Senior Associate Mihai Luca Law Office
Damocles’ sword above the head of the gambling organizers?
The gambling organization license is valid for a period of 10 years from the date of granting and the gambling operating license is valid for a period of 12 months from the date of the grant.
Together with the right to organize and exploit the activity, the organizer of gambling steps into the race to maintain them valid for the entire period provided by the law, giving that a minor offense, with quasi-nonexistent consequences, may lead to the suspension of the activity for up to 6 months (half of the validity period).
Any of the contraventions mentioned by the provisions of art. 151 of the Methodological Norms may have the effect of temporarily stopping the activity, regardless of the delay in submitting proof of payment to the National Gambling Office (pay attention, the law does not only sanction late payment but also the simple omission to notify the authority of the payment), the lack of stamps0 or the failure to number the claim booklet, or, in the extreme opposite from the point of view of the degree of social danger, failure to comply with the conditions considered in the authorization.
Not often, in practice, after finalizing the control, the contravention sanction applied by the minutes certifies that in the activity of the organizer there are no major non-conformities with the law, the company was rapidly informed about the inclusion on the day agenda of the Supervisory Committee meeting of the proposal to suspend his activity so that it may subsequently receive the decision of that decision-making body.
Even though, meanwhile, the minutes have been challenged by the company by making a complaint, and the primary sanction is therefore suspended by law, the complementary sanction, applied and communicated to the company by the Supervisory Committee’s decision, is enforceable by law. In order to suspend its effects, the company has the remedy provided by the provisions of art. 14 and 15 of Law 554/2004, on administrative litigation.
The Decision of the ONJN Supervisory Committee, exception to the principle accessorium sequitur principale?
The common law on contravention is represented by the provisions of Government Ordinance no. 2/2001 regarding the contravention regime, with subsequent amendments and completions.
According to the provisions of art. 5 par. 3 from O.G. 2/2001, Complementary contravention sanctions are:
a) the confiscation/seizure of goods intended, used or resulting from contraventions;
b) suspension or cancellation, as the case may be, of an approval, agreement or authorization to engage in an activity;
c) closure of the unit;
d) blocking the bank account;
e) suspension of the activity of the economic operator;
f) withdrawal of the license or approval for certain operations or for foreign trade activities, temporary or permanent;
g) dismantling works and bringing the land to its original state.
The regime of complementary sanctions in the field of gambling is regulated by the provisions of art. 151 par. 3 and 4 of the Methodological Norms for the Implementation of Government Emergency Ordinance no. 77/2009 on the organization and operation of gambling:
(3) The Supervisory Committee may order, depending on the consequences produced, the measure of suspension of the authorization / authorization to operate gambling up to 6 months, for each means of play or for all means of play located at a location or for the specialized location (s), as well as for the operators’ fields / platforms, depending on the seriousness of the established facts and the consequences thereof, for one of the facts mentioned in paragraph (1).
(4) In the situation stipulated in paragraph (3), the inspection bodies shall submit the proposal for a penalty and the period proposed to the Committee, together with all the documentation on which the proposal is based. From the economy of the abovementioned provisions, it is clear that, by derogation from the general rule, which left the control body to apply the complementary sanction, in the field of gambling, the determining organ may only propose the application of a complementary measure, in charge of the Supervisory Committee.
The provisions of the special law shall be supplemented by the provisions of the general law whenever the special law does not regulate a particular issue (the law is silent).
Therefore, the procedure of applying the complementary sanction, including in the field of gambling, is the one provided by the provisions of art. 21 of the Ordinance 2/2001:
(1) If the normative document establishing and sanctioning the contraventions does not stipulate otherwise, the finding agent shall also apply the sanction by the verifying report.
(2) If, according to the normative document establishing and sanctioning the contravention, the investigating agent is not entitled to apply the sanction, the report of the finding shall be immediately sent to the body or the competent person to apply the sanction. In this case, the sanction shall be enforced by written resolution on the minutes.
(3) The sanction shall be applied within the limits provided by the normative act and shall be proportionate to the degree of social danger of the deed, taking into account the circumstances in which the deed was committed, the manner and means of committing it, as well as the personal circumstances of the offender and the other data recorded in the report.
Thus, according to the law, the supplementary sanction (in respect of which the investigating officer does not have competence) is applied by the ONJN Supervisory Committee, by written resolution on the minutes.
Beyond bureaucratic formalism, this conclusion is relevant to determine the character of the act issued by the Supervisory Committee at the proposal of the control body, respectively to determine whether it is an individual administrative act, issued under Law 554/2001, which is enforceable by law or an administrative act of contravention, whose execution is suspended until the final settlement of the contravention complaint.
It is indisputable that, in pursuit of the principle of the accessorium sequitur principale, the legislature did not intend to establish a different legal regime for the complementary sanction in relation to the principal sanction, which was the reason for which it was determined to apply by the same legal act, even if the enforcement jurisdiction does not belong to the same body.
The provisions of art. 32 par. 3 from O.G. 2/2001 are unequivocal in establishing that the contravention order suspends the execution of the sanctions applied in the contested offense report and, as long as the special legislation does not contain legal provisions derogating from the general rule, from the legal nature of the measure suspension of the authorization, that of complementary contravention sanction, it operates lawfully, suspending the execution, simply by promoting the contravention complaint against the minutes.
The decision of the Supervisory Committee is not equivalent to a resolution applied to the minutes – it is most often communicated to the company after the expiration of the term in which the minutes can be challenged, but has only the meaning of a precursory act, necessary at the level of the authority before the measure the minutes of finding and sanctioning the contravention.
Therefore, in order to produce effects, the decision should not be communicated to the company distinct from the re-port establishing the offense, but must be incorporated into the minutes in the form of the resolution on the determination of the offense.
Given that the Supervisory Committee’s decision does not satisfy the requirement laid down by the above-mentioned provisions, the procedure for the application of the additional sanctions is flawed, and this situation led to the company having implemented, by way of novel solutions, the complementary sanctions (established by means of an act, to which the law recognizes, until the court’s review, the legal and enforceability of the law) at times when the primary sanction is suspended by law following the formulation of the contravention complaint.
According to O.G. 2/2001, the court administers all evidence required by the law necessary to verify the legality and veracity of the minutes and determines the sanction, analyzing the degree of social danger of the deed, taking into account the circumstances in which the deed was committed, the manner and means of committing it, the purpose pursued, the consequence produced, as well as the personal circumstances of the offender and other data recorded in the report.
If the court can replace the primary sanction of the fine with the sanction of the warning, it may even remove a complementary sanction, re-individualizing it, no legal provision, preventing the verification of the lawfulness and the appropriateness of applying the complementary sanction by way of the contravention complaint.
To circumvent the court’s ability to censure a sanction would mean denying the petitioner’s free access to justice; otherwise access would be only theoretical and illusory, as long as it could not be completed by removing the measure.
The restriction of the exercise of rights and freedoms may only be ordered if it is necessary, and such measure must be proportionate to the situation which determined it, according to the provisions of art. 53 par. (2) of the Romanian Constitution.
Also, in the field of contravention law, the principle of proportionality finds its specific expression in the general criteria for the individualization of sanctions, in relation to which, when establishing and applying them, account must be taken of the degree of abstract social danger, as determined in the incriminating text, as well as the concrete circumstances of committing the offense and all the features that characterize the offender.
In this regard, it should be noted that, in addition to the limitations of the sanction laid down in the law and the degree of social danger of the act committed, penalties must also reflect the person of the offender, with all the features and particularities that characterize him, as well as the circumstances that mitigate or aggravate his contravention.
In this natural context of competitive situations, with a decisive role in the determination of the result necessitating in concrete terms the nature and the amount of the primary and the complementary punishment as a result of the application of the provisions 5 of GO no. 2/2001, it is not possible for the same provisions to also guide the way of establishing the complementary sanction.
In consideration of the arguments set out, we consider that the procedure for the implementation of complementary gambling measures should be subject to the authority of a re-evaluation process that would be aligned with the legal provisions on contravention.
Until then, the remedy available to gambling organizers is to promote, under Law 554/2004, the action for annulment of the administrative act issued in violation of the provisions of Government Ordinance 2/2001 and the Methodological Norms for the implementation of GEO 77/2009, at the same time while formulating an application for suspension of its effects.