Commentary on Judgment No. 15243 of 2023: Illegal Betting Collection and Burden of Proof
Judgment No. 15243 of March 2, 2023, issued by the Court of Cassation, represents an important reference point in the context of illegal betting collection on sporting events. In particular, the decision clarifies the responsibilities of the parties involved and the burden of proof in such proceedings, with reference to Article 4 of Law No. 401 of 1989.
The Legal Context of the Judgment
The case in question involves V. D., charged with conducting betting collection activities in Italy on behalf of a foreign entity lacking a proper license. The Court of Cassation annulled without referral the decision of the Court of Appeal of Lecce, confirming the importance of a correct application of the existing regulations and the European principles related to the free provision of services.
Activities carried out in Italy on behalf of a foreign "bookmaker" lacking a license - Offense provided for by Article 4 of Law No. 401 of 1989 - Burden of proof - Prosecution and defense - Distribution - Case law. In the context of illegal betting collection on sporting events, without a license, by an intermediary on behalf of a foreign bookmaker, the burden of proof on the prosecution is fulfilled by demonstrating the material conduct of the offense as per Article 4, paragraph 4-bis, of Law No. 401 of December 13, 1989, and the absence of a public safety license under Article 88 of the Consolidated Law on Public Security (T.U.L.P.S.) on the part of the operator, while it is the defense's burden, invoking the non-application of the incriminating norm and the internal licensing regime due to conflict with Articles 43 and 49 of the EU Treaty, as interpreted by the Court of Justice, to demonstrate the discrimination against them due to the illegitimate denial of authorization for lack of a license on the part of the foreign operator illegitimately excluded for non-compliance with EU law concerning the calls for tenders.
Burden of Proof and Operators' Rights
The crux of the judgment is the burden of proof, which plays a crucial role in determining criminal responsibility. In particular, the Court established that the burden of proof lies with the prosecution regarding the demonstration of the material conduct of the offense and the absence of a license. However, concerning the non-application of the incriminating norm, it is the defense's task to provide evidence of an illegitimate discrimination.
- The collection of bets must take place in compliance with national and European regulations.
- Foreign operators may contest Italian regulations if they believe they are being discriminated against.
- The judgment emphasizes the importance of fair and non-discriminatory regulation in the betting sector.
Conclusions
Judgment No. 15243 of 2023 marks a step forward in clarifying the responsibilities and rights of operators in the betting sector. The distinction of the burden of proof between prosecution and defense fits into the broader context of European regulation, highlighting the importance of ensuring a competitive and fair environment for all actors involved. It is essential for operators in the sector to stay informed about legal developments to ensure proper operation in the Italian market.
