The practice of gambling in 2023
Law and lawless in gambling in Romania
Nothing has changed in the year 2023, when, just like in previous years, the organizers of gambling are forced to helplessly witness a veritable festival of politicians, a rainbow of political colors, who compete in submitting countless bills, which have no other purpose or constitutional content than the possible and much desired media image, through which they can gather a handful of votes or hoping that they will get enough notoriety or enough populism to be able to place them again in the race for a new parliamentary term. It no longer matters and no one is interested in the fact that what I propose, through these draft laws as well as throughout their parliamentary process, from the moment the initiative is drawn up until the moment they are submitted for parliamentary debate and then for adoption, even the most basic rules of technique or legislative procedure are not respected. Also, for these initiators, it is not the slightest problem that these projects are not accompanied by an explicit, clear and well-argued motivation from which the necessity and opportunity of these submitted legislative initiatives can be derived. Nor can it be said that the motivation explicitly states that through their adoption the proposed goal will be fully achieved and those to whom it is intended will know and be able to easily understand what are the conditions, means and resources necessary for their implementation.
There would be nothing to reproach these initiators of the legislative proposals, if in fact these steps represented, truly and in real terms, a constitutional right by which, as the fundamental law tells us, “Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country” if, without any exception, the provisions according to which “In Romania, respect for the Constitution, its supremacy and the laws are mandatory” and the fact that “No group and no person can exercise sovereignty in its own name” and especially proving that it strictly respects the fact that “No one is above the law”.
Starting from these constitutional norms, the foundation of the democratic state, we all expect that through the behavior of all parliamentarians, as found in the composition of the constituted parliamentary structures, as well as through all the parliamentary practice they carry out, to prove to the whole society that they are not nothing above the law and that it represents a model in terms of respect for the Constitution, its supremacy and the laws in force. However, we note with regret that, in reality, through the way in which they submit debate and adopt the pile of legislative initiatives, they become, most of the time, rather “lawless”.
This happens constantly, because, through the documents accompanying the submitted bills, the initiators do not give any kind of clear assurances and guarantees regarding the achievement of the proposed goal, by implementing the proposals to restrict the activity, which means that in fact, we are facing flagrant violations of the constitutional right regarding economic freedom, freedom that is guaranteed by both the Romanian Constitution and the Charter of Fundamental Rights of the European Union.
In the following, a series of arguments are listed, without being exhaustive, likely to demonstrate the fact that these avalanches of legislative initiatives become relatively easily “lawless”, by the way in which the stages preceding the submission are completed, by the way in which the works proceed in committees during the period of approval and submission of reports, during their debate as well as the way in which they are submitted for final adoption.
It is difficult to understand why the mandatory legal norms are not respected, by the initiators, at the time of submitting these bills and then, through the complicity of those who ensure the filters of constitutionality and legality, throughout the debate and adoption, regarding:
1. The existence of the justification of the draft laws and which, in order to comply with the legal provisions in force, must include the content of the assessment of the impact of normative acts, comprising the following sections:
a) what is the reason for issuing the normative act – the requirements that call for normative intervention, with special reference to the inadequacies and inconsistencies of the regulations in force; the basic principles and the purpose of the proposed regulations, with the highlighting of new elements; conclusions of studies, research works, statistical evaluations; references to public policy documents or to the normative act for the implementation of which the respective project is developed.
In most cases, when it comes to the reason for issuing the normative act, the formula used by the initiators, in the case of gambling regulation, is based on the same general clichés, collected either from the media or from the street corner, with reference to juvenile protection and public health, but never before, did not include the conclusions of studies, research papers, statistical evaluations, etc., as provided by law;
b) what is the socioeconomic impact – the effects on the macroeconomic, business environment, social and environmental, including the assessment of costs and benefits.
And in this case, possibly only the “harmful elements” are listed, but no one is really and reasonably interested in the effects of putting these draft laws into practice;
c) what is the financial impact on the general consolidated budget both in the short term, for the current year, and in the long term (for 5 years), including information on expenses and income. We all know that, on this date, an ordinance is in force, rightly considered unconstitutional (mainly due to the fact, but not the only one, that it was not passed in the law empowering the government to issue ordinances, during the holiday parliamentary), by which all gambling taxes were increased by over 40%. All these increases were included in the general consolidated budget of the state but, curiously, no one bothers to present documents, with certain data, from which it can be concluded what is the financial impact on the budget, as a result of the proposals made, being totally ignored the mandatory rules, in this sense: 1) The Constitution of Romania, at art. 111, para. 1, „(1) The Government and other public administration bodies, within the parliamentary control of their activity, are obliged to present the information and documents requested by the Chamber of Deputies, the Senate or the parliamentary committees, through their presidents. If a legislative initiative involves the modification of the provisions of the state budget or the state social insurance budget, the request for information is mandatory”;
2) Rules of the Senate: „Art.92. (6) The legislative proposals formulated by senators and deputies, which involve the modification of the state budget or the state social insurance budget, must be accompanied by proof of the request to inform the Government, submitted by the president of the Senate, in accordance with the provisions of art. 111 of the Constitution of Romania, republished” as well as „Art.100. (1) The amendments involving the modification of the state budget or the state social insurance budget are sent by the president of the committee referred to the merits to the Government, requesting its point of view. If the Government does not submit a point of view by the date set by the commission, it is considered that the amendment has been accepted.”;
3) Regulation of the Chamber of Deputies: „Art. 92
(1) In exercising the right of legislative initiative, the Government submits draft laws to the Chamber. Deputies, senators and citizens provided for in art. 74 of the Romanian Constitution, republished, can present legislative proposals to the Chamber of Deputies. They must be accompanied by a statement of reasons and drawn up in the form required for draft laws.”
“(4) In the case of legislative proposals submitted under the conditions of para. (1), which involves changing the provisions of the state budget or the state social insurance budget, the president of the Chamber of Deputies will obligatorily request an information from the Government, under the conditions of art. 111 of the Romanian Constitution, republished, within the same period of 15 days.”
“(6) If during the debate, in the committee referred to the merits, amendments appear that require the modification of the provisions of the state budget or the state social insurance budget, the president of the committee will obligatorily request information from the Government, under the conditions of art. 111 of the Constitution of Romania, republished, in a term that falls within the term for submitting the report”;
d) what is the impact on the legal system – with the implications that the new regulation has on the legislation in force; if the compatibility with the relevant Community regulations is ensured, their exact determination and, if necessary, the future harmonization measures that are required; the decisions of the Court of Justice of the European Union and other relevant documents for the transposition or implementation of the respective legal provisions.
This legal provision is also completely ignored, both by those who submit the legislative initiatives and by those in the parliamentary structures designated to check how all the parliamentary provisions and procedures are respected, absolutely necessary to ensure legal security and which must, in mandatory, to be found in the new proposed regulations. In relation to this obligation, the Constitutional Court, through the decisions taken, was particularly firm, as stated by Decision no. 812/2006, when it ruled that “whenever a new law modifies the previous legal status with regard to certain reports, all the effects likely to occur from the previous report, if they were realized before the entry into force of the law of the new, they can no longer be modified as a result of the adoption of the new law, which must respect the sovereignty of the previous law. But the new law is immediately applicable to all situations that will be established, modified or extinguished after its entry into force, as well as to all the effects produced by the legal situations formed after the repeal of the old law. The non-admission of such a solution would determine the differentiated resolution of the same legal situation, […], applying a discriminatory treatment to people in the same legal situation, contrary to the spirit of the new law.” Decisions no. 409/2003 and no. 201/2007;
e) what results were recorded as a result of the consultations carried out in order to develop the draft normative act, who were the organizations and specialists consulted, what is the essence of the received recommendations;
f) what are the implementation measures – institutional and functional changes at the level of central and local public administration.
2. The existence of impact studies, which are drawn up by the competent ministries, at the request of the parliamentary committees, in order to estimate the costs and benefits brought in economic and social terms by adopting the draft law, as well as to highlight the difficulties that could arise in the process of implementing the proposed regulations, with reference to:
a) to the existing state of affairs at the time of drafting the new regulation;
b) to the proposed amendments to the existing legislation;
c) to the objectives pursued by amending the existing legislation;
d) to the available means in order to achieve the proposed goals;
e) to the difficulties that could be encountered in the application of the new provisions.
By the fact that, in most cases, legislators do not make the slightest effort for constitutional compliance and by the fact that all mandatory norms and principles are ignored in the act of legislation, it can be said that the result of this behavior rather defines a “abuse of power” than “sole legislative authority”.
Now that we have listed the most obvious deviations from the rules regarding the adoption of legislative proposals, we need to see, in practice, how we can defend ourselves against those who submit legislative initiatives, on a conveyor belt, using only cheap populism and political demagoguery, but in total contempt for the fundamental principle of the quality of draft laws, enshrined in art. 1 paragraph (5) of the Basic Law, according to which “in Romania, compliance with the Constitution, its supremacy and laws is mandatory” and what measures can we take when these, through their mode of adoption, have become “lawless”.
All this in the second part of the article, from the next issue of the magazine…