The Council of State accepted - through a sentence - the appeal presented by (...) and the Italian Tobacconists' Federation against the Municipality of Cairo Montenotte (SV) in which it requested the reform of the sentence of the Liguria TAR which had "only partially accepted the appeal brought by them against the ordinance of the mayor of Cairo Montenotte n. 5 of 2 April 2019, concerning "regulation of the operating hours of betting shops and video lottery rooms referred to in Article 88 of the TULPS, as well as the use of entertainment and leisure devices with cash winnings referred to in paragraph 6 of Article 110 of the TULPS” which had among other things 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 their operations to just two hours in the evening, resulting in obvious repercussions on the proceeds from gaming".
“In support of the appeal – we read in the sentence – the parties in first care 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 for the failure to demonstrate the impact of the operating hours of the devices on the phenomena of gambling addiction in the territory of the municipality of Cairo Montenotte - failure to demonstrate of the significant presence of so-called gambling addicts in the territory of the municipality of Cairo Montenotte - contradictoriness and manifest unreasonableness - violation of the principles of proportionality and impartiality of administrative action, given the failure to balance the opposing interests - lack of proportionality - illogicality - excess of power and lack of motivation for failure to comply with the provisions of the agreement adopted by the unified State-Regions conference no. 103/cu of 7 September 2017 - unequal treatment - manifest injustice;
2) Violation of the principle of legality referred to in article 1 of law no. 689/1981 – lack of motivation.
3. The judge of first care with the burdened sentence, after having positively assessed the legitimacy to act of the Italian Tobacconists Federation, contested by the Municipality, it rejected the first ground of appeal on the merits, accepting the second, referring to the illegitimacy of the contested municipal ordinance where it imposed the pecuniary sanction from a minimum of €1.000,00 to a maximum of €5.000,00 pursuant to art. 3 paragraph 1 regional law Liguria Region n. 17/2012, observing that “that the imposition of the sanction referred to in LR n. 17/2012 for violations that do not strictly relate to the provisions of the law referred to is improper and violates the principle of legality referred to in the art. 1 paragraph 2 of law 24.11.1981, n. 689 ("laws that provide for administrative sanctions apply only in the cases and for the times considered therein").
Furthermore, the partial annulment of the contested order does not free it from the sanctioning system, as art. 7-bis paragraph 1-bis of Legislative Decree 18.8.2000, n. 267 (TUOEL), according to which "the administrative sanction referred to in paragraph 1 [from 25 euros to 500 euros, ed.] also applies to violations of the ordinances adopted by the mayor and the president of the province on the basis of legal provisions, or specific regulatory provisions".
In the present case, the contested ordinance finds its legal basis in art. 50 paragraph 7 of Legislative Decree no. 267/2000 (see Constitutional Court, sentence 18.7.2014, n. 220, § 5.1; Cons. of St., V, 20.10.2015, n. 4794)".
4. With the appeal the parties deduce on the point of fact that, as attached in first aid:
a) (...) is the owner of the ordinary monopoly retailer of goods no. 22 located in Cairo Montenotte, (...), where it also carries out the newsstand activity. Within its business, it was legitimately authorized, as required by current provisions, to install 8 gaming machines with cash prizes pursuant to art.110, paragraph 6, letter. a) of the TULPS (so-called AWP). Not being the holder of a public business licence, such as, for example, a bar, he must observe the opening hours of his shop, which comply with those established by the Customs and Monopolies Agency for the tobacco sales activity, therefore keeps its tobacco shop open from 6am to 30pm from Monday to Saturday and from 20am to 00pm on Sunday;
b) the FIT is the most representative national association of the category of retailers of monopoly goods - State concessionaires - and by virtue of its statutory objectives, it considers itself entitled to defend the interests of the category represented in the jurisdiction.
4.1. Having said this, they formulated the following complaints against the sentence first treatments:
1) Error in judging on the found non-existence of the alleged lack of investigation and motivation;
2) Error in hearing on the detected non-existence of the alleged lack of proportionality and adequacy of the contested union order;
3) Error in hearing on the detected non-existence of the complained about unequal treatment and predetermination in favor of the other various authorized subjects, implemented with the contested union order;
4) Error in hearing on the detected non-existence of the vice of excess power due to failure to comply with the provisions of the State-Regions Agreement of n.103/CU of 7 September 2017.
5. The Municipality of Cairo Montenotte was formed, with a detailed defense brief, arguing for the rejection of the appeal.
6. In view of the Chamber of Commerce hearing, scheduled for the treatment of the precautionary incident, the State Customs and Monopolies Agency, while acknowledging that it is not entitled to be sued in relation to this dispute, as none of its actions have been challenged and that the notification of the appeal against him should be deemed to have been made as litis denuntitio, observed, in support of the appellants' reasons, that the act challenged in first care would have the effect of a substantial, evident and irrecoverable expulsion of gaming collections via entertainment machines from points of sale active during non-evening hours, among other things in open violation of the State-Regions Conference Agreement, in particular, providing, in relation to large areas and therefore to a significant number of points of sale, bans on offering gaming activities for a number of 12 hours per day (from 07:00 to 19:00), generating, among other things, due to the expulsion effect, illegal gaming and therefore subtraction of resources from the Treasury and uncontrolled gaming offer circuits.
7. At the Chamber hearing on 19 June 2020, set for the discussion of the precautionary incident, the Section took note of the appellant's waiver of precautionary protection, referred to in the notes filed on 15 June 2020.
8. In view of the discussion of the merits of the appeal, the appellant has filed a detailed defense statement, pursuant to art. 73 paragraph 1 cpa, insisting on accepting the appeal.
9. The appeal was held for decision following the public hearing on 21 September 2023.
RIGHT
10. Before examining the grounds for appeal, it is useful to recall the principles developed by administrative jurisprudence relating to the time limitations of machines for the exercise of legal gaming.
First of all, it must be remembered that the legislation on gambling - with regard to the social consequences of the offer of games on psychologically weaker groups of consumers, as well as the impact on the territory of the influx of users to games - does not fall within the exclusive state competence in matters of public order and security referred to in art. 117 paragraph 2 letter. h), Constitution, but rather in the protection of the psycho-physical well-being of the most vulnerable subjects and public peace, protection which falls within the responsibilities of the municipality pursuant to articles. 3 and 5, Legislative Decree 18 August 2000, n. 267 (in terms, State Council, Section V, 20 October 2015, n. 4794).
Furthermore, it has been agreed upon that the regulation of the opening and operating hours of authorized gaming halls constitutes a crossroads of values in which a plurality of interests converge which must be adequately measured and balanced. In fact, on the one hand, the needs of private individuals emerge - i.e. those authorized to carry out legitimate gaming - holders of a concession with the financial administration and a specific police authorisation. These subjects aim to maximize their profits, in order to obtain the remuneration of their economic investments through the widest daily duration of the opening of the business, invoking the constitutional principles of freedom of economic initiative, free competition and the legitimate expectations generated precisely from the issuing of the titles - concession and authorization - necessary for the maintenance of the gaming halls. On the other hand, there are public and general interests, not contained in the economic-financial ones (protected by the concession) or relating to the protection of public order and safety (protected by the police authorisation), but also extended to public peace (in reason of the not unlikely inconveniences deriving from the location of gaming halls in certain more or less densely populated areas of the city due to possible traffic congestion or crowding of visitors) and to public health, the latter in relation to the dangerous phenomenon, increasingly evident, of gambling addiction (almost verbatim, State Council, Section V, 26 August 2020, n. 5223).
In this context, the power exercised by the mayor to define the opening hours of the gaming rooms and the premises where the equipment pursuant to art. 110 TULP.S., who is required to evaluate the positions of each of the subjects involved, without using excessive means compared to the objectives pursued.
In this regard, the power of the Mayor referred to in art. is completely undisputed. 50, paragraph 7, of the TUEL to adopt functional measures to regulate the opening hours of game rooms and public establishments in which gaming equipment is installed. This is a question which cannot be doubted and which is also deduced from the teachings of the Constitutional Court which, with the sentence of 18 July 2014, n. 220, declared the question of constitutional legitimacy of the art. inadmissible. 50, paragraph 7, of Legislative Decree no. 267 of 2000, raised with reference to articles. 32 and 118 of the Constitution, in the part in which it regulates regulatory and provisional powers attributed to the mayor, without providing that these powers can be exercised with the aim of combating the phenomenon of pathological gambling.
The Constitutional Court considered the interpretation of the art. plausible. 50, paragraph 7, Legislative Decree 267 of 2000 endorsed by administrative jurisprudence as capable of authorizing mayors to regulate the opening hours of gaming rooms and businesses in which gaming equipment is installed, also with a view to combating the phenomena of so-called gambling addiction, providing a legislative foundation for said power; in particular, the Court recalled the evolution of administrative jurisprudence which "has developed an interpretation of the art. 50, paragraph 7, of the Legislative Decree. 267 of 2000, compatible with the constitutional principles evoked, in the sense of believing that the same contested provision provides a legislative foundation to the union power in question", this in the sense that, by virtue of the general provision of article 50, paragraph 7, of . lgs. 267 of 2000, "the Mayor can regulate the opening hours of game rooms and businesses in which gaming equipment is installed and that he can do this for the needs of protecting health, public peace or road traffic" (ruling of 18 July 2014 n. 220) (…)” (Council of State, section V, 30 June 2020, n. 4119).
The provision of an hourly limitation is therefore aimed (in primis) unequivocally to counteract the phenomenon of gambling addiction, understood as a mental disorder that induces the individual to concentrate all his interests on gambling, in an obsessive and compulsive manner, with obvious repercussions on the family and professional level, as well as with the undeniable dispersion of personal assets.
11. Having said this, we can move on to examining the grounds for appeal.
12. With the first reason, the head of the sentence is firstly criticized first care which excluded the lack of investigation and motivation, highlighting that the mayor had superficially limited himself to reporting a data on gambling addiction which, as it was referable to the entire regional territory, did not provide specific elements regarding the extent of the phenomenon on the territory of the region alone Municipality of Cairo Montenotte.
12.1. According to the plaintiff's theory, the mayor was therefore inspired by data relating to the regional territory, between the years 2011 and 2018, failing to note the current extent of the phenomenon in the territory under his jurisdiction; equally it should be considered for the consideration contained in the preliminary report ("Report on Pathological Gambling in Liguria”)“but naturally the phenomenon is underestimated and the subjects who turn to the relevant services are only a modest percentage compared to the real need”, which did not provide elements that could help quantify, in the municipal territory, the phenomenon that it was intended to combat.
Furthermore, according to what was deduced by the appellant, the number of 371 patients affected by GAP, in the year 2018, taken care of by the SERTs throughout the regional territory could not indicate a health emergency, much less if compared to the number of inhabitants of the small territory of the Municipality of Cairo Montenotte.
What is stated in the contested order in first care - or" […] the “Pathological Gambling Report in Liguria” drawn up by Alisa Liguria Region Health System, from which it emerges that the monitoring of the phenomenon implemented for a decade by Alisa's Mental Health and Addictions SC has reported that “the requests for treatment are constantly increasing and the subjects in charge of the Sert of the Ligurian Departments of Mental Health and Addiction for gambling went from 116 in 2011 to 371 in 2018” – would in fact refer not only, as mentioned, to the subjects in care throughout the regional territory, but would suggest that the numbers indicated (from 116 in 2011 to 371 in 2018) concern patients suffering from addictions of various kinds, and not exclusively from gambling addiction.
12.2. Equally erroneous would be the sentence, according to the appellant's theory, where he had referred to the statistical data on the amount of gambling, referring to the territory of the Municipality, taken from the website Lab Gedi Digital based on the data provided by AAMS - Customs and Monopolies Agency [...], according to which the bets per capita (i.e. how much each citizen spends on average in a year) “in the Municipality of Cairo Montenotte they would amount to €1.918,00 in 2017, which would place the municipality in 491st place out of 7594 Italian municipalities, confirming that it is not at all exempt from the phenomenon”. In this regard, the appellant observes how, according to what has already been deduced in first aid, relating to the collection of AWPs in the territory of the Municipality of Cairo Montenotte from the data updated to the year 2017 provided by the competent ADM on page 785, column called "Collection (C)* (for the devices it is the Collection from Meter)" (which reports the collection "from the counter" which records the amount of sums physically introduced into the machine) showed that on the other hand the overall collection of bets made with the AWP machines in the Municipality of Cairo Montenotte was equal to €8.917.389,26 ( therefore lower than the €10.730.000,00 indicated by the Lab Gedi Digital portal for the year 2017).
From the examination and comparison of the available data it emerged that for the Lab Gedi Digital site "the money spent on gambling in 2017” in the Municipality of Cairo Montenotte would amount to €.25,22 million while from the overall calculation of the collection of all the games provided for the same year 2017 by the competent ADM the overall collection of games, for the same Municipality, would amount to €.21.169.865,93. XNUMX.
In essence, evaluating the latest overall data and dividing it by the number of inhabitants of Cairo Montenotte, equal to 13.145, the expenditure per capita would be €1.610,00, therefore less than the amount of €1.918,00 indicated on the site and referred to in the contested order.
Furthermore, the appellants highlight that in the processing of the data relating to the gaming collection volumes for the Municipality of Cairo Montenotte for the year 2017, the cited portal, giving indication only of the overall data relating to the gaming collection, which however does not coincide with the one provided by the competent ADM, failed to specify the amount of actual expenditure incurred by the players, given by the difference between the volume of collection and that of winnings.
By carrying out the calculation correctly, taking into account the difference between the volume of bets and the winnings, a total and effective expenditure of €5.224.006 would be deduced, which divided by the number of inhabitants of the municipality of Cairo Montenotte (13.145), would highlight a The amount of expenditure per capita, for all types of games, equal to €397,41.
Hence, in the appellant's opinion, the lack of investigation and motivation of the measure charged in first care, not carefully examined by the TAR.
12.3. In essence, the investigative data in support of the corpus motivation of the union order, in addition to not highlighting, in the appellant's opinion, the specific problems existing in the territory of the municipality of Cairo Montenotte, they would certainly not be suitable to justify and support the restrictive measure adopted.
Nor had the Authority itself reported precise and detailed data relating to the number of so-called gambling addicts residing in the municipality of Cairo Montenotte, under treatment at the competent structures.
12.4. Equally erroneous would be the sentence where it had excluded the need for discussion with the FIT, which was not consulted, despite it being one of the most representative associations in the area, placed in the affected ordinance it was specified "consult the most representative trade associations in the area in this regard".
Having limited the operation of the devices from 19,00 pm to 7,00 am and, therefore, in the late evening and night hours, had essentially inhibited the tobacconists, who were not owners of bars or other public establishments, nor certainly game room owners, to carry out the activity for which they had been legitimately authorised.
12.5. The reason is only partially founded, in the sense specified below.
12.6. Without a doubt, having regard to the jurisprudential guidelines on the matter and to the investigation based on the burdened ordinance, the lack of investigation and motivation must be excluded in reference to the need, felt by the mayor, to intervene to regulate the timetables of the devices de quibus, having regard to the extent of the gaming phenomenon in the territory of its jurisdiction.
The order challenged in first care – in expressly recalling in the introduction the report on pathological gambling in Liguria, drawn up by ALISA Sistema Sanitario Regione Liguria, as well as the statistical data specifically referring to the municipality of Cairo Montenotte, published by the site web Lab Gedi Digital on the basis of the data provided by AAMS - Customs and Monopolies Agency (formerly the Autonomous Administration of State Monopolies) - appears assisted, as regards the need to intervene with time limitations in relation to the functioning of gaming machines, by adequate investigation and motivation, not noting the circumstance that the data relating to gambling addicts, of which a trends increasing, is referable to the entire regional territory, given that on the other hand the data relating to bets is specifically referable to the municipal territory and that the ordinance from here it performs an eminently preventive function, aiming to prevent the habit of gambling, which is easily deduced from the amount of bets, from turning into a real pathology.
The investigation defect therefore does not appear ex if recognizable partly here, despite the slight discrepancies between the data taken into consideration by the municipality, published on the site web Lab Gedi Digital, and those communicated by the Customs Agency, as it is not disputed that the Municipality is one of the municipalities with the highest number of games, just as it is not disputed that it is also frequented by very young people from the neighboring municipalities that the ordinance intends to protect (ex multis Consiglio of State, section V, 26 September 2022, no. 8240 according to which "a union ordinance regulating the hours of gaming halls cannot be considered vitiated by a lack of investigation or motivation simply because the number of gambling addicts is not absolutely high, since what must be considered above all is the trend recorded in the period considered, which, alone, causes alarm in the public bodies responsible for health protection and therefore justifies the adoption of restrictive measures (...)".
12.6.1. There is no doubt that the data of the plays per capita in the territory of the Municipality of Cairo Montenotte, albeit amended in the sense requested by the appellant, on the basis of the data provided by the State Monopolies Agency, equal to €1.610,00, is a figure of significant social alarm, as also confirmed by the undisputed circumstance that the Municipality ranks among the leading Italian municipalities in this sense.
12.7. The appellant's deduction, according to which it should have been taken into account not the size of the bets, also misses the mark per capita, but of the amount of the expense, given by the difference between what was played and what was won, given that what is intended to be protected with the ordinance from here, pursuant to art. 50 paragraph 7 of the TUEL, it is not the player's assets, but his health, in order to prevent gambling addiction from taking on a pathological dimension, an addiction which any winnings, whether sporadic or not, end up increasing and being the prejudice on the assets only a reflected effect of said dependence.
12.8. On the other hand, the complaint of lack of investigation and motivation hits the mark, when it refers to the hours of the day in which it was intended to concentrate the exercise of legal gaming by means of the aforementioned equipment, in this sense effectively excluding the tobacconists, who are not owners of bars or other public establishments, such as the appellant, nor certainly owners of gaming halls, to carry out the activity for which they had been legitimately authorized, therefore adopting a measure that is not proportionate, as specified below, with respect to the objective undertaken aiming.
12.8.1. The lack of a hearing by the FIT, the national association most representative of the category of retailers of monopoly goods - state concessionaires, which therefore intended to protect the interests of the category of which it is also representative in the present jurisdiction, probably contributed to this lack of investigation.
And indeed, although the statement contained in the sentence appears to be completely acceptable in general terms first care according to which "The contested union order is configured as a general administrative act, so that art. 13 of law no. 241/1990, which in the first paragraph establishes that the rules on participation "do not apply to the activity of the public administration aimed at the issuing of regulatory, general administrative, planning and programming acts, for which the particular rules remain unchanged which regulate its formation", the circumstance that the ordinance from here would have an impact, for the evening/night time chosen for the exercise of lawful gaming by means of the indicated equipment, in particular on tobacconists, which are necessarily open during daytime hours, made the hearing appropriate, considering that in the same ordinance of appeal it is specified that the (other) most representative trade associations had been consulted.
13. The criticisms contained in the second and third grounds of appeal also hit the mark, criticizing respectively the heads of the sentence which had excluded the violation of the principle of proportionality and of unequal treatment.
13.1. As for the first aspect, it should be remembered that administrative jurisprudence, as recalled by this Section with sentence no. of 20 October 0. 2020 “has dealt in numerous rulings with the possible conflict of the hourly limitation of the operation of entertainment and leisure devices with the principle of proportionality, examining measures which, like that of Roma Capitale, provided for the devices to be turned off for eight hours a day (Cons. State, section V, 8 August 2018, no. 4867; Id., section V, 13 June 2016, no. 2519; Id., section V, 22 October 2015, no. 4861; Id., section V, 20 October 2015, no. 4794; Id., section V, 30 June 2014, no. 3271).
It was stated that “the principle of proportionality requires the administration to adopt a measure not exceeding what is appropriate and necessary to achieve the intended purpose (ex multis, Cons. Stato, section V, 20 February 2017, n. 746; Id., section V , 23 December 2016, no. 5443; Id., section IV, 22 June 2016, no. 2753; Id., section IV, 3 November 2015, no. 4999; Id., section IV 26 February 2015, no . 964), and that, once the intended purpose has been defined, it is respected if the concrete choice of the administration is potentially capable of achieving the objective (suitability of the means) and represents the least possible sacrifice for the private interests achieved ( strict necessity), such, however, that it can be supported by the recipient (adequacy), it was considered:
– that the hourly limitation was proportionate, in the first place, since potentially capable of achieving the objective: by reducing the hours the gaming offer is reduced (State Council, section V, 5 June 2018, n. 3382 );
– that the argument according to which the administration has not taken into account other forms of gambling towards which gambling addicts would turn proves too much since it demonstrates that it is in any case already advisable to limit one of the possible forms of gambling (slot machines, precisely) if others are available;
– that the eight-hour hourly limitation entails the least possible sacrifice for the interest of the private operators of the gaming halls in relation to the public interest pursued: the opening of the exercise to the public remains permitted, which will therefore be able to continue perform its recreational function (with the possible sale of food, snacks, drinks), while the operating times of the appliances are limited for the understandable reason of inducing those most at risk to direct the start of the day towards other interests, work, cultural, physical activity, diverting attention from the game;
– that it is, finally, an adequate measure because, although it certainly involves a reduction in revenues, and, in this sense, a cost for private individuals, it can be effectively supported through a different organization of business activity.
13.2. On the other hand, in the present case, the principle of proportionality appears to have been violated, given that it is not apparent, having regard, among other things, to the investigation carried out and the reasons for the order imposed in first aid, the suitability of the chosen means, i.e. the concentration of hours in which legal gaming is permitted in the late evening and at night, with respect to the pursued objective of combating the phenomena of gambling addiction.
And indeed, although the ordinance acknowledges the fact that the municipality is also frequented by very young people from neighboring municipalities who go to school there, the choice does not appear to be supported by investigations into phenomena of school dropout caused by gambling addiction, so the choice of part of the time for playing the game in the morning, coinciding with the time of school lessons, would also have been suitable for the purpose pursued.
As highlighted by the appellants, the time established with the contested order (ban on gaming from 07,00 to 19,00 every day, including holidays) ends up having an unfavorable and inadequate impact only on the owners of the tobacconists in Cairo Montenotte , leading to a drastic limitation of the hours of operation of the games relegated to the night and late evening hours only, going from an average time slot of around eight hours to a time slot of one or, at most, only two hours, considering the operating hours established for the resales of monopoly goods.
Furthermore, the choice of the Municipality of Cairo Montenotte, in addition to effectively excluding tobacconists from carrying out the activity for which they were legitimately authorized with the issuing of the license pursuant to art. 110 TUPS, appears singular 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 accidit, daytime time is chosen to concentrate the games.
13.2. 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, with respect 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 (...), according to what is deduced from the documents in the case, in fact operates continuously until closing at 20pm (without optional intermediate closing), without managing bar activities and must be present during opening hours, in as much as tobacconists, pursuant to article 28 of law no. 1293 of 1957 and article 63 of Presidential Decree no. 1074 of 1958, are obliged to personally manage the resale and must guarantee their constant presence within the same, without prejudice to the possibility of replacement in temporary absences or impediments, being solely responsible towards the Administration.
Having decided that the operation of gaming machines can only be activated at night is therefore equivalent to an almost complete expulsion of this type of gaming from tobacconists, which however, like all other operators, have also been legitimately authorized to carry it out by State.
LThe contested order is therefore unreasonable and disproportionate in relation to said choice, resulting in a serious disparity in treatment between subjects equally authorized to install the devices in question.
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 “it constitutes an environment frequented by a differentiated user base (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".
14. 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 September 7, 2017.
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 being aware of a distinct orientation (ex multis opinion no. 1418 of 18/08/2020 of 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 aid, (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 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 no. 2022/244 of 2023 no. 17.02.2023,).
15. The appeal must therefore be accepted, in the senses specified above, and for the effect, in reforming the appealed sentence, in accepting the appeal of first aid, the ordinance of the mayor of Cairo Montenotte n. must be annulled. 5 of 2 April 2019, concerning "regulation of the operating hours of betting shops and video lottery rooms referred to in article 88 TULPS, as well as the use of entertainment and leisure devices with cash winnings referred to in paragraph 6 of article 110 TULPS".
16. Nonetheless, there are exceptional and serious reasons, having regard to the peculiarity of the case and the matter discussed, to fully compensate the parties for the costs of the double-level litigation.
PQM
The Council of State in jurisdiction (Fifth Section), definitively ruling on the appeal, as in the proposed epigraph, accepts it in accordance with the reasons and for the effect, in reform of the appealed sentence and in acceptance of the first instance appeal , cancels the ordinance of the mayor of Cairo Montenotte n. 5 of 2 April 2019".
