Commentary on Judgment No. 15243 of 2023: Abusive Betting Collection and Burden of Proof

Judgment No. 15243 of March 2, 2023, issued by the Court of Cassation, represents an important benchmark in the context of abusive 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 concerns V. D., accused of carrying out betting collection activities in Italy on behalf of a foreign entity lacking a valid concession. The Court of Cassation annulled the decision of the Court of Appeal of Lecce without referral, confirming the importance of the correct application of current regulations and European principles concerning the free provision of services.

Activities carried out in Italy on behalf of a foreign "bookmaker" without a concession - Offense provided for by art. 4 of Law No. 401 of 1989 - Burden of proof - Prosecution and defense - Allocation - Factual circumstances. In the matter of abusive collection of bets on sporting events, without a license, by an intermediary on behalf of a foreign bookmaker, the burden of proof on the prosecution is met by demonstrating the material conduct of the offense referred to in art. 4, paragraph 4-bis, of Law December 13, 1989, No. 401, and the absence of a public security license pursuant to art. 88 T.U.L.P.S. for the operator, while it is incumbent upon the defense, which invokes the disapplication of the criminal provision and the domestic concessionary regime for conflict with Articles 43 and 49 of the EU Treaty, as interpreted by the Court of Justice, to prove the discrimination operated against it due to the unlawful denial of authorization for lack of concession by the foreign operator unlawfully excluded for non-compliance, with Union law, of the tender notices.

Burden of Proof and Operators' Rights

The core of the judgment lies in the burden of proof, which plays a crucial role in determining criminal liability. In particular, the Court has established that the burden of proof rests with the prosecution regarding the demonstration of the material conduct of the offense and the absence of a license. However, concerning the disapplication of the criminal provision, it is the defense's responsibility to provide evidence of unlawful discrimination.

• Betting collection must be carried out in compliance with national and European regulations.
• Foreign operators can challenge 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 within the broader context of European legislation, highlighting the importance of ensuring a competitive and fair environment for all stakeholders involved. It is essential for operators in the sector to stay informed about legal developments to ensure their correct operation in the Italian market.