Betting in sports events: gambling in Italy.

AuthorAntignani, Felice
PositionARTICLES
  1. Introduction

    The purpose of this study is to conduct an analysis on the betting games' sector. To begin with, this article shall underline the dominant role of the Italian State in the past years and how the state is slowly losing its grip and role in relation to gambling in sports as a result of the increasing flexibilities of internet. We shall thereafter highlight the key economic consequences produced by betting on all the parties involved in these activities.

    How can we define betting in sporting events? How can we distinguish legal betting from illegal gambling? How can we combine the needs of the State with its desire to exercise and manage the betting system with the globalisation of the market?

    We shall try to give some answers to these questions through conducting a study on the Italian "grants system", and how this system has been modified over the years, from 1948 up to December 2008. The definition of "gambling" has been modified too; a strict definition of gambling can be found from the Italian Criminal Code and in a particular Act (L. n.401/1989) which is directed at preserving the State's control and monopoly over gambling laws despite rulings from the European Court of Justice to the effect that the Italian national laws are contrary to the European principles on freedom of establishment and freedom of providing services.

    The second part of our study shall focus on the AAMS, its structure, its functions, the evolution of its role and its aims for the future. At the same time, we shall distinguish between sporting and non sporting related betting events (1).

  2. The Definition of gambling as a criminal offence

    The definition of gambling can be found in the "Study of Gambling Services in the Internal Market of the European Union" of 2006, wherein gambling has been defined as " any service, including any information society service, which involves wagering a stake with a monetary value in games of chance, including lotteries and betting transactions" (2).

    This definition has more or less been adopted in the same breath in Article 721 of the Italian Criminal Code, which aims to punish gambling activities which are conducted in a public area and/or private clubs. Art. 721 states that: "Gambling is playing games for a personal profit when the results are completely based on uncertain events".

    Over the previous years, Italian doctrine (3) has been established and evolved for purposes of distinguishing gambling from simple betting games. The above mentioned list is based on the two criteria described under Article 721, these criteria being i) the personal profit and ii) the results coming from uncertain events. On this basis, gambling includes:

    Bingo, black jack, lottery, roulette, slot machines, video poker,

    Simple betting includes: betting on sports events, betting on horse races, poker, bridge, and flipper. It is important to underline that the players' personal abilities to contribute in the game being played fall under the second group (4).

    2.1. Legal Gambling

    As earlier highlighted, Article.718 of the Italian criminal code punishes gambling activities which take place in public and/or private clubs. However it is important to note that gambling can sometimes be legal,

    and especially in situations where there is public authorisation. Public authorisations serve various purposes; for instance, through the grant coming from the State, the possibility of injecting revenues is made higher. We shall revisit this discussion during our study on the evolution of the "grant system" in Italy.

  3. Act No. 401/1989 and the European reaction in the "Gambelli" and "Placanica" cases

    As earlier seen, betting on sports events does not amount to illegal gambling. However, Italian judges have on some occasions tried to subject such types of betting to the rules of Article 718. A classic example involves "Tontero", which is an unauthorised betting activity in Italy, whose authors faced criminal consequences The decision of the Italian judges to the "Tonrero" case however did not root out the problems related to betting and gaming,. This prompted the Italian law makers to deliver a new Act addressing the issue of illegal exercise of betting activities in sports events (5).

    Article 4 of the Act No. 401/1989 provides criminal sanctions in cases of:

    Illegal exercise of the game "lotto" and the other games controlled by the State or granter societies; Illegal exercises of the games controlled by CONI and/or UNIRE; Illegal exercises of other examples of betting in relation to human beings and/or animals. Article 4, co. 4 bis, imposes criminal sanctions on anyone who exercises, controls and manages betting without the public and specific authorisation whether the said person is Italian or otherwise. In essence, this law places betting games under the control and direction of the Italian State.

    For this specific reason, Italian legislation has been heavily criticised by the European Court of Justice which has on occasion declared that it violates Articles 43 EC and 49 EC (the "Gambelli" (6) and "Placanica" (7) judgements). In the eyes of the European Court of Justice, the criminal penalties imposed by the Italian laws and the overall restrictions directed towards the foreign betting agencies, go against the freedom of establishment and provision of services. According to the ECJ, the Italian state may control betting activities but it cannot at the same time retain a monopoly whereby it is the only institution which provides and manages betting games.

    On the same breath and direction the award No. 284/2007, delivered by the Italian Constitutional Court; states that Italian judges shall not apply the national legislation for the reasons mentioned hereinabove (8).

    3.1. The Piergiorgio Gambelli case

    By order dated 30 March 2001, issued by the European Court of Justice on 22 June 2001, the Tribunale di Ascoli Piceno referred an issue for the interpretation of Articles 43 and 49 EC to the Court for a preliminary ruling under article 234 EC.

    This issue was raised in criminal proceedings brought against Mr Gambelli and 137 other defendants, who were accused of having illegally organised clandestine bets and of being the proprietors of centres carrying on the activity of collecting and transmitting betting data, which constitutes an offence of fraud against the State. In particular, the Public Prosecutor and the investigating judge at the Tribunale di Fermo established the existence of a complex organisation of Italian agencies linked through internet to the English bookmaker Stanley International Betting Ltd (Stanley), established in Liverpool, and to which company Gambelli and the other defendants belonged to. On this basis, they were accused of having collaborated in Italy with an overseas bookmaker in the activity of collecting bets which is normally reserved by law to the State, thereby infringing Law n. 401/1989.

    Such an activity, in the eyes of Italian legislation, was considered as being incompatible with the monopoly on sporting bets which is managed by the CONI (Italian National Olympic Committee) and for this reason it could constitute a criminal offence under article 4 of Law n. 401/1989.

    It is important to underline that the Court has been called to interpret the compatibility of the Italian criminal legislation regarding betting games with the European law.

    In the eyes of the European the Court, the Italian legislation was held to constitute a restriction on the freedom of establishment, which includes restrictions on the setting up of agencies, branches or subsidiaries, prohibited by Article 43 EC. In particular, the court emphasised that "where a company established in a Member State (such as Stanley) pursues the activity of collecting bets through the intermediary of an organisation of agencies established in another Member State (such as the defendants in the main proceedings), any restrictions on the activities of those agencies constitute obstacles to the freedom of establishment (9)".

    Furthermore, the Italian legislation constitutes a restriction on the freedom to provide services. Article 49 EC prohibits restriction on freedom to provide services within the Community for nationals of Member States who are established in a Member State other than the State of the person for whom the services are intended. However, Article 49 EC "covers services which the provider offers by telephone to potential recipients established in other Member States and provides without moving from the Member State in which he is established" (10).

    In light of these considerations, the Court stated that: "National legislation which prohibits on pain of criminal penalties the pursuit of the activities of collecting, taking, booking and forwarding offers of bets, in particular on sporting events, without a licence or authorisation from the Member State concerned constitutes a restriction on freedom of establishment and the freedom to provide services provided for in Articles 43 EC and 49 EC respectively, which, to be justified, must be based on imperative requirements in the general interest, be suitable for achieving the objective which they pursue and not go beyond what is necessary in order to attain it and be applied without discrimination. In that connection, it is for the national court to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT