With its recent judgment no. 4026/2018, the Italian Supreme Court has stated the liability of the Italian gambling authority Agenzia delle Dogane e dei Monopoli (‘ADM’) towards a player for ADM remote gambling licensees’ tort.
The claimant player started an action in tort against the Ministry of Finance and ADM to be redressed of the balance it had deposited on its remote gambling account, managed by an ADM licensee – which remained unpaid notwithstanding the injunction order – through the seizure of this licensee’s bank guarantee issued in favour of the ADM. It claimed also damages compensation.
ADM denied any liability and any refund arguing the bank guarantee was used to refund – only in part – the tax debit of this licensee.
In line with the lower Courts rulings, the Supreme Court considered ADM liable towards the player for tort committed by the licensee that managed the player’s remote gambling account. The legal basis of the Court’s ruling is art. 2049 of the Italian Civil Code.
Interestingly, this provision states the liability of the employer for tort and illicit actions committed by its employees.
According to the Supreme Court, the activity of the licensee “…in light of its public licence, should be considered as exercise of a public function and determines the inclusion of the company within the public administration organizational system, which means the assumption of specific constraints and functional obligations to ensure the general needs pursuing, to which the activity is generally predetermined”.
Therefore the Court considered the Civil Code provision applicable since the tort was committed by the licensee which is part of the “…organizational system of the public administration…”. In addition, the Court considered that ADM has monitoring and controlling powers over the licensee, which is the prerequisite for the application of the Civil Code provision and of the subsequent juridical effects.
In conclusion, the Supreme Court condemned ADM to pay the relevant damages compensation, quantified in the balance of the gambling account as well as the Courts proceeding fees and costs.
