by Teodora Luca, Senior Lawyer and Ana Maria Calancea Senior Lawyer at C.A. Luca Mihai-Cătălin
Teodora LUCA
Article 28 para. 5 of the Emergency Ordinance no. 77/2009 on the organization and operation of gambling:
Ana Maria CALANCEA
The members of the commission (Supervisory Committee) are not liable under the civil or criminal law, as the case may be, if the courts find the fulfillment or omission of the fulfillment by them in good faith and without negligence of any act or fact related to the exercise, under the law, of the attributions incumbent on the commission (Supervisory Committee).
A recently communicated court decision, by which the successive administrative acts issued by the Supervisory Committee of the O.N.J.N were abolished, determined us to try an exercise of imagination regarding the interpretation of the normative text quoted above.
What are the situations that would exclude the members of the Supervisory Committee from liability? When could mistakes in public administration (in the field of gambling) be committed in good faith and without negligence?
If the members of the Supervisory Committee acted in good faith and without negligence in the exercise of their function, as mentioned in art. 28 of the O.U.G. 77/2009, does it mean that the responsibility does not exist or that it belongs to the official(s) who did not present the facts correctly and completely, so that the decision of the Committee is vitiated? Could the liability of civil servants be avoided even if there are found errors in errors in law enforcement?
Read also “Promoting gambling activities”.
The factual situation remembered by the court was as follows:
By decision of the Supervisory Committee, it was ordered to suspend the authorization to operate the online gambling activity for a period of 30 days. In order to issue this decision, the National Gambling Office, through the Supervisory Committee, noted that the company, through the gambling platform it operates, offered ”gambling fixed odds bets on events such as lottery”, by broadcasting (live) the draws that were organized in spaces outside Romania.
The suspension of the authorization was a complementary sanction, based on: i) the fact that the content of the gambling regulations previously approved by the National Gambling Office did not mention that the draws are broadcast live from outside Romania and ii) the mechanical system (blower) through which the draws were made. random numbers has not been subject to certification / verification by the Romanian Bureau of Legal Metrology or by a conformity assessment body licensed in Romania, ”so the participants in the gambling bets on fixed odds on numbers were not provided the elements random and random hazards of the means of play used ”.
The Office also noted the incidence of the provisions of art. 34 and 35 of the Methodological Norms for the implementation of the O.U.G. 77/2009, which regulates the conditions for the transmission of images with games of chance characteristic of casinos, but the conclusion retained is surprising: as long as the normative act expressly regulates only the conditions for the transmission of images with games of chance characteristic of casinos, it results that only these would have been allowed, being forbidden the transmission of images of the betting or lottery type.
The previous complaint against the decision to suspend the operating license was rejected by the Supervisory Committee, following a superficial analysis of the arguments put forward by the company.
Although it may seem incredible, being expressly forbidden by law, before the application of the complementary sanction, the authority applied 2 main contravention sanctions:
- The contravention fine in the amount of 25,000 Lei for the violation of art.150 par. 1 lit. t) of the Methodological Norms according to which the gambling organizer must comply with the gambling regulations approved by the Supervisory Committee within the National Gambling Office;
- The contravention fine in the amount of 50,000 Lei for violating the provisions of art. 22 para. 3 letter d) of the O.U.G. 77/2009, according to which “It constitutes a contravention and is sanctioned with a fine from 50,000-100,000 Lei and the possibility of applying the complementary sanction according to par. 4) (…) the promotion, through the gambling activities defined in art. 10 para. 1) let. h) -n) of any services, means and activities that are prohibited or not regulated by the rules for the application of this emergency ordinance or other specific regulations.
The minutes by which the contravention fines were applied were annulled by the court, finding their illegality, the sentence being final as result of rejecting the appeal made by O.N.J.N.
In the absence of a report legally establishing the commission of a contravention by the gambling organizer, the complementary sanction is in its turn illegal, an aspect retained by the court: The complementary contravention sanction cannot be applied without the prior elaboration, legally, of an administrative act ascertaining the contravention and without the application of a main contravention sanction.
The Court therefore found that the decision of the Supervisory Committee to suspend the authorization and the decision rejecting the prior complaint was unlawful.
The grounds of illegality of the two administrative acts considered by the court, in addition to the lack of legal sanction of the company:
- Insufficient reasoning of the administrative act (the decision does not show the analysis carried out by the Supervisory Committee regarding the gravity of the facts found and the consequences deriving from them)
- As long as the suspension of the entire activity was ordered, the appropriate motivation of the decision was required, especially in terms of the need to apply the sanction of suspension of the authorization to operate remote gambling and the proportionality ratio between the sanction applied and the degree of social danger of the act committed.
- With regard to the decision to resolve the preliminary complaint, it was noted that “it does not contain an adequate statement of reasons”, The National Gambling Office did not respond in any way to the company’s defenses regarding the legality of the activity carried out, but was limited to resuming exactly the content of the contested decision.
- The Court also noted that the National Gambling Office had misapplied the legal provisions governing specific activity in this area.
- The fact that the mechanical system (blower) by means of which the random number draws were carried out (…) was not subject to certification/verification by the Romanian Bureau of Legal Metrology or by a conformity assessment body licensed in Romania, the Court notes the lack of a legal basis for such a justification given that the proposed game consists of betting on numbers drawn in international lotteries. (…) The Court also finds the non-existence of the legal framework in which the respective mechanism found abroad to be verified and certified by the Romanian authorities or under the conditions of Romanian law. However, although there is no question of a state monopoly on gambling, what is not expressly prohibited is permitted, which imposes on the defendant (ONJN) the obligation to give reasons in law for the decisions taken, especially when they prohibit them. the exercise of a right.
Based on the court’s considerations, there is no doubt that at the time of the application of the sanctions and subsequently, at the time of the application of the complementary sanction, the authority acted illegally, its action being likely to affect the rights of the company.
If, as regards the sanctions for misdemeanors, the courts have definitively found the minutes to be illegal, the decision on the illegality of the supplementary measure can be (and has been) appealed, and will be subject to judicial review by the High Court of Cassation and Justice.
As our interest in understanding the conclusions of the court is purely theoretical, by reference to the provisions of art. 28 para. 5 of the O.U.G. 77/2009, the fact that the decision is not final does not prevent us from continuing the analysis. In a secondary note, we consider that a substantial change in the judgment of the Court of Appeal would not be possible, the conclusions being well argued and legally justified.
However, returning to our analysis:
- Under the conditions of art. 28 para. 5 of the O.U.G. 77/2009, can the exoneration of liability of the members of the Supervisory Committee be invoked if the illegality of the administrative act issued by them is found to be illegal?
- It can be the succession of administrative acts issued in 2018 and abolished by the court during the years 2019 – 2021 included in the category of actions consisting in the fulfillment or omission of the fulfillment by them in good faith and without negligence of any act or fact in connection with the exercise under the law, of the attributions?
Corroborating the provisions of art. 28 para. 5 of the O.U.G. 77/2009 with the provisions of art. 491 para. 3 of the Administrative Code (according to which: The legal liability of the civil servant cannot be engaged if he has complied with the legal provisions and administrative procedures applicable to the public authority or institution in which he carries out his activity) and with the provisions of art. 297 Criminal Code (according to which: The act of a civil servant who, in the exercise of his duties, does not perform an act or perform it in a defective manner and thereby causes damage or injury to the rights or legitimate interests of a natural person or a legal person shall be punished by imprisonment from 2 to 7 years and the prohibition of exercising the right to hold a public office), it appears that the liability of the members of the Supervisory Committee can be held only for acts of abuse of office, not for negligence in office.
On the other hand, according to art. 491 para. 1 and 2 of the Administrative Code:
1) Any person who considers himself injured in his right or in a legitimate interest may appeal to the court, in accordance with the law, against the authority or public institution which issued the act or which refused to resolve the claim concerning a subjective right, or to a legitimate interest.
(2) If the action is admissible, the damage shall be paid from the budget of the public authority or institution referred to in alin. (1). If the court finds the civil servant guilty, the person concerned will be obliged to pay damages, jointly and severally with the public authority or institution.
In other words, if the court finds that the incorrect performance of the duties of the members of the Supervisory Committee of the National Gambling Office has led to damaging the legitimate rights of the legal person, criminal liability cannot be excluded, just as, if their guilt is found in the issuance of the illegal administrative act, which resulted in the violation of the legitimate rights of the person, their liability, in solidarity with the public institution, cannot be eliminated out of the question.
It is difficult to understand if art. 28 para. 5) of the O.U.G. 77/2009 aimed to ensure the members of the Supervisory Committee the comfort of adopting decisions without the constraint of criminal or civil liability, giving the members of the decision-making forum of the National Office for Gambling a status of super-decision-makers.
We cannot imagine what was the purpose of the legislator when he ruled the lack of liability for the omission to perform in good faith and without negligence any act or fact related to the exercise, under the law, of the duties of the commission; apparently all “errors” (acts committed and omissions) in the exercise of legal duties are excused, but such regulation would be quite surprising, being unimaginable in which other situations, apart from those related to the exercise of legal powers could the liability of the members of the Supervisory Committee be called into question.
It is certain, however, that, in the normative system as a whole, these provisions cannot represent causes of absolute exoneration from liability, errors in the interpretation of the law and the illegal issuance of administrative acts, even if committed in good faith, which cause damage to the persons concerned, always attracting the liability of those responsible.
In other words, even if the members of the Supervisory Committee have shown good faith, but have not applied the law correctly, affecting the interests of the persons, their liability cannot be excluded.
On the other hand, where the decision of the Supervisory Committee has been issued having regard to the legal provisions and administrative procedures applicable to the public authority or institution in which it operates, the legal liability of the members of the Supervisory Committee could not be engaged, but in this case the responsibility would be transferred to civil servants who are liable for the damage caused to the legal person, guilt (found by the court) being the essential condition for engaging legal liability.
