The Lazio Regional Administrative Court upheld the appeal of a Concessionaire and declared the payment of the supplement to the minimum guaranteed for 2007 unlawful.
The Regional Administrative Court of Lazio with a judgement of the last 13th of January, accepted the appeal of a well-known concessionaire, represented and defended by the lawyers Stefano Sbordoni and Giorgio Sicari and, consequently, canceled the provision of the Autonomous Administration of State Monopolies with who had been requested to pay the guaranteed minimums for the year 2007, in addition to the penalties, within 30 days from the notification of the injunction itself, with the warning that non-payment would have involved the enforcement of the surety and the forfeiture of the concession and any presupposed and / or connected act, recognizing the violation of art. 38, paragraph 4, of the D.L. 4 July 2006 n. 223, converted into law no. 248 (so-called Bersani decree). Consequently, for the Administrative Court of Lazio, recalling the consolidated administrative jurisprudence on the matter (see ex multis, TAR Lazio, Rome, Section II, 28.07.2009 n. 7641), "it is true that previously, the interministerial decree of 10 October 2003 had established the calculation method to identify the cd guaranteed minimum, but the introduction, in 2006, of the new regulatory provision regarding the necessary setting of safeguard measures makes the content of the aforementioned decree inapplicable ... Therefore, it must be considered that the measures for the collection of the sums to achieve the so-called guaranteed minimum could not have been adopted before the definition of the so-called safeguard measures, so that these measures (in this case, relating to the sums due for the year 2007) manifest their illegality as they were adopted without the prior definition of a measure (general in scope, but affecting the position of each concessionaire) necessarily presupposed to those challenged here ". Hence, the acceptance of the complaints of illegality contained in the appeal brought by lawyers Stefano Sbordoni and Giorgio Siclari and the consequent annulment of the contested measures. With this rule, in fact, the legislator, with the aim of preparing new measures to combat illegal gaming, had ordered that "in order to counter the spread of irregular and illegal gaming, tax evasion and avoidance in the game, as well as to ensure the protection of the player, with provisions of the Ministry of Finance - Autonomous Administration of State Monopolies, ... (were) established the new ways of distributing the game on a horse racing basis ", in compliance with some criteria including, for what is relevant here, the one indicated in letter l) of the list, namely the “definition of the methods of safeguarding the concessionaires of the collection of horse racing bets governed by the regulation referred to in the decree of the President of the Republic of 8 April 1998, no. 169 ". For the Administrative Court of Lazio, the Administration should have promptly implemented the obligations prescribed by the aforementioned new discipline, since this was destined to have a profound effect on the economic framework of the synallagmatic relations that derived from the concession relationship. In particular, according to the administrative judges, in the absence of safeguard measures and in constant activation of the procedure aimed at their definition, the Administration could not legitimately request the concessionaires to integrate the so-called guaranteed minimum, as instead carried out by the AAMS in the contested provision.