The practice of gambling in 2023
Law and lawless in gambling in Romania
continued of the previous article
Article from the series “Gambling Practice“, by Anchidim Zăgrean, FedBet Vice President and President of ROMBET
I ended the previous article with the promise that I will return with the practical way of defending 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, established of art. 1 paragraph (5) of the Basic Law, according to which “in Romania, compliance with the Constitution, its supremacy and laws is mandatory” as well as the measures that can be taken when these, through their method of adoption, have become “lawless” by the fact that they flagrantly violate the fundamental rights and freedoms guaranteed by both the fundamental law and the Charter of Fundamental Rights of the European Union.
When the mandatory legal norms are not respected, by the initiators, from the moment these bills are submitted, then through the complicity of those who ensure the filters of constitutionality and legality, throughout the debate and then through “abuse of power” they are adopted, it is obvious that, once they enter the civil circuit through the production of legal effects, some people will be harmed in a right of theirs or in a legitimate interest. It is an enshrined constitutional right that any person who considers himself injured in a right or in a legitimate interest, by a public authority, through an administrative act, can address the competent institutions, for the annulment of the act, the recognition of the right claimed or the legitimate interest and the repair of the damage caused to him. Challenging the legality of these legal norms, depending on the stage in which they are, can be done as follows:
1. În In the case of draft laws, adopted by the parliament, the subject of constitutionality control, a priori, can be ordinary laws and organic laws and the requests, in order to refer for the control of the constitutionality of the laws, before the promulgation, as regulated by the provisions of art. 146 lit. a) the first sentence of the Constitution and of art. 15-18 of Law no. 47/1992, can be made to:
– The President of Romania, who based on the provisions of art. 77 of the Constitution, before promulgation, may ask the Parliament, once only, to re-examine the law or may request verification of its constitutionality;
– The Presidents of the two Chambers, the Government, the High Court of Cassation and Justice who according to art. 25 lit. c) from Law no. 304/2004, regarding the judicial organization, the People’s Advocate is established in United Sections for referral to the Constitutional Court for the control of the constitutionality of laws before promulgation and the request is made based on the provisions of art. 59 of the Constitution, a number of at least 50 deputies or a number of at least 25 senators and the notification made by the parliamentarians is sent to the Constitutional Court on the day of its receipt, by the general secretary of the respective Chamber.
They cannot be the object of the constitutional review, regulated by the provisions of art. 146 letter a) the first sentence of the Constitution, the laws in force, the drafts or legislative proposals, nor the amendments.
Legal deadlines are also set, in order to exercise the right to refer to the Constitutional Court, thus 5 days before being sent for promulgation, the law is communicated to the Government, the High Court of Cassation and Justice, as well as the People’s Advocate and is submitted to the secretary general of the Chamber of Deputies and the Senate, and if the law was adopted with an emergency procedure, the deadline is 2 days.
Until the date of the debates, the Presidents of the two Chambers of the Parliament, the Government and the People’s Advocate can present, in writing, their points of view. The Government’s point of view is presented only under the signature of the Prime Minister.
The debate takes place in the plenary session of the Constitutional Court, based on the notification, the documents and the points of view received, and it covers both the provisions mentioned in the notification and those from which, necessarily and obviously, they cannot be dissociated.
If a Decision is adopted, by which the unconstitutionality of the law is established, it is communicated to the Presidents of the two Chambers of the Parliament and the Prime Minister as well as the President of Romania, in order to avoid the promulgation of a law declared unconstitutional, and in case the constitutionality of the provisions has been established criticized laws, so that the President can promulgate the law within 10 days from the date on which the Court’s decision was communicated to him.
In case the law is found to be unconstitutional, according to art. 147 paragraph (2) of the Constitution, the Parliament is obliged to re-examine the respective provisions for their agreement with the decision of the Constitutional Court.
2. In the case of draft laws adopted, promulgated, published and entered into force, to resolve the exception of unconstitutionality, the request may be raised before the courts or commercial arbitration, as provided by art. 29 of the Constitution as well as Law 47 of 1992, as follows:
– the exception can be raised at the request of one of the parties or, ex officio, by the court or commercial arbitration. Also, the exception can be raised by the prosecutor before the court, in the cases in which he participates;
– referral to the Constitutional Court is ordered by the court before which the exception of unconstitutionality was raised, through a conclusion that will include the points of view of the parties, the court’s opinion on the exception, and will be accompanied by the evidence submitted by the parties. If the exception was raised ex officio, the conclusion must be motivated, including the arguments of the parties, as well as the necessary evidence. Once the referral is concluded, the court will send the names of the parties to the trial to the Constitutional Court, including the data necessary to complete the summons procedure;
– if the exception is inadmissible, the court rejects, through a reasoned conclusion, the request for referral to the Constitutional Court, and the conclusion can only be challenged with an appeal to the immediately superior court, within 48 hours of the pronouncement. The appeal is judged within 3 days;
It is absolutely necessary that the exception, regarding the unconstitutionality of a law or ordinance or a provision of a law or ordinance in force, is related to the resolution of the case in any phase of the litigation and whatever its object may be.
3. Also, based on the provisions of Article 267 of the Treaty on the Functioning of the European Union (TFEU), answers to the preliminary questions addressed to the Court of Justice of the European Union (CJEU) and providing interpretations with regarding EU law or to rule on the validity or interpretation of an act of the EU institutions and the Court pronounces judgments in the cases submitted to it for resolution. If such a question is raised in a case pending before a national court whose decisions are not subject to any appeal under domestic law, that court is obliged to refer the matter to the Court.
The most common types of causes are:
● interpretation of legislation (preliminary rulings) – national courts of EU countries are obliged to guarantee the proper application of European law, but there is a risk that courts in different countries interpret the law differently. If a national court has doubts about the interpretation or validity of an EU law, it can request the opinion of the Court of Justice. The same mechanism can also be used to determine whether a national law or practice is compatible with EU law;
● sanctioning EU institutions (actions for damages) – any person or company that has suffered as a result of an action or lack of action by the EU institutions or their employees can bring an action against them through the Court.
In any of the above actions, it must be mentioned and highlighted 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 also recognized a number of overriding reasons of general interest, such as the objectives of consumer protection and the prevention of both fraud and incitement to excessive spending on gambling, as well as the general need to maintain public order. The level and system by which the fiscal revenues of the state budget are ensured, but it is not among the reasons mentioned in Article 52 of the TFEU and does 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, in lotteries, gambling and betting, they cannot invoke, to justify the restrictions, public order problems 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 be extended to additional restrictions.
According to consistent jurisprudence, purely economic reasons, such as the promotion of the national economy to the detriment of fundamental freedoms, as well as strictly administrative reasons, such as carrying out controls or collecting statistics, cannot constitute imperative reasons of public interest. A measure should be considered appropriate to guarantee the achievement of the objective pursued only if it genuinely reflects a concern to achieve that objective in a coherent and systematic way, for example when similar risks related to certain activities are addressed in a comparable way and when any exceptions to the restrictions in question are applied in accordance with the stated objective. In addition, the national measure should effectively contribute to the achievement of the objective pursued; therefore, if it has no effect on the justification invoked, it should not be considered adequate.
Below are some examples, from the jurisprudence of the Court of Justice, regarding compliance with the provisions of the Charter of Fundamental Rights of the European Union, with reference to:
1. Article 16 – Freedom to carry out a commercial activity
This article is based on the jurisprudence of the Court of Justice, which recognized the freedom to carry out an economic or commercial activity (see the Judgment of May 14, 1974, in case 4/73, Nold, Rec. 1974, p. 491, point 14; and the Judgment of September 27, 1979, in case 230/78, SpA Eridania and others, Rec. 1979 , p. 2749, points 20 and 31) and contractual freedom (see, inter alia, Judgment in Case 151/78, Sukkerfabriken Nykřbing, ECR 1979, p. 1, paragraph 19; Judgment of 5 October 1999, in Case C-240/97, Spain v Commission, ECR 1999 , p. I-6571, point 99), as well as on article 119 paragraphs (1) and (3) of the Treaty on the Functioning of the European Union, which recognizes free competition. This right is exercised, of course, in compliance with Union law and national legislation. This right may be subject to the restrictions provided for in Article 52(1) of the Charter.
2. Article 54 – Prohibition of the abuse of law
This article corresponds to Article 17 of the European Court of Human Rights:
“No provision of this convention can be interpreted as implying, for a state, a group, or an individual, any right to carry out an activity or to perform an act aimed at destroying the rights or freedoms recognized by this convention or to bring broader limitations to these rights and freedoms than those provided by this convention.”
We’ll be back with other opinions in the next issue of the magazine…
