The Lazio Regional Administrative Court, Rome section, accepted the appeal of a tobacconist against the act with which Roma Capitale issued a ban on the continuation of the activity relating to the operation of the 6 slot-type machines at the store.
The encumbrance was entrusted to n. 2 grounds of appeal, which criticized the illegitimacy of the provision for:
-violation of articles. 6 and 14 of the "Legitimate gaming hall Regulations" and excess of power in all symptomatic figures, taking into account that the regional legislation applies to cases concerning the "opening of new" gaming halls and not also to those already open and authorized as in the present case
-in the alternative, violation of the art. 4 of the Lazio Regional Law n.5 of 5 August 2013, and excess of power in all symptomatic figures, as the regulatory provision does not respond to a concrete instrument to combat gambling addiction.
The TAR recalled a sentence of the Council of State that " highlighted that the legislation that introduces restrictive provisions regarding the minimum distance to be observed in the event of the opening of new gaming halls, "being a provision that determines a serious and insurmountable limitation to the general principle (with constitutional and Euro-unitary coverage) of the freedom of economic initiative private, it must necessarily be recognized as exceptional in nature, therefore incapable of extending to cases not strictly attributable to the literal tenor of the law".
Given, therefore, that the regional regulation referred to in art.4, co.1 introduces limitations for the sole hypothesis of "opening of new gaming halls", the provision referred to in art.7, co.1 of the resolution Roma Capitale n.31/2017, is illegitimate, and therefore subject to disapplication, due to conflict with the superior regulatory source (regional law n.5/2013, art.4, co.1), in the part in which it extends the limitations also to existing gaming halls (i.e. in the event of a change in ownership of the business).
Furthermore, according to the principle identified by the Council of State, the extension of the application of the conditional provisions referred to in art.6, co.1 of resolution no.31/2017 to the different case of the transfer of ownership of the business, in addition to not finding support in the aforementioned regional source, it objectively determines an excessive restriction on the free economic initiative of the private individual, intervening (outside the legal provisions) also with regard to financial years in progress and compressing the possibilities of carrying out economic activity (it is clear that the owner of the gaming hall in operation would lose a significant part of the commercial value of the business, if, by selling the business, the legal gaming activity, previously regularly exercised, could no longer be practiced by the new buyer)"
Therefore, the principle of expressed law can be summarized in the assumption according to which "the possibility that art.4, co.1 bis lrn5/2013 prefigures, for the Municipalities, to "identify further limitations" must be interpreted, in a logic of balanced balancing between opposing interests (the fight against gambling addiction on the one hand, the protection of the freedom of economic initiative from another), in the sense that the "further restrictions" represent "further conditions" susceptible to introduction by municipal regulation, in the (only) case prefigured by the regional law (the opening of new cinemas game)".
The objection of unfoundedness raised by the defendant is essentially based on an incorrect description of the content of the invoked art. 11 bis of law 5 August 2013 n. 5, which instead provides that "The provisions of article 4, paragraph 1, letter a) do not apply to public and commercial establishments as well as gaming halls already existing on the date of entry into force of this provision (without prejudice to compliance with state legislation on the matter, in order to protect certain categories of more vulnerable subjects and prevent GAP phenomena, the opening of new gaming halls is permitted provided that: a) they are located within a radius of no less than 250 meters from sensitive areas, such as schools of any level, youth centers or other institutions frequented mainly by young people, elderly centres, residential or semi-residential structures operating in the healthcare or social-welfare sector or places of worship;"), and exclusively the limitations of referred to in article 4, paragraph 1, letter b).”
