The Court of Cassation, 7th Criminal Section, has expressed itself on the merits of the request for annulment of the sentence of the Court of Appeal of Palermo which sentenced the owner of an unlicensed betting center.
The Court of Cassation highlighted that "since police authorizations are only issued by the holder of the concession, any irregularities committed in the context of the procedure for issuing the latter would also invalidate those aimed at issuing the police authorization, the absence of which could not therefore being charged to subjects who have not managed to obtain it due to the fact that they issue said authorization presupposes the attribution of a concession, from which said subjects have not been able to benefit in violation of EU law.
It follows that, in the absence of the granting of the licence, to exclude the possibility of the incriminating case, it is necessary to demonstrate that the foreign operator has not been able to obtain the necessary authorization concessions due to illegitimate exclusion from the tenders (Section 3, n. 40865 of 20/09/2012, Majorana, Rv 253367) due to a discriminatory behavior held by the national State towards the Community operator.
In this hypothesis, the national judge, following the binding interpretation given by the provisions of the treaty by the Court of Justice, will have to disapply the internal legislation due to its contrast with the Community one and consider that it does not constitute an offense pursuant to art. 4 the collection of bets, in the absence of a licence, by a subject operating in Italy on behalf of the foreign operator, whose concession has been denied due to illegitimate exclusion from calls for tenders and non-participation due to non-compliance, in the interpretation of the Court of Justice, of the internal concession regime with articles 43 and 49 of the EC Treaty (Section 3, n. 14991 of 25/03/2015, Arcieri, Rv 263115; Section 3, n. 12335 of 7 /0172014, Ciardo, Court of Cassation - unofficial copy 259293; Section 3, n. 37851 of 04/06/2014, Parrella, Rv 260944; Section 3, n. 28413 of 10/07/2012, Cifone, Rv 253241).
In the case in question, Caruso had been denied authorization pursuant to art. 88 Tulps since the foreign operator (Betsolution4u) did not have a licence. The non-manifest groundlessness of the reason allows the relief of the statute of limitations of the offense accrued pending the judgment of legitimacy as at 16 November 2022."
