It is necessary to evaluate the situation created by the Supreme Court decision to raise the question of unconstitutionality regarding article 7.2 of the Gaming Law that serves as the basis for Royal Decree 958/2020, of November 3, on commercial communications of gaming activities.

The Supreme Court, by means of a detailed and extensive Order, dated July 14, 2022, has agreed to raise the question of unconstitutionality regarding article 7 section 2 of Law 13/2011, of May 27, on the regulation of online gambling).

As it is well known, Royal Decree 958/2020, of November 3, on commercial communications of gaming activities (Royal Decree 958/2020) was challenged, among other appellants, by the Spanish Digital Gaming Association (JDigital)

This decision of the Supreme Court has to be taken in context as it is not a simple question that will establish a new situation for the advertising, sponsorship and commercial communications in the Spanish Online Gaming and Betting industry, and in order to try to analyse the status and consequences of this decision some Spanish specialized gambling law firms have been making a legal analysis of the consequence of this decision, and among this is the very prestigious LOYRA ABOGADOS who has carried out a legal analysis of the decision of the Supreme Court and its impact in the Royal Decree 958/2020, of November 3, on commercial communications of gaming activities.

In the analysis, Loyra Abogados says “After the ordinary processing of the procedure, the Supreme Court asked the parties for their opinion on the possible unconstitutionality of article 7.2 of the Gaming Law, which is the one that serves as support and legal basis for Royal Decree 958/2020.”

“And view of the allegations made by the parties involved in the procedure, the Supreme Court has decided to raise an issue of unconstitutionality before the Constitutional Court regarding article 7.2 of the Gaming Law”.

And continues saying “The Supreme Court indicates that this article 7.2 authorizes a rule with regulatory status (lower than the Law) – in this case, Royal Decree 958/2020 – to regulate the conditions and limits of advertising, sponsorship, promotion or any other form of commercial communication of gambling activities. According to the Supreme Court, the authorization provided by this article 7.2 for Royal Decree 958/2020 to regulate essential aspects of the right to free enterprise could be unconstitutional in accordance with articles 53.1 CE (reserve of law) and art. 38 CE (free enterprise); and so it is presented to the Constitutional Court”.

One has to note that by saying this, Loyra says that “the Supreme Court doubts the validity of the article of the rule that serves as the basis and that gives validity to Royal

Decree 958/2020. Thus, the Supreme Court intends that the Constitutional Court, which is the only one that can do so, rule on the validity (constitutionality) of a precept of the Gaming Law (article 7.2), however the consequence is direct and lethal on the Royal Decree 958/2020, because if the rule that supports it is unconstitutional, Royal Decree 958/2020 will be null and void and should not produce any effect”.

And the analysis follows “In relation to the foregoing, the Supreme Court affirms that it has no doubts about the fact that freedom of enterprise is not an absolute right, but is subject to limits (SSTC 184/1981, 147/1986 and 111/1983), and that the exercise of the business activity related to the games of chance and its advertising may be subject to limits and conditions; but, also, it understands that these limits must be established by a law or by regulations that enjoy adequate and sufficient legal authorization, which it says is not observed neither in article 7.2 of the Gaming Law nor in Royal Decree 958/ 2020”.

And they consider that “In particular, the Supreme Court considers that article 7.2 of the Gaming Law does not meet the requirements that the Constitutional Court has established so that the right to freedom of enterprise can be limited. In the words of the Order that we have been examining, article 7.2 of the Gambling Law makes a reference to the regulatory norm (Royal Decree 958/2020) to regulate the conditions and limits of advertising, but it does so in generic terms, delimiting as only the spaces to which said regulation must be extended, finally including an open provision (“Any others that are established by regulation”), and without establishing the conditions and essential elements of said regulation. For all these reasons, the Supreme Court concludes that it could be unconstitutional, thus submitting it to the Constitutional Court”.

These would be the conclusions and what comes next by Loyra’s analysis:

“Received the question by the Constitutional Court, this could agree to in admit it for lack of foundation or non-compliance with the formal requirements. In the case of admitting it, the Constitutional Court will notify the legislative bodies, the State Attorney General and the Government so that they can appear and plead”.

“While the Constitutional Court (sometimes referred to as the "court without a clock" due to the uncertainty of the timing to publish a sentence) resolves, the situation is one of absolute legal uncertainty for those affected to whom it may be applying, and sanctioning, based on a Royal Decree 958/2020 that could be null and void”.

“However, it is important to understand that Royal Decree 958/2020 is still in force and that one of its main restrictions, not broadcasting commercial communications in audio- visual media outside the time slot from 1:00 a.m. to 5:00 a.m., was incorporated in the recently approved Law 13/2022, of July 7, General Audio-visual Communication”.

This is a substantial issue since the Government seemed to expect the questioning of their Royal Decree 958/2020 as to the restriction of the advertising and other media

activities not having the sufficient level of Law and decided to give it an extra coverage by including this advertising restrictions in this “omnibus Law”.

Loyra continues saying that, “another of the relevant consequences derived from raising the question of unconstitutionality is the criterion expressed by the Supreme Court on advertising understood within the context of freedom of enterprise, could also oblige to review the validity of all the laws of the gaming regulations of regional gaming advertising in force that limit the advertising activities of games of chance (as can be seeing in the regulations of the Valencian Community and Aragon)”.

In principle, the Supreme Court decision or raising the question of unconstitutionality before the Constitutional Court regarding article 7 section 2 of Law 13/2011, of May 27, on the regulation of online gambling and consequently the Royal Decree 958/2020, of November 3, on commercial communications of gaming activities, represents an step forward in order to establish the constitutional protection of free enterprise activities, which shall be allowed to its advertising exercise, which may be subject to limits and conditions; but, also, it understands that these limits must be established by a law or by regulations that enjoy adequate and sufficient legal status or range of the Law, establishing the restrictions.

If the constitutional ruling confirms the position of the Supreme Court, the government could very well approve in the parliament a new Law with sufficient law level as required, or they can also very well persist in limiting advertising, sponsorship and commercial activities this unconstitutionality issue, if it happens, and who knows when, may not have a real impact at the end, but might be a way for softening the Government’s position on this matter holding talks with the industry representatives which would be the best way to establish a durable and efficient policy regarding advertising, sponsorship and commercial activities.