The practice of gambling in 2022
Opinion regarding non-compliance with European rules, by the decision-making authorities, regarding the special regulation of gambling activity in Romania
With the accession of Romania to the European Union (EU), by signing the Accession Treaty (Treaty), the Romanian authorities undertook, according to Article 53 of the Treaty, to implement the necessary measures to comply, from the date of accession, with the provisions of the laws- European framework and European regulations, which are mandatory in terms of the result to be obtained, having the latitude to choose the form and methods regarding the transposition of EU directives and decisions.
In this context, clearly established by the Treaty, we will present the way in which the special regulations were adopted in Romania, regarding the gambling activity, the European norms on which the national special regulations are based and especially the fact that the commitments made by signing the EU accession Treaty.
The special regulations, regarding the organization and exploitation of gambling, had to be based on an exception, otherwise provided for in articles 51 and 52 of the Treaty on the Functioning of the European Union (TFEU), which stipulates that: “Art. 51: Exempted from the application of the provisions of this chapter, as regards the member state concerned, are the activities that are associated in this state, even on an occasional basis, with the exercise of public authority. The European Parliament and the Council, deciding in accordance with the ordinary legislative procedure, may exempt certain activities from the application of the provisions of this chapter. Art. 52: (1) The provisions of this chapter and the measures adopted pursuant to it do not affect the application of legal acts and administrative acts that provide for a special regime for foreign nationals for reasons of public order, public safety and public health. (2) The European Parliament and the Council, deciding in accordance with the ordinary legislative procedure, adopt directives on the coordination of the aforementioned provisions.”
The EU’s implementation of the above provisions, regarding the activity of gambling, results from the provision of point 25 of Directive 2006/123/EC, regarding services within the internal market, where this provision should be found activity and stating that: “(25) Gaming activities, including lotteries and betting, should be excluded from the scope of this Directive, given the specific nature of these activities, who train the implementation by member states of policies relating to public order and consumer protection.”
It follows from the above that a restriction on the free provision of gambling services can only be accepted as exceptional measures, expressly provided for in articles 51 and 52 of the TFEU, or if they can be justified in accordance with the jurisprudence adopted by the Court of Justice of the European Union (CJEU), for imperative reasons of general interest. The CJEU has recognized a number of overriding reasons of general interest, such as the objectives of protecting consumers and preventing both fraud and incitement to excessive spending on gambling, as well as the general need to maintain public order. However, the level and the system by which the fiscal revenues of the state budget are ensured are not among the reasons mentioned in Article 52 of the TFEU and do not constitute an imperative reason of general interest. All the restrictions, recognized by European rules, can serve to justify the need for national authorities to have a sufficient margin of discretion to determine the requirements imposed by consumer protection and the maintenance of public order regarding the type of service offered in this field.
European jurisprudence also requires that such services and the restrictions imposed and which may result from the regulatory approach must result in a real reduction in gambling possibilities and be applied in a coherent and systematic manner to all service offers in the field. To the extent that authorities incite and encourage consumers to participate, for the benefit of public finances, lotteries, games of chance and betting, cannot invoke, to justify the restrictions, public order issues that lead to the need to reduce the possibilities of betting. Restrictions must be applied without discrimination and must be proportionate, i.e. be adequate to achieve the objective pursued and not exceed what is necessary to achieve it. The procedure for granting a license must respect the principle of equal treatment and that of non-discrimination, as well as the obligation of transparency arising from them.
In this context, the Romanian authorities, through the special gambling regulations, can restrict or limit the provision of gambling services, only based on the objectives of public interest, which they are trying to protect, but they must demonstrate that the measure in question is appropriate and necessary, having the duty to demonstrate that the public interest objectives are consistently and systematically pursued.
Compared to the revealed aspects, we can easily observe the fact that the Romanian authorities, consciously, through abuse of power, considered that the implementation of policies related to public order and consumer protection they can also be extended to additional restrictions, regarding:
1. The addition of additional restrictions, to the granting of the right to organize and exploit gambling, for the granting of licenses and authorizations, as follows: the obligation to pay the related taxes in advance; full payment of taxes, regardless of the period of organization or exploitation of the activity; adding the obligation to obtain a license for activities related to gambling, even if their activity does not constitute an exception to the services directive and therefore could not be specifically regulated; granting discriminatory and discretionary treatment to gambling activity with state capital versus private capital; conditioning the granting of licenses or authorizations on the fact that the applicant does not register outstanding payment obligations against the consolidated state budget, although this restriction is also not part of the policies related to public order or consumer protection;
2. The brutal addition, in violation of community law, to the restrictions that could only be adopted as an exception, of a special taxation system by: excessive taxation of gambling activities in a discretionary way, by applying an unequal and discriminatory treatment compared to other service activities; the absurd invention of taxes that violate all fiscal principles, given that these restrictions are not of the nature of public order or consumer protection; additional taxation of gambling-related activities, even if their activity does not constitute an exception to the services directive and therefore could not be specifically regulated; the special taxation of promotional actions, given that they could not, according to European rules, be used as a method of restricting gambling (their limitation was normal and effective);
3. The conditions regarding the revocation or cancellation of licenses or authorizations, through the special regulation, violate all fundamental rights and freedoms, making up all kinds of reasons, non-compliant with Community law, through which the right of free access to carrying out an economic activity can be violated in an arbitrary and discretionary way, as well as the right to go to justice for the defense of one’s rights, freedoms and legitimate interests.In this sense, in addition to the violation of community law, we must note that the devices in Decision no. 624 of October 26, 2016 and which can also be found in Decision 364 of June 8, 2022, adopted by the Constitutional Court, with the remark that any decision of the Constitutional Court is final and generally binding, for all similar situations. Here are two clarifying objectives in the quote, from Decision 364 of 2022:
“22. By Decision no. 624 of October 26, 2016, paragraph 49, the Court ruled that the provisions of art. 1 paragraph (6) from the Administrative Litigation Law no. 554/2004, published in the Official Gazette of Romania, Part I, no. 1,154 of December 7, 2004, constitutes the legislative consecration of the principle of the revocability of administrative acts, containing procedural rules that establish the way through which, at the request of the issuing authority, administrative acts that can no longer be revoked, as they entered the civil circuit and produced effects, can be subjected to legality control legal.
According to this legal text, the administrative acts that have entered the civil circuit and produced legal effects can no longer be revoked by the issuing authorities, their nullity or annulment can only be ordered by the competent court by filing an action within one year from the date of issuance of the act.
The principle of revocability of administrative acts is, along with the principle of legality, a basic principle of the legal regime of administrative acts, having implicit constitutional consecration (art. 21 and 52 of the Constitution) and legal support [art. 7 para. (1) from Law no. 554/2004]. Jurisprudence ruled that, in principle, all administrative acts can be revoked, normative ones at any time, and individual ones with some exceptions; among the exempted individual administrative acts are also the administrative acts that entered the civil circuit and generated subjective rights guaranteed by law. Or, the scientific title of doctor is an individual administrative act that, once entered into the civil circuit, produces legal effects in the matter of personal, patrimonial and non-patrimonial rights. 28. If the principle of revocability of administrative acts has an implicit constitutional consecration in art. 21 and 52 of the Constitution, the exceptions to them are also implicitly contained in the same provisions corroborated with other values, demands and principles with constitutional consecration. In this sense, the Court retains art. 1 paragraph (5) of the Constitution, in the legal security component, which outlines the content and limits of revocability of administrative acts. Thus, once an administrative act has entered the civil circuit and produces legal effects, the principle of legal security prohibits its revocation even by the issuer.”
We’ll be back with other opinions in the next issue of the magazine…