The Court of Torre Annunziata (NA) ruled on the merits of a case between a gaming concessionaire and an operator who had signed a contract for the marketing of public games and betting on virtual events
In consideration of the state of emergency due to COVID-19, first announced with the Prime Ministerial Decree. of 8-3-2020 and then with subsequent measures which provided for the suspension, throughout the national territory, of the collection of public gaming in the commercial activities of amusement arcades, betting halls and bingo halls, had suspended the payment of the license fee due to it by individual operators of gaming points (corners and shops), including the defendant company from March 2020 to 1/7/2021; furthermore, as a further advantage for its managers, it had paid its gaming points an economic bonus of €2.000,00 to allow them to resume business following the emergency period, which however had been refused by the defendant.
The operator, without providing any reason, communication or notice, did not proceed with his activity of collecting public gaming on behalf of the concessionaire and, contrary to the contractual agreements, was organizing himself to start collecting public gaming in favor of another concessionaire, located at the number next to the shop managed on behalf of the appellant. Subsequently, the operator communicated his withdrawal from the contract and the appellant replied to the counterparty's assertions, underlining that pursuant to art. 12 of the contract the withdrawal would have been effective only after six months from its receipt and a penalty of €50.000,00 was established; it also requested the payment of the penalty provided for in the contract for violation of the exclusivity obligation as well as the penalty provided for interruption of the game collection activity, without any valid reason and in the absence of notice.
The judge recognized that the right of withdrawal is provided for in favor of the point with the obligation of notice by registered mail with return receipt no less than 6 (six) months from the date on which the withdrawal will take effect.
The withdrawal from the contract made, with immediate effect, is therefore in conflict with this art. , in which the right of withdrawal is recognized "with the obligation of notice by registered mail with return receipt no less than 6 months from the date on which the withdrawal will take effect"; in application of this rule, the withdrawal would have been validly exercised if it had indicated, as the date of termination of the contract, a later date of six months from the sending of the certified e-mail. and the various arguments that the defendant uses to support its thesis cannot be shared.
According to the defendant, the withdrawal would have been legitimately exercised since the contract expired on 31/12/2018 and the extension of the deadline had never been formally communicated to it by the dealership, as instead established in the contract.
The alleged breach of contract charged to the appellant, relating to the failure to communicate the extensions of the contract - originally expiring on 31-12-2018, to be communicated within 60 days of ADM's communication of the relevant extension of the concession and/or of the mandatory management periods - , cannot be considered serious pursuant to art. 1455 c.c. for the purposes of terminating the contract.
As deduced by the appellant, and not contested by the respondent, the concession in question, with original expiration of 30/6/2016 (prior to the signing of the contract), in the absence of the issuing of the specific tender notice by ADM ( which should have been announced by 30-12-2020) had been extended from year to year - upon payment of 7.500,00 euros for each right relating to points of sale whose main activity is the marketing of public gaming products, including regularized collection points, and 4.500 euros for each right relating to points of sale having as ancillary activity the marketing of public gaming products - pursuant to article 1, paragraph 1048, of law 27 December 2017, n. 205, and subsequent amendments, to prevent public gaming collection from being arbitrarily interrupted.
The deadline for launching the aforementioned tender was then extended to 31-6-2021 pursuant to art. 69 of the legislative decree n. 18/2020 but was not respected by the administration.
ADM itself, with an internal note sent to individual dealers and published in the reserved area, represented that, pursuant to art. 103 of the legislative decree 18/2020, qualifications of any type expiring during the emergency period should have been considered legally extended until three months following the termination of the status itself and therefore to 31/10/2021.
The state of epidemiological emergency was subsequently extended to 31-12-2021, bringing the expiry date of the concessions covered by the ADM note to 31-3-2022.
In this regard, the judge clarified that the regulatory provisions together with the circumstance that the contract had been stipulated in a period subsequent to the original expiry of the concession, constitute objective circumstances from which to deduce that the defendant was aware that the duration of the contract could be extended or renewed by will of ADM; the objective circumstance, then, relating to the fact that the defendant would always have collected public gaming until 2/11/2021 in favor of the concessionaire, except for the closing periods due to the Covid 19 pandemic, unequivocally demonstrates that it was fully aware of the extensions in word and had renounced the formal communication of them, having never observed or contested anything in this regard in the meantime.
The operator was sentenced to pay, in favor of the concessionaire, the sum of 50.000 euros as a penitential fine and the sum of 14.010 euros as a penalty provided for in the contract.
