The TC Declares the Extinction Appeal Filed Against the Royal Decree on Commercial Communications of Gaming Activities

SPAIN (December 4, 2023) — The Plenary Session of the Constitutional Court (TC) has unanimously declared the extinction due to sudden disappearance of the object of the question of unconstitutionality raised by the Third Chamber of the Supreme Court (TS) in relation to article 7.2 of the Gambling Regulation Law, in the course of a contentious-administrative appeal filed against the Royal Decree 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 the second paragraph that “the conditions that will be included in the respective titles enabling the authorization of advertising activity and its limits will be established by regulation and, in particular, with respect to […]”.

The Supreme Court reasoned in the order in which it raised the question of unconstitutionality that article 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 articles 38 and 53.1 of the Magna Carta, since advertising is part of the essential core of business freedom and its regulation is reserved to the legislator.

After that, Law 23/2022, of November 2, was promulgated, which modified Law 13/2011, of May 27, regulating gambling.

The single article of this new law introduced article 7 bis into the original text of Law 13/2011, relating to the general principles for the advertising, promotion and sponsorship of gaming activities, which contains some guidelines or criteria to be followed. those that the regulations must address when developing what is regulated in the law.

This being so, the Constitutional Court concludes in the ruling, a presentation by the vice president of the court of guarantees, Inmaculada Montalbán Huertas , 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 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 in which, because it is a question of ordinary legality, the TC cannot begin to elucidate it. This process.

SOURCE: Confilegal 2023.