Attorney Sbordoni’s reflections about the current situation and future of the gambling laws in Italy
The evolution of a body of public rules, that has been and it is, necessary to any ordering on gaming, is a “work in progress”; it is clear that has to have the not easily achievable ability of being adaptable quickly to market requirements and to the economics by all the operators approaching this activity.
Therefore, some rigidities in the Italian law (perpetrated in time) have led to the present situation, not just an escape towards foreign countries, but more a search of orderings that consent a greater elasticity, in approaching states with a major predisposition to game activities, with Italy among them. Thus in the end Italian and/or foreign operators, with an interest in the Italian market, sometimes instead of following Italian rules with their unsolved rigidities, have chosen to operate from abroad towards the Italian customer/consumer; and this is unacceptable from the point of view of sovereignty and respect of an ordering, even if not perfect. Therefore more than an escape of operators towards foreign country, we can say it is an escape of operators towards more favorable regimes for their operation, where the aim remains the Italian consumer a subject with an attitude towards gaming. We should make a distinction without going too far, also at a religious level: from one side a Christian-Catholic culture, on the other side a Catholic-Protestant culture. The renown disparity of basic ideologies between Lutherans and Christians leads also to a different interpretation of the norms of gaming, thus not contributing to an unification of the 27 EU countries. In conclusion, the black market mentioned in the question, is black because of these factors, and it will not be easy to reach a solution because each of the party will have to renounce to some of its prerogatives. To imagine a different, EU integrated and more dynamic gaming system, States will have to loosen ties, whilst operators will have to show a greater respect of the general principles of individual orderings.
From an Italian perspective I believe that the harmonization, if considered as a set of orientation principles, is surely possible and practicable, as gaming is basically the same thing everywhere. Therefore, what do we mean for harmonization? Trying to have a common understanding of the general principles of gaming, with the due distinctions for the different industry branches. What I do not think it will be possible in the short term (and probably also in the long term period), is an European standardization, because the differences in setting out and the prerogatives of sovereignty of individual member states are such and many that it will be difficult to render official a common regulation, although the principles are well accepted by all the states
It is possible to understand if a more open market will be able to prevail, a market which will be closer to the utmost principles of market, rather than a monopolistic market controlled by Government in all its aspects, thus producing a high taxation to cover the costs of the effects of controlling. More clearly, if the Government controls gaming, takes on itself an expensive burden, and in order to assume this burden it has to spend, and in order to spend it has to find the money, and in order to find the money it will tax the very same citizen, to whom it will offer this service, and protection (even from ludopatia). Now a balance between these two things can be found. What we have always said and that the ECJ has said in many sentences “canalization of gaming in controlled circuits”, what does it mean? It means that it is sufficient in my opinion to have a deep knowledge of the phenomenon, it means being able to verify the numbers and the effects and their effective cost for the society (criminal interests, ludopatia, etc). But this principle is valid for every economic activity, as any of these has its excesses that lead to pathologic behavior, and every lucrative activity can attract criminal attention. The difference is that in the gaming market money – intended as cash – are at hand, but not wealth or enrichment (since in this very moment, especially in the online gaming, the gain is extremely low). Therefore the phenomenon needs to be regulated. In the question the example of UK is mentioned: it is a different culture, a more developed civic mindedness with different habits and where gaming is intended more betting than gaming machine. It is a big difference of ground where to farm common gaming rules. But I still believe that we will reach an agreement (we already have it in several states), on the understanding that the principles of gaming are common for all the states. In conclusion, even if it can seem a contradiction, we all should tend towards a regulated market. The level of control and regulation on individual markets can vary, but it cannot be overly invasive as it would produce negative effects, on costs and results.
The pros and cons of the Italian system are due to what we said previously: it is the product of the evolution from the 90’s to now. Someone prefers a return to the past, to prohibition of all gaming: and to step back to the basic principle (that, we should remember, is still at the basis of the regulation in Italy) it is prohibited any money-prize game, with the only exception of games with Government authorization, that is now defined as public gaming). The effect of this return to the past would be a free and uncontrolled market for any operator. And if someone could imagine an activity of repression by the Government, this would have such an infinitely higher cost than any other cost deriving from the negative effects of regulated gaming, as we would not have neither the strength nor the possibility to realize it. Not even is imaginable a compression to zero, because if it is true, as we traditionally know, that gaming exists from the man creation, then how is it possible to think to suppress it completely? It is impossible! In this case the only result would be a flourishing black market, scarcely controllable (unless undertaking economically and socially unsustainable military operations). And surely even if operators would benefit from this, as they would be free from ties (extremely expensive for them, largely reducing their profit margins), the jungla will cause to the more professional of them sensible problems. Therefore a free, black market. Today, moreover, we are experiencing (especially in EU) an extremely adverse moment for the gaming industry, even if we realize that it would be counter-productive to destroy the entire system. In conclusion, we can say that the cons for Italian Government gaming rulings are two: the rigidities about which I spoke in the first answer: a disharmony in principles (I insist on this) and also the fragmentation of the primary norm, which is born from interests, from contingent situations, sporadic interventions without sense; that is the source of the problems: those same disparities of which it was said before have born from interests of single groups, rather than from a logic of homogenous regulation. It is nowadays frequently proposed a consolidated Gaming Act, as there is UK: I feel that it is more necessary to find general leading principles and not a detailed and meticulous set of norms. And here is the second cons: often Italian norms are detailed to the point to create problematic disparities and conflicts with other norms; and that is a source of conflict, often also between the operator and Government and it doesn’t have sense as the licenced operator should be a fiduciary of the state.