THE RIGHT OF LOCAL PUBLIC AUTHORITIES TO TOTALLY/PARTIALLY PROHIBIT THE CONDUCT OF ACTIVITIES SPECIFIC TO GAMBLING. LEGAL OR ILLEGAL?

Vidrean – Căpușan Tudor Dumitru

by Assist. Prof. Dr. Vidrean – Căpușan Tudor Dumitru, Lawyer specialized in European law and tax law Lecturer, Faculty of European Studies, Babeș-Bolyai University, Cluj-Napoca

1. Government Emergency Ordinance No. 7/2026 introduced an important amendment to Government Emergency Ordinance No. 77/2009 regarding the possibility of providing services specific to the gambling industry. Point 6 of GEO No. 7/2026 provides that, by decision of the local council, it may be determined, at its discretion, whether activities specific to gambling may or may not be carried out within the territory of an administrative-territorial unit (hereinafter “ATU”).
2. Furthermore, the same regulation stipulates that, if ATUs decide to allow the conduct of such activities, they will also draft a regulation based on which they may discretionarily determine how those gambling activities will be carried out (e.g., location within the ATU, operating hours, advertising, payment of a local fee, etc.). In our view, this regulation is subject to several criticisms in relation to constitutional and European standards.
3. Article 1 paragraph (5) of the Constitution of Romania regulates the principle of the supremacy of the law in terms of the quality of legislation. The regulation introduced by Government Emergency Ordinance No. 7/2026 violates these standards, as it allows local public authorities, at their discretion, to prohibit the conduct of an economic activity, such as the provision of gambling services. In our view, any interference with or restriction of a fundamental right (such as the right to carry out an economic activity) must be based on clearly defined criteria expressly set out in primary legislation. It is open to criticism that the central legislative authority transfers such a power to local public authorities without providing even minimal legislative guidance for them.
4. The effects of this unconstitutional situation will also be felt in the field of competition, given that it may lead to absurd situations in which neighboring ATUs will have radically different approaches regarding the possibility of carrying out gambling-related activities. This aspect should also trigger an analysis from the perspective of the Competition Council.
5. At the same time, point 6 of Government Emergency Ordinance No. 7/2026 must also be criticized from the perspective of Article 53 of the Constitution of Romania, which constitutes the foundation of the principle of proportionality. Moreover, this principle has significant relevance in European law as well. According to this principle, a right may be restricted based on clear criteria established by a law adopted by the central legislative authority, but it cannot be suppressed or nullified.

Government Emergency Ordinance No. 7/2026

1. Therefore, the possibility of completely prohibiting the conduct of gambling activities within the territory of an ATU is a manifestly unconstitutional measure, which can be successfully challenged through legal actions. Also, from the standpoint of the principle of proportionality, it is open to criticism that Government Emergency Ordinance No. 7/2026 failed to take into account the means already regulated to combat the alleged negative effects of gambling.
2. In our view, attention should have been given to the fact that Government Emergency Ordinance No. 77/2009 establishes the obligation to pay a responsible gambling fee and a slot machine vice tax. Both fiscal burdens are aimed at discouraging participation in gambling activities accessible through traditional means.
3. Therefore, we do not see where a balance between public and private interests still exists, given that the objective appears to be solely the implementation of measures aimed at eliminating the gambling industry accessible through traditional means, while mechanisms to discourage access to such services already exist.
4. Moreover, the drafters of Government Emergency Ordinance No. 7/2024 should also have taken into account the fact that, in 2024, traditional-format gambling activities were completely prohibited in ATUs with a population of fewer than 15,000 inhabitants.
5. Therefore, supplementing these measures by allowing local public authorities to decide at their discretion on matters related to gambling, and even to impose an additional fiscal burden, represents a situation that goes far beyond the balance between public and private interests. There is thus the possibility of challenging in court the manner in which local public authorities exercise this power (judicial review from the perspective of abuse of power by administrative authorities).
6. For example, if an ATU decides to allow gambling-related activities within its territory, but only in a specific geographic area and subject to the imposition of an excessive local tax, such measures can and should be challenged on the grounds of abuse of power.
7. Furthermore, the principle of non-discrimination must also be taken into account, since these measures are directed solely against traditional gambling activities. The purported objective of Government Emergency Ordinance No. 7/2026 is the protection of public health and public morals.
8. However, the ordinance does not regulate how it will combat the negative effects of gambling carried out in the online environment, as it is very difficult to identify the means and mechanisms through which state authorities could prohibit and/or restrict gambling accessible online, as they can in the case of gambling accessible through traditional means.
9. In our view, if a state policy is aimed at combating the negative effects of gambling, it must be applied equally and in a non-discriminatory manner to all gambling operators, regardless of whether their services are accessible online or through traditional means.
10. Therefore, given that the mechanisms proposed by Government Emergency Ordinance No. 7/2026 are directed only toward the purported combating of the effects of gambling accessible through traditional means, it is clear that an unjustified advantage is created for gambling accessible through online means.

1. At the same time, in relation to the provisions of Article 148 paragraphs (2) and (4) of the Constitution of Romania, the drafters of Government Emergency Ordinance No. 7/2026 should have taken into account the supremacy and priority of European Union law. As is well known, EU law guarantees the four fundamental freedoms of the single market, including the freedom to provide services.
2. The possibility granted to local public authorities to completely eliminate the provision of gambling services accessible in traditional format is a measure contrary to the freedom to provide services, as the complete annihilation of an economic right is not permitted within the European Union. Moreover, to our knowledge, such a measure is unprecedented in EU practice, Romania being the only Member State that allows the annihilation of an economic right and of an entire industry.
3. Furthermore, from the perspective of EU law, the issue of excessive fiscal burdens imposed on the gambling industry—especially on operators providing services in traditional format—must also be considered. As already mentioned, such providers are required to pay a responsible gambling fee, a slot machine vice tax, and a local tax for carrying out activities within an ATU, in addition to corporate income tax and the fiscal obligations specific to employment contracts.
4. Therefore, such measures are manifestly excessive, which runs counter to the standards of European Union law, requiring Member States not to impose excessive measures, especially when such measures have the capacity to completely eliminate an economic industry. It should be noted that the provision of gambling services is a legally permitted activity, and it is therefore inadmissible to pursue its annihilation.
5. In conclusion, it must be emphasized that the measures proposed by Government Emergency Ordinance No. 7/2026 in relation to the gambling industry are contrary to both constitutional standards and those of European Union law. It is recommended that these measures can and should be challenged through mechanisms specific to a state governed by the rule of law and a Member State of the European Union.

Contact:

Assist. Prof. Dr. Vidrean – Căpușan Tudor Dumitru
Lawyer specialized in European law and tax law
Lecturer, Faculty of European Studies, Babeș-Bolyai University, Cluj-Napoca
Tel: 0748.048.104
e-mail: tudorvidrean@yahoo.com