Fiscal Penal Code before the Constitutional Tribunal

Can advertising of companies conducting gambling activity properly be outlawed? wonder Adam Studziński and Radosław Teresiak, tax advisers from Wardyński & Partners.

Since the beginning of 2010, stricter gambling laws have been in force in Poland, including amendments to the Fiscal Penal Code.

Among the people who may be subject to severe sanctions are prominent figures from sports and the media who allow their image to be used or participate in some other way in prohibited advertising and promotion of gaming. Operators of teams that continue to display logos or other information on players’ uniforms or in the stadium that is regarded as advertising or promotion of gaming may also face charges.

Definition of criminal laws

The criminal sanctions are set forth in Art. 110a of the Fiscal Penal Code. Under §1 of that article, it is prohibited to commission or conduct advertising or promotion of gaming or provide information about sponsorship by entities conducting operations in the area of games of chance or betting, in violation of the Gambling Act. Under §2, anyone who derives a benefit from advertising or promotion of games of chance or pari-mutuel betting, or placement of advertisement or information about sponsorship by an entity conducting operations in the area of gaming or betting, is subject to criminal sanctions.

The meaning of the concept of “advertising” of gaming or pari-mutuel gambling, as an element of the crime, will be crucial to determining whether a person bears criminal liability under the Fiscal Penal Code.

The Polish Constitutional Tribunal has addressed numerous times in its rulings the issue of the definition of a crime. As stated in the justification to the order dated 25 September 1991 (Case No. S. 6/91, OTK ZU 1986–1995 Vol. III item 34), “Criminal law must mark clear boundaries between what is permitted and what is prohibited.”

The tribunal has also stressed that in a democracy under the rule of law, criminal law must be based on the principle of determinacy, that is, a clear definition of punishable acts. This requires the Parliament to define the elements of an offence so that there are no doubts among the persons to whom the rule is directed, or the authorities enforcing the law and interpreting the content of the rule, whether specific behaviour fulfils the elements of the crime. As pointed out by Prof. Lech Gardocki, First President of the Polish Supreme Court, under the rule of law there should be no criminal laws in force which cannot be formulated precisely by the Parliament or via the jurisprudence of the Supreme Court (L. Gardocki, Prawo karne (Criminal Law), 9th ed., Warsaw 2003). Thus, as stated by scholars, while a norm of criminal law may contain a reference to other rules, vagueness of any element, which could lead to discretion in enforcement of the law and punishment of behaviour that is not expressly prohibited, must be avoided (K. Buchała & A. Zoll, Polskie prawo karne (Polish Criminal Law), Warsaw 1995, pp. 50–51).

Applying this constitutional standard to Art. 110a of the Fiscal Penal Code, it could be found that the element of advertising of gaming suffers from insufficient determinacy. Moreover, while Art. 29(1) of the Gambling Act prohibits advertising and promotion of games of chance, it is only in a separate definition (Art. 6) that this concept is extended to include advertising of names or symbols of entities conducting operations involving games of chance.

No, no, no

So, in determining the meaning of the concept of advertising of games of chance, should this extension of the concept be followed? Apparently not.

It should first be pointed out that where the Parliament wishes the terms used in the Fiscal Penal Code to have a meaning the same as generally ascribed to them in finance law, it indicates this in Art. 53 of the Fiscal Penal Code. These definitions are of a constitutive nature and typically use the phrase “…shall have the meaning ascribed to them in….” Art. 53 §35, which governs the issue of “unified concepts” in the area of games of chance, does not address this term. Given the significance of the concept of advertising of games of chance as grounds for potential criminal liability, this must be regarded as a legislative oversight.

Secondly, an interpretation giving a broader meaning to the definition of advertising of gaming, as provided in Art. 29(6) of the Gambling Act, would require penalising behaviour that was not expressly defined as prohibited in Art. 110a of the Fiscal Penal Code, which in turn would violate the constitutional principle.

Thirdly, a ban on advertising of the name and logo of an entity operating games of chance is too vague to serve as the element of a crime, at the very least because use of the conjunction “and” would mean that the name alone, for example, could be advertised.

Fourth, the government draft of the justification for the Gambling Act does not mention any intention to punish persons who advertise entities that operate games of chance.

These arguments support the conclusion that Art. 110a of the Fiscal Penal Code does not authorise punishment of persons advertising entities that operate games of chance.

The Gambling Act will be reviewed by the Constitutional Tribunal, which should pay particular attention to Art. 110a of the Fiscal Penal Code.

This article was published in Rzeczpospolita on 15 June 2010.