A victory for tobacconists sanctioned by the Council of State and the consequent cancellation of the ordinance of the Municipality of Ventimiglia.
The Italian Tobacconists Federation had lodged an appeal against the ruling of the Regional Administrative Court for Liguria which rejected the appeal they lodged against ordinance no. 220 of 12 November 2018, adopted by the Mayor of the Municipality of Ventimiglia, concerning "regulation of the operating hours of gaming machines with cash winnings referred to in art. 110 of the tulps installed pursuant to art. 86 and 88 of the tulps in businesses where their installation is permitted - amendment to ordinance 79 of 13/05/2015" , which had prohibited, from 7,00 am to 19,00 pm, the use of entertainment and leisure devices with cash winnings referred to in paragraph 6 of article 110 TULPS, installed in public establishments, thereby effectively limiting the their operation for just two hours in the evening, resulting in obvious repercussions on the proceeds from gaming.
The parties support the appeal in first aid had formulated the following complaints:
1) Violation and false application of the art. 3 of law 7 August 1990 n. 241 - lack of motivation and investigation - excess of power due to lack of and/or incorrect assessment of the conditions - contradictory nature and manifest unreasonableness - violation of the principles of proportionality and impartiality of administrative action, lack of proportionality - illogicality - unequal treatment – manifest injustice.
The judge of first aid, with the burdened sentence, it rejected all the articulated complaints, also observing that the complaint referring to the violation of the agreement of the Unified State-Regions Conference no. 103/U of 7 September 2017 had been presented only in the defense brief, but still considered unfounded.
Furthermore, the Council of State, the choice of the Municipality of Ventimiglia, in addition to effectively ousting the tobacconists, who, like the appellant, do not also own bars - hence the erroneous partly here of the motivation of the sentence of first care in relation to the proposed censorship - from carrying out the activity for which they were legitimately authorized with the issue of the license pursuant to art. 110 TULPS, appears strange having regard to the objective targeted, given that the choice of the night time in which to concentrate the bets is the one that allows the least control of the community, as revealed by the circumstance that on the other hand in the majority of municipalities, according to the id quoad plerunque accidity, daytime time is chosen to concentrate the games.
Likewise detectable is the defect of excess of power due to unequal treatment alleged by the appellant and not detected by the first judge, since, having regard to the same condition for issuing the license pursuant to art. 110 TULPS, . the owners of tobacconists, not owners of bars or amusement arcades, required to respect daytime opening hours, find themselves in a worse situation than other holders of the said license, who can choose to remain open at night.
The contested order is therefore unreasonable, disproportionate in relation to said choice, determining a serious disparity in treatment between subjects equally authorized to install the devices in question, not detecting ex if the circumstance, highlighted by the first judge, that for the tobacconists the activity in question is merely ancillary at the moment in which the use of the license issued to them is practically prohibited, in relation to which they have made investments and which allows a further possibility of legitimate gain.
This without failing to point out that, as highlighted by the State Monopolies Agency in the hearing notes filed in view of the Chamber hearing, in assessing the incidence of the phenomenon of pathological gambling, it must be noted that the resale of of monopoly"constitutes an environment frequented by a variety of users (not just players) with an owner-operator who carries out supervision and control activities functional to the regular performance of the service"; of this specificity, which the Agency considered relevant when it adopted the Legislative Decree. 27.07.2011 (Determination of the criteria and quantitative numerical parameters for the installability of devices referred to in article 110, paragraph 6 of the TULPS) providing for the possibility of installing more devices there than in generic businesses, it seems they have not taken into account at all either the Mayor nor the Liguria TAR".
15. On the other hand, the last ground of appeal must be disregarded, with which the head of the sentence is contested which rejected the complaint of excess of power due to failure to comply with the provisions of the State-Regions Agreement of n.103/CU of 7 September 2017, despite wishing to ignore the observation, however highlighted in the appealed sentence, regarding the inadmissibility of this plea, as it was formulated for the first time in a defense statement.
In this regard it is specified that the art. 1, paragraph 936, Law no. 208/2015 (“Provisions for the formation of the annual and multi-year state budget” – so-called Stability Law 2016) had established that the characteristics of the sales points where public gaming is collected, as well as the criteria for the their territorial distribution and concentration, in order to guarantee the best levels of safety for the protection of the health, public order and public faith of the players and to prevent the risk of access by minors, providing that the agreements reached in said headquarters were then implemented by decree of the Minister of Economy and Finance, after consulting the competent parliamentary commissions.
The Agreement, subsequently reached at the Unified State/Regions/Local Authorities Conference on 07/09/17, had envisaged, with a view to combating pathological gambling, the adoption of a series of measures aimed at compressing the offer of public gaming on the national territory.
Among these, part of which medium tempore implemented at national level, it was expressly agreed (See point 2, Intesa cit.) that consisting in the recognition of local authorities of the "right to establish time slots for the types of games of up to 6 hours of daily interruption in total", subject to definition of the concert time restrictions"with the Customs and Monopolies Agency".
Furthermore, despite the awareness of a distinct orientation (ex multis opinion no. 1418 of 18/08/2020 of the Section. I of this Council of State and jurisprudence referred to therein) according to which the Municipalities could deviate from the Agreement from here only with adequate motivation, the college intends to follow up on the different jurisprudential orientation followed by the Section, also endorsed by the judge of first care, (see, among others, Cons. Stato, sec. V, 30 June 2020, n. 4119; sec. V, 13 July 2020, n. 4496; sec. V, 26 August 2020, n. 5223), according to which "It is, therefore, expressly envisaged that the agreement reached at the Unified Conference will be implemented in a decree of the Ministry of Economy and Finance. By providing for the adoption of a ministerial decree which has as its object public gaming regulation profiles, the state administration has given itself a power of direction and coordination for having considered that in this specific sector (that of legal gaming) matters attributed to it intersect from the Constitution to the competence of different levels of government, including regional ones, but there is a need for unitary regulation; [...] In these cases - that is, when the State attributes by law to itself a power of direction and coordination in relation to a sector which transversally involves matters also falling within the competence of the Regions - the state law must provide for the prior achievement of the Understanding in the context of the Unified Conference referred to in article 8 of Legislative Decree 28 August 1997, n. 28, as a typical tool for involving the Regions in implementing the principle of loyal collaboration (most recently, in this sense, Court of Constitution, 2 December 2019, n. 246; Id., 20 March 2019, n. 56). The power of direction and coordination has not, however, yet been exercised because the decree of the Ministry of Economy and Finance has not been adopted, while the agreement was concluded within the Unified Conference of State, Regions and Local Authorities on 7 September 2017. To be envisaged as a preliminary act to the exercise of the state power of coordination and direction with the aim of involving the Regions, the Agreement cannot be recognized ex se, and without its contents being transposed into the ministerial decree, with any binding effect” (State Council, section V, 20 October 0 n. 2020 cit.; in a similar sense recently State Council, State Council, section V, sentence n. 6331/11426 and State Council, sec. I, opinion of 2022 n. 17.02.2023).
The Council of State in jurisdiction (Fifth Section), definitively ruling on the appeal, accepts in accordance with the motivation and for the effect, in reforming the appealed sentence and in accepting the first degree appeal, cancels order no. 220 of 12 November 2018 adopted by the Mayor of the Municipality of Ventimiglia, concerning "regulation of the operating hours of gaming machines with cash winnings referred to in Article 110 of the TULPS installed pursuant to Articles 86 and 88 of the TULPS in establishments where their installation is permitted - amendment to Ordinance 79 of 13/05/2015".
