Lawyer says Supreme Court doctrine shields ONCE terminals from regional oversight

Gambling lawyer Jesús Serrano Escudero told the XIX Congreso de Juego de Castilla y León in Soria that Supreme Court doctrine on ONCE gaming terminals endorses what he described as total discretion and privilege for state operators. He said the rulings mean autonomous communities cannot authorise, inspect or intervene in state-reserved games.

Serrano spoke on the panel "Los distintos juegos de azar en la encrucijada: ¿evolución o reconversión?", moderated by Fátima Pablos Mateos, director general of taxes for the Junta de Extremadura. He shared the panel with Carlos Duelo, corporate director of institutional relations at CIRSA, and Rodrigo García Barquín, head of interconnection projects for Castilla y León. Asked whether the sector was in an evolution or a reconversion, Serrano said he believed it was in a situation of crossroads.

The lawyer traced the doctrine to a conflict in Asturias, where the region prohibited ONCE gaming terminals in bars and the administrative decision was appealed. The Tribunal Superior de Justicia declared the appeal admissible but held that regional competences had been extinguished, and the matter reached the Supreme Court, which ruled in two judgments, including one in 2023.

According to Serrano, the Supreme Court first placed the national interest in intervention and inspection competences, without treating them as accessory, then focused on whether autonomous communities have competence to authorise these games. It concluded that they do not have competence to authorise state-reserved games and therefore also lack intervention and inspection powers over them. The court relied on Law 13/2011 on gambling regulation, specifically article 9 and section 5 of the first additional provision, which require a enabling title for all gambling activities except those subject to state reservation. The court rejected the region's argument that the exemption covered only authorisation and operational acts and not the commercialisation of those games.

Serrano said the doctrine reinforces a position the Supreme Court took in 2015 in an appeal brought in Andalucía against a regulation that treated machines as equivalent to gaming terminals. The court found that equivalence compatible with competition between games and concluded that positive discrimination for state gambling was justified by public interest and the general interests of the state.

For private gambling, Serrano said the situation could be of great seriousness, particularly for recreational machines in the hospitality channel and in gaming halls, and described it as quite concerning. He set out four suggestions, which he said were not mutually exclusive and could run concurrently, and developed the first.

That first suggestion starts from a 2017 opinion by the Abogacía del Estado, which interpreted the additional provision's exemption for premises and equipment commercialising games of these entities as covering only those that already existed before the law came into force. Serrano asked the audience whether a game such as "Rasca", which he said is the one truly in question, is covered by that exemption given that it came into force in 2014-2015, adding that it was a perspective that could be analysed.

It was reported that Serrano has previously criticised what he called ONCE's torticera interpretation of the new gambling law of Castilla y León.