On 7 March, the Council of State referred to the European Court of Justice (EUCJ) questions that raise doubts about the compliance of the gambling advertising blanket ban, introduced in Italy in July 2018 with Article 9 of the Dignity Decree, with some EU regulations and Treaty principles.
The matter arises from an appeal brought by LeoVegas, a remote-gambling concessionaire in Italy, against the decision of the administrative court of first instance that had rejected its claim over a fine imposed by the Italian Media Authority, AGCOM, for having advertised games on its own TV gambling channel during night hours in violation of the advertising blanket ban for gambling. To be noted, the gambling channel was duly authorised by the Italian gambling authority.
Within the administrative litigation, the following, among others, were alleged:
- the illegitimacy of the gambling advertising total ban, which was adopted in violation of the prior notification procedure provided for by the Directive (EU) 2015/1535; and
- the violation of the freedom to provide services and the freedom of establishment enshrined in art. 49 and 56 of the European Treaty, as well as the principles of coherence, necessity, proportionality, and legal certainty, as the total ban for gambling advertising was introduced without a prior assessment and right after a new tender for the remote gambling concessions’ assignment.
Precisely in relation to these two legal grounds, the Council of State considered that the conditions for ordering the reference for a preliminary ruling were fulfilled.
With particular reference to the lack of prior notification under Directive (EU) 2015/1535, the Council of State requested that the EUCJ clarify if such Directive is applicable when a service falling within its scope (such as remote gambling) is carried out by means of TV broadcasting that does not fall within its scope of application. In the case of a positive answer, if the scope of the Directive also includes “prohibitions on any form of advertising, including indirect advertising, relating to games or bets with cash winnings as well as to illegal gambling, in whatsoever form carried out and, on any means” such as the total ban provided for under art. 9 of the Dignity Decree, with consequent obligation of prior notification; and, in case of positive answer to these two questions, whether the failure to notify, as required by the Directive, can be invoked and, in the event of infringement, entails for the national court the obligation to declare that the provision of national law is unenforceable.
Interestingly, on 13 March 2025, the EUCJ ruled with reference to the lack of prior notification of a national provision in Lithuania under Directive (EU) 2015/1535, stating that such Directive must be interpreted as meaning that national legislation such as the one in Lithuania, laying down a prohibition on encouraging participation in remote gambling by means of the publication of information relating to gambling on the website of a gambling operator, constitutes a “technical regulation” and that an amendment to that legislation is unenforceable against economic operators where that amendment has not been notified and has the effect of extending the scope of that legislation.
Secondly, the Italian Council of State raises the question of if the gambling advertising ban is in contrast with the EU and Charter of Fundamental rights provisions, as well as the principles of legal certainty, equal treatment, prohibition of discrimination and protection of custody.
It must be noted that by a recent resolution, the Italian Parliament unequivocally stated that the gambling advertising blanket ban had failed its objectives, inviting the Government to intervene in regard.
And in fact, since April 2024, the Italian Government has already significantly softened the ban by expressly allowing all gambling concessionaires to run responsible-gambling campaigns, on whatever channel, with evidence of their trademarks and logos, thus superseding the AGCOM adverse position in regard to implementing the gambling advertising ban. AGCOM is therefore compelled to issue new implementation guidelines in order to remain in alignment with the rule of law.
However, all of the above — the doubts of legitimacy expressed by the Council of State, as well as the Parliament’s willingness to supersede the gambling advertising ban — weakens the AGCOM action to further sanction any breach to the gambling advertising ban.
The current scenario is paving the way for the Government to revise the blanket ban, hopefully in favour of a well-balanced advertising regulation for gambling activities, which should have been adopted back in July 2018 instead of the ban.
