Message 002
Communication from the Commission - TRIS/(2022) 03322
Directive (EU) 2015/1535
Translation of the message 001
Notification: 2022/0617/E
No abre el plazo - Nezahajuje odklady - Fristerne indledes ikke - Kein Fristbeginn - Viivituste perioodi ei avata - Καμμία έναρξη προθεσμίας - Does not open the delays - N'ouvre pas de délais - Non fa decorrere la mora - Neietekmē atlikšanu - Atidėjimai nepradedami - Nem nyitja meg a késéseket - Ma’ jiftaħx il-perijodi ta’ dawmien - Geen termijnbegin - Nie otwiera opóźnień - Não inicia o prazo - Neotvorí oneskorenia - Ne uvaja zamud - Määräaika ei ala tästä - Inleder ingen frist - Не се предвижда период на прекъсване - Nu deschide perioadele de stagnare - Nu deschide perioadele de stagnare.
(MSG: 202203322.EN)
1. MSG 002 IND 2022 0617 E EN 16-09-2022 E NOTIF
2. E
3A. Dirección General de Coordinación del Mercado Interior y otras Politicas Comunitarias
Ministerio de Asuntos Exteriores, Union Europea y Cooperación
3B. COMUNIDAD AUTONOMA ILLES BALEARS
GOVERN ILLES BALEARS
CONSEJERIA DE TRANSICION ENERGETICA, SECTORES PRODUCTIVOS Y MEMORIA DEMOCRATICA
4. 2022/0617/E - H10
5. PRELIMINARY DRAFT LAW AMENDING LAW 8/2014 OF 1 AUGUST 2014 OF THE BALEARIC ISLANDS ON GAMING AND GAMBLING
6. H10- GAMES OF CHANCE
This preliminary draft Law is intended to amend the gaming and gambling regulations in the territory of the Autonomous Community of the Balearic Islands, to adapt them to current needs.
7. -
8. This legal reform includes limits on the granting of new licences for gaming and/or gambling halls in the territory of the Balearic Islands.
Licensed gaming and gambling halls in our territory have seen remarkable growth in recent years, as well as increased concentrations in certain areas of the islands, despite restrictions on distances between these types of establishments in the aforementioned Decrees.
In addition, this Law updates the existing legal framework in this area for the current situation.
9. Article 30(29) of the Statute of Autonomy of the Balearic Islands grants our Autonomous Community exclusive powers over casinos, gaming and gambling that do not extend beyond the territory of the Balearic Islands, with the exception of charitable parimutuel sports betting. Moreover, Article 30(12) grants the Autonomous Community of the Balearic Islands powers regarding the promotion of sports and the appropriate use of leisure time. Article 4 of the aforementioned Statute states that the powers of the Governing Council include the approval of general planning for the sector, taking into account the reality and social impact of gaming and gambling, their economic and tax-related implications and the need for their diversification.
Decree 11/2021 of the President of the Balearic Islands setting out the powers and basic organisational structure of the government ministries of the Autonomous Community of the Balearic Islands, grants powers related to casinos, gaming and gambling to the Directorate-General for Trade, under the Ministry for the Energy Transition, Productive Sectors and Democratic Heritage.
In accordance with Law 8/2014 of 1 August 2014 on gaming and gambling of the Balearic Islands, and with the primary objective of protecting the most vulnerable groups and providing citizens with maximum safety and legal protection, as well as in view of the need to plan the locations of gaming halls and special gambling establishments with respect to educational institutions, the authorities adopted Decree 42/2017 of 25 August 2017 adopting the Gambling Regulation of the Autonomous Community of the Balearic Islands and Decree 42/2019 of 24 May 2019 adopting the Regulation on gaming halls in the Autonomous Community of the Balearic Islands, which included a mandatory minimum distance between both types of establishments and the entrances to centres that provide education to minors, children’s play areas and youth residential care facilities. At the same time, Law 8/2014 of 1 August 2014 of the Balearic Islands on gaming and gambling requires the owners of these establishments to have an inspection and admission service in order to protect the aforementioned most vulnerable groups.
According to the 2020 Online Gambling Report [Informe del Jugador Online 2020], prepared by the Directorate-General for the Regulation of Gambling under the Ministry of Consumer Affairs, the age group with the most active online players is 18 to 35 year-olds, meaning they are entering the world of gambling during pre-adolescence or adolescence. Thus, taking into account the best interests of minors, the public authorities must prioritise protection of the youngest individuals, as underscored in the preamble to Organic Law 8/2021 of 4 June 2021 on the comprehensive protection of children and adolescents from violence: ‘The protection of minors is a priority obligation of the public authorities, recognised in Article 39 of the Spanish Constitution and in various international treaties, including the aforementioned Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 and ratified by Spain in 1990’.
II
Article 5 of Law 20/2013 of 9 December 2013 on a market unity guarantee stipulates that the competent authorities who set limits on access to or performance of an economic activity in the exercise of their respective powers, as per Article 17 of the same Law, shall state why these are necessary for an overriding reason relating to the public interest, from among the reasons listed in Article 3(11) of Law 17/2009 of 23 November 2009 on free access to service activities and their performance, which defines ‘overriding reason relating to the public interest’ as a reason defined and interpreted by the case-law of the Court of Justice of the European Communities, such as public policy, public security, public health and consumer health and combating fraud.
Government intervention in the area of gambling is more intense than in other economic sectors because it is based on overriding reasons relating to the public interest, such as public policy, public health, safety and the protection of the rights of gamblers. These considerations justify setting restrictions by adopting measures to shape the services offered by gaming establishments in our territory, through their planning.
The objective of this planning is to organise gaming services under a policy that provides safer gaming environments and special protection for minors and the most vulnerable groups, while also ensuring that the regulator respects the general regulations in force and legal certainty, to prevent the potential negative externalities of gaming activities and correct the dysfunctions caused by unchecked growth of establishments of this type.
The Government of the Balearic Islands has made considerable efforts in recent years to strengthen protection for minors in safe, high-quality leisure spaces. Efforts in the area of gambling in particular have been guided by social and health principles and considerations, such as preventing addiction and strengthening protection of the most vulnerable groups, especially in response to the COVID-19 crisis and its social and economic impact.
In 1992, the World Health Organization recognised pathological gambling as a disorder and included it in the International Classification of Diseases. Years later, the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association, and globally recognised as a system of classification of mental disorders that provides descriptions of diagnostic categories, identified gambling disorder as a genuine addiction not based on a substance (i.e. ‘chemical substance’). Today, numerous clinical trials show that the condition seriously affects not only the individual, but also their entire family, work and relationship environment, with economic and emotional consequences that go beyond just the person with addiction symptoms.
The authorities of the Autonomous Community of the Balearic Islands view gambling from a comprehensive social responsibility perspective, as a complex phenomenon requiring a combination of prevention, awareness, intervention, monitoring and correction of its potential negative impact.
To take immediate action on the aforementioned reasons of public interest, the current circumstances and the growing social concern over the possible addictive effects of these behaviours, the government has applied a precautionary mechanism consisting in suspending the granting of new licences to open gaming establishments (casinos, bingo halls, gaming halls, gambling areas in gaming halls and special gambling establishments).
III
In recent years, as an active response to the proliferation of gaming and gambling establishments in the Balearic Islands, as well as online gaming options, various segments of civil society have mobilised and called on the regional and state authorities to create new regulatory frameworks to contain this proliferation and better protect minors and particularly vulnerable populations, such as those affected by problems arising from pathological gambling who have also voluntarily registered themselves on gaming self-exclusion lists. In this regard, this Law reforming the Law on gaming and gambling is intended to incorporate all of these social and health considerations and measures to complement the regulation of the gaming sector and mitigate its negative externalities.
This legal reform includes limits on the granting of new licences for gaming and/or gambling halls in the territory of the Balearic Islands.
Licensed gaming and gambling halls in our territory have seen remarkable growth in recent years, as well as increased concentrations in certain areas of the islands, despite restrictions on distances between these types of establishments in the aforementioned Decrees.
The concentration of establishments of this type in the Autonomous Community of Balearic Islands is 116.07 land-based gaming establishments per one million inhabitants, the third highest density of any Autonomous Community and 40 points higher than the national average. Thus, one of the aims is to gradually reduce the number of gaming halls and special gambling establishments to a figure close to the national average number of gaming halls per inhabitant. This average, which may be calculated annually, will be based on the official figures for current licences for gaming halls and special gambling establishments, according to the sections of the General Gaming Register for licensed gaming halls and special gambling establishments, and the population from the official updated census figures provided by the National Statistics Institute [INE] on 1 January of the current year.
It should be noted that many of these establishments have set up shop in Palma, a Balearic municipality with a considerable number of vulnerable neighbourhoods according to the 2001-2011 Report on Urban Vulnerability Trends in Spain [Informe sobre la Evolución de la Vulnerabilidad Urbana en España 2001-2011] of the Ministry of Transport, Mobility and the Urban Agenda.
In this regard, the social and health authorities recommend correction of the high density of establishments per resident in the Balearic Islands, indicated in the statistics, as the best strategy to moderate the addictive potential of the services on offer.
For its part, the number of casinos has remained stable over the years, as the Government of the Balearic Islands has not deemed it appropriate to open a new public tender, thus limiting the number of casinos to three: one on Mallorca, one on Ibiza and one on Menorca.
As for bingo halls, on the other hand, it should be noted that their numbers have declined, with four remaining: three on Mallorca and one on Ibiza.
In addition, this reform increases the distances between gaming and gambling halls and certain centres or spaces primarily dedicated to the education, leisure or protection of minors or vulnerable people. This measure responds to growing complaints from social groups affected by gambling disorders and involved in combating them, which also note the frequent physical proximity of gaming and gambling establishments to educational, social and health institutions, parks and play areas for children and youth and public sports venues. This situation directly exposes minors and vulnerable people to the services offered by establishments dedicated to gaming and gambling, in their daily routines. This is particularly true given that gaming halls typically offer an area dedicated to sports betting, which runs the risk of normalising these establishments as group leisure settings. Numerous studies show that the combination of advertising in the media, online and at sporting events and daily exposure to gaming halls and their advertising has a multiplier effect on the desire to gamble, an issue that is especially pervasive in urban areas with high population density.
At the same time, the advertising and promotion of gaming and gambling activities are prohibited throughout the territory of the Balearic Islands. In accordance with the principles of moderation and providing safer gaming environments, it is understood that advertising competitively encourages gaming and gambling, without any control over who accesses advertising content or is exposed to it on public roadways.
In its latest findings, published on 18 June 2021, the Gambling Commission of the Government of the United Kingdom released the results of its own study on the impact of gaming and gambling advertisements in that country. Its statements include the following: ‘Gambling advertising and sponsorships widely and frequently reach consumers, with 6 in 10 seeing gambling adverts or sponsorships at least once a week. Whereas sponsorships and traditional advertising have been seen by all age groups, online advertising is more likely to be seen by younger adults.’ Consequently, in line with the relevant social and health principle favouring moderation of the addictive potential of gaming services, as with the control or prohibition of advertising for other recognised sources of addiction such as tobacco or alcohol, the authorities have enacted a prohibition without exceptions, including on the façades of gaming and gambling establishments, which were often covered with banners and displays with intense, eye-catching lights and colours.
In addition to the above, this Law provides for on-screen electronic age verification for the use of type B amusement machines, present in bars and restaurants. Though gaming and gambling establishments have thus far applied strict age verification, type B gaming machines in hospitality establishments have lacked these controls.
Finally, this legislative reform reorganises the articles and the cases of very serious, serious and minor infringements, to incorporate recent experience and better align the cases provided for in the legislation with actual gaming and gambling offences. In addition, the authorities also took this legislative amendment as an opportunity to align Article 36 of the current Law 8/2014 of 1 August 2014 on gaming and gambling of the Balearic Islands with the provisions of Article 21(3)(a) of Law 39/2015 of 1 October 2015 on the Common Administrative Procedures in Public Administration, to ensure that for proceedings initiated automatically (as is the case with disciplinary proceedings), the start of the limitation period is calculated from the start date of the proceedings.
IV
This Law consists of a sole article, a sole additional provision, two transitional provisions and a sole final provision.
The provisions of this Law meet the principles for sound regulation set out in Article 139(1) of Law 39/2015 of 1 October 2015 on Common Administrative Procedures in Public Administration. With regard to the principles of necessity and effectiveness, this Law corrects defects in the current legislation and to this end, shall take precedence over the regulations adopted to implement the Law.
As for the principle of legal certainty, this Law observes and applies the fundamentals defined previously in Law 8/2014 of 1 August 2014 on gaming and gambling of the Balearic Islands. In turn, this Law is in line with the principle of efficiency, given that it does not increase the administrative burden on operators in the sector. In application of the principles of quality and simplification, not appearing in the aforementioned article of Law 39/2015 of 1 October 2015 on Common Administrative Procedures in Public Administrations, but rather in Law 4/2011 of 31 March 2011 on sound administration and governance of the Balearic Islands, as well as Article 49(1) of Law 1/2019 of 31 January 2019 of the Government of the Balearic Islands, it should be noted that the authorities followed the technical legislative guidelines of the Government of the Balearic Islands, adopted by the agreement of the Governing Council of 29 December 2000 adopting the guidelines on the form and structure of preliminary draft laws. Finally, with regard to the principle of proportionality, this Law is proportionate to the complexity of the subject matter, consistently striving to balance interests with social needs, and to craft a law in line with the most common legislation in the territories around the Balearic Islands.
10. References to basic texts: Reference: BOE-A-2014-8888
ELI permalink: https://www.boe.es/eli/es-ib/l/2014/08/01/8/con
11. No
12. -
13. No
14. No
15. Yes
16. TBT aspect
No - The draft does not constitute a technical regulation or a conformity assessment procedure
No - the draft is compliant with an international standard
NO - The draft will have no discernible effect on international trade.
SPS aspect
No - The draft is neither a sanitary nor a phytosanitary measure
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European Commission
Contact point Directive (EU) 2015/1535
Fax: +32 229 98043
email: grow-dir2015-1535-central@ec.europa.eu
