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Municipal regulation on gaming and retroactive effect

For the Campania Regional Administrative Court "The regulatory provisions that extend their effectiveness also to those already authorized respond to the justifiable need to balance the interest in safeguarding economic activities with that related to the prevention of gambling addictions".
The Third Section of the Regional Administrative Court of Campania, with two recent judgments, rejected two appeals against the Municipality of Naples in which the cancellation of the council resolution no. 74 of 21.12.2015 of the Municipality of Naples with which the Regulations on Gaming Halls and Lawful Games were approved and the Ordinance of the Mayor of Naples no. 1, prot. n. 387, of 4 April 2016 on "Discipline of the opening and closing times of authorized game rooms" referred to in the aforementioned Regulation. The applicants complained of the violation of decree law no. 158/12 converted with additions and amendments into law no. 189/12, of the law of the Campania Region n. 16 of 7 August 2014, of the law of 11 March 2014, n. 23, of the Stability Law for 2016 (Law no. 208 of 28.12.2015), of the principle of freedom of economic initiative referred to in art. 41 Constitution, in terms of the organization of the company, and art. 117 of the Constitution, and, in particular, of paragraph 2, letter h) in addition to the violation of the legislation relating to the collection of fixed odds bets, of Articles 28, 30, 43, 49 EC and art. 8 of EC Directive 98/34, as regards the free circulation of goods "and the" free circulation of services ", of art. 1, 4 and 35 of the Constitution, of art. 2060 cod. civ. and art. 1, lett. b of the D.L. n. 112 of 25.6.2008, conv. in L. n. 133 of 6.8.2008, as well as the excess of power. The Campania administrative judges, rejecting the aforementioned appeals and recalling the consolidated jurisprudence on the matter, first of all affirm that the regulatory provisions that extend their effectiveness also to subjects already authorized respond to the justifiable need to balance the interest in safeguarding economic activities with that linked to the prevention of gambling which, as illustrated above, falls within the scope of health protection requirements, in line with the principles established by art. 32 of the Constitution. Basically, the extension of the application to all operators in the sector, including those already operating, does not imply a retroactivity of the provisions but is rather aimed at excluding free situations from a periodic verification with the total removal of the subjects already authorized by each possibility of control and subsequent verification, with inadmissible incision also on the principles of impartiality and level playing field between operators in the sector. On the other hand, as highlighted in the sentence under examination, the Constitutional Court on several occasions (judgments no. 264 and no. 15 of 2012, no. 303, no. 238 and no. 93 of 2011, no. 317 and no. 311 of 2009, no. 362 and no. 172 of 2008) referred that the legislator, within the limits of the criterion of reasonableness and without ever "arbitrarily affecting the substantial situations established by previous laws, can evaluate the choice between retroactivity and non-retroactivity ". The same European Convention on Human Rights and Fundamental Freedoms, stresses the Administrative Court of Campania, does not radically exclude the possibility of laws which, acting retroactively, affect the progress of ongoing judgments, when there are needs for public order or even " imperative reasons of general interest ". Further, the judges recall the orientation now consolidated in the jurisprudence according to which "The existence of a previous authorization cannot justify a permanent derogation, which removes the operator from the application of the regulatory discipline to protect health, whatever the events and future locations of its commercial operation .... otherwise, in addition to nullifying the scope of the protection discipline, a distortion of competition would result in the sector, through the sort of quotas and the strong enhancement of the pre-existing authorizations that would ensue greater than that which could be attributed to the minimum distances "(see Council of State, ruling 579 of 2016). Therefore, the Campania administrative judges conclude, in the specific case the regulatory provision under discussion responds to the very clear purpose of achieving a reconciliation of the private interest of the owners in the maintenance of legitimate gaming machines and the public one in continuous and periodic control in a sector sensitive, for its relevant social and health effects.