Loredana Marlen DUMITRU

Legal regime of licenses and authorizations for the organization and operation of gambling during the state of alert

by Loredana – Marlen Dumitru, Junior lawyer, C.A. LUCA Mihai Catalin

In this article, we will focus on new legal consequences in the legislative framework governing the application of measures to prevent and combat the spread of COVID-19, with interest in the organization and operation of gambling.
Thus, we will focus our attention below on the provisions governing the validity of the documents on the basis of which gambling operators operate during the state of alert and we will try to resolve, by reference to the relevant legal texts, legal situations that, at first sight, it could have the appearance of creating conflicting legal circumstances.

With regard to the regulation of the legal regime of documents whose validity period was to expire during the application of measures to prevent and combat the spread of COVID-19, the state authorities with regulatory power considered the adoption of rules to cover these situations from the moment of declaring the state of emergency.

In this regard, we recall from the legislation applicable to documents issued by the authorities, the validity of which has expired during the STATE OF EMERGENCY:
– The provisions of art. 14 of DECREE no. 195 of March 16, 2020 regarding the establishment of the state of emergency on the Romanian territory according to which: The validity of documents issued by public authorities that expire during the state of emergency is maintained.
– The provisions of art. 12 para. (1) of the MILITARY Ordinance no. 3 of March 24, 2020 on measures to prevent the spread of COVID-19 according to which: Documents that expire during the state of emergency, issued by public authorities, can be exchanged within 90 days from the date of cessation of the state of emergency.
– The provisions of art. VIII of the Emergency Ordinance no. 48 of April 9, 2020 regarding some financial-fiscal measures, according to which: In 2020, the gambling operators provided by the Government Emergency Ordinance no. 77/2009 on the organization and operation of gambling, whose licenses for organizing gambling fall under the incidence of art. 332 of the Government Emergency Ordinance no. 1/1999, can formulate requests for the reauthorization of the activity no later than 90 days from the date of cessation of the declared state of emergency.
– The provisions of art. 45 para. 1 of the Government Emergency Ordinance no. 70/2020, regarding the regulation of some measures, starting with May 15, 2020, in the context of the epidemiological situation determined by the spread of the SARSCoV-2 coronavirus, for the extension of some terms, for the amendment and completion of Law no. 227/2015 on the Fiscal Code, of the National Education Law no. 1/2011, as well as other normative acts, according to which: To the extent that this chapter does not provide otherwise, the validity of documents issued by public institutions and authorities is maintained throughout the state of emergency established by Decree no. 195/2020 on the establishment of the state of emergency on the territory of Romania, extended by Decree no. 240/2020 on the extension of the state of emergency on the territory of Romania, as well as for a period of 90 days from the cessation of this state.

The combined analysis of those provisions shows that gambling operators whose gambling licenses or operating licenses expire during the state of emergency shall remain valid for the entire period of the state of emergency and for a period of 90 days after the expiration of this state.

Considering the fact that the state of emergency declared on the Romanian territory ended on May 14, 2020, it results that the validity term of the documents on the basis of which the gambling organizers carry out their activity, expired during the state of emergency, is fulfilled. on August 12, 2020. According to art. VIII of the EMERGENCY ORDINANCE no. 48/2020, this is also the maximum term until which the gambling operators, holders of the authorizations whose term expires during the state of emergency could formulate requests for the reauthorization of the activity.

Legal regime of licenses and authorizations for the organization and operation of gambling during the state of alert

Considering the need to continue to ensure, even after the cessation of the state of emergency, an adequate protection against SARS-CoV-2 coronavirus disease, on May 15, 2020, Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, which regulated the framework in which the state of alert on the territory of Romania and the measures it entails can be ordered.

Regarding the legal regime of the documents whose validity expires during the alert state, art. 4 para. (5) of LAW no. 55/2020 provides that: The validity of the documents issued by the public institutions and authorities, as well as by the private entities authorized according to the law, is maintained throughout the alert state, as well as for a period of 90 days from the termination of this state.

It is clear from the hypothesis of the text of the law that the documents on the basis of which the organizers of gambling carry out their activity of organization and operation of gambling (licenses and authorizations) whose validity expires during the alert state are considered valid throughout the alert state, as well as for a period of 90 days from the end of this state.

Therefore, up to this point of the presentation we have outlined 2 hypotheses regarding the documents whose validity period expires either during the state of emergency or during the alert state, both outlined during the presentation.

However, given the fact that following Decision no. 553 of July 15, 2020, starting with July 17, 2020, the alert status was extended by 30 days throughout Romania (so, until August 16, 2020) and given that the expiration date of documents on the basis of which the gambling organizers carry out their activity, expired during the state of emergency, is fulfilled on August 12, 2020 (during the alert state), there are unjustified possible ambiguities regarding the applicability or inapplicability of the provisions of art. art. 4 para. (5) of Law no. 55/2020 and regarding the latter situation.

From our point of view, the depositions of art. 4 para. (5) of Law no. 55 are applicable to all documents issued by the authorities, including those whose validity has been extended by the effect of the normative acts applicable during the state of emergency, taking into account the following considerations:
– The text of the law does not make any difference regarding the particular situation of the documents that expire on August 12, 2020, and according to the rules of interpretation where the law does not distinguish, neither can we distinguish;
– Documents whose validity expires during the state of emergency are, by law, valid, and regarding the manner in which their expiration date has been established, no mention is made so that they cannot be included on the hypothesis of the text of the law mentioned;
– The state of alert is a legal circumstance distinct from the state of emergency, which implies its own legislative framework for the application of the ordered measures;
– The fulfillment of the term of 90 days within which the documents must be renewed in order for them to maintain their validity (in order not to expire) falls within the hypothesis of the provisions of art. 4 para. (5) of the Law, all the more so since, at the time of issuing the norms applicable during the state of emergency, the legislator could not provide at the time of adoption of the regulation neither the declaration of the state of alert, nor its extension until the intersection of said regulations;
– There is no separate reason for the law to justify a different legal regime, given that the de facto reasons behind the issuance of legal rules (the need to take measures to prevent the spread of COVID 19) remain during the state of alert.

In conclusion, we consider that the licenses and authorizations whose validity has been extended, pursuant to art. VIII of GEO 48/2020, respectively art. 45 of the Emergency Ordinance no. 70/20202, until August 12, 2020, remain valid according to the provisions of art. 4 para. (5) of LAW no. 55/2020, during the state of alert and subsequently, 90 days from the date of its termination.

Legal regime of licenses and authorizations for the organization and operation of gambling during the state of alert

by Loredana – Marlen Dumitru, Junior lawyer, C.A. LUCA Mihai Catalin