Constitutional Court (TC) Has Unanimously Declared the Unconstitutionality Raised by the Supreme Court on the Regulation of Gambling

The Plenary of the TC Unanimously Declares the Sudden Loss of Object of the Question of Unconstitutionality raised by the Supreme Court in Relation to Article 7.2 of Law 13/2011 on the Regulation of Gambling

INFORMATION NOTE Nº 99/2023

MADRID, Spain (November 300, 2023) — The Plenary Session of the Constitutional Court has unanimously declared in a ruling, of which the Vice President Inmaculada Montalbán Huertas has been the rapporteur, the extinction due to sudden disappearance of the object of the question of unconstitutionality raised by the Third Chamber of the Supreme Court in relation to the article 7.2 of Law 13/2011, of May 26, on the regulation of gaming in the course of a contentious-administrative appeal filed against Royal Decree 958/2020, of November 3, on commercial communications of gaming activities.

The questioned legal provision, after prohibiting in its first paragraph any activity of advertising, sponsorship or promotion of gambling, luck or chance games and the advertising or promotion of gaming operators when the corresponding authorization contained in the enabling title is lacking , provided in its second paragraph that “[r]egually, the conditions that will be included in the respective titles enabling the authorization of advertising activity and its limits will be established and, in particular, with respect to […]”.

The Supreme Court reasoned in the order raising the question of unconstitutionality that art. 7.2 of the Gambling Regulation Law could be unconstitutional because it results in the delegalization of a matter, enabling the regulation to regulate it, despite being reserved to the legislator by virtue of the provisions of art. 38 and 53.1 CE, since advertising is part of the essential core of business freedom and its regulation is reserved to the legislator.

After the question of unconstitutionality was raised, Law 23/2022, of November 2, was promulgated, which modifies Law 13/2011, of May 27, regulating gambling. The single article of this new Law introduced in the original text of Law 13/2011 an article 7 bis related to the general principles for the advertising, promotion and sponsorship of gaming activities, which contains some guidelines or criteria for the that the regulations must comply with when developing what is regulated in the law.
This being so, the Plenary Session of the Constitutional Court has considered that the complaint, as it was raised at the time by the Supreme Court, has been extinguished because the new article 7 bis of the Gambling Regulation Law does establish guidelines or criteria. that the regulations must take into account when regulating the matter. And this is regardless of whether or not what is prescribed in the new legal provision provides sufficient legal coverage to the contested Royal Decree 958/2020, an issue that, because it is a question of ordinary legality, cannot be addressed by the Constitutional Court. in this process.

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SOURCE: Constitutional Court of Spain.