The Spanish Supreme Court has issued a Court ruling (hereinafter the “Court Ruling”) declaring null and void certain articles of the Spanish Royal Decree 958/2020 on commercial communications of online gambling activities (“RD 958/2020”). JDIGITAL filed a contentious administrative appeal before the Spanish Supreme Court against the RD 958/2020 alleging different motives and, after analyzing this appeal, the Spanish Supreme Court has ruled that certain articles should be nulled.

In particular, the following Articles have been declared null and void:

•  Articles 13.1 (prohibition of promotions to engage new customer) and 13.3 (requirements/criteria for promotions). The lawsuit argues that Article 13(1) completely and unconditionally prohibits the possibility of directing promotions of any kind with the objective of attracting new customers. Also, considers that Article 13(3) restricts the possibility of making commercial communications related to promotions. The Court Ruling considers that there is no legal coverage to establish this limitation that affects the very essence of commercial advertising, aimed at offering and promoting the product or service to attract new customers. Thus, concludes that Article 13(1) and (3) should be annulled.
•  Article 15 (appearance of persons of public relevance or notoriety in commercial communications). This Article is also challenged for lack of sufficient legal coverage to  limit the appearance in commercial communications of persons or characters of public relevance or notoriety. In this sense, the Supreme Court considers that this prohibition lacks legal coverage. Thus, Article 15 of RD 958/2020 is annulled.
•  Article 23.1 (prohibition to the dissemination of commercial communications by gambling operators in information society services). The Supreme Court considers that this limitation has no legal coverage, and it is not enough to invoke the protection of minors. Also, indicates that it restricts the possibility of directing commercial communications to those who already use the web pages or applications intended for gambling. Therefore, concludes that should be annulled.
•  Article 25.3 (requirements affecting to the offering of commercial communications through video-sharing platform). The Supreme Court understands that this limitation lacks any legal coverage given the general scope with which it is conceived. Therefore, concludes that should be annulled.
•  Article 26.2 and 3 (restrictions affecting the offering of commercial communications through social media). According to the Court Ruling this limitation, like the previous ones, lacks legal coverage in the regulations in force at the time the regulation was issued and should therefore be annulled.

Articles 12, 18 to 22 and 24 of the RD 958/2020 were also under review of the Supreme Court. However, there has not been considered their nullity.

The Court Ruling is not subject to appeal meaning that it has effects after its publication which took place today 10 April 2024. It is very important to bear in mind that the rest of provisions within the RD 958/2020 are fully applicable, and therefore this Court Ruling does not imply a total derogation of the same.