Cassazione upholds €15,000 sanction over betting-centre licence breach

Italy's Court of Cassation ruled on 16 October 2026 that a betting data centre handling wagers for a foreign bookmaker needed a public-security licence under article 88 of the TULPS to host gaming machines. The court allowed an appeal by the Customs and Monopolies Agency (ADM) against a ruling that had cancelled a €15,000 administrative sanction, according to ordinance n. 26991/2026 published on 16 October 2026. The sanction has not been definitively confirmed; the ruling that annulled it has been set aside.

The dispute began with a Carabinieri inspection at a data transmission centre linked to the bookmaker, where 10 AWP machines governed by article 110, comma 6, letter a), of the TULPS were installed. The machines held regular authorisations, but the business was collecting bets without the police licence required by article 88. The Monopolies Administration imposed the €15,000 administrative sanction, which was later annulled by the Tribunal and, on appeal, by the Court of Appeal of Lecce.

The lower courts had held that the centre could lawfully operate for the foreign bookmaker, citing earlier proceedings over the operator's exclusion from Italian tender procedures and Court of Justice of the European Union rulings on freedom of establishment and freedom to provide services. In particular, the failure to take part in the 2012 tender, known as the Monti tender, was treated as a choice forced by the economic and competitive conditions created by national law.

The Court of Cassation did not share that reconstruction. It said the Italian system requiring an administrative concession and a public-security authorisation is in principle compatible with EU law, and that restrictions may be justified by public order, fraud prevention, consumer protection and the fight against crime, provided they respect proportionality and non-discrimination. It cited the Court of Justice's order of 23 March 2026 in case C-589/25, Momari, which restated that articles 49 and 56 of the TFEU do not in principle preclude national rules making betting collection subject to a police authorisation conditional on a state concession, for reasons linked to combating organised crime. The Court of Cassation considered the EU framework sufficiently clear and settled that a new preliminary reference was not necessary.

On the burden of proof, the court said that in proceedings opposing an administrative sanction the administration must prove the facts constituting the alleged violation. A sanctioned party invoking the incompatibility of national law with EU law must instead prove that the foreign bookmaker failed to obtain the concession because of unlawful exclusion from tenders or specific discriminatory conduct by the state. It is not enough to cite earlier European rulings in general terms or to argue that taking part in a tender would have been economically disadvantageous. The court stated that the mere economic convenience of participation in tender procedures cannot serve as that proof.

The Court of Cassation found that the Court of Appeal of Lecce had not verified whether discrimination against the foreign bookmaker had actually been demonstrated, and had merely endorsed the first-instance judge's view that non-participation in the 2012 tender was an economically necessary choice. For the court, that reasoning did not explain why a business decision should be treated as the consequence of unlawful coercion by the state rather than a free commercial choice. It also referred to the positions of its United Sections, the Council of State and the Constitutional Court recognising the legitimacy of the Italian authorisation system where restrictions pursue general-interest objectives and are proportionate, and confirmed the so-called double-track regime based on an ADM concession and a public-security licence as a control tool against criminal infiltration.

The court allowed the ADM's appeal, set aside the judgment under challenge and referred the dispute back to the Court of Appeal of Lecce in a different composition. The referral judges will now re-examine the case applying the principles set out by the Court of Cassation and will also rule on the costs of the legitimacy proceedings. The ruling also addresses the management of AWP machines in premises used for betting collection: holding the regular authorisations for the machines is not sufficient, according to the principle affirmed, where the betting activity carried on in the same business lacks the required public-security authorisation and the conditions for disapplying national law are not met.