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Gambling P 4/14

“The Gambling Act was enacted without any violation of the legislative procedure set out in the Constitution, and making gaming machines available for use exclusively in casinos meets the requirements of an important public interest, thus justifying the restriction of the freedom of economic activity,” held the Constitutional Tribunal.

On 11 March 2015 at 9.00 a.m., the Constitutional Tribunal (full bench) considered joined questions of law, submitted by the Supreme Administrative Court and the District Court in Gdańsk, with regard to an infringement of the legislative procedure set out in the Constitution ‑ caused by failure to notify the European Commission about the Gambling Act ‑ and a restriction of the freedom of economic activity, as gaming machines could be available for use only in casinos.

The Constitutional Tribunal adjudicated that Article 14(1) and Article 89(1)(2) of the Gambling Act of 19 November 2009 were consistent with:

a) Articles 2 and 7 in conjunction with Article 9 of the Constitution;

b) Articles 20 and 22 in conjunction with Article 31(3) of the Constitution.

As to the remainder, the Constitutional Tribunal decided to discontinue the review proceedings.

A dissenting opinion was submitted with regard to point (a) by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat.

The Constitutional Tribunal held that notification about technical provisions was an EU procedure in accordance with which a Member State was required to notify the European Commission and other Member States about drafted technical provisions, as well as to consider ‑ to the extent possible ‑ feedback provided by them in the course of its work on a draft of technical provisions. In the Tribunal’s opinion, there is no doubt that the provisions of the Constitution neither regulate nor, directly or indirectly, refer to the said issue. Thus, the Constitutional Tribunal deemed that the notification referred to in the Directive 98/34/EC, implemented into the Polish legal order by the Regulation on Notification, did not constitute an element of the constitutional legislative procedure. The Tribunal did not assess whether the challenged provisions of the Gambling Act are technical in character. In the view of the Constitutional Tribunal, failure to fulfil a potential obligation to notify the European Commission about draft technical provisions may not per se imply an infringement of the constitutional principles of a democratic state ruled by law (Article 2 of the Constitution) as well as the principle that the organs of public authority shall function on the basis of, and within the limits of, the law (Article 7 of the Constitution). Under no circumstances may an interpretation consistent with EU law cause results that are contradictory to the wording of the Constitution.

Additionally, the Tribunal stated that the legislator’s decision not to permit the siting of gaming machines in game arcades, shops, eating places or service points, i.e. outside casinos, met the constitutional requirements concerning a restriction of the freedom of economic activity. Restricting the siting of gaming machines only to casinos is indispensable for the protection of society against the negative effects of gambling as well as for the purpose of enhancing the state’s supervision over that sector, which poses numerous threats, such as addiction problems or the emergence of criminal networks. In the opinion of the Constitutional Tribunal, averting such social threats definitely falls under the category of important public reasons, referred to in Article 22 of the Constitution. The freedom of economic activity in the context of gambling may be subject to further restrictions due to the necessity to guarantee the indispensable level of protection with regard to consumers and the public order.

The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Andrzej Wróbel.