The fine for gambling advertising is too high

The minimum fine of 50,000 euros for breaching the ban on advertising of gambling is too high. This is the conclusion reached by the Constitutional Court, which, in its ruling No. 172 filed yesterday, declared Article 9(2) of Decree-Law No. 87 of 2018 to be unlawful.

Having outlined the regulatory and case-law context in which the ban is situated, the Court noted that, within the gambling sector revolves a multitude of interests capable of affecting several constitutional rights (security, public order, freedom of economic initiative, and individual and collective health).

The prohibition is characterised by having a scope, both objective and subjective, encompassing, on the one hand, various types of conduct, all of which, however, share the unlawful characteristic of constituting forms of prohibited gambling advertising, and, on the other hand, distinct categories of recipients.

In the event of a breach, the penalty mechanism is structured along two lines: the first provides for the imposition of an administrative fine amounting to 20 per cent of the value of the advertisement; the second stipulates that the amount of the penalty must be ‘in any event not less than 50,000 euros for each breach’. AGCOM’s enforcement practice shows, however, that the majority of penalties imposed by the Authority are determined not on the basis of the proportional criterion but rather on that of the minimum threshold, with the amount sometimes even multiplied for each established breach.

The Court therefore held that the minimum threshold is flawed due to excessive rigidity, risking disproportionately affecting minor incidents, such as, for example, an occasional promotional activity carried out by an individual acting entirely outside any business context on an online platform, via a non-specialised channel accessible to a limited circle of users, without the offender’s financial circumstances being taken into account for a reduction in the amount.