The Council of State accepted - through a sentence - the appeal presented against the Municipality of Bolzano by a company that manages a bar in the area, which requested the reform of the sentence of the TRGA - Autonomous Section of Bolzano n. 59 of 8 March 2023 which had rejected the appeal of the same company against the revocation of the provision of the President of the Province of Bolzano of 25 June 2007, with which the company (...) had been authorized to collect bets on sporting events in the financial year (…), as it is within 300 meters of sensitive places.
In addition to this appeal, the Council of State then accepted - through two further sentences - two other appeals presented by a public gaming concessionaire concerning the same issue.
“The interested parties have lodged this appeal – explained the judges of the Council of State in one of the three sentences -, articulating the following reasons:
Violation of the law in relation to the art. 5-bis of the LP Bolzano n. 13 of 1992. Incorrect application of the extension of the applicability of the same also to authorizations for the collection of bets. Violation of the art. 1, paragraph 2, of legislative decree 1 of 2012.
The judge of first instance erroneously considered the art. to be applicable. 5-bis of the LP Bolzano n. 13 of 1992 also to the activity of collecting bets based on both a literal and logical-systematic interpretation of the law.
Otherwise, the interpretative evaluation could not go as far as the elaboration of a new rule with the assumption of a substitute role for the legislator.
The activity of collecting bets would not be mentioned either directly or indirectly by the article in question or by any other rule contained in any legislative provision promulgated by the Province of Bolzano in the sector in question.
The consideration by which, with the lemma "games and attraction halls", the Province of Bolzano would have intended to refer to any type of games hall would exclude a priori the possibility that the applicability of the rule is extended to places intended for the collection of betting, environments that are completely distinct and cannot be confused with the former, which find discipline and definition in the directorial decree of 22 January 2020.
The demonstration that the art. 5-bis of the LP refers only to the devices would be confirmed in its paragraph 2-bis, according to which the spatial and temporal limitations are extended to every type of exercise dedicated to gaming using devices referred to in the art. 110, paragraph 6, of Royal Decree no. 773 of 1931.
The objective evaluation of the first degree sources should have led to an opposite outcome, given that none of them made the slightest mention of betting, but only and exclusively of the devices regulated by the art. 110, paragraph 6, of Royal Decree no. 773 of 1931.
The clearly expressed voluntas legis would be oriented only and exclusively to the regulation of devices for the collection of legitimate gaming deriving from its regulatory source in the art. 110, paragraph 6, of the TULPS.
Violation of the law due to excess of power. Violation of the principle of legitimate expectations.
Other heads of the sentence rejected the third ground of appeal, with which the party deduced the violation of the private individual's trust and the lack of motivation for the forfeiture measure.
A first aspect of censorship would concern the already disputed assimilation, from the point of view of the regulation in question, of the activity of collecting bets to that of the activity of collecting legitimate gaming using machines.
Therefore, there would be a breach of trust, since it cannot be considered resolved on the basis of the incorrect statement for which the deadline for the expiry of authorizations for the collection of bets would be explicitly provided for by law.
The situation of ownership of a favorable administrative act, together with the enormous time gap that elapsed between 1 January 2016 (date of deemed forfeiture of the title) and the notification of the start of the procedure aimed at the declaration of forfeiture, on 8 March 2019 , would be facts uniquely suitable to generate a legally qualified expectation on the part of the interested parties, so that their trust, which is clearly innocent, should be protected.
The forfeiture provision would have directly damaged the trust created in the hands of the private individual.
The Administration did not justify the current reasons of public interest that would have justified the forfeiture intervention, given the enormous economic sacrifice imposed on the recipient.
Violation of the law in relation to distance calculation. Lack of investigation and motivation.
The use in the art. 5-bis of the noun "radius" would not be unambiguous in the sense of believing that the only possible methodology, respectful of the terminology used by the legislator, is that of the "radius in a straight line, as the crow flies".
The term "radius", however, could be understood in the sense of calculating the distance according to the shortest pedestrian route.
Violation of the law in relation to the regulation of litigation costs: violation of art. 26 cpa
In the unlikely event that the appeal judge decided not to share the reasons illustrated, the issue addressed would still have a novel and uncertain character, for which the conditions set out in art. 92, paragraph 2, cpc to arrange full compensation of litigation costs.
The Municipality of Bolzano analytically counter-argued, concluding that the appeal was rejected.
The appellants produced other briefs in support of their defence.
At the public hearing on December 14, 2023, the case was held for decision.
2. The appeal is well founded and must therefore be accepted.
3. The disputed act pronounced the revocation of the provision of the President of the Province of Bolzano of 25 June 2007 with which the company (...) was authorized to collect bets on sporting events, referred to in article 38, paragraphs 2 and 4, of Legislative Decree 223 of 2006 – authorization issued pursuant to art. 88 of RD n. 773 of 1931 in the financial year (...), with effect from 1 January 2016 - since, within a radius of 300 meters from the "collection point for bets on sporting events" referred to above, there are the places defined as sensitive pursuant to the 'art. 5-bis of LP n. 13/1992, indicated in the initiation of the procedure dated 28 February 2019.
The reason for the pronounced decline was the following:
“given that, pursuant to paragraph 1 of article 5/bis of provincial law no. 13/1992 the authorization is granted for 5 years and renewal can be requested after expiry. For existing authorizations the 5-year term starts from 1 January 2011;
The party's counterarguments cannot be accepted as the Regional Administrative Court for Lazio has clarified with sentences no. 7700/2013 of 29.07.2013 and n. 3122 of 21.03.2014 that the spatial and temporal limitations within a radius of three hundred meters from sensitive places pursuant to article 5-his, paragraph 2 bis, of the provincial law of 13 May 1992, n. 13 also extend to the exercise of betting referred to in art. 38 paragraph 2 and 4 of Legislative Decree 4 July 2006, n. 223, in turn subject to authorization pursuant to art. 88 of the RD 18.06.1931 n. 773/1931, and the Regional Administrative Court for Lombardy confirmed, with sentences no. 479/2019, that the distance between rooms and gaming machines from sensitive places can be measured as the crow flies, even if it is smaller than the actual pedestrian path. This calculation criterion extends "the area of protection of subjects exposed to the risk of gambling addiction, compared to the mere pedestrian distance" and "is therefore reasonable and consistent with the purposes pursued by the legislation dictated on the subject".
4. The art. 5-bis of the LP Bolzano n. 13 of 1992, added by art. 1, paragraph 1, of LP n. 13 of 2010, provides that "for reasons of protection of certain categories of people and to prevent the vice of gambling, the authorization referred to in article 1, paragraph 2, for the operation of gaming halls and attractions cannot be granted where they are located within a radius of 300 meters from schools of any level, youth centers or other institutions frequented mainly by young people or residential or semi-residential structures operating in the health or social care sector. The authorization is granted for 5 years and renewal can be requested after expiry. For existing authorizations the 5-year term starts from 1 January 2011".
The subsequent paragraph 1-bis, added by art. 8, paragraph 1, of LP no. 10 of 2016 also provides that "for the granting of authorization to operate gaming and attraction rooms pursuant to paragraph 1, all public and private health and social care facilities that carry out reception activities are also considered sensitive places, assistance and consultancy. The provincial government can identify other sensitive places where games cannot be made available."
5. The controversial question, therefore, concerns the correct exegesis of the said art. 5-bis, i.e. it concerns the ascertainment of the applicability or otherwise of the said rule, not only to gaming rooms, where electronic devices (AWP and VLT) are installed, but also to rooms authorized to collect bets on sporting events.
In other words, the "heart" of the controversy lies in the exegesis of the phrase "gaming and attraction halls", i.e. in the assessment of whether or not betting halls are included in the same.
The rationale of the legislation is clear, as it is aimed at protecting certain categories of weaker subjects, such as young people, from the possible onset of pathological phenomena such as gambling addiction, therefore it is aimed at preventing, combating and reducing the risk of addiction from pathological gambling.
6. The provision of provincial law restricts the freedom of economic initiative protected by art. 41 Constitution.
However, the constitutional principle of private economic initiative referred to in art. 41 of the Constitution, with a view to balancing interests and in the presence of reasonable assumptions, must be considered recessive compared to that of the art. 32 of the Constitution, which protects the right to health, where the psycho-physical health of citizens is endangered.
On the other hand, art. 41 of the Constitution, in enshrining the freedom of private economic initiative, provides that it cannot be carried out in conflict with social utility or in such a way as to cause damage to health, the environment, safety, freedom, human dignity. .
This is the meaning of the provincial regulations in question, which tend to favor the protection, albeit potential, of the psycho-physical health of the categories most at risk over the full expression of the freedom of private economic initiative
Furthermore, precisely because it affects a value that is also constitutionally relevant, the rule presents itself as exceptional and, consequently, must be interpreted rigorously, without it being possible to extend it by analogy to other cases not expressly contemplated.
7. The adequacy of the provincial legislative framework with respect to the objectives pursued has already been scrutinized by the jurisprudence of this Section, which - once it has been excluded, following official technical advice, that in the Municipality of Bolzano the law produces a so-called effect expulsion of lawful gaming halls from the entire municipal territory - has reached conclusions from which the Board has no reason to deviate (see Cons. Stato, VI, 11 March 2019, n. 1618).
The Section, in particular, highlighted that the regulation in question achieves "plausibly the balancing of the constitutional values at stake through the introduction of distancing criteria of location, suitable for preventively curbing the negative externalities of the activity of the enterprise of lawful gambling on public health, thereby concretising, in the reference sector, the clause of ... contrast with the social utility referred to in the art. 41, second paragraph, of the Constitution (which also includes the needs for the protection of health and public health), and thereby overcoming the restrictive rule of business activity the positive screening of reasonableness, in compliance with this general principle that can be identified from the art. 3 of the Constitution.
In fact, given that it must be considered established that the movement of gaming halls to peripheral areas and the lesser capillarity in their distribution lead to a significant reduction in gaming on entertainment machines mainly within the category of occasional/social consumer players, it is observed that, although according to the ctu's assessments this category of players is characterized by an absent or low risk profile with respect to the possibility of developing pathological gaming behaviours, the introduction of the distance meter, from the point of view of health protection, can well be considered a suitable and effective intervention to prevent forms of gambling addiction, to the extent that occasional gambling is interpreted as the initial stage of a process which, albeit in probabilistic terms, linearly leads to the development of an addiction. This interpretation, although controversial in the literature of the sector, still moves within the limits of technical-scientific reliability - in fact the expert witness, in the expert reports, acknowledges that «the three categories of consumers described [i.e., those of the social player, of the problem gambler and the pathological gambler; nde] are often implicitly or explicitly placed in a continuum that goes from social players to pathological ones and therefore interpreted by some scholars as different stages of a pathological evolution of gaming behavior which, however, must be considered as a sequence of phases of a linear process only for some subjects", citing correlative literature -, so that the regulation of distancing criteria from sensitive sites can be attributed, in a not implausible way, a preventive effectiveness in the fight against gambling addiction phenomena. On this point, it is necessary to specify that the discretion of the legislator should not be confused with the discretion (administrative and/or technical) of the public administration, in the sense that the former constitutes the explanation of the political choices of the bodies invested with legislative power and finds the its limits only in the superordinate norms of constitutional rank (and, possibly, in Eurounitary law), so that the same, once these limits have been respected (including the principles of reasonableness and intrinsic rationality), does not appear to be further questionable (in the context of a judgment of constitutionality)".
Therefore, the undoubted congruity and adequacy of the provincial legislative framework in question with respect to the purposes pursued as well as the lack of violation of the art. 41 of the Constitution and of the principle of reasonableness, with the consequent absence of the conditions for a possible referral to the Constitutional Court.
8. The provincial regulation, where it indicates gaming and attraction halls as the object of regulation, certainly refers to the installation of legal gambling machines referred to in article 110, paragraph 6, of the rdn 773 of 1931 .
The art. 110, paragraphs 6 and 7, TULPS, specifically, provides that:
“6. The following devices are considered suitable for legal gaming:
a) those who, equipped with a certificate of conformity with the provisions in force issued by the Ministry of Economy and Finance - Autonomous Administration of State Monopolies and mandatorily connected to the telematic network referred to in article 14-bis, paragraph 4, of the decree of President of the Republic 26 October 1972, n. 640, and subsequent amendments, are activated with the introduction of metal money or with specific electronic payment instruments defined with provisions of the Ministry of Economy and Finance - Autonomous Administration of State Monopolies, in which together with the random element they are there are also elements of skill, which allow the player the possibility of choosing, at the start or during the game, his own strategy, specifically selecting the race options deemed most favorable among those proposed by the game, the cost of the game does not exceed 1 euros, the minimum duration of the game is four seconds and which distribute cash winnings, each with a value not exceeding 100 euros, paid out by the machine. The winnings, calculated by the machine in a non-predeterminable way over a total cycle of no more than 140.000 games, must be no less than 75 percent of the sums played. In any case, these devices cannot reproduce the game of poker or in any case its fundamental rules; with a provision of the Ministry of Economy and Finance - Autonomous Administration of State Monopolies, the verification of the individual devices referred to in letter a) may be envisaged;
b) those, forming part of the telematic network referred to in article 14-bis, paragraph 4, of the decree of the President of the Republic of 26 October 1972, n. 640, and subsequent amendments, which are activated exclusively in the presence of a connection to a processing system of the network itself. For these devices, with regulation of the Minister of Economy and Finance in agreement with the Minister of the Interior, to be adopted pursuant to article 17, paragraph 3, of law 23 August 1988, n. 400, are defined, taking into account the specific market conditions:
1) the cost and payment methods of each game;
2) the minimum percentage of the collection to be used for winnings;
3) the maximum amount and methods for collecting winnings;
4) the unmodifiability and safety specifications, also referring to the processing system to which these devices are connected;
5) the player responsibility solutions to be adopted on the devices;
6) the types and characteristics of public establishments and other points authorized for the collection of games in which the devices referred to in this letter can be installed.
7. The following are also considered devices and devices for legal gaming:
a) electromechanical ones without monitors through which the player expresses his physical, mental or strategic ability, which can be activated only with the introduction of metal coins, of a total value not exceeding, for each game, one euro, which they distribute directly and immediately after the conclusion of the game, prizes consisting of products of small objects, not convertible into cash or exchangeable for prizes of different kinds. In this case, the total value of each prize does not exceed twenty times the cost of the game;
b) automatic, semi-automatic and electronic ones for entertainment or games of skill which are activated only with the introduction of a metal coin, of a value not exceeding 50 euro cents for each game, in which the elements of skill or entertainment are predominant with respect to the random element, which can allow for each match, immediately after its conclusion, the prolongation or repetition of the match, up to a maximum of ten times. From 1 January 2003, the devices referred to in this letter can only be used if reported pursuant to article 14-bis of the decree of the President of the Republic of 26 October 1972, n. 640, and subsequent amendments, and whether the relevant taxes have been paid for them. From 1 January 2004, these devices cannot allow the prolongation or repetition of the game and, where it is not possible to convert them into one of the devices for legal gaming, they are removed. For the conversion of the devices, the provisions of article 38 of law 23 December 2000, n. 388, and subsequent amendments;
c) those, based solely on physical, mental or strategic ability, which do not distribute prizes, for which the duration of the match may vary in relation to the player's skill and the cost of the single match may be more than 50 euro cents;
c-bis) those, mechanical and electromechanical, different from the devices referred to in letters a) and c), which can be activated with coins, tokens or other electronic payment instruments and which can distribute coupons directly and immediately after the conclusion of the match;
c-ter) those, mechanical and electromechanical, for which access to the game is regulated without the introduction of money but with use for a time or purpose".
9. The case, therefore, consists of games played using slot-type machines (devices) and differs from the collection of bets on sporting events, having as the only common denominator the fact that both cases can be classified as gambling, in which is for profit and the winning or losing of money is totally or partially random.
9.1. The difference is also clearly explained at a regulatory level.
In particular, the art. 86 of rdn 773 of 1931 regulates the operation of amusement arcades for devices referred to in the art. 110, paragraphs 6 and 7, of the same consolidated act, while art. 88 of rdn 773 of 1931 regulates the practice of betting.
The directorial decree of the Autonomous Administration of State Monopolies of 27 July 2011 defines the type of sales points where gaming collection is permitted, distinguishing, among other things, between agencies for the exercise of betting on sporting events and exercises dedicated exclusively to gaming with devices referred to in art. 110, paragraph 6, of the TULPS.
The art. 7, paragraph 10, of legislative decree no. 158 of 2012 (so-called Balduzzi decree), furthermore, reserves the progressive relocation of the gaming collection points solely to the rooms containing the devices referred to in the art. 110, paragraph 6, of the Tulps.
Therefore - given that, the generic definition of legal gaming means gaming played using the devices referred to in the art. 110, paragraph 6, letters a) and b), of Royal Decree 773 of 1931, as well as all other forms of lawful gaming under state concession, provided for by current legislation - "gaming halls" mean the premises or equipped spaces in which the legal games referred to in the art. are played exclusively or predominantly. 110, paragraphs 6 and 7, of the rdn 773 of 1931, as defined by the art. 86 of the same, while "betting shops" mean public bet collection establishments pursuant to art. 88 of rdn 773 of 1931.
9.2. The difference between games room and betting room can also be identified in terms of the effects that can result.
In fact, it is not implausible to believe that the devices referred to in art. 110, paragraphs 6 and 7, of the Tulps (including, in particular, slot machines and video lotteries) appear to be "the most insidious in the context of the phenomenon of gambling addiction, since, unlike terminals for collecting bets, they imply contact direct and exclusive between the user and the machine, without any human intermediation aimed at discouraging, due to a normal psychological mechanism linked to the sense of modesty, the obsession with the game, especially in the initial phase of the process of pathological addiction" (see, in purpose, State Council, IV, n. 2957 of 2017).
The difference between gaming rooms equipped with electronic instruments (VLT) and points of mere collection of bets, in fact, is inherent in the equipment offered to customers, which for VLT spaces consists in the presence of electronic equipment capable of monopolizing the attention of the serial player , where betting shops only offer a place to collect “bets” on sporting events.
From another perspective, it should also be noted that legitimate games are divided into physical (offline), if distributed throughout the territory and played in businesses and premises open to the public, through dedicated personnel or entertainment devices made available to customers, and remotely (online or gambling), if distributed electronically, via the internet and telephone.
The collection of sports bets on future events occurs largely remotely, online.
Therefore, the imposition of a distance limit with respect to "sensitive sites" for betting shops would prove to be substantially useless or, in any case, of reduced usefulness, as it is not suitable for achieving the objectives of preventing gambling addiction, as such a "game lawful”, as mentioned, also and above all takes place remotely, so that the bettor, in the absence of a physical point, would not be discouraged from playing the game, being able to easily carry out the same electronically.
10. The Board, in light of all the above, therefore believes that the aforementioned art. 5 – bis of the LP Bolzano, which expressly refers only to gaming halls for machines (art. 86 Tulps), cannot find application to the different hypothesis of halls for betting on sporting events (art. 88 Tulps) and this is due to an exegesis literal of the norm, which does not tolerate, as an exceptional norm, interpretations that are not retractable from the same letter, or by reason of a systematic exegesis.
11. On the other hand, the fact that this is the only exegetical option that can be correctly pursued is confirmed by the provisions of paragraph 2-bis, added to the art. 5-bis of LP n. 13 of 1992 by art. 4, paragraph 2, of LP no. 15 of 2011, which establishes that, "for the purposes referred to in paragraph 1, the spatial and temporal limitations are extended to any type of exercise dedicated to gaming using devices referred to in article 110, paragraph 6, of the Royal Decree of 18 June 1931, n. 773, and subsequent amendments".
It follows that, if the added paragraph 2-bis has felt the need to extend the spatial and temporal limitations to the entire range of businesses in which legal gaming is practiced on devices, it can be deduced that these limitations do not at all concern the different hypothesis of betting on sporting events.
12. Nor, in the opposite sense, can precedents in jurisprudence acquire relevance in which the distance limits have been considered applicable not only to gaming rooms with machines, but also to betting rooms and this due to the specificities of the individual cases, which cannot uncritically overlap.
12.1. Specifically, the sentence of the Third Section of the Council of State n. 2579 of 2021 defined a dispute within the Liguria Region, in which it expressly highlighted that, if the legislator had really wanted to limit the applicability of art. 2 of LR n. 17 of 2012 to gaming halls only, would have mentioned only gaming halls in paragraph 2 of the art. 1 and not even "lawful gaming", more generally, and would have used unequivocal diction using expressions such as "exclusively", "solely", referring to gaming rooms.
In the case in question, however, the legislator of the Province of Bolzano referred specifically to "game and attraction halls" and not generically to "legal games", which would undoubtedly include betting halls.
Furthermore, the described distinction, not only literal or structural, but also in terms of potentially harmful effects, between game rooms and betting rooms, leads us to believe that the voluntas legis expressed in the South Tyrolean provincial context is not illogical, although, in an obiter dictum, the aforementioned sentence of this Council of State n. 2579 of 2021 has qualified a possible regulatory differentiation between "legal games" as an unreasonable hypothesis.
12.2. In the sentence of this Council of State, Third Section, n. 1382 of 2023, however, LR Friuli Venezia Giulia no. is applied. 1 of 2014 which, in art. 6, paragraph 1, established that "in order to protect the most vulnerable subjects and to prevent the phenomena of addiction to gambling and gaming practiced with legal gaming machines, the installation of gaming machines is prohibited lawful and the activity of collecting bets pursuant to article 88 of Royal Decree 773/1931 within a distance of five hundred meters from sensitive places".
The difference in the cases compared to that which is the subject of this judgment is evident, given that the Friulian regional law, unlike the provincial law of Alto Adige, expressly provides distance limits from sensitive places also for betting shops.
12.3. For completeness, it should finally be noted that, while the Council of State, with the sentence of the Fifth Section, n. 5327 of 2016 noted how, at a national level, and in particular for the purposes of health protection (art. 32 of the Constitution), the activity of managing legitimate bets, provided for by art. 88 of rdn 773 of 1931, is equal to the gaming halls regulated by the art. 86 of the same royal decree, the Fourth Section of the Council of State, with sentence no. 2957 of 2017, has otherwise argued, with arguments that appear more persuasive to the Board also in the light of what has already been highlighted in the motivational fabric of the present sentence, that the regional regulation of distances from sensitive objectives can be uniform, that is, treat salt in the same way games and betting shops in order to prevent gambling addiction; without prejudice to the fact that, since it cannot be denied that there is a certain basic difference between the two activities (gaming with a slot-type device/collecting bets on future events), the choice to provide distance limits only for amusement arcades, and not also for betting shops, it does not appreciably exceed the limits of legislative discretion.
13. The validity of the reason examined, relating to the correct exegesis of the art. 5-bis of LP n. 13 of 1992, having absorbed the additional reasons due to the greater radicality of the alleged defect, determines the validity of the appeal and, as a consequence, in reforming the contested sentence, the acceptance of the first degree appeal and the consequent annulment of the provision of revocation issued by the Municipality of Bolzano on 20 May 2019.
14. The costs of the double level of judgment, due to the complexity and novelty of the issues dealt with, can be fully compensated between the parties.
PQM
The Council of State in the jurisdictional seat, Section Six, definitively ruling, accepts the appeal in epigraph (RG no. 3560 of 2023) and, for the effect, in reforming the contested sentence, accepts the appeal of first instance and cancels the forfeiture order issued by the Municipality of Bolzano on 20 May 2019.
It fully compensates the costs of the double level of judgment between the parties".
