In the land of Lottomatica S.p.A., Sisal S.p.a, Amministrazione Autonoma dei Monopoli di Stato and the blacklisted foreign sports betting Web sites, we were nearly forgetting the Bruno Corsi and Placanica cases.
The Italian Supreme Court's April 2004 ruling in the Corsi case went directly against the European Court's Gambelli decision, while the Tribunale di Larino referred the Placanica case to the European Court of Justice. (The Placanica verdict was expected to take place in 2005, but as they are so often, the court case was been delayed.) So while one would expect post-Gambelli cases to provide only clarification to the cross-border gambling debate, these two decisions contradict one another, thereby further confusing the matter.
IGN looked to lawyer Yan Pecoraro from the firm Studio Legale Portolano Colella Cavallo for clarification. We asked Pecoraro:
How do the Italian Corsi and Placanica cases relate to one another and what do they mean in the big picture for cross-border gambling?
 |
There is basically in Italy a contrast between high court and lower court decisions. This is exactly what happened with Placanica.
|
|
Yan Pecoraro: As you know, in the Gambelli decision, the ECJ basically said that restrictions to the freedom to provide services (Art. 49 EU Treaty) and the freedom to establishment within the territory of a member state (Art. 43 EU Treaty) may be justified only by grounds of public policy, public security or health or for reasons of overriding general interest.
Moreover, under EU law, the ECJ has no right to deliver an order directly applicable in the national country, but it may only indicate to the national judge how to construe/apply EU rules. The domestic judge is responsible to evaluate and construe national regulations to make it compliant with EU principles/rules.
After the Gambelli decision, the Italian Supreme Court (Corte Suprema di Cassazione) was asked to comment on the compatibility of the Italian regulations/restrictions on betting, with particular respect to criminal liability of unauthorized operator. This is the Bruno Corsi (owner of a Stanley Bet Centre) case to which you refer (Italian Supreme Court's decision No. 111 of April 26, 2004).
The Italian Supreme Court (delivering a surprising decision) basically said that the Italian regulation on betting and gaming were justified by public policy reasons. In particular, it said that the Italian criminal regulations on betting/gaming are justified because they prevent fraud and money laundering through the betting market.
However, in Italy there is no "stare decisis." (Courts are not bound by precedents). Therefore, after the abovementioned Corsi decision, the Italian lower courts continued to believe that the Italian restrictions on betting were unjustified and, thus, incompatible with EU principles.
In many decisions, lower courts do not apply the Italian criminal rules believing that these are incompatible with EU principles. The lower courts highlighted the fact that on one hand the Italian state is restricting betting services provided by those operators not holding an Italian license (arguing that this is to prevent criminal abuse), but on the other hand the Italian state is continuously creating new licensed betting opportunity in which no one could exclude any criminal interference. Also the restriction seems to be disproportioned compared to the scope of the restrictions.
There is basically in Italy a contrast between high court and lower court decisions. This is exactly what happened with Placanica. The Court of Larino, deciding on the criminal liability of Mr. Placanica (owner of a centre of Stanley International Betting Ltd.) believes that (i) the Italian Corte di Cassazione in the Corsi decision did not correctly apply the principles set forth by ECJ in the Gambelli decision and that (ii) Italian restrictions on betting services are discriminatory. The only connection between Placanica and Corsi is that they were indicted for the same crime.
The EJC's role is evidently not to resolve contrast inside the national jurisdiction (this is one of the objection presented by French, Belgian, Spanish, German and Italian Governments), but, as Mr. Ruiz pointed out in his opinion, the ECJ must grant to national judges all the elements necessary to evaluate the national rules in light of the EU principles. We can expect from the ECJ another more in-depth ruling on this matter.
We don't know when ECJ will deliver its final judgment on the Placanica case. To give you an idea, the final judgment on the Gambelli case was delivered on Nov. 3, 2003, eight months after the delivery of the final opinion of the advocate general (March 13, 2003). (ECJ Advocate General Damaso Ruiz-Jarabo Colomer delivered his opinion on the Placanica case on May 16, 2006.)