The Council of State rejected - through a ruling - the appeal presented by a bingo hall against the Ministry of the Interior and the Customs and Monopolies Agency, which requested the reform of the ruling of the Lazio Regional Administrative Court which had rejected the appeal against the authorization given by the Customs and Monopolies Agency for the transfer of another bingo hall, recipient of a municipal relocation provision, near the appellant one.
Below is the text of the ruling:
“With the introductory appeal of this judgment and with the subsequent appeal for additional reasons, lodged before the Regional Administrative Court for Lazio, seat of Rome (hereinafter, for brevity, the Court), today's appellant company, owner of a concession for the operation of the game of bingo in the Municipality of Modena, has challenged the provision with which the Customs and Monopolies Agency (hereinafter also the Agency or ADM) has authorized the relocation of another bingo hall.
According to the appellant's submission, ADM should not have authorized the transfer because, on the one hand, the minimum distance required by sector regulations between its bingo hall and the new premises to which the relocated bingo hall should be transferred is not respected and , from another point of view, not even the turnover requirement established by the same regulation would be respected since the bingo hall managed by the appellant would have an average turnover of less than €150.000.
Both ADM and the other interested company appeared in court, (...), arguing extensively about the unfoundedness of the adverse appeal and requesting its complete rejection.
At the end of the council meeting on 24 May 2023, set for the deliberation of the precautionary application, the case was held for decision with the ritual notice of sentence in a simplified form.
With sentence no. 11246 of 4 July 2023, rendered in simplified form pursuant to art. 60 cpa, the Court rejected the appeal.
With regard to the first ground of appeal, the Board of First Instance found that it is clear from the examination of the documentation filed in the documents that in this case the requirement of the minimum distance between the bingo hall managed by the appellant and the premises where the relocated bingo hall will be located is respected.
In fact, from the examination of the documents it emerges that the premises in question have only one pedestrian entrance in via (...), while in via (...) there is a driveway entrance where a car park is located.
The ADM officials who carried out the inspection and measurements have therefore correctly verified that there is a distance of 1066 metres, therefore higher than the minimum distance of 1000 meters envisaged by the AAMS Directorial Decree of 17 June 2003.
The first judge also deemed the complaints regarding the non-existence of the minimum turnover required by the sector regulations to be unfounded..
In fact, the Court held that corrected the data that ADM took into consideration when issuing the authorization for the transfer, i.e. the total amount of the sums played in the bingo hall managed by the appellant company clearly exceeded 150.000 euros per month.
The art. 4, paragraph 2, of the AAMS Decree of 17 June 2002 provides that the transfer to the same municipality cannot be authorized if the nearest Bingo Hall «has a monthly turnover of less than 150.000 euros, determined by the Administration on the basis of card purchases in the last six months".
The Court observed that the meaning of turnover is equivalent to the sum of revenues obtained by a company or sole proprietorship through the sale of goods and/or the provision of services.
The definition of turnover is therefore not comparable, as claimed by the appellant, to the concept of "net income", "profit" or "profit"; referring the latter concepts to the amounts earned by the commercial activity as a whole minus expenses.
Turnover is also distinguished from the concept of "revenues", referring to the total sum of invoices issued, including all expenses incurred and which has not necessarily been collected, unlike "revenues" which refer to the sums actually earned by a company selling goods and services at a certain price and, therefore, the concept of turnover cannot be confused with company revenues, understood as "production value".
Applying the aforementioned principles to the case in point, according to the first judge, ADM's interpretation of the term "turnover" can only be considered correct in the sense of taking as reference the overall value of the cards that the dealer purchases from the ADM offices. and subsequently sells for arcade play.
In fact, the thesis supported by the appellant which identifies the turnover with the dealer's premium equal to 18% of the value of the bill cannot be shared.
These sums constitute, in fact, not the turnover but the profit of the concessionaire, net of the payment of winnings and tax charges.
In other words, the Court concluded, the rationale underlying the reference standard is not to make an assessment - in economic terms - on the turnover of the companies that manage the bingo halls, but on the adequate diffusion of the game collection service on the national territory, identifying the requirements minimums of the distance between the rooms and the volume of play guaranteed by them which, in the case of bingo games on a physical network, can only correspond to the number of cards sold in the given period.
He appealed against this ruling (...), complaining that it was erroneous for two distinct reasons which will be examined below, and requested its reform, subject to suspension of enforceability.
The Agency, the Ministry of the Interior, the Police Headquarters of Modena were formed, all opposing the acceptance of the appeal and, only the Ministry of the Interior and the Police Headquarters of Modena, also requesting the exclusion of the judgment in limine litis due to lack of passive legitimacy.
The appeal is unfounded.
First of all, the exception relating to the alleged lack of passive legitimacy of the Ministry of the Interior - Modena Police Headquarters must be rejected, since in the first instance of the proceedings the license referred to in the art. was also formally challenged with additional reasons. 88 of the TULPS issued by the Modena Police Headquarters.
The Board believes, for the principle of the most liquid reason, to ignore the exception of inadmissibility of the appeal due to lack of specificity, raised by the State Attorney General, given however the unfoundedness of the appeal itself.
With the first reason (pp. 5-12 of the appeal), first of all, today's appellant maintains and reiterates here again, with a fine and elaborate reasoning, that its turnover is that which concerns its turnover, not that part of the amount played which is redistributed to the treasury and/or destined for winnings.
It is for this reason that it also recalled, in support of its assumption, the ruling of the Court of Justice of 19 July 2012, made precisely in the matter of the organization of bingo games, filed under doc. 26, which clarified how VAT must be calculated on the "consideration actually received by the service provider" (consistent case law).
The value to be taken into consideration for the purposes of calculating the average monthly turnover of the bingo hall in via (...) which (...) claims to be that relating to the hall amount - would always, every month, be below € 150.000,00, with an amount in the six months equal to €563.495,04, which divided by 6 leads to specifying the average monthly turnover in the figure of €93.915,84, with the consequent illegitimacy of the authorization issued.
The reason is unfounded.
As both the Agency and the other interested party have rightly objected, in fact, the rationale of the legislation on the matter is not to carry out an evaluation in economic terms of the turnover of the companies that manage the bingo halls, but rather to guarantee the adequate dissemination of the game collection service on the national territory: referring to the physical network bingo sector, the gaming volume can only be expressed by the number of cards sold in a given period.
It follows that the thesis, although suggestive, also supported here by the appellant, is unfounded, which clashes with the insuperable importance, well highlighted by the contested sentence, for which the definition of turnover is not comparable, as supported by the recurring, to the concept of "net income", "profit" or "profit"; referring the latter concepts to the amounts earned by the commercial activity as a whole minus expenses.
The art. 4, paragraph 2, of the Decree of 17 June 2003 refers to the «monthly turnover of less than 150.000 euros, determined by the Administration on the basis of the purchases of the files in the last six months»: the expression is very clear, and refers precisely to the purchases of the folders as such, without any specification, while the jurisprudence of the EU Court on the very different question of the taxable base for the correct application of VAT cannot be relevant in the present judgment, which certainly cannot include the sums collected from the winners and the treasury.
Furthermore, if the legislator had wanted to refer to the difference between the total played and the sums to be paid to the treasury and to the players to define the turnover limit below which transfers of theaters in the same municipal territory are prohibited, as the law wrongly claims the appellant would have promptly regulated in this sense.
The plea must therefore be rejected.
With the second reason of censure (pp. 12-17 of the appeal), again, the appellant claims that the Court did not understand - probably led to the misunderstanding by the fact that this bingo hall has two entrances, one to be used if you arrive on foot and the other if you arrive by car - that, if you arrive by machine, you then access what is the real and main entrance to the bingo hall, which is not the same one used if you go through the so-called pedestrian entrance.
This could be understood very well by carefully reading what the ADM officials say: they talk about the entrance to the building of the new bingo hall headquarters and they clearly say that this entrance to the building, which is the one used if you arrive comfortably in machine, is less than 1.000 meters from the entrance to today's appellant's bingo hall, because ADM officials measure 899 meters up to the driveway entrance.
This plea must also be rejected.
As the first judge also well highlighted, pursuant to the AAMS directorial determination of 17 June 2003, in fact, for the purposes of transferring the bingo halls within the same Municipality, the minimum distance from other rooms must be calculated by referring to the shortest pedestrian route and the number of inhabitants.
It is only the pedestrian entrance that must be referred to when calculating the distance, the vehicular entrance has no relevance: this is the meaning of the - very clear - rule referred to in the AAMS directorial decree of 17 June 2003: «the distance ( shortest pedestrian path) between the place to which the transfer is requested and the nearest Bingo hall".
In this case, the inhabitants of Modena are over 100.000 and, therefore, the minimum distance is equal to 1000 metres.
As can be clearly seen from the documents filed in the present proceedings and as clearly highlighted by the contested sentence, the ADM officials who carried out the inspection and measurements have therefore correctly verified that between the entrance to the room managed by the appellant and the only pedestrian entrance of the new bingo hall (located in via (...)) is a distance of 1066 metres, therefore greater than the minimum distance of 1000 meters envisaged by the directorial decree of 17 June 2003.
Ultimately, the criterion envisaged by the AAMS directorial determination of 17 June 2003 is fully respected.
In relation to this circumstance, the appellant requests, reiterating the request already formulated at first instance, that the Council of State order a verification and measurement of the distance between the real main entrance of the other party's bingo hall and that of the appellant today, but the request cannot be accepted as the verification of the route has already been subject to in-depth evaluation by the ADM officials of the Territorial Office who, as public officials in the exercise of their functions, have drawn up the report in which the distance between the pedestrian entrance to the bingo hall of (...), located in via (...), and the entrance to the appellant's bingo hall is formalised: this report is ex se subject to public trust until a complaint false.
This reason must therefore also be rejected.
In conclusion, for the reasons set out, the appeal must be rejected on both grounds, with the consequent confirmation of the contested sentence, which correctly rejected the appeal, supplemented by additional grounds, in the first instance proposed by (...), appellant today.
The costs of this level of proceedings, due to the novelty of the issues considered, can be fully compensated between the parties.
(...) remains definitively responsible for the unified contribution required for the proposition of the encumbrance.
PQM
The Council of State in jurisdiction (Seventh Section), definitively ruling on the appeal, proposed by (...), rejects it and, as a result, confirms the contested sentence.
It compensates entirely between the parties the costs of the present instance of the proceedings".
