Il April 4 last The hearing in the Council of State was held on a series of appeals presented by companies concessionaires of the gaming machine connection network against the Customs and Monopolies Agency. Operators are very familiar with this issue, known as the 500 million tax. The tax in question represents an extraordinary levy compared to those originally foreseen and was introduced with the 2015 Stability Law.
The lawyer Federico Tedeschini he is one of the lawyers who handled some of the appeals for the dealerships.
For Tedeschini the dealers “that is, they would have been treated like ATMs, which public finance managers - through an unscrupulous use (at least with reference to the European obligations that concern them) of their granting powers - would have believed they could freely draw on to make ends meet".
The issue had already been brought to attention of the Court of Luxembourg, in order to know their opinion regarding the compatibility between such a levy and European law, but "that Court gave - as often happens - a somewhat confused and contradictory response: which therefore seemed of little help, both with respect to the acceptance of the request made by the concessionaires themselves, and with respect to its rejection, as obviously proposed by the Attorney General of the State, which defended the Agency", recalls lawyer Tedeschini regarding the ruling.
And indeed the Attorney General pointed out that the restriction to the principles of the Treaty seems illegitimate: “The Court has repeatedly ruled that the mere objective of maximizing revenue from the public treasury cannot allow for a restriction on the freedom to provide services”. However, in the case of gambling, the restriction is legitimate if it "actually pursues objectives relating to overriding reasons of general interest". It is therefore up to the national judge to identify the objectives actually pursued by that national legislation.
And it is precisely on that pronouncement that the lawyer focuses his attention by noting “an important decision of the Court of Appeal of Rome, Civil First Section, of 13 March which, although it concerns other topics, will have to be taken into account by the judges called upon to decide. The Court of Rome accepted the appellant's claim to see the legal concept of "manifest violation of community law" better clarified and expanded by those magistrates of the Council of State who had composed the Panel authoring the further sentence (with diversity of object), where the existence of this last violation had been – on the contrary – denied.
The "ruling of 13 March could have significant consequences regarding a better adaptation of our national jurisprudence to every precept contained in the European Treaties and in secondary law, at least compared to what has occurred to date in the context of Italian justice", Tedeschini underlines, specifying that "the object of the civil decision was in fact "the responsibility of the judging State for a manifest violation of European law" and the consequent request for an order to pay compensation for the damages suffered by the appellant: a decision therefore which - due to the breadth of its object - can only also impact that, which is currently being adopted. More precisely, a ruling from the Court of Justice of the European Union (CJEU) - which interpreted the collection of a forced levy on prize game concessionaires as a manifest violation of the freedom of competition on the single market - could also have significant consequences on the personal responsibility of magistrates (at least those of last instance called to rule on individual issues) who do not take into account, in their decisions, the actual content and meaning of the supranational provisions currently in force".
The Council of State's ruling on the appeals is expected in the coming weeks.
