The Supreme Court raises a question of unconstitutionality regarding Article 7.2 of the Gaming Law, which serves as the basis for Royal Decree 958/2020, of November 3, on commercial communications of gaming activities.

The Supreme Court, by means of a detailed and extensive Order (Auto), dated July 14, 2022, has resolved to raise a question of unconstitutionality (cuestión de inconstitucionalidad) regarding Article 7 section 2 of Law 13/2011, of May 27, on the regulation of gaming (Gaming Law).

As it is well known, Royal Decree 958/2020, of November 3, on commercial communications of gaming activities (Royal Decree 958/2020) was challenged, among other appellants, by the Spanish Digital Gaming Association (Asociación Española de Juego Digital).

Once the ordinary proceedings had been completed, the Supreme Court requested the opinion from the parties on the possible unconstitutionality of Article 7.2 of the Gaming Law, which is the legal basis for Royal Decree 958/2020.

In view of the allegations made by the parties to the preceding, the Supreme Court has resolved to raise a question of unconstitutionality before the Constitutional Court (Tribunal Constitucional) on article 7.2 of the Gaming Law.

The Supreme Court indicates that this article 7.2 authorizes an implementing regulation (reglamento) with regulatory rank lower than the Law – in this case, Royal Decree 958/2020 – to regulate the conditions and limits of advertising, sponsorship, promotion, or any other form of commercial communication of gaming activities. According to the Supreme Court, the authorization given by this article 7.2 for Royal Decree 958/2020 to regulate essential aspects of the free enterprise right could be unconstitutional in accordance with articles 53.1 EC (reservation of law) (reserva de ley) and article 38 EC (free enterprise) (libertad de empresa); and this is what the Constitutional Court has been asked to consider.

It should be noted that the Supreme Court doubts the validity of the Law that serves as the basis for and gives validity to Royal Decree 958/2020. Thus, the Supreme Court intends that the Constitutional Court, which is the only one that can do so, rule on the validity (constitutionality), (constitucionalidad) of an article of the Gaming Law (article 7.2), however, the consequence is direct and lethal for Royal Decree 958/2020, because if the article of the Law that serves as its basis is unconstitutional, Royal Decree 958/2020 will be null and void and should not produce any effect whatsoever.

In relation to the foregoing, the Supreme Court states that it has no doubts the free-enterprise right is not an absolute right, it is subject to limits (SSTC 184/1981, 147/1986 and 111/1983), and, specifically,  that the exercise of the business activity related to gaming and its advertising may be subject to limits and conditions; but it also understands that these limits must be set by law or by other implementing regulations with adequate and sufficient legal support. The Supreme Court understands that neither article 7.2 of the Gaming Law nor the Royal Decree 958/2020 comply with these provisions.

Particularly, the Supreme Court, considers that article 7.2 of the Gaming Law does not comply with the requirements that the Constitutional Court has established for the free-enterprise right to be limited. In the words of the Order that we are examining, article 7.2 of the Gaming Law refers to the implementing regulation (Royal Decree 958/2020) to regulate the conditions and limits of advertising, but it does so in generic terms, delimiting only the spaces to which such regulation must be extended, including at the end an open provision (“Any others that may be established by regulation“), and without establishing the conditions and essential elements of such implementing regulation. For all these reasons, the Supreme Court concludes that it could be unconstitutional, and thus submits it to the Constitutional Court.

Next steps and conclusions:

Once the question has been received by the Constitutional Court, it may decide to reject it on the argument of lack of grounds or non-compliance with the relevant formal requirements. If it were admitted, the Constitutional Court will notify it to the legislative bodies, to the Attorney General of the State (Fiscal General del Estado) and to the Government so that they may appear in the procedure and allege.

While the Constitutional Court (sometimes so-called as the “court without a clock”) resolves the matter, the situation is of absolute legal uncertainty for those affected, who may be compelled, and sanctioned, based on a Royal Decree 958/2020, which could be invalid.

However, it is important to understand that Royal Decree 958/2020 is still in force and that one of its main restrictions: not to broadcast commercial communications in audiovisual media outside the 1:00 to 5:00 a.m. slot, was included in the recently approved Law 13/2022, of July 7, General Law on Audiovisual Communication.

Another of the relevant consequences that derive from the question studied is the opinion expressed by the Supreme Court on advertising, including it within the content of the free-enterprise right, since it may force a review of the validity and enforceability of all regional laws on gaming and regulations on advertising of this activity (i.e., regulations of Comunidad Autónoma de Valencia and Aragon).

LOYRA ABOGADOS
Gaming and Gambling department

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