La Court of Cassation has determined that there is not no damage towards the consumer in the case of violation of the opening hours imposed by municipal ordinance on a games room.
With sentence of 18 last December the Supreme Court rejected the appeal of a well-known consumer association against the ruling Court of Appeal of Milan which had rejected the assumption of action detrimental to the rights guaranteed by consumers due to the violation of the opening hours imposed as per the union ordinance.
The association stated that some consumers had reported the violation of the ordinance of the Municipality of Milan which provided for: ‹‹the operating hours of the amusement arcades are set from 9.00 to 12.00 and from 18.00 to 23.00 every day , including holidays››; the slot rooms managed by the defendant, although displaying the opening hours of 10.00 - 01.00, as emerged from some videos made by volunteers of the association, remained open from 10.00 to 02.00/03.00; such behavior was detrimental to consumers' interests, considering that the limits imposed by the union ordinance contributed to the fight against pathological phenomena connected to gaming through interventions aimed at regulating and limiting access to gaming equipment.
The company called into question was formed, asking for the rejection of the application and deducing how no damage suffered by consumers was proven as a consequence of the alleged violation of the opening and closing times of the rooms managed by it; furthermore observed that in order to deal with the situation of absolute regulatory uncertainty in the field of legal gaming, on 7 September 2017, the Unified State-Regions-Authorities Conference premises had reached an agreement to guarantee ‹‹uniform regulation throughout the national territory also through the establishment of temporary time slots››, recognizing ‹‹the right to establish time slots for the types of games of up to a total of six hours of daily interruption of play››; since the union ordinance had to be interpreted in accordance with the provisions of the State - Local Authorities Conference, no illicit behavior could be attributed to it, given that compliance with the timetables concerned the slot machines and not the gaming rooms managed by it, which remained open, but with the devices disabled.
The Court rejected the appeal, noting that the appellant had not demonstrated "that the limitation of the operating hours of legal gaming machines, as provided for by union ordinance no. 63/2014, was effectively suitable for having a positive impact on the phenomenon of gambling addiction, limiting it or reducing its spread>>.
The sentence was appealed the Court of Appeal had rejected the appeal. He observed, in summary, that there was a jurisprudential conflict on the applicability of the Agreement reached in the 2017 State and Local Authorities conference and that the reasons of general interest that allowed time limitations could not consist of "an apodictic and unproven statement" ›, but they had to materialize in specific reasons, ‹‹to be explained and documented in a timely manner››. In the present case, the appellant had not adequately demonstrated how the imposition of the obligation on the owner of the gaming halls to comply with the municipal ordinance was suitable to reduce the volumes of gambling, in the absence of production of documentation referable to the local situation.
Hence the appeal to the Supreme Court.
With the first reason the appellant underlines, first of all, that, having intended the union ordinance to reduce access to the slot rooms, the agreement reached on 7 September 201 is completely irrelevant, considering that the Council of State has excluding the mandatory nature.
He claims that the Court first and the Court of Appeal subsequently decided to reject the request on the basis of an alleged evidentiary defect affecting the association, without taking into account that it had demonstrated the legitimacy to take legal action to protect consumers, the conduct implemented by the counterparty (through specific video recordings) and of the illegitimacy of such conduct, in violation of the union ordinance. On the other hand, the company had not produced any evidence to the contrary.
According to the Court of Cassation, the reason is unfounded. “The sentence here ruled on the effectiveness of the agreement of 7 September 2017, which is not even placed as a basis for the decision, but rather limited itself to acknowledging the existence of two opposing orientations formed within administrative jurisprudence , which, on the one hand, believes that the Agreement reached cannot ‹‹be recognized ex se as having any binding effect››, as it is necessary that ‹‹its contents be implemented in a decree of the Ministry of Finance›››, and, on the other hand, it believes that ‹‹a certain binding force for the parties who have signed it cannot be ignored, as it is an expression of common principles and rules that have found mediation››, so that, even if not yet transposed into a decree ministerial, the related provisions ‹‹in any case take on the value of a reference parameter for the exercise by local administrations of their specific competences, regarding the regulation of the opening hours of gaming rooms and the operation of gaming machines››.
Given this, the argumentative path carried out by the Court of Appeal leads to the exclusion of the violation of the precept referred to in the art. 2697 cod. civ., which, it should be remembered, can only be configured in the hypothesis in which the judge has attributed the burden of proof to a party other than the one who was burdened by it according to the rules for breaking down the cases based on the difference between constitutive facts and exceptions and not where the object of censure is the assessment that the judge has carried out the tests proposed by the parties (the latter can be questioned in the context of legitimacy, within the narrow limits of the "new" art. 360, first paragraph, no. 5, civil procedure code). The judges of merit, starting from the consideration that, in the case in question, the object of dispute is not the union ordinance as such, but ‹‹failure to comply with the same as a means of protecting consumer health››, and that the intervention of the administrative authority regarding the opening of amusement arcades must be inspired by the principle of proportionality, which requires the adoption of a measure ‹‹not exceeding what is appropriate and necessary to achieve the intended purpose››, so that this principle is respected if the choice of the administration is potentially capable of achieving the objective and represents the least possible sacrifice for the interests involved, they have come to deny that the reasons of general interest which allow limitations on the hours of the activity to be gaming can be based on the mere enunciation of such interests and the reference to unspecified ‹‹clinical studies›› regarding pathological gaming addictions, but must, on the contrary, be adequately proven on the basis of specific ‹‹clinical studies›› related to the specific territorial area drawn from the measures actually adopted. In accordance with these considerations, they therefore excluded the possibility that today's appellant had provided the aforementioned evidence, on the same basis, considering for this purpose the abstract reference to the general phenomenon of the so-called as inconclusive. "legal gambling" and its social and health effects, because it has not been found in reliable scientific studies referring to the specific local area, the generic reference "to well-known facts", not relevant to the concrete local situation, the statistics developed by the relevant Health Authority, not exactly coinciding with the specific municipal area, as well as the extract from the book "Gambling ", although invoked, lacked a precise reference to the city (...) and the reference to the ‹‹IPSAD investigation››, from which it was only clear that gambling had constituted, in recent years, ‹‹an important issue of public health››.
Given this detailed appreciation of the evidentiary framework that emerged from the investigation, it is completely clear, on the one hand, that the judges of merit have managed the criteria for allocating the evidentiary burden well, it is up to the appellant to offer proof of the alleged infringement of consumer rights resulting from the disputed violation of the opening hours of the slot halls.
Furthermore, it cannot be overlooked that the affected decision is also in line with the principles expressed by administrative jurisprudence which, even recently, has reiterated that "regulatory intervention in the matter must take place following 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 administrative action of constitutional and Euro-unitary rank; with the clarification that 'referring 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', and that therefore '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 lead to indirect effects, such as, for example, the displacement of demand towards forms of illegal gaming››.
The Court of Cassation therefore established that the appellant association had limited itself to completely generic references, without providing elements of detail proving the feared harmful effects.
