The 95-page ruling came out this Tuesday (15) in the DJe, giving states the freedom to explore lottery modalities that already exist or are to be created by the Union, and produces all the practical effects for state entities to create their lotteries or expand the scope of those already in operation.
The document now published is iconic and historic, as it gives states full security to resume their activities. The ruling is extremely direct and objective, not altering anything that Minister Gilmar Mendes consigned in his vote. Even with the possibility of the Union presenting embargoes for declarations, which may give some guidance on specific points, they will not alter the breaking of the monopoly or the legal security for states to explore the lottery modalities.
Below is the judgment published on December 15.
"Judgment
These minutes having been seen, reported and discussed, the Ministers of the Supreme Federal Court, in Plenary Session, chaired by Minister Luiz Fux, in accordance with the minutes of the trial and the shorthand notes, by unanimous vote, to uphold the breach of a fundamental precept to declare not accepted by the 1988 Federal Constitution arts. 1 and 32, caput and § 1, of DL 204/1967, pursuant to the vote of the Rapporteur.
Brasilia, September 30, 2020.
Minister GILMAR MENDES
Judge"
The judgment now published is identical to the vote made by Minister Gilmar Mendes and gives state lotteries the prerogative to explore the lottery modalities operated by the Union. In the document, Gilmar Mendes maintained his “Conclusions and Dispositive” that appeared in his vote:
"7 - Conclusions and Dispositive
Finally, I return briefly to the main premises and conclusions of this vote, in order to clarify the ratio decidendi:
(i) The operation of lotteries has a public service legal nature (art. 175, caput, of CF / 88), given the existence of an express legal provision;
(ii) arts. 1 and 32 of Decree-Law 204/1967, when establishing the Union's exclusivity on the provision of lottery services, were not accepted by the Federal Constitution of 1988, as they collide head-on with art. 25, § 1, of the CF / 88, by emptying the subsidiary constitutional competence of the Member States for the provision of public services that were not expressly reserved by the constitutional text for exploitation by the Union (art. 21 of the CF / 88);
(iii) The private competence of the Union to legislate on consortium and draws systems (art. 22, item XX, of CF / 88) does not preclude the material competence of the States to explore the lottery activities nor the regulatory competence of this exploration. For this reason, Súmula Vinculante 2 does not deal with the material competence of States to institute lotteries within federal boundaries, even if such materialization is expressed through state, district or municipal decrees or laws.
(iv) On the other hand, state laws that institute lotteries, either via state law or by a decree, must simply enable the exercise of its material competence as a public service institution authorized by the Member State, so that only the Union can define the modalities of lottery activities that can be exploited by States.
Strong in these reasons, I consider ADPFs 492 and 493 to be in order to declare arts. 1 and 32, caput and § 1, of DL 204/1967.
Regarding ADI 4,986, I dismiss the requests as unfounded.
This is my vote vote.”
With the publication of the judgment, it is decided that the legislative competence over lotteries rests with the Union, but that states (and even municipalities) are not prevented from exploiting the activity as a public service.
As the ruling determines that only the Union can determine which lottery modalities are possible to be explored by the states, it is understood that possibly the entities will be submitted to the Union's inspection, as Decree-Law 6259/44 ends, which says that state lotteries will be supervised centrally by a “General Lottery Inspector”.
It remains to be seen whether a national agency will be created to provide the inspection service or whether SECAP, from the Ministry of Economy, the body that currently regulates the lottery activity, will be appointed to inspect existing state lotteries or those created after the decision of the STF.
As the decision, except in the best judgment, is sovereign and understands the right of exploration of the activity by the states, it is possible that the subservience of the state entities to a central body is not required.
Payout
Another issue that still causes doubts is the payout on the lottery modalities to be explored by the states, since the judgment does not define such an issue. If states are obliged to follow the awards defined by federal law, this may hinder the competition that the decision will allow for state entities. Currently, the Federal Lottery has a prize pool of 55.91%, prediction contests pay 43.35%, the instant lottery 65%, and fixed quota bets have prizes ranging from 80% (physical) and 89% (digital).
Source: GMB
