Betting and brokerage: "the Dealer is obliged to supervise the conduct of the operators in the supply chain"
According to the Council of State, betting concessionaires, based on the provisions of the ancillary agreement to the concession, "are obliged to comply with the prohibitions also by all operators in their supply chain"
The Council of State rejected the appeal filed by a gaming concessionaire against the Customs and Monopoly Agency, which asked for the reform of the sentence of the Regional Administrative Court for Lazio - Second Section with which a previous appeal had been rejected of the operator against two measures bearing respectively the fine of € 41,000.00 and the fine of € 5,000.00, adopted in application of art. 19, lett. g) of the agreement, concerning the application of the penalties provided for in the concession agreement for the violation of the prohibition of gambling in ways other than those authorized and of the prohibition of intermediation in the collection of remote gambling. The aforementioned determinations of A.D.M. had resulted from two separate verification and control operations carried out by the Carabinieri at two commercial establishments having contractual relationships with the appellant concessionaire, following which it was ascertained that: 1) in the first room, there were thirty-six telematic stations connected to the gaming platforms linked to the Concessionaire and, moreover, it would have emerged that the managers of the commercial activity accepted, collected or, in any case, favored the acceptance or collection of bets electronically; 2) in the second room, there was a computer for the exclusive use of the owner / manager, in which the so-called screen was displayed. “Parent account”, in the name of the aforementioned manager, with access through the website of the appellant today's concessionaire. In addition, numerous betting receipts were found in the name of the concessionaire, attributable to illegal betting activity. The Lazio Regional Administrative Court had rejected the concessionaire's appeal as "multiple violations of the obligations placed on the concessionaire by the accessory agreement to the agreement, as well as the obligations imposed on the concessionaire referred to in Article 2, paragraph 2-bis of the Decree were ascertained. Law no. 40 of 25 March 2010 converted with amendments by Law no. 73/2010, no. 73 ". According to the judges of the first instance, moreover, "the elements ascertained have highlighted the development of the collection of the game not simply online, as required by the concession, but also through different and not permitted channels and methods, that is, by making available to players, at special rooms, computer equipment equipped with electronic connection for access to the concessionaire's site, or carrying out intermediation activities in the collection of the game ". Therefore, the Lazio Regional Administrative Court ruled out that the concessionaire was not in a position to supervise the operators to whom the aforementioned conduct was contested "... given that the accessory agreement to the concession places a specific obligation on the concessionaire to ensure compliance with the bans also by all the operators of its own supply chain "and, consequently, considered the concessionary company itself" fully responsible for the behavior of these subjects ". The fact that the concessionaire company immediately terminated the contracts with the operators who engaged in the disputed conduct was not considered by the Lazio Administrative Court to be such as to exclude the application of the penalties established "... expected that the violation of the provisions of the agreement has nevertheless occurred ". The aforementioned decision of the Lazio TAR was confirmed by the Council of State, which in today's ruling, noting preliminarily that "the concessions in the field of games contain, in application of the relevant regulatory discipline, analytical and rigorous provisions that find their basis, including the other, precisely in the relative ease with which elusive conduct could be implemented, particularly relevant in a sector which for obvious and known reasons is attributed significant importance both with reference to the interests of the Treasury and, more generally, for reasons relating to the protection of public safety ", he reiterated that" from all the acts of the case, the violation, by the concessionaire / appellant, of the prohibition of collecting the game in ways other than those authorized, as well as the prohibition of intermediation in the collection remote gambling, not attributable solely to the managers of the premises, which appeared in any case connected to the telematic systems of the appellant administration and could only receive bets if they were connected to its terminals ". According to the second instance judge, therefore, "the reference of the first instance judge to the detected violation of art. 2, paragraph 2-bis of law decree no. 40/2010, appears to be precise, to determine the illegality of the activity in place by the appellant, as the stipulation of a specific contract that allows the promotion of the game in locations other than those of the concessionaire cannot in any case be in contrast with the clear and mandatory provisions dictated by the aforementioned primary legislation (Article 2 , co. 2-bis of Legislative Decree no. 40/2010) and in the same provisions of the accessory agreement to the concession expressly referred to by the first judge (Article 5, paragraph 2, letter f) and g) and art. 9) ".