OMNIPOTENCE IN PUBLIC ADMINISTRATION
Case study in the field of gambling
By Corina Ciobanu, Lawyer, and
Teodora Luca, Lawyer
with Luca Mihai Cătălin Law Office
”The term omnipotent is used in most religions to denote a number of characteristics attributed to the main deity. These features include the following (although not limited to this number):
1. A deity has the ability to do all that is logically possible.
2. A deity has the ability to do whatever it chooses to do.
3. A deity has the ability to do everything that is in accordance with its own nature (for example, if it is in the nature of a deity to tell the truth, then it is not capable of lying).
4. It is part of the nature of a deity to be in accordance with its own principles and it would be inconsistent for a deity to act against those principles, unless there is a reason to do so.
5. A deity is able to do everything that corresponds to the characteristic of omniscience.
6. A deity is capable of doing absolutely anything, even what seems logically impossible.” (ro.wikipedia.org)
In this issue of the magazine we aim to address an atypical topic and present to readers a recent situation in practice, focusing on an unusual approach of the National Office of Gambling, which we can only hope will be corrected in the immediate future.
If we can accept about deities that they can do absolutely anything, possible or impossible to achieve logically, it remains a wish that the acts of public administration bodies be limited to legal provisions.
Companies intending to organize raffle – traditional gambling activities must first obtain an organization license and an operating license under the following conditions:
a. In order to obtain the license for organizing the raffle, a traditional game of chance, considering that GEO no. 77/2009 and the Methodological Norms adopted by GD 111/2016 do not provide special provisions, the general rules incidental to obtaining the license for organizing gambling class I regulated by art. 15 para. (1) lit. A of GEO no. 77/2009 and the incidental documents provided in Annex 6a of the Methodological Norms adopted by GD 111/2016 must be submitted to the National Office for Gambling;
b. In order to obtain the authorization to operate the raffle, a traditional game of chance, the general incidental rules stipulated by art. 15 para. (2) of GEO no. 77/2009 and the incidental documents provided in Annex no. 7 Chap. 1 Subcap. 1 point I subpct. (7) lit. G) of the Methodological Norms adopted by GD 111/2016.
It seems simple, logical and easy to do. Those who were curious to check how many licenses were issued by the National Office of Gambling for this type of activity probably found that there is no licensed organizer, moreover they will probably have hit the announcement published on the authority’s page on of June 14, 2021, according to which the need to amend the “present legal provisions specific to raffle gambling” was taken into account. The Supervisory Committee of the National Gambling Office decided to postpone the analysis of the documentation corresponding to the license and authorization until the date of their entry into force.
Can an executive body decide that the law needs to be amended and refuse to implement it? Certainly not.
Predictably, however, the authority did not let this detail prevent it from doing absolutely anything, even what seems logically impossible.
The Directorate-General for Authorization should have examined the documentation submitted under the legally binding content of the file, by reference to the conditions required by the applicable law in force at the time of registration of the applications and requested any clarifications or additional documents, again related to the legal provisions in force.
Our expectations turned out to be ridiculous, the authority’s plan being of course much broader, greater than we could have estimated.
Long after the legal deadline for resolving the request, the authority informed us in an address (which does not include, not surprisingly, any reference to factual and legal reasons) that the Office, through the Supervisory Committee, decided to postpone it indefinitely. of applications for the issue of licenses for the organization and authorizations for the operation of traditional bingo games, as the legal provisions in the field of bingo games need to be amended.
A deity has the ability to do whatever it chooses to do. However, the public authority is obliged to limit and motivate its actions.
The Supervisory Committee does not have, according to the legal regulations, the possibility to postpone or refuse the settlement of requests on the grounds that the legal provisions need to be amended, the executive power having the obligation to enforce the law.
The petitioner challenged the administrative act, requesting the complete cancellation of the address issued by the National Office for Gambling and the obligation of the Supervisory Committee to resolve the two requests.
In the motivation, it was invoked that the address sent by the Office constituted in reality an unjustified refusal to solve a request, in the sense of Law no. 554/2004 regarding the administrative contentious, which at art. 2 para. (2) stipulates that it is assimilated to unilateral administrative acts that can be challenged before the administrative contentious courts and the “unjustified refusal to resolve a request regarding a right or a legitimate interest”, and in art. 2 para. (1) lit. i) and n) provides that by unjustified refusal is meant “the explicit expression, with excess of power, of the will not to resolve a person’s request;”, and by excess of power is meant “the exercise of the right to assess public authorities by violating limits of the competence provided by law or by violating the rights and freedoms of citizens”.
The two conditions of unjustified refusal are met, given that the address for postponing the settlement of applications until an unspecified date was taken in excess of the powers conferred by law on the Supervisory Committee and the Directorate-General for Authorization of the Office, representing an abusive exercise of the right to appreciation of the ONJN by violating the limits of the competence provided by law and, implicitly, an explicit expression, with excess of power, of the will of the authority not to resolve the demands of the company.
Special attention must be paid to the violation of art. 7 para. 2 of GEO no. 20/2013 on the establishment, organization and operation of the National Office for Gambling according to which “In exercising its powers, the Committee issues administrative acts in the form of decisions signed by the President of the Office, which may be challenged under the law.” Following the direct steps taken to obtain the decision underlying the issuance of the information address and the documentation submitted by the authority to the case file, it resulted that the decision of the Supervisory Committee was not recorded in any official document of the authority.
Consequently, the very decision underlying the issuance of the information address by which the authority postponed the settlement of all applications for the issuance of the organization license and the authorization to operate raffle games is illegal, as is any address. issued on the basis of this decision is illegal.
The National Gambling Office did not consider at any time that the company does not meet the legal requirements in force for obtaining the organization license and the operating license, the only problem identified being that, from its point of view, the legal provisions governing the activity of Raffle-specific gambling needs to be changed, without specifying where this need comes from and without any legislative initiative in this regard at present.
In other words, the petitioner was in an absurd situation where she fulfilled the conditions for licensing and authorization and had gone through the procedure provided by the normative acts in force, but could not carry out the economic activity because the authority, in its capacity as body with powers to implement the law, and not the legislator, refused to implement the legal provisions, considering that it is necessary to amend these provisions, without at least this resolution being recorded according to the law.
In response, the National Gambling Office invoked two exceptions, that of prematurity, arguing that the company should have filed a complaint prior to filing the action in court and inadmissibility, arguing that the information address does not meet the legal conditions to be considered an administrative act that can be annulled through administrative litigation.
The court, examining all the requests and evidence submitted to the file, decided to reject the two exceptions invoked by the Office, considering that the information address meets all the legal conditions to be qualified as an administrative act and that the prior complaint was not mandatory, given the nature of the information address of unjustified refusal to resolve a request.
On the merits, resolving the application, the court admitted the action and ordered the annulment of the administrative act, respectively of the address issued by the Office, obliging the authority to resolve the requests made by the petitioner.
The court’s solution is correct for all the reasons already stated, being easy to identify the abusive nature of the administrative act, respectively the refusal of the authority to resolve the petitioner’s requests.
It will be interesting to see if the authority chooses to adopt a responsible attitude and correct the errors already committed with the issuance of the administrative act, which certifies the refusal to resolve the petitioner’s requests or vice versa, if it chooses to try to enshrine its absolute right to decide when to apply the law and when to refuse to enforce the legal rules, if they consider them incomplete, inaccurate or unsatisfactory for the purposes pursued.
For all those in the private sector who might consider exercising such a right, we remind you that only a deity is capable of doing absolutely anything, even what seems logically impossible.
For everyone else, complying with the law is not optional.