The Court of Alessandria confirmed the sanction against the manager/owner of a device installed in a commercial establishment in Domodossola through which small prizes of modest value were paid. The device was considered not to comply with the legislation on entertainment devices.
The facts
With an injunction order from the ADM, Monopolies Office for Piedmont and Valle d'Aosta, Territorial Operational Section of Alessandria, was imposed on the transgressor, and on the manager/owner of the device, as jointly and severally liable, after access in a public business in Domodossola, the pecuniary administrative sanction of E 4.000,00, plus E 150,00, as confiscation costs, for the deemed violation of the art. 110, paragraph 7, letter. a), paragraph 9, letter. c), R.D. n.° 773/1931, > >, precisely, >.
The appeal against the provision concerned the request, subject to suspension of the executive effectiveness of the opposing act, declaring its nullity and/or illegitimacy; with victory of the litigation costs.
On the contested nature of "prize operation" of the activity carried out via the disputed device.
The appellant contends that the contested device is not to be considered entertainment since, on the contrary, it was a device through which various prize operation activities were carried out as per the certificate of forwarding of the communication of security provision.
The judge deemed the objection to be unfounded in fact.
And indeed, pursuant to art. 1, paragraph 1, Presidential Decree n. of prizes to the public aimed at promoting, in the territory of the State, the knowledge of products, services, companies, signs or brands or the sale of certain products or the provision of services, having, in any case, purposes also partly commercial>>.
And pursuant to paragraph 5 of the same law, > in said competitions and operations >, and live streaming is also prohibited increase in the price of the promoted product or service>>.
They are, among others, excluded from being considered competitions or prize operations, pursuant to art. 6, paragraph 1, letter. d), Presidential Decree no. 430/2001, >.
And it is therefore expressly forbidden art. 8, paragraph 1, letter. a) and b) the holding of prize events when: >.
Finally, pursuant to art. 10, paragraph 1, of the oft-cited text of the law, >.
And in this case it appears that the CUSTOMS AND MONOPOLIES AGENCY, Monopolies Office for Piedmont and Valle d'Aosta, Territorial Operational Section of Alessandria, also requested information on the prize operation undertaken, and made the subject of the today's judgment, to the Ministry of Economic Development with note dated 14 November 2019, prot. no. 53019; to which the last mentioned Ministry itself responded (with note dated 04 February 2019, no. 30831) highlighting, in accordance with the reference regulatory data, that, in the case, in general, of "prize operations" (such as that, alleged, for which there is a trial), > (art. 7, Presidential Decree no. 430/2001), without transmission, therefore, > and that , in particular, the operation undertaken had never, in any case, been checked on a random basis, pursuant to the aforementioned art. 12.
According to the judge, the ADM is "fully competent to impose the sanctions envisaged for illicit gaming (due to the implementation of the relevant cases, possibly also in material competition with those relating to the carrying out of the aforementioned events).
The attribution to the State of the operation of paid gaming, in fact, dates back to 1948, when, with art. 1, Legislative Decree no. 496/1948, it was established that >, while with the art. 2, it was established that >.
The art. 4, Legislative Decree n.° 138/2002, converted with amendments into Law n.° 178/2002, therefore now provides that, > carries out >.
As a result, the functions relating to the administration, collection and litigation of tax revenues relating to games, bets and prediction competitions, including, obviously, those practiced via entertainment devices, are likely to fall to the CUSTOMS AND MONOPOLIES AGENCY , to which it is responsible also the power/duty to control the correct management of the games themselves and to sanction any illegalities found during said controls.
– On the exception of lack of passive legitimacy for the assessment itself, and the consequent sanction, of the appellant manager/owner of the device.
“Assuming profiles of validity and relevance in relation to the nature of a 'prize operation' of the activity carried out through the contested device, the appellant is raising doubts about its substantial, passive legitimacy to the sanction from the CUSTOMS AGENCY AND MONOPOLIES in the specific case imposed with the provision made the subject of this opposition.
This exception, on the basis of what has been illustrated above, is also unfounded.
And indeed, as seen, the art. 110, paragraph 9, letter. c), R.D. n.° 773/1931, sanctions >.
And the fact that the device was distributed and installed by XXXX by the operators of the "Guardia di Finanza" at the commercial establishment is an undisputed circumstance between the parties.
With any resulting positive judgment of substantial, passive legitimacy to the sanction of the appellants themselves (in their respective capacities).
- On illicit features, pursuant to the combined provisions of art. 110, paragraphs 6, 7 and 9, R.D. n.° 773/1931, of the apparatus subject to judgment.
These being the operating characteristics of the device which is the subject of the trial (vertifiably and undisputedly acquired in the documents, as they are extremely transparently exposed by the appellant itself and in any case compliant, on this point, with the findings set out in the assessment report, where it is fully described , with the value of trust pursuant to articles 2699 et seq. of the Civil Code, by the public officials involved, the very functioning of the machine), although the circumstance of a potential conversion into money by the manager of the winnings made by the user must be excluded ( in this case never in fact contested), from the complete description of the "purpose" of the device, aimed at selling, such as prizes (again as per the oft-cited prize operation regulation, of a bag (against obtaining 200 points), a calculator ( against achievement of 100 points), a diary (against achievement of 50 points), a pencil case (against achievement of 20 points), an elegant pen (against achievement of 10 points), n. 5 basic pens (against achievement of 5 points), n. 2 basic pens (against achievement of 2 points) and n. 1 basic penalty (against realization of points 1), it is therefore clear that it was, and is, attributable tothe category referred to in the art. 110, paragraph 7, letter. a), R.D. n.° 773/1931, i.e. >;
>.
Already from a comparison with the same legal provision cited, however, the same can be deduced as to the device itself was, and is, illicit because:
1) first of all, it allowed the activation, even of a single batch, through the introduction of metal coins of different denominations and without any limit (even up to E 99,9, as deduced from the circumstance that >);
2) the game unfolded independently of the player's physical and/or mental ability (being instead entrusted solely to the logic established by the machine, and this, evidently, both so that the rotation of the LEDs was not interrupted and in the event of activation of the stop button, expecting that the > depended > assumed by the same and given that, >, such braking was >).
– On the objection raised by the appellant of the illegitimacy of the Ministry of Economy and Finance Decree, 08 November 2005 (in Gazz. Uff., 10 November, n. 262) Technical production rules and verification methodologies technique of amusement and entertainment machines, referred to in article 110, paragraph 7, of the consolidated text of the public safety laws (T.U.L.P.S.) and its consequent non-application, pursuant to art. 5, L. n.° 2248/1865, All. E.,
The appellant party objects to the Decree Ministry of Economy and Finance, 08 November 2005 (in Gazz. Uff., 10 November, n.° 262) Technical production rules and technical verification methodologies for amusement and entertainment machines entertainment, referred to in Article 110, paragraph 7, of the consolidated text of the Public Security Laws (T.U.L.P.S.), assuming its effective regulatory nature, would be inapplicable due to its adoption in the absence of prior opinion from the Council of State and in absence of visa submission and registration by the Court of Auditors pursuant to art. 17, paragraph 4, Law n. State, subjected to approval and registration by the Court of Auditors and published in the Official Journal>>).
The exception is irrelevant.
Indeed, the art. 2, paragraph 1, of the aforementioned Decree of the Ministry of Economy and Finance, 08 November 2005, in addition to the rest, prescribes, for the entertainment devices referred to in the art. 110, paragraph 7, R.D. n.° 773/1931, not only that:
1) are based on lett. d) >;
2) are lit. e) >.
But also that:
3) are lit. c) >;
4) distribute [lit. f)] >;
5) do not allow letter. g) >.
Even though the device which is the subject of today's judgment did not actually appear to comply with the technical specifications highlighted above under n. paragraph, with consequent absorption, on this point, of any other question, including that regarding the possible illegitimacy of the "Ministry of Economy and Finance" Decree of 3 November 4, expected as its possible disapplication, in this case, would not be change the reference framework, already at a primary regulatory level fully identified in relation to the methods of activating the game through unlimited insertion of metal coin, even with a value greater than E 5 and to the characteristics of the game, free from any element of physical and/or mental ability of the player
– On the objection raised by the appellant by conflict of the legislation in this case applied with the EU Directive, n. 123/2003.
Finally, the appellant complains that the legislation applied is in conflict with EU Directive No. 123/2003, believing that the conditions for its non-application for reasons of public safety, health or environmental protection do not exist in this case.
The exception is unfounded.
And indeed, it is the Directive under examination itself that excludes from its field of application, pursuant to art. 2, paragraph 2, letter. h), >.
As well as, in accordance with the art. 7, paragraph 1, letter. d), Legislative Decree no. 59/2010, implementing the said Directive, pursuant to which >.
Therefore, the appliance being investigated is indeed from entertainment and yet devoid of the lawfulness requirements required by the art. 110, paragraph 7, letter. a), R.D. n.° 773/1931 (since, it is repeated, capable of allowing a game based exclusively on the randomness determined by the "logic established by the machine", on which the physical and/or mental ability of the player is completely irrelevant), obvious is the exclusion from the field of application of EU Directive no. 123/2003 of any hypothesis of its distribution, installation or use on the national territory, as it is capable of allowing, precisely, the carrying out of a 'game of chance' '.
On the other hand, there is no one who does not see how this device reveals gaming methods not only based on criteria of mere randomness not worthy of particular technical/disciplinary appreciation, but also capable of encouraging a strong risk of gambling addiction among users, even more so with reference to minors, for whom no prevention appears to have been undertaken in this case.
