it considered the appeal admissible. For the appellant, in the case in question the provision of an hourly limitation aims to counteract the phenomenon of gambling addiction, understood as a mental disorder which induces the individual to concentrate all his interests on gambling, in an obsessive and compulsive manner, with obvious repercussions on the family and professional plan, as well as with the undeniable dispersion of personal assets. In the present case, the determination of the Municipality of Cavernago was based on an adequate investigation, validly recognized by the judge of first instance and on a balanced weighing of the multiple interests at stake, without mortifying the economic initiative of the subjects involved: through the reduction of opening hours, the gaming offer is limited without, however, excessively sacrificing the interest of the private operators of gaming halls, who can take advantage of a wide time slot for opening the business to the public (from 9.00 am to 23.00 pm every day, including holidays).
This would result in the full legitimacy of the administrative acts adopted by the City Council and the Mayor, limiting the opening of gaming halls at night, as an adequate measure to combat and prevent the phenomenon of gambling addiction present in the municipal territory and in the local area. of Seriate, given that these acts follow an in-depth and timely analysis work, with the aim, on the one hand, of limiting the harmful effects on the health of the players and, on the other, of safeguarding the legitimate freedom of enterprise
economy of the gaming room managers.
The operator objected, as a preliminary matter, the nullity of the appeal for failure to sign, not having noted the signature on the appeal document by the lawyer authorized to practice before the higher courts, as well as the nullity of the appeal for failure to notify the state administrations appealed to the State Attorney General. On the merits, he contests the validity of the appeal.
For the Ministry of the Interior, the aim of the legislator is, in essence, to delegate to local authorities the introduction of a regulation that can act as a deterrent for the person suffering from gambling addiction, providing, among other things, limitations on the opening hours of collection points bets to reduce the duration of the game by users. A correct balance of the conflicting principles - protection of individual health and protection of private economic initiative - could only lead to affirming the prevalence of the need to protect the psychophysical integrity of citizens underlying the contested provisions. The circular of 19 March 2018 issued by the Ministry of the Interior regarding licenses pursuant to art. 88 TULPS for the exercise of betting activities, amusement arcades with video lottery machines and bingo halls instructs the Police Headquarters, when issuing the authorisation, to also take into account the legislation regarding minimum distances and times opening and closing times established by the Municipality. This is in accordance with the orientation of the Council of State, which confirmed the principle according to which, in the matter of interest, in addition to verifying the requirements established by current legislation on public order and safety, the Police Headquarters must also take into account the regulations regional or local regarding minimum distances from places classified as sensitive and playing times.
The assessments of the Police Commissioner prior to the issuing of the authorization pursuant to art. Furthermore, 88 would not be invasive of the prerogatives recognized to the municipalities by the regional laws regarding the fight against pathological gambling which the circular expressly did not affect, and would align with the principles established by the agreement reached at the Joint Conference on 7 September 2017, with a view to harmonizing the needs to combat pathological gambling with those of protecting, as far as possible, existing investments, transposed into the art. 1, paragraphs 1048 and 1049 of law 27 December 2017, n. 205 (stability law 2018).
The appeal is unfounded on the merits, as it can absorb the preliminary objections formulated by the operator. And indeed, with reference to the first reason raised, which objects to the inadmissibility of the first instance appeal, because it was notified on 8 October 2018, in response to the challenge to the regulation on gambling addiction approved by resolution of the municipal council of the municipality of Cavernago n. 12 of 5 March 2018, it must be noted that, as already established by the TAR, the contested regulation, although published on the Municipality's notice board until 24 March 2018, took on a detrimental effect on the Company only when the regulation was issued. the appealed order, challenged within the deadlines with the appeal for additional reasons, which, in allowing the opening to the public of the room run by today's appellant, expressly obliged the owner to respect the municipal timetables provided for by the aforementioned regulation. In fact, “Before the pronouncement of the competent authority on timetables (mayor) the decision of the city council inevitably had only a value of direction. The implementation of this direction could have taken place slavishly, as in the case in question, but it could also have contained exceptions and clarifications, which shifted the interest in the appeal from the regulation to the mayor's order" (see appealed sentence) . With regard to further complaints, as is clear from consolidated jurisprudential orientation, the regulatory intervention in the matter must take place after carrying out an investigation specifically referring to the municipal territory, also in order to guarantee the concrete maintenance of the superior principles of proportionality and reasonableness of the administrative action of constitutional and Euro-unitary rank (see, Council of State, Section I, opinions no. 449/2018; 1418/2020; 1143/2021).
In particular, with opinion no. 449/2018 of 20 February 2018 it was stated that: "the reasons of general interest that allow the time limitations in question cannot consist of an apodictic and unproven statement, but must take the form of specific reasons, to be explained and documented in a manner punctual".
Indeed, according to consolidated jurisprudence, the reference to well-known facts and statements relating to the phenomenon in general is not sufficient, as a particularly worrying reality must be highlighted, which can be deduced from a certain source. As stated by the TAR, therefore: "the protection of the most vulnerable players must be ensured in a manner compliant with the principle of proportionality, and therefore only to the extent that it is really necessary". In particular, demonstration must be provided of the need in the specific territory of reference for greater protection compared to the national one that can be achieved with that specific hourly limitation of access to gaming, and that, once implemented, this measure does not have effects indirect such as, for example, the shift in demand towards forms of illegal gaming. And this specific investigation does not appear to have been carried out in relation to the territory of competence.
More specifically, the City Council stated that "the phenomenon of problem gambling, increasingly widespread among the population, falls into the category of new addictions with notable social repercussions with disintegrating effects both on the community and on families in terms of debts of gambling, impoverishment of people, vulnerability of weak social groups, as well as greater exposure to the risk of usury", limiting himself, then, to the reference to the "Area Plan" of the territorial area of Seriate, which would guarantee "specific attention to theme of the prevention of addictions with particular regard to the theme of problem gambling", of the project "Jackpot - The important thing is (not) to participate", i.e. a "Training course for Local Police Officers", which proposes a simple thematic in-depth analysis of the "work table", which "has developed a proposal to regulate the forms of combating problem gambling". These warnings were all made generically, without providing any element of detail with reference to the specific situation existing in the municipal area, as was the warning made by the union ordinance, which refers to the document "100 pages on gambling. General information from the general to the local" of the Bergamo Addictions Observatory, according to which: "the analysis of
trend highlights both a regional and provincial level a slight decline in the last year".
And indeed, from the aforementioned observations it is clear that the municipality of Cavernago has not proceeded to adopt a regulation compliant with its territorial reality following the approval by the Assembly of Mayors of the territorial area of Seriate (of which it is part, together with ten other local authorities) of the "single regulation of the Area for the fight against the phenomenon of gambling addiction", which represents a "standard scheme" referred in an undifferentiated manner to all the municipalities of the territorial Area. Therefore, the reasons why the Municipality decided to prohibit legal gaming activity for such a significant period of time, without taking into consideration the interests of private entities affected by the aforementioned provisions, are not explained. According to the appealed sentence, the foreseen limitation of hours (from 23,00 pm to 9,00 am) integrates "an approach that is not consistent with the data collected, and disconnected from the new legal provisions..." since it is "... an approach rigid which deprives the license issued by the Police Headquarters of a significant portion of its economic content without affecting the particular risk factor for players, i.e. the excessive duration of individual gaming sessions, a clear indicator of the risk of gambling addiction. The problem is not so much the exceeding of the overall hours of interruption of play indicated by the Unified Conference of 7 September 2017, but the articulation of the interruption periods during the day. In fact, it is the presence of multiple pauses which, in the absence of internal limits in the computer system, should prevent excessively extended gaming sessions. However, it is not useful to impose a long break in the evening and at night if an individual at risk can continue his gaming session for many hours during the day. Municipal regulations must therefore be reformulated...". Therefore the power can be exercised again by the administration, in light of the principles contained in the rulings of the first instance judge, which the Board fully shares. In light of the above considerations, the appeal must be rejected and, as a result, the appealed sentence which partially upheld the first instance appeal must be confirmed. There are just reasons to order the full compensation between the parties of the legal costs".
