Rights belong to those who watch, not to those who sleep. This is the quote reported in the article signed by Eugenio Bernardi, published in the latest issue of the ANSV magazine, Lo Spettacolo Viaggiante.
Bernardi retraces the stages that led to the situation that the pure entertainment equipment sector is experiencing at the moment.
Played by state games
A State that looks and has looked too often in the rearview mirror and little at the future of Amusement and coin-op.
The writer, for those who don't know me, I have been in the gaming industry for 40 years, born and raised in video games since 1980, having gone through all the evolutions of electronic gaming, from Pac Man to the present day, with many years of membership in Sapar and many as a free hitter always at the service of the automatic in a broad sense.
I have carried out assignments relating to legal assessments for Courts and Prosecutor's Offices on Italian, extra-national and Euro-EU territory. I have provided assistance and consultancy to law firms, trade associations and sector magazines, even now as an active grandfather.
We are in 2024 and for over 20 years since the first laws and amendments on gaming, art. 110 of the TULPS, things have not changed much for Amusement, since the first law 388/00, which wanted to take the coin sector out -op from the so-called videopokers to enter the new world of gaming with cash winnings, which never really came into force until after the amendments to law 289/02 and laws 269/03 and 350/03.
An initial premise: the frenzied imposition of AWP/New Slot limited winnings machines (paragraph 6 and then 6/a of 110 TULPS) which have reached over 418 thousand (now around 255 thousand after the 35% reduction in previous years) , before and the 55 thousand video lotteries (paragraph 6/b of 110 TULPS), with almost 5 thousand VLT rooms spread across the territory, also influenced pure entertainment devices, paragraph 7.
Since then there was a succession of various technical decrees and various circulars: here we will only deal with paragraph 7 of 110 TULPS and mechanical and electromechanical devices of the AM type, those without cash prizes.
Comma 7 devices
I am referring to the devices in paragraph 7 of 110 TULPS whose rigid standardization dates back to 2003 and was then replaced with the new Decree of 8 November 2005, Technical Regulations Decree, notified twice to the TRIS DG Enterprise of Brussels due to a macroscopic error of a paragraph in the first version . In the second draft, 2005/0136/I was then passed: an attempt was made to block any minimal return of machines similar to video poker and/or games featuring reels that were reminiscent of illegal winning or gambling games.
In the confusion generated, several products were blocked, even if the games were not illegal, but purely on the whim of the Monopolies Administration at the time, even the writer had economic and judicial consequences with the well-known game of Videobriscola, (4 rulings from the Administrative Justice intervened on the case, three orders from the Council of State IV Section (nos. 3329 – 4051 of 2005 and 1782 of 2006 for compliance with the appointment of the Commissioner ad acta) and the final ruling 216 of the TAR Emilia Section of Parma in 2006 (finished in the annual jurisprudence on violations of community rules) all favorable. Leaving aside the damage suffered and never recognized by AAMS (then a state monopoly, now ADM), the only satisfaction was the poor impression made by the administration at the time.
The associations then, engaged in the implementation of the law on games with cash prizes, were not interested in paragraph 7. Over the years, also due to seizures, especially of the so-called "Redemption", used in the most disparate ways until they were used as Prize competitions and other tricks to be able to use them, so much so that the Monopolies wrote a note to the Ministry of the Interior in 2008 highlighting the lack of reference standards, without crucifying them.
There was then a report to the European Commission for violations and obstacles to the importation into Italy of entertainment devices (video games) of the Decree of 8 November 2005.
The provisions contested by the Commission against the Italian State
Based on the investigation into the rules initiated following a complaint, the Commission contested the:
- ban on certain entertainment machines that do not distribute cash prizes
- burdensome and complicated testing procedures
- request that importers have a second office in Italy
- lack of legal certainty
- imposition of electronic identification devices on products
- administrative and other costs related to product authorization.
the Italian State was the subject of an infringement procedure no. 2005_5055 lasting several years. Unfortunately, the procedure was closed with small changes which forced the State Monopolies to modify the old Decree of 8 November 2005 with notification 2010/0282/I, which read: "Considering the critical issues highlighted by the European Commission in the context of the procedure of infringement 2005/5055 initiated following complaints according to which the Italian regulatory framework and its application by the competent authorities create obstacles to the importation into Italy of amusement and entertainment devices and devices which do not distribute cash prizes".
Following the notification, a subsequent decree and circular were issued which led to a reduction in the times and costs of certifications and a rather ambiguous form of presentation of the games and the player's skill for devices paragraph 7/a and 7/c of the well-known 110 TULPS.
The years passed, with a certain associative immobility, and only in 2012 did someone think of remedying the problems raised by the improper use of certain Redemptions but did not take into account the lack of familiarity with the drafter who through the LAW 24 December 2012, n. 228 ART.1 paragraph 475 again amending article 110, paragraph 7, of the TULPS with which he introduced the new letters 7 c-BIS) and 7 c-b) and also paragraphs 7-ter a7-Quinquies:
mechanical and electromechanical devices - 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 game (letter c-bis),
mechanical and electromechanical devices for which access to the game is regulated without the introduction of money but with use for a specific time or purpose (letter c-ter).
The provision provided for the issuing of a new decree for the definition of the technical rules for the production of all types of devices envisaged by article 110 paragraph 7 and prohibited the use of gaming devices without cash winnings for events (competitions and operations) with a premium referred to in Presidential Decree no. 430 of 2001.
As for eligible prizes, only objects of modest value or coupons are foreseen, the technical rules of which are subsequently defined by ministerial decree and can be used exclusively, even in cumulative form, for the acquisition of prizes which cannot be converted in any way into cash, or for new participations in the game within the same store.
Furthermore, paragraph 7-Quinquies provided for the regularization of all gaming machines without cash winnings used during 2012 as vehicles for prize events, upon payment of a sum One-off of 500 euros, or 400 euros in the case of proven seasonal use, in addition to the payment of entertainment tax. The regularization methods will be defined by ministerial decree.
After all this haste, the new Technical Decree was notified to the EU only in 2016 - 2016/0211/I and returned after 3 canonical months, never published in the Official Journal and never implemented by the State Monopolies, just as it was never operational, despite the draft having been circulated, the one which established the regularization and payments of entertainment tax (ISI) of the Redemptions, including the amnesty, so much so that many began to pay for such devices as the AM4 or AM6, even then the approval and certification of the table football tables and all the mechanics.
Over time and over the years, some arcades were subjected to controls and the so-called Redemptions were sanctioned. All these checks and seizures, including many TOTEMs with online gambling games, were the pretext to get back into non-winning entertainment games.
In the meantime, some sentences were also released which were then confirmed on appeal in which the Paragraph 7, according to some Florence magistrates, ruled that the sector legislation was not in line with community law. According to the judge, “the applicability of the so-called 'Services Directive' and of the implementing decree no. is undisputed. 59 of 2010, with consequent subtraction from the state monopoly and the state reservation of gaming activities without cash winnings. Article 117 of the Constitution establishes that legislative power can be exercised by the state with the limit of respecting the constraints deriving from community orientation, with the consequent obligation for the national judge to disapply internal provisions that do not comply with European regulations. Therefore, the national legislative provisions or the Ministerial Decree 2005 and Article 38 L. 388/2000 which establish a prior authorization regime and the technical rules which should inform gaming machines without cash winnings, in the absence of imperative reasons of general interest indicated in article 8 co. 1 letter h of Legislative Decree no. 59/2000, must be disapplied".
The new regulatory process for 2020
The process of reviewing the sector regulations, as is known, arises from the so-called "August decree" (law decree no. 104/2020) which in article 104 delegated the development of new technical production rules to the general director of ADM of machines without cash prizes and of the numerical parameters for the installation of said machines in public gaming offering points and, also, the administrative regulation of the same.
The new rules, as stated by the Agency, “will be designed to effectively counter the proliferation of so-called 'Totem'”, objectively unrealistic motivation, as these devices could be stopped by applying rules already in force, and were, among other things, initially desired by the State Monopolies administration itself: in fact, the AAMS Directorial Decree of 17 April 2008 was issued (2008/14132 measures for testing remote skill games).
Current problems
Coming to the latest events following the enactment of article 104 of law 13 October 2020, n. 126, which again modifies article 110 TULPS in paragraphs 7-ter and 7-quater, with a provision of the director of the Customs and Monopolies Agency, the technical rules for the production of the devices referred to in paragraph 7 and the related ones are defined to the coupons that can be dispensed by the devices referred to in letter c-bis of the aforementioned paragraph 7, which can be used exclusively, even in cumulative form, for the acquisition of prizes of modest value which cannot be converted in any way into cash or for new participations in the game within of the same point of sale. This resulted in notification no. 2021/97/I, highly opposed by all the associations and individual companies, which gave rise to the Decree of 18 May 2021 which has caused so much worry to the entire entertainment sector and which has also heavily involved the traveling entertainment sector, which has its own rules and other ministerial jurisdiction.
After a battle between all the ANESV, Sapar and other associations, on a personal level I prepared a Petition to the European Parliament 0001/2022 still open to the PETI Commission, some reports to the Tris DG Enterprises of the European Commission, an extraordinary appeal to the President of the Republic, several questions suggested after almost 2 years, through a law change suggested by a reformed deputy (he was Undersecretary of the MEF when the law of 13 October 2020, n. 126 art.104 was issued) the Monopolies and Customs administration gave way, also due to of the opening by the European Commission of a pre-infringement procedure against the Italian State and which was expressed as follows:
Following the Commission's letter, ADM promulgated the Directorial Determination of 5 July 2022 (PROT: RU 314538). With this provision the Agency provides an exemption from the restrictive regulation for a list of devices updated annually (AMEE list). The list includes devices such as i foosball tables, pinball machines, ping-pong tables, swinging machines for children, juke boxes, darts, basketball, football or punch meters, mini bowling machines and similar, which therefore become, to all intents and purposes, free-to-play machines installation in businesses open to the public, without the need for any authorization or certification".
All this after having had thousands of devices self-certified with the new nomenclature, continued to charge the ISI (detention tax) with the old nomenclature of AM1.....AM6, paid for free games if the venue has art.86 of the TULPS (see also certain speakers), the rules for new eSports and the certifications of the entire used Redemption park are not defined.
After the issuing of the AMEE list, in fact, some major problems still remain pending, such as certifying the thousands of Ticket Redemption games, which are self-certified and which need to be re-approved; in fact, yet another extension to 31/12/2024 arrived at the end of the year, already granted to traveling shows, to maintain the validity of the self-certifications and be able to use them by the owner-managers. Traveling entertainment, which ADM included in the Decree of 18 May 2021, but with attractions and games dependent on the Ministry of Culture and operating under art.69 of the TULPS, regarding which, in my opinion, ADM would not have the competence to operate.
Re-homologation, i.e. a new certification, by the managers - owners, very difficult, if the old manufacturer is missing and therefore not being able to have the material requested by the certifying bodies given that ADM demands that the certifying bodies must acquire the source codes and executable codes of the game programs, by importers and producers with the risk of copyright infringement.
Having been able to consult a document, which ADM sent through the Presidency of the Council in response to the European Commission, I note that the text contains some very questionable statements, full of vague concepts, to justify the current legislation with the usual excuses of public order and safety. You can read passages such as the "light homologation", never implemented, there is confusion between seizures of pseudo AWP/slot devices faked to combat gambling addiction, cited numbers of thousands of seizures of paragraph 7 devices and totems, where however in the various Book Blu di ADM does not appear to have a seizure attributable to counterfeit paragraph 7 devices as in the press reports, they are now a rarity.
To conclude, given the vastness of the things that have happened, I strongly believe that the gaming regulations, paragraph 7 of 110 TULPS, should be updated. It is superfluous to point out the failure of the 2020 rule, given that first people cried "wolf" against pinball machines, table football and swinging machines which, simply because they had an interactive monitor, they wanted to classify as videogames, then given the bad parade in Europe the reverse, not without consequences with the sector being stopped for over 18 months.
A technically necessary but not very useful operation if a serious law reform is not undertaken, we are no longer at the beginning of the 2000s the world of gaming has radically transformed like the games and the players even the legislator must take note of it and not continue to think about the concept of rewards neutered by the "modest value" especially when encouraging new practices such as the receipt lottery and continuous new games and instant lotteries in addition to the now widespread online one.
Discovering consists in seeing what everyone has seen and thinking what no one has thought.(Albert Szent-Gyorgyi von Nagyrapolt) – Jura vigilantibus non dormientibus prosunt
The article is taken from the latest issue of Lo Spettacolo Viaggiante link
