VIE 29 DE MARZO DE 2024 - 07:05hs.
ADPF 492, 493 and ADI 4986

Brazil’s STF decides on Union monopoly to explore lotteries in a day that can be historic

The Supreme Federal Court (STF) must decide today (23) on ADPF N°492, filed by Rio de Janeiro Government; N°493, filed by the Brazilian Association of State Lotteries (ABLE); and ADI 4986, by the Government of Mato Grosso, which question a decree of 1967 that established Union’s monopoly to operate lotteries. The three cases are under the rapporteur of Minister Gilmar Mendes. The judgments can significantly change the entire Brazilian legal framework and allow (or prohibit) the creation and expansion of state lotteries in the country.

A joint judgment of the three cases is scheduled for today (Wednesday 23) in Supreme Court’s agenda from 2:00 pm. The actions question the federal government's exclusivity for the operation of lotteries and seeks that the states can also exercise this activity.

It is worth remembering that the Brazilian Association of State Lotteries - ABLE sent a petition, on Monday afternoon, for the Supreme Court to remove Statement of Non-Compliance with Fundamental Precept (ADPF) 493 trial from today's agenda because its only duly qualified lawyer, Marcel de Moura Maia Rabello, presents a health problem (herniated disc) that prevents him from participating in the process. At the beginning of the plenary meeting, it will be known whether Gilmar Mendes will accept the request or decide to address the issue.

Today's decisions are very important because if final judgments take place on the terms that states and associations propose, the entire Brazilian legal framework will significantly change, allowing states to broaden their legislation, deal with modalities and structures that were previously prevented by virtue of the decree 204 of 1967.

If the current situation is maintained, as provided for in this Decree-Law, the creation of state lotteries will no longer be permitted. Currently existing state lotteries will not be able to increase their emissions being limited to the number of tickets and series in force on the date of publication of Decree-Law No. 204/1967, which provides for the operation of lotteries.

In 2018, the Attorney General's Office (PGR) and the Federal Attorney General (AGU) filed petitions manifesting themselves for not knowing the actions and, on the merits, for the dismissal of ADPFs 492 and 493.

ADPF 493

This is an allegation of non-compliance with a fundamental precept, with a request for precautionary measure, in view of arts. 1 and 32, caput, and § 1, of Decree-Law No. 204/1967, which provides for the exploration of lotteries. The Brazilian Association of State Lotteries - ABLE claims that the contested provisions confer a real monopoly on the Union for the exploitation of lottery services and the creation of an environment of inequality between the entities of the Federation. It adds that "12 (twelve) Member States and the Federal District are prevented from creating their administrative structure for this purpose, which, on the other hand, allows the exploitation of lottery services to only 15 (fifteen) States, limited, respective Public Administrator, the sale of tickets in quantity and serial numbers that were exploited exactly 50 years ago (1967).”

The thesis seeks to determine whether the Union's exclusivity on the operation of the lottery service is constitutional and whether the limitation of ticket issuance by state lotteries that existed on the date of the contested act is constitutional.

The Federal District, the states of Minas Gerais, Acre, Amapá, Ceará, Maranhão, Mato Grosso, Mato Grosso do Sul, Pará, Piauí, Rio de Janeiro, Rio Grande do Norte, Rio Grande Sul, Santa Catarina, Sergipe, Tocantins, Paraíba, Amazonas and the Lotteries of the State of Minas Gerais and the State of Rio de Janeiro were admitted as 'amici curiae'.

ADPF 492

In December 2017, the governor of Rio de Janeiro, Luiz Fernando Pezão, filed with the Supreme Federal Court (STF) the ADPF 492, with an injunction request, against provisions of Decree-Law 204/1967 that deal with the Union monopoly to explore lotteries. The case is under the rapporteur of Minister Gilmar Mendes, who decided to apply the abbreviated rite provided for in Article 12 of Law 9.868 / 1999.

According to the governor at the time, the decree was not accepted by the Federal Constitution of 1988, as it established the Union's exclusivity in the exploitation of lotteries and kept the state's lottery situation static, limiting the issuance of tickets and series to the quantity in force at the time of its promulgation, and prevented the creation of new state lotteries. For Pezão, the objective of the norm was the concentration of lottery activities in favor of the Union, excluding the member states and the Federal District. "The fact that the Union has the private competence to legislate a specific issue, does not matter exclusively to its execution", he highlights.

The governor stated that the monopoly on the exploitation of the lottery service destabilizes the federative pact, confronts fundamental precepts, such as the principle of equality between the federated entities, offends the right of the other Federation units to also explore this economic activity, in addition to compromise the revenue and, consequently, the budgets secured federally. As an argument, he cites the serious financial crisis that is plaguing the country and maintains that lotteries often finance social actions, including social security, as determined by article 195, item III, of the Constitution.

ADI 4986

The Direct Action of Unconstitutionality (ADI 4986) questions Law 8.651 / 2007, approved by the Legislative Assembly of Mato Grosso. Authored by former state deputy José Riva, the law authorizes the state government to create and manage lottery stores. Three decrees signed by the executive branch that disciplined state law are still being questioned. For the Attorney General's Office (PRG), the law and decrees are totally unconstitutional.

The state legislation provides that LEMAT will exploit, directly or indirectly, the same lottery modalities explored by the Union and the economic result of this would be destined to the financing of the State Social Assistance Fund and the Sports Development Fund of Mato Grosso.

According to the PGR, the questioned rules invade Union's private competence to legislate on consortium and draws systems, pursuant to article 22, item XX, of the Federal Constitution. LEMAT was instituted by a law published in 1953, that is, before the decree-law was published - dated 1967 - which instituted the Union's monopoly on the sector.

By the federal rule, it even preserved the state lotteries that already existed, but within the restricted limits in which they already operated at the time. In the case of Mato Grosso, however, the state lottery ended up extinguished by a decree published in 1987 and, therefore, could not be reinstituted. ADI's rapporteur is also Minister Gilmar Mendes.

Source: GMB