Colombia: Authorization of games of chance operators demanded

It was announced when deciding in an action from which there is no appeal from judgement, the demand of nullity imposed against some articles of the Decree 493 on March 22th 2001, by the National Government.

According to the plaintiff, both the procedures of the authorization as well as the issuance of the concept violates the first subsection of article 333 of the Political Constitution of 1991 and constitutes, at the same time, an ignorance of the prohibitions established in the first article of the Law 232 of 1995 and the first numeral of the Law 962 of 1995.

With regards to those questionings that, according to previous dispositions, the Ministry of National Protection pointed that “it is indisputable that in the constitutional regime it is established that the economic activity and the private initiative are free. However, its scope is subject to the common welfare, which means thtat those liberties do not have an absolute and illimited character”.

Besides, it commented that the administrative act accused does not infringe the superior norms invoked in the demand, because, although it is true that, on them, authorities are strictly forbidden to demand licenses or operating permits to authorize the opening or  continuidad de los establecimientos de comercio or demand the compliance of requirements that are not ordered by the legislator, in this case, the Law 643 of 2001 pointed in its article 31 which rules must be complied.

According to such law, authorizations are handed as well as the issuance of regulatory acts that now are subject of censorship.  “At the same time, it must be considered that authorizations and concepts questioned coincide totally with the article 31 of Law 643 of 2001, because it has a clear intention to contribute to the strict compliance of everything it points, specially, to the cancellation of operating rights and the payment of prizes”, pointed the Court.

It was explained that the legal norm that was object to reglamentation determines that the total of prizes that are part of a promotional game, must necessarily belong to the public and also establishes that the natural or legal person that acts as game management must cancel the operating rights of promotional gaming.

It is considered that the norm is valid because it guarantees that the amounts of money from the operation of promotional games are collected in an effective way so they comply with the social aim established by the Constitution.

Another aim of the rule is to avoid tax evasion in the operation of the already mentioned monopolies. So Etesa and Scpd have the power to demand the technical and economical justification of the plan of prizes.

The companies also have to report to such entities which is the place and the schedule of the performance of the draw. They must also deliver purchase invoices, a commitment of an acquitisition-sales program or certification of a real state license according to the case, what assets and services they have, services or elements that comprise the price, the constitution of the guarantee of compliance and the cancellation of the worth of operating rights and management expenses.

For the Corporation, the resolutions of the Law 962 of 2005 cannot be a benchmark to determine the legality of the norms demanded, because, although they have more jerarchy in the normative scale, such resolutions were made after the issuance of Decree 493 of 2001.

The State Council indicated that the requirements demanded by the norms, far from vulnerate the rights invoked by the actor, guarantee the autonomy of the territorial entities, protect the specific allocation of the resources previously mentioned and allow the participation of the entities in the decision making within its competences.

Law 643 of 2001 conditioned the performance of “all” the games of chance, with no exception, to the authorization issued by the competent authority, attending the territorial factor, and evisaged the issuance of regulatory acts related to the operation, organization and administration.

Article 1 of the Law 232 of 1995 points that no authority will be able to demand a licence or operating permit for the opening of commercial venues defined in article 515 of the Code of Commerce, or to continue its activity in case they were practising, and they cannot demand the compliance of any requirement that is not expressly ordered by the legislator.