The Legislative and Parliamentary Observatory and the Chamber's Studies Department ask to deepen the conflict between new and current rules on the prohibition of gaming advertising.
The Dignity decree and the rules on the prohibition of advertising are at the center of the dossiers of the Chamber of Deputies, which don't hesitate to make "notes" to the formulation of the text. Above all, for the overlap and the conflict with the laws already in force on the subject.
In particular, in the dossier "Assessment criteria on the quality of the text and on the characteristics, homogeneity and limits of content of the decree-law", for the Chamber's Legislative and Parliamentary Observatory "it seems appropriate to deepen the coordination between the provisions", taking into account that the law of the Dignity decree "is without prejudice to provisions of the article 7, paragraphs 4 and 6 of the decree-law n.3 158 of 2012, which foresee a specific prohibition of advertisements regarding games with money winnings during tv programms or in publications for minors; special administrative sanctions are provided in this case too and an authority responsible for their application, different from the Autorità per le garanzie delle comunicazioni (ie the Agenzia delle dogane e dei monopoli); without prejudice to provisions of paragraphs 937, 938 and 939 of the single article of the 2016 Stability Law (L. N. 208/2015), which, assuming the legitimacy of advertising of games and bets, forbid specific ways".
In the dossier "Elements for the assessment of aspects of constitutional legitimacy", the Chamber's Studies Department highlights that "the Article 9, without prejudice to restrictions already introduced by the legislator, prohibits any form of advertising, even indirect, of games or bets, made in any way and on any media; for the current advertising agreements at July, the 14th, 2018 the previous legislation will continue to be applied until their expiration date, and in any case for no more than one year from the same date. The provision, starting from January, the 1st, 2019, extends the prohibition to advertise games and bets to sponsorships too. The violation of the prohibitions involves the administrative fine of the payment of an amount of 5 percent of the value of the sponsorship of the advertising and, in any case, not less than €50 thousand for each violation. The competent Authority to challenge and impose penalties is the Autorità per le garanzie nelle comunicazioni (Agcom). Lastly, the measure of the single tax collection on devices suitable for legal gaming is raised, to provide for the charges deriving from the article. In this regard, one must take into account the opportunity to clarify the reasons at the base of the saving clause of current legislation (with particular reference to paragraphs 937, 938 and 939 of Article 1 of the 2016 Stability Law, n. 208/2015, which, assuming the legitimacy of the advertising of games and bets, they forbid specific ways) against the introduction of a general prohibition of any form of advertising, even indirect, made in any way and on any media.
Moreover, it could also be appropriate to investigate how the identification of Agcom as the competent authority to impose penalties for the violation of the general ban on advertising of games and bets is coordinated with the provision, which is without prejudice, of a different authority (the Agenzia delle dogane e dei monopoli) for the imposition of penalties for the violation of the specific ban on advertising of games and bets aimed at minors (articles 7, paragraphs 4 and 6, of Decree-Law No. 158 of 2012)"
Therefore, the Chamber's Studies Department states that "with reference to Article 9, paragraph 5, providing, in relation to the prohibition of advertising of games or bets, that the previous legislation continues to be applied to current agreements, for not more than one year, the issue of agreements signed before a new legislative provision but still in progress at the time of their entry into force is relevat. This issue has been addressed by the case-law, according to which the effects of a contractual relationship which arose before the entry into force of the law must be governed by the law in force at the time when those effects are realized, in application of the principle of immediate effectiveness of the law in force (Article 11 disp. prel.), except for that of the retroactivity of the previous law, which therefore should have been expressly provided.
Therefore, in the case-law it is necessary to distinguish the signing from the production of the effects. Therefore, in terms of duration contracts, the time of the act must be distinguished from the dynamics of the effects. While the signing remains regulated by the law in force at the time it took place, the effects deriving from it are governed by the law in force when they take place.
In this regard, it relies on the judgment of the Court of Appeal no. 1689 of 2006 (Civil appeal, Section III, 26 January 2006, No.1689): 'With regard to a duration contractual relationship, the intervention over it, a new legal provision aimed at posing, with respect to the possible content of the contractual regulation, a new mandatory rule conditioning the freedom of contract of the parties in the regulation of the agreement, in the absence of a transitional provision that provides for the retroactivity of the previous regulatory provision not containing the new mandatory rule, implies that the opposition to the latter of the contractual regulation no longer allows the clause to operate, in the sense of justifying the effects of the contractual regulation that have not already been produced, since, under the art. 1339 c.c., the agreement, as regards its regulatory effectiveness following the entry into force of the new rule, must be considered subject to the effectiveness of the mandatory clause from that imposed regulation, which replaces or integrates for the future (ie for the term of the contract) the different clause, with regard to the effects that the contract will have to produce and has not yet produced'".
Finally, the Finance Department in its reading cards asks to consider "the opportunity to reconsider the clause for the salvation of the current legislation in the face of the introduction of a general prohibition of any form of advertising, even indirect and in any way and in any media carried out. The current legislation, which the decree-law expressly saves ('without prejudice to the provisions...'), in fact, assuming the lawfulness of the advertising message of games and bets is not compatible with the general prohibition introduced by the decree-law".