Having been, together with lawyer Joao Carlos Dalmagro Junior, the only lawyers who worked at ADPF 493, judged by the Federal Supreme Court (STF) on September 30, we comment:
1) It is a historic decision. The Brazilian Lottery market changes substantially, assured that the 26 states and the Federal District are from now on to explore the lottery modalities;
2) The decision reinforces the understanding that the Union has exclusive legitimating competence on the matter, which is not permitted for federated entities (states and the Federal District) to create (new) lottery modalities;
3) The 26 states and the DF need to understand that they do not have a “blank check” from the STF, but an agreement with the guardian of the Constitution, which ensures that they create their Lottery (institution), to explore lottery modalities (contests for prognostics), within the limits of their respective territories and harmonized with federal legislation, which remains the only one with the competence to legislate innovatively on the matter;
4) One cannot confuse lottery modalities with games of chance (typical of the private sector and not yet legalized) betting on horse racing and philanthropic sweepstakes (the latter 2, legalized and regulated). These are distinct products, legalized and regulated by specific laws and with legal foundations and motivations that conceptualize them differently, each with its social and economic importance.
As for the judgement, we note that the competent manifestations of the Attorneys of the states of Rio de Janeiro and Minas Gerais, who maintained in the virtual tribune of the STF, announced the undoubted interest of the states for the institution of the State Lottery, giving legitimacy to the debate.
Now, the truth is that since the year 1894 the State Lotteries have coexisted with the Union Lottery (from the Empire and provincial, until the Proclamation of the Republic, in the year 1889). They were only forbidden when, lacking a federal ballast law regarding the “bingo” modality, they remained declared unconstitutional by the STF, even resulting in a misinterpreted Binding Sumula 02.
We even filed the SV02 Nullity Action in the STF, which did not prosper, but created subsidies, along with other unfounded actions (ADPF 128 and 147), to reverse the Court's position in the sense established today (STF-30 / 09/2020), during the ADPF 493 trial.
Anyway, a lawsuit (route) and decision (solution), I repeat, that are in the history of lotteries in Brazil. It is now up to the business sector and the representation of the states, to assume the responsibility of competently dealing with the relationship with the Union, which has the competence to issue federal laws and regulatory decrees on this market/public service, without departing from the terms of the art. 195, III of CF / 88 and the services law.
I also note that the Union must regulate this matter, through Decree (with the care not to invade the competence of the states, extracting rights unanimously won in the STF).
Roberto Carvalho Fernandes
Specialist lawyer and author of the book 'Lottery Law in Brazil'
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