Jesús Serrano examines Supreme Court doctrine on regional gambling powers

Jesús Serrano, a lawyer specialising in the gambling sector, addressed Supreme Court doctrine on the division of powers between the Spanish state and the autonomous communities at the recent Castilla y León Gaming Congress in Soria, according to a report on his intervention. He spoke during a round table titled "Los distintos juegos de azar en la encrucijada: ¿evolución o reconversión?" and examined the legal implications of rulings that set the scope of regional authorisation and inspection powers over games reserved to the state and marketed by ONCE and SELAE.

A central element of the analysis was the distinction between gambling activity and its commercialisation. Under the judicial doctrine presented, that separation allows certain sales channels, such as terminals and premises linked to reserved games, to fall outside the requirement for regional authorisation. From the perspective of the private land-based sector, the report said, this interpretation raises questions about the effective scope of regional powers over planning, control and taxation.

Serrano also focused on the possible exclusion of the Rasca product from the exemption in Law 13/2011 on gambling regulation. The question raised was whether its commercialisation on a computerised format since 2014 could prevent it from being covered by an exemption tied to games existing when the law came into force.

Another point addressed was the use of ONCE terminals in hospitality establishments. The General Agreement between the state and the organisation, together with its statutes, provides that terminals installed in establishments in the external network are work tools intended for staff and not self-service devices for consumers, a distinction relevant to separating the terminal's commercial function from a customer's direct use of a gaming machine.

The intervention also examined the authorisation regime for external commercialisers. Law 13/2011 sets specific requirements for those who market games without forming part of the external network of designated operators, while the case law cited supports the need for express authorisation to market lottery, according to the report.

In light of the consequences the autonomous communities attribute to this doctrine, Serrano set out the need to revise the rules to address the balance between state and regional powers. Amending the Gambling Law was presented as a possible route to recover regulatory capacity over state products whose commercialisation may show operational similarities with certain forms of private land-based gambling.

Among the legal alternatives mentioned was the possibility of bringing a conflict of competences before the Constitutional Court where a provision or action is considered to encroach on regional competence. A preliminary reference to the Court of Justice of the European Union was also raised if the different treatment of state games were found to be incompatible with EU law because of possible unjustified discrimination against private gambling or operators from other member states.

The presentation also covered restrictions on payment methods in private gambling establishments. Serrano questioned the impact of limiting payments to cash and the possibility of applying that prohibition before prior regulatory development sets out its scope. The report said the issues raised reflect the legal and regulatory dimension of the debate on the coexistence of state-reserved games and private land-based gambling, with the delimitation of powers, the authorisation regime for commercialisation channels and equal conditions between operators among the main matters awaiting regulatory and judicial resolution.