“The TAR – specifies the lawyer Lino Barreca, lawyer of the concessionary company Global Starnet – considered the absence of serious and irreparable damage because currently the concession continues by virtue of the extension.
However, the TAR did not rule on the underlying issue, i.e. on the fact that Legislative Decree 159 of 2011 (applicable to the Global Starnet seizure even if, as is known, it has nothing to do with anti-mafia events), as repeatedly explained by the GIP in its provisions, prevails over the forfeiture and therefore the authorization of the GIP pursuant to art. 41 of Legislative Decree 159/11 reiterated and reiterated in various locations guarantees and will guarantee the business continuity of Global Starnet for the entire duration of the seizure.
This is to avoid instrumental alarmism. For our part, however, we will certainly appeal to the Security Council."
ITALIAN REPUBLIC
The Regional Administrative Court for Lazio
(Second Section) pronounced the present
ORDER
on the appeal general register number 9919 of 2023, supplemented by additional reasons, proposed by the company -OMISSIS-, in the person of the legal representative pt, represented and defended by the lawyers Andrea Scuderi, Carmelo Barreca and Stefano Vinti, with digital domicile as per PEC from Justice Registers;
against
Customs and Monopolies Agency and Ministry of Economy and Finance, in the person of their respective legal representatives pro tempore, represented and defended by the State Attorney General, domiciled ex lege in Rome, Via dei Portoghesi n. 12;
towards
Judicial Custody of the company -OMISSIS-, in the person of the legal representative pt, not appearing in court;
for cancellation
after suspension of effectiveness,
WITH REGARD TO THE INTRODUCTORY APPEAL
- of the prot. note -OMISSIS- of -OMISSIS-, notified on -OMISSIS-, signed by the interim Central Director of the Games and Entertainment Machines Office Directorate of the Customs and Monopolies Agency, concerning “Dealer -OMISSIS- in Judicial Administration. Forfeiture provision no. 33796 of 27 March 2017. Communication - Execution of sentence of the Council of State n. 6470”;
- of the prot. note n. -OMISSIS-/RU of -OMISSIS-, signed by the Director of the Customs and Monopolies Agency, concerning “State Concessionaire -OMISSIS- in Judicial Administration – Sentence of the Council of State n. 6470/2021 – Communication of the execution of the forfeiture provision no. 33796 of 27 March 2017";
- of the prot. note n. -OMISSIS-/RU of -OMISSIS-, signed by the Director of the Entertainment Machines Office Games Directorate of the Customs and Monopolies Agency, concerning “Dealer -OMISSIS- in Judicial Administration. Forfeiture provision no. 33796 of 27 March 2017. Purely executive activities following the communication protocol. n. -OMISSIS- of 9 June 2022”;
- of the prot. note n. -OMISSIS-/RU of -OMISSIS-, signed by the Director of the Entertainment Machines Office Games Directorate of the Customs and Monopolies Agency, concerning “Concession -OMISSIS- in Judicial Administration. Forfeiture provision n.33796 of 27 March 2017. Operational indications and activities following the communication prot.n. -OMISSIS- of 9 June 2022”;
- of the notice published on the website of the Customs and Monopolies Agency on 30/06/2022, concerning "EXTENSION OF THE CONCESSIONS FOR THE CREATION AND CONDUCTION OF THE NETWORK FOR THE ELECTRIC MANAGEMENT OF LEGAL GAMING USING AMUSEMENT AND ENTERTAINMENT MACHINES REFERRED TO IN ARTICLE 110, PARAGRAPH 6, OF THE TULPS", in the part in which it warns and communicates that "This extension cannot be applied to the concessionaire -OMISSIS- who, in implementation of the forfeiture provision no. 33796 of 27 March 2017, which has become definitively effective and incontestable, will cease its activities on 31 December 2022.”;
- of all prerequisite, connected and/or consequential acts, even if not known, including, where necessary, the note dated 14/07/2022, signed by the Manager of the Games-Amusement Machines Office Department of ADM, concerning " Concessionaire -OMISSIS- in Judicial Administration. Forfeiture provision no. 33796 of 27 March 2017. Clarifications regarding your communication prot. n. 114/2022”;
WITH REGARD TO THE FIRST NOTICE OF ADDITIONAL REASONS FILED ON SEPTEMBER 29, 2023 - of the note (Directorial Determination) of the Customs and Monopolies Agency of 27.06.2023 prot. n° -OMISSIS-, signed by the Director of the Games Department Dr. Mario Lollobrigida, as well as all prerequisite, connected and/or consequential documents,
WITH REGARD TO THE SECOND ACT OF ADDITIONAL REASONS FILED ON 10 OCTOBER 2023 - of the note (Directorial Determination) of the Customs and Monopolies Agency of 26.09.2023 prot. n° -OMISSIS-, signed by the Director of the Games Department Dr. Mario Lollobrigida, as well as all the prerequisite, connected and/or consequential acts, with which an extension of the gaming concession was arranged for only three months, unlike the general extension by law to 31.12.2024 which concerns all similar concessionaires of gaming collection via entertainment machines;
Having regard to the appeal, the additional reasons and related annexes;
Given the deeds of appearance in court of the Ministry of Economy and Finance and of the Customs and Monopolies Agency;
Having regard to the request for suspension of the execution of the contested provision, presented incidentally by the appellant;
Given the art. 55 cod. proc. amm .;
Having seen all the acts of the case;
Withholding its own jurisdiction and competence;
Speaker in the council chamber on 8 November 2023 is Dr. Michele Tecchia and having heard the defenders for the parties as specified in the report;
Whereas:
1) the second act of additional reasons of 10 October 2023 (to which the precautionary request in question pertains) is aimed at challenging the provision of the Customs and Monopolies Agency of 26 September 2023, with which the defendant Administration has further extended until 31 December 2023 the prior administrative suspension of the effects of the act of forfeiture of the concession (act of forfeiture already deemed legitimate by the Administrative Judge at both first and second instance), and therefore empowered the judicial administration of the appellant company to continue pro tempore the collection of gaming using entertainment devices;
2) therefore the contested determination, far from determining any inhibition or immediate interruption of the activity of the judicial administration, actually allows for an exceptional provisional continuation, and this in spite of a provision for forfeiture of such activity whose legitimacy has already been confirmed by this TAR and by the Council of State;
3) the foregoing seems to exclude the existence of any danger of serious and irreparable damage pursuant to art. 55 cpa;
4) as regards the temporary nature of the effects of the contested act and the consequent state of uncertainty that it may trigger (given the reported losses of customers and the greater difficulties encountered by the appellant in the process of selling the business branch), the Board finds that no precise demonstration of these negative effects has been provided, the latter having only been asserted but not proven;
5) nor can the proof of these negative consequences of the contested act be deduced from the prospectus drawn up by today's appellant on 2 November 2023 (see the appellant's filing of 4 November 2023), given that the data extractable from this prospectus on the referred " haemorrhage" of customers does not seem to take on the consistency of a "serious" and "irreparable" damage, such as that prescribed by the art. 55 cpa for the purposes of granting precautionary protection;
6) in view of the above, therefore, the precautionary request in question - leaving aside the controversial question of the actual legitimacy to act of today's appellant (for the resolution of which further investigations by the court of merit are appropriate) - appears without the requirement of periculum in mora;
7) there are justified reasons for ordering the compensation of the costs of this precautionary phase;
PQM
The Regional Administrative Court for Lazio (Second Section) rejects the request for precautionary measures.
Compensated expenses.
This ordinance will be carried out by the Administration and is filed with the secretariat of the Court which will notify the parties.
Considered that the conditions referred to in Article 52, paragraphs 1 and 2, of Legislative Decree no. 30 June 2003 exist. 196, and article 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, to protect the rights or dignity of the interested party, directs the Secretariat to proceed with the blackout of the personal details as well as any other data suitable for identifying the parties to the proceedings.
So decided in the council chamber of Rome on November 8, 2023 with the intervention of the magistrates:
