The European Commission has issued formal comments on Italy’s draft remote gambling decree.
The European Commission has issued formal comments on the Italian draft remote gambling decree, having been notified on 28 December 2007 by the Italian Government, pursuant to EC Directives 98/34/EC and 98/48/EC.
This draft decree lays down the compulsory requirements that any operator wishing to enter the Italian remote gambling market should adopt, in compliance with the EC Treaty principles of freedom of establishment and freedom to provide services.
The Commission’s comments and the republic of Malta’s detailed Opinion concerning alleged obstacles to the free movement of services and the freedom of establishment have delayed, for another month, the adoption of this decree.
Italian authorities will now have to report to the Commission on the action that the competent Autonomous Administration of State Monopolies (AAMS) will take and then submit the final drafting.
Commission’s main comments
The Commission is concerned about the discretionary power that the AAMS will retain to evaluate the operators’ criteria in order to administer and collect revenue from remote gambling services, and to identify the type of games authorised. In this regard, the Commission underlines that the principles of objectiveness, transparency, proportionality and lack of discrimination should be respected. The Italian authorities should take into account the requirements to which the operators are subjected in their EU/EEA State of establishment. In any case, the Commission recommends that the number of operators should not be limited by a numerus clausus1.
From a technological point of view, the Commission invites the Italian authorities to consider less expensive measures in respect of the obligation to connect the operators’ infrastructures to the AAMS’ centralised computer system. The Commission expresses concern about the contribution amount (initially of €300,000) to be paid by the authorised operators to the AAMS for the costs of managing the computer infrastructure.
The implications
According to art. 8, par. 2 of the EC Directive 98/34/EC, the Italian authorities shall take such comments into account as far as possible in the final drafting of the regulation. In other words, a Member State is not obliged to adhere to these comments in its final adoption of a draft regulation, but the European Commission may contest the regulation once it enters into force.
It is probable that the Italian authorities will manage to adopt the draft decree with few amendments.
The draft Italian regulation does not place any limitation on the numbers of operators. On the contrary, it represents an integral part of the recent liberalisation process started by the Bersani Decree2 and calls for tender for new sports and horse-racing betting concessions. Several well-known foreign bookmakers were recorded among the participants and are now entitled to organise betting operations. The decree introduced new types of remote games, such as skill games with cash prizes and new forms of interactive fixed odds betting.
On the other hand, the principle of mutual recognition concerning the operators’ ability to provide gambling activities within Europe is not yet applicable: indeed, the Bolkestein Directive3 on the liberalisation of services through the ‘country of origin’ principle expressly excluded gambling activities.
As regards the operators’ contribution, the AAMS will have to prove that the requested amount is directly connected to the costs that AAMS shall bear for its institutional duties.
Last but not least, the AAMS will have to demonstrate that the obligation for operators to register with its centralised system represents an innovative solution that will permit Italian consumers to bet safely, and protect against any illegal gambling.
1. A method of limiting numbers.
2. Article 38 of Decree-Law no. 223 of 4 July 2006, converted with amendments by Law no. 248 of 4 August 2006.
3. Directive dated 12 December 2006 no. 2006/123/CE (section 2, par 2 H).