The Council of State accepted - through a sentence - the appeal presented by Roma Capitale which requested the reform of the short sentence of the Regional Administrative Court for Lazio (Second Section) which had accepted the appeal of a tobacconist against the determination management of the Municipality with which he was ordered to prohibit the continuation of the installation of gaming machines with cash winnings within his monopoly resale business located in Rome, the violation of the art having been ascertained. 6 of the resolution of the Capitoline Assembly n. 92 of 5.12.2019 and art. 4 of Regional Law 22/2019 to be the resale located 150 meters away from the nursery school (...), qualified as a "sensitive place", and as such subject by the legislation on prevention from the risk of gambling addiction to the obligation of compliance with the minimum distance of 500 metres.
The tobacconist, with a single ground of appeal, had criticized the violation of the art. 6 of the Capitoline Assembly resolution n. 92 of 5.12.2019 and art. 4 of Regional Law 22/2019, assuming that your business "could not be considered close to a "sensitive place", in violation of the minimum distance established for this purpose, since the nursery school would not fall into the category of " educational institutions of any type and level" for which such a ban is foreseen".
With short sentence section. II n. 14290 of 2022, the Lazio Rome Regional Administrative Court had accepted the appeal “on the assumption that pursuant to art. 2, paragraph 1, letter. e) of law no. 53/2003, nursery schools would be "training" and not "educational" institutions and, as such, could not be considered included among the sensitive places subject to the obligation to respect the minimum distance".
“Roma Capitale has lodged an appeal against the aforementioned sentence – explains the Council of State – with an appeal containing a single reason, literally classified as violation and false application of the art. 2 co. 1 letter and Law no. 53/2003, of the art. 4 co. 1 letter a of the Lazio regional law n. 5/2013 and art. 6 co. 1 letter a of the resolution of the Capitoline Assembly n. 31/2017 and subsequent amendments; in summary, the appellant party maintains that, contrary to what was held by the First Instance Judge, the nursery school is fully included among the sensitive places mentioned above. (…) At the public hearing on 27 March 2024, the case was held for decision, following the filing of a final brief by Roma Capitale which insisted on accepting the appeal.
The appeal itself is well founded.
The controversial point, as has been said, consists in establishing whether the nursery school is an educational institution or a mere training institution, given that the obligation of the minimum distance from the places where gaming and betting activities are practiced is peacefully applicable. to the former, not also to the latter.
In the opinion of the Board, the conclusion is in the first sense, contrary to what was held by the First Instance Judge.
The art. 6 of the Capitoline Assembly resolution n. 92 of 5.12.2019 establishes that: "Pursuant to and for the purposes of the regional and/or national legislation in force [lrn 22/2019], the opening of new gaming halls with the installation of VLTs, collection agencies of betting shops and establishments that install games with cash prizes that are located at a distance of less than 500 (five hundred) meters from sensitive areas, measuring it according to the shortest pedestrian route according to the Highway Code, from the entrance to the gaming venue at the entrance to the sensitive place, such as: a. educational institutions of any order and level...".
According to the TAR, nursery schools do not fall within the legal category of "school institutions of any order and level..." as pursuant to art. 2, paragraph 1, letter. e), of law no. 53 of 2003, nursery school "contributes to education and emotional development... promoting the potential for relationships, autonomy, creativity, learning, and to ensuring effective equality of educational opportunities... contributes to integral education... achieves continuity educational with the complex of childcare services and primary school".
From this premise, the TAR draws the conclusion that nursery schools are training institutions and not education institutions, pursuant to the regulations laid down by law no. 53/2003.
To the contrary, this section observed that “the nursery school pursuant to articles. 1-3 of the legislative decree lgs. 19 February 2004 n. 59 should simply be classified as an educational institution, even if attendance is not compulsory, given that the law is concerned with establishing its objectives, ensuring that it offers a uniform training offer throughout the national territory, defining its timetable and to ensure within its scope the achievement of "educational objectives", as is generally characteristic of any institute dedicated to education": so expressly the ord. 26 June 2023 n.2612.
The art. 1 of the legislative decree lgs. n. 59 of 2004, among the objectives of nursery school, indicates, in particular, in paragraph 1, also that of ensuring: "educational continuity with the complex of childhood services and with primary school." confirming the fact that nursery school, despite "its autonomy and didactic and pedagogical unity", is an integral part of the national education system.
The following article 3, paragraph 2 speaks in the same sense, where we read that: "In the exercise of the autonomy of the educational institutions, appropriate forms of educational coordination must be implemented, also to ensure continuity with the complex of childcare services and with primary school", where the reference to "educational coordination" reiterates that, alongside the educational objectives, there are others of a more strictly didactic nature, although of a preparatory nature for primary school, as further confirmed by the art. 4, paragraph 2, according to which: “Primary school, lasting five years, is divided into a first year, linked to nursery school and aimed at achieving basic instrumentalities, and into two two-year teaching periods .” as well as, from an organizational point of view, by the art. 4, paragraph 6 according to which: "The state schools belonging to the first cycle can be aggregated together in comprehensive institutions also including nursery schools existing in the same territory".
In the absence of defensive statements of a different nature, there is no reason to depart from the precedent above - in favor of including nursery schools among educational institutions - which, therefore, must be confirmed.
What follows is the acceptance of the appeal and, in reform of the appealed sentence, the rejection of the first degree appeal, having to apply the minimum distance of 500 meters prescribed by the art. 6 of the Capitoline Assembly resolution n. 92 of 5 December 2019 even in the presence of a nursery school, as it falls within the category of "school institutions of any order and level...".
The expenses of the double degree follow the losing party and are liquidated as per the provisions, in an amount congruent with the average values envisaged by the Ministerial Decree of 13 August 2022 n.147 for a case of indeterminate value and low complexity.
PQM
The Council of State in jurisdiction (Fourth Section), definitively ruling on the appeal, as in the proposed epigraph (appeal no. 1915/2023 RG), accepts it and, in reform of the appealed sentence, rejects the first instance appeal (Tar Lazio Rome n. 11333/2022 RG)”.
