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1 Kultura Bezpieczeństwa. Nauka – Praktyka – Refleksje

1 2018

1 GIBASIEWICZ D.

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LACK OF THE NOTIFICATION THE LAW ON GAMBLING TO THE EUROPEAN COMMISSION AND THE POSSIBILITY OF APPLYING ADMINISTRATIVE SANCTIONS AGAINST ENTITIES CONDUCTING ECONOMOC ACTIVITY USING GAMBLING MACHIN

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GIBASIEWICZ D.

tom 26(26)

81-101

The aim: The purpose of this article is to present the application of Article 14 paragraph 1 and Article 89 paragraph 1 point 2 of the Act of 19 November 2009 on gambling law by the administrative courts. These provisions have not been notified to the European Commission in spite of such a requirement under EU law – Art. 8 paragraph 1 and Art. 1 point 11 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and rules on information society services, as amended by Council Directive 2006/96/EC of 20 November 2006. Introduction: In the article, the positions taken by the Polish administrative courts in this area are analyzed and their assessment is made in the context of EU law, the case law of the Court of Justice of the European Union and fundamental principles of jurisprudence and legal theory. Particularly, the question of linkage and the relationship of these two provisions of the law on gambling is exposed. The methodology: The work is based on the formal-dogmatic method, because it refers to the specific provisions of the law both national and EU, and shows their interpretation and implications of subsumption of specific facts and the legal issues in the national and EU jurisprudence. It also discusses – very important for the clarifying the analyzed issues – Resolution of the Supreme Administrative Court of 16 May 2016 year. The author also analyzes the principle of estoppel in relation to the imposition of administrative penalties on private parties, despite of the fact that a State did not fulfill its obligation to notify technical regulations to the European Commission. Conclusions: The work ends up with the conclusions, which show that the Polish administrative courts including the Supreme Administrative Court, in the vast majority erroneously red out the relationship between the content of Art. 14 paragraph 1 and Art. 89 paragraph 1 point 2 of the Act of 19.11.2009 r. on gambling ignoring the achievements of the Court of Justice of European Union and the fundamental principles of EU law. There are in this field, however, a few exceptions, ie. different rulings of administrative courts or dissenting opinions to incorrect judicial decisions.