Spain's Constitutional Court Passes On Case Against Advertising Royal Decree

December 1, 2023
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A legal bid to overturn Spain’s stringent advertising regulations has suffered a setback, after the country’s Constitutional Court ruled it will not be addressing the claims of unconstitutionality filed by trade group Jdigital.
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A legal bid to overturn Spain’s stringent advertising regulations has suffered a setback, after the country’s Constitutional Court ruled it will not be addressing the claims of unconstitutionality filed by trade group Jdigital.

Jdigital, in its appeal to the court, argued that the royal decree interfered with freedom of enterprise, and considered advertising a part of that freedom. 

According to the Spanish constitution, such a freedom is not regulated by royal decree, which comes from executive power, but by law, which is legislative. 

The case was filed by Jdigital and the Information Association (AMI) in January 2021, with regard to the now infamous Royal Decree 958/2020, which all but banned gambling advertising in the country. 

A year later in July 2022, Spain’s Supreme Court ruled that, on legal grounds, the decree could possibly be deemed unconstitutional and referred the matter to the Constitutional Court for consideration.

At the time, gambling expert and Asensi Abogados founding partner Santiago Asensi told Vixio: “The Supreme Court is … going to wait to see what the Constitutional Court says. If during that time, the decree remains valid, the damages to the online gaming market would be tremendously serious.”

Almost 18 months later, the Constitutional Court has now ruled, saying that the matter is no longer valid.

As lawyer Patricia Lalanda explains it, “the Spanish Gambling Law (Law 13/2011) was ‘coincidentally’, amended in November 2022 introducing Article 7.bis, which details the main principles for advertisement of gambling activities. 

“Hence, the Constitutional Court understands now that the normative hierarchy problem is solved, so case closed for the Constitutional Court.”

In other words, advertising is now regulated by legislation due to the amendment and the point of the case is moot. The case has been handed back to the Supreme Court by appeal.

Meanwhile, Spain has appointed a new general secretary of consumer affairs and gaming, Bibiana Medialdea, following recent elections. 

The position is a new one, prior to her filling it, Medialdea served as the general director of consumer affairs. During her time in that position she focused on eradicating sexism in children’s ad campaigns and is expected to concentrate her efforts on consumer abuse and fraud. 

She is one of the co-authors of the book "We don't owe, we don't pay! Debt, Plunder and Serfdom in Late Capitalism". 

When asked what the industry could expect from Medialdea, Lalanda demurred: “For the moment I believe the word is continuity.”

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