Judgment No. 172/2026 of the Italian Constitutional Court, concerning the sanctions imposed under the Dignity Decree for breaches of the gambling advertising ban, marks a first significant corrective intervention in legislation that has been characterised by a particularly restrictive approach since its introduction. This is the view expressed by lawyer Stefano Sbordoni, who, in an interview published today by the online news outlet Jamma.it, welcomed the Court’s decision while emphasising that broader questions remain unresolved regarding the compatibility of the legislation with the rights and freedoms protected under the Italian Constitution and European law.

“In my view, Judgment No. 172/2026 of the Constitutional Court represents a first and significant corrective intervention in legislation introduced by the so-called Dignity Decree, which, since its adoption, has been characterised by an extremely rigid approach that severely restricts a number of constitutionally protected rights and freedoms,” Sbordoni observes.

One of the central aspects of the ruling concerns the declaration of unconstitutionality of the sanctioning mechanism insofar as it imposed a mandatory minimum fine of €50,000, preventing adequate differentiation between infringements that could vary substantially in their seriousness.

“It is certainly positive that the Court has finally recognised the unconstitutionality of a sanctioning mechanism which, because of its rigidity, ultimately treated fundamentally different situations in the same way. The principle of equality enshrined in Article 3 of the Constitution does not merely require equal treatment of equal situations, but also the recognition and respect of differences between objectively distinct situations. Otherwise, what appears to be formal equality risks resulting in profound substantive injustice.”

Indeed, the rigidity of the legislation prevented a genuinely individualised assessment of infringements, imposing uniform penalties even where the circumstances differed significantly.

“This is precisely what occurred with the provision of a mandatory minimum fine of €50,000, applied indiscriminately to conduct of widely varying degrees of seriousness, without allowing sufficient consideration of its actual harmfulness, the specific circumstances of the case, or the financial situation of the person being sanctioned.”

The decision therefore carries significance beyond the specific rules governing gambling advertising, reaffirming the need to respect constitutional principles even when adopting measures intended to protect particularly important public interests.

“The Court has now affirmed a fundamental principle: even when the legislature pursues a public interest that is undoubtedly worthy of protection, such as the prevention of problem gambling, the measures adopted must comply with the principles of reasonableness and proportionality. The protection of public health cannot, in fact, result in an indiscriminate restriction of other constitutionally guaranteed rights.”

The scope of the ruling nevertheless remains limited to the sanctioning framework. The general advertising ban introduced in 2018 remains in force, while the Constitutional Court’s intervention concerns the possibility of adjusting penalties to the specific circumstances of each infringement.

“The ruling does not challenge, at least for the time being, the general advertising ban introduced by the Dignity Decree, but addresses one of its most critical aspects, recognising the need for penalties to be effectively proportionate to the seriousness of the infringement and the circumstances of the offender. This is an important achievement, although it is not yet a definitive solution.”

According to Sbordoni, the limited scope of the decision leaves unresolved the broader question of whether the legislative framework is compatible with the constitutional and European guarantees protecting economic freedoms.

“A broader issue therefore remains open, concerning the compatibility of the overall approach of the Dignity Decree with constitutional and European freedoms, starting with the freedom of private economic initiative protected under Article 41 of the Italian Constitution and the protection of private property under Article 42.”

The issue concerns, in particular, the relationship between the legislature’s public health objectives and the actual necessity of the restrictions imposed on economic operators.

““It is not a question of denying the State the power, or indeed the duty, to intervene to protect health and prevent the harmful consequences of gambling. Rather, it is a question of determining whether the restrictions imposed are genuinely necessary, appropriate and proportionate to the objectives pursued.”

In this context, particular importance attaches to the broad scope of the advertising ban, which applies to different forms of communication and affects a sector in which gambling activities are expressly authorised and subject to an extensive system of public oversight.

“A generalised ban that fails to distinguish adequately between fundamentally different forms of communication continues to raise significant questions, particularly in a sector that the State itself authorises, regulates and subjects to a strict licensing regime.”

The regulatory framework is further complicated by the relationship between advertising restrictions and the information obligations imposed on online gambling operators.
In this regard, Sbordoni refers to the judgment’s mention of the public consultation launched by AGCOM (the Italian Communications Authority) concerning responsible gambling communications, as well as the regulatory framework introduced by Legislative Decree No. 41/2024.
The issue concerns the need to strike a balance between the prohibition of promotional communications and the information obligations that the same legislation imposes on licensed operators towards players.

“It is a sign of the difficulty in reconciling such an extensive advertising ban with the information obligations imposed on the concessionaires themselves,” observes Sbordoni.

This raises a broader question regarding the overall consistency of the regulatory framework, under which licensed operators must reconcile strict limitations on commercial communications with specific transparency and information obligations designed to protect consumers.

“The Constitutional Court’s judgment therefore represents a first step. It does not bring an end to the Dignity Decree, but demonstrates that even legislation pursuing objectives of unquestionable public interest must necessarily comply with the limits established by the Constitution.”

The ruling could therefore provide an opportunity for a broader reassessment of the Dignity Decree’s regulatory framework, extending beyond the revision of its sanctioning provisions to address the proportionality of the restrictions imposed on legally authorised economic activities.

From this perspective, the necessary efforts to prevent and combat the risks associated with problem gambling should be accompanied by a more careful balancing of public health protection, freedom of economic initiative, private property rights and the constitutional limits on State intervention. (source: Jamma.it)