If they were 500 million to be repaid...
It has been defined in many ways, criticized by lawyers, hated by operators. Subject of disputes within the supply chain and sometimes also the cause of bankruptcy. Six years later, the '500 million tax' still continues to hold sway in the discussions of the public gaming sector. But maybe today we see the light at the end of the tunnel.
In recent years there have been dozens of rulings by the administrative judge on the provision included in the 2015 Stability Law which ordered the 'reduction' of 500 million euros on an annual basis of agios and remuneration of subjects operating in the management and collection of the game through devices from Awp and Vlt entertainment. A levy never understood, experienced as an abuse of the powers of the State because it was never well motivated by the Legislator who introduced it. Abuse that in some cases led to other abuses by the larger operators against the smaller operators on how the payment was correctly divided within the supply chain. A new legislative intervention was necessary to detail the proportional division of the payment, based on the participation of each person "in the distribution of the remuneration, on the basis of the relative contractual agreements".
However, a new decision by the Council of State arrives today which calls into question the community judge, questioning the legitimacy of the law. With the orders of 31 August, Palazzo Spada raises a question of preliminary ruling by inviting the Court of Justice of the European Union to clarify whether this one-off levy is compatible with the exercise of the freedom of establishment and freedom to provide services guaranteed by the TFEU and with the European law principle of the protection of legitimate expectations.
Is it possible to apply such a large tax only to gaming operators with amusement machines and not to all operators in the gaming sector?
But most of all? Is it possible to change the rules during the race?
The judge of the Council of State emphasizes the possibility or not of the State to affect the concession relations already in progress, in order to worsen the economic terms and to alter in an unfavorable way the calculations of convenience made by the concessionaire at the time. in which an agreement was made with the concessionary administration.
"The application of this tax - said Prof. Federico Tedeschini, lawyer of some concessionaires of recurring gaming machines - violates not only the rules of the EU Treaty but also the European Convention on Human Rights. of the fundamental pillars of European law. Companies must be able to trust public power. This is the point ".
"The Council of State - he continues - finally acknowledges the violation of the principle of legitimate expectations, a principle of European law, by the State that has signed a contract with the dealers who have participated in the tenders for the concession of the management of game and then changed the cards on the table by applying a tax of 500 million on the remuneration accrued in 2014. Those who participated in the tender saw the economic accounts they had made in the assignment busted. The measure is not inspired by imperative reasons of interest general but it is a mere need for cash. The dealers cannot be used as ATMs ".
This was also confirmed by Palazzo Spada itself, which criticized the fact that "it appears to be inspired exclusively by an economic need to increase State revenues, and therefore to 'make cash'".
"A passage of the order of the Council of State - continues Tedeschini - states that the jurisprudence of the Court of Luxembourg has repeatedly stated that the imperative reasons cited do not include the simple requirements of the Member State to increase its tax revenue, without that with this different and additional objectives are achieved with respect to those of transparency, the fight against crime, etc. It would have been acceptable if the funds deriving from the withdrawal had been used to increase a series of controls which among other things would also have benefited the dealers which in reality are strongly affected by the substantial inadequacy of controls on clandestine gambling ".
The hope is that now the European Court can finally shed some light on a much-contested rule. But what can operators expect? We will have to wait some time before we have a ruling on the matter. We are talking about a year and a half, maybe two, knowing from experience the court time in Luxembourg. It will also count as expressed earlier, the Advocate General.
"It is expected - Prof. Stefano Sbordoni comments to PressGiochi - that, in all likelihood, the outcome of the Luxembourg judge will be to declare that the law has profiles of unconstitutionality or violates some of the general principles underlying the same Treaty on the Functioning of the EU. In particular that of legitimate expectations. If a positive sentence arrives we will have to see how it will be formulated. This formulation will be decisive in assessing what the consequences of the sentence itself will be ".
Here the prospect of a possible hypothesis of compensation by the State opens up.
"In the event that the European judge decides to accept our thesis - says Tedeschini - confirming that the principle of legitimate expectations has been violated, it is clear that the money paid must be returned. In this case, the money taken becomes money collected by way of therefore, the money will be returned, with default interest, and who in the meantime has been forced to close their business, will have to be compensated for the damage suffered, as the administrative judge will later establish.
It will also be necessary to see what the Advocate General will say - he concludes - who in general has always been on the side of the applicants in matters of custody ".
The lawyer Sbordoni is also in favor of the compensation hypothesis: "Speaking of compensation is perhaps incorrect. We should speak of a possible cancellation of the law: consequently, the results of this cancellation could result in a refund of what was wrongly collected by the State . In cases where damage has been created by the application of the law, then the damage will be compensated ".
But the fear is that the possibility of compensation / restitution would reopen a war within the supply chain between dealers, managers and operators. Even though most operators have already defined their position with the dealers, there are still many open judgments. This could lead to a new wave of litigation, which will then be examined on a case-by-case basis.
Sbordoni is not afraid of this risk, according to which "The compensation would be in respect of all the subjects in the supply chain. The dealers are nothing more than the last mile up in this supply chain. All the rules laid down on the distribution of the tax would continue to apply. Just as it was divided in the payment, so it must be divided in the eventual restitution and / or compensation ".
Refund not due to all subjects, according to Avv. Massimiliano Ariano. "No reimbursement is due in case of prescription of the right to repetition. I refer to all those cases in which the Operator has signed agreements with its Concessionaire for the installment of the amount due as a 'Stability Law Quota' and has already paid all or part of the amount due. On the basis of this approach, all those relationships now exhausted will be insensitive to the supervening declaration of illegitimacy, both those that on the procedural level have found their definitive and untraceable conclusion by means of a final judgment, both those with respect to which the limitation period or the forfeiture period provided for by law for the exercise of rights relating to them has expired. In addition to the merit, the timing in which the Court of Justice will decide will be decisive ".
What is certain in this age-old affair is that we will still have to use a lot of ink before the final word can be written. Inevitably, the thought goes to those smaller companies that due to this tax have had to give up operating in this sector. Particularly appreciated a consideration by the lawyer. Sbordoni that I want to share: "We are experiencing an all too long period of progressive impoverishment of competences at the institutional level. When the institutions, especially those responsible for drafting the rules, become impoverished or become too politicized, here are the results. Then - says the Roman lawyer - we arrive at a showdown on which justice must remedy. It is absurd to consider this sector an ATM of the state without conceiving interventions to allow this same ATM to recharge. In addition, for a false respectability, we touch the gaming sector (which we remember is also institutional) with gloves for fear of getting dirty: an absurd hypocrisy. Unfortunately, we are in a historical moment in which institutions contradict themselves ".