On 25th of January District Court in Wałbrzych pronounced judgement of acquittal on accused of organizing games on gambling machines out of the casinos and without concession.
To justify, the court gave two unrelated motives, each of them obliging to give verdict of not guilty:
1. Lack of evidence on completion of prohibited act, from article 107 § act 1 of Tax Penal Code, by the inability to prove willful action.
2. Obligation of refusal concerning application of regulations from article 6 and 14 of Gambling Law by District Court.
In the first part, District Court noted that the accused had opinion of District Court’s court expert in L, which clearly stated that the gambling machines don’t fit the definition of gambling machines included in The Act. Prosecutor Krzysztof Barczyk, official of the Customs Office in Wałbrzych, thinking half loaf is better than nothing, presented opinion of expert R.R., which wasn’t taken into consideration. Therefore, the court concluded that the accused had no awareness of committing prohibited act.
Second part of judgements justification concerns the lack of technical regulation’s notification, included in Gambling Law. Analizing European and Polish case law, the Court stated that regulations in articles 6 and 14 of Gambling Law are undoubtfully technical regulations.
Supremacy of Community law to National law means refusal of applying regulations conflicting with EU law, not cancellation or revocation of provisions of the act. „In other words: National Court, by refusing to apply provisions of the Act which are in conflict with EU regulations, doesn’t consider them as invalid. It viewes the legislator, who did not fulfill their obligations, imposed on him by EU law, cannot expect for his proceeding to be sanctioned by courts, who will accept unacceptable legislators practice and, basing upon faulty introducted provisions, will be judging people pointed by the administration.”
Lastly, The Court states that refering to supposedly existing circumstances related to the protection of public health and safety and implying that they are not obliged to notify, is uncalled for. According to the directive 98/34/WE, Member State, being in a position where motives give the opportunity to withdraw from notification, has to present the circumstances in a statement aimed to European Comission. This obligation remains unaccomplished.