The sections in question were suspended last October by a preliminary decision by Justice Luiz Fux, at the request of the governors of São Paulo, Rio de Janeiro, Minas Gerais, Paraná, Mato Grosso do Sul, Acre and the Federal District.
The referendum on the preliminary injunction entered the virtual agenda on April 25. Until the judge's request for review, only Flávio Dino and the rapporteur, Fux, had voted. Both were in favor of maintaining the preliminary injunction until the conclusion of the judgment on the merits.
Context
Also known as the Sports Betting Law, the rule was sanctioned on the penultimate day of 2023. The case under analysis concerns only modalities such as number lotteries, numbered tickets and instant lotteries. Fixed-odds bets, known as ‘Bets’, are being questioned in another action.
In parallel with the preliminary injunction referendum trial, the Plenary also analyzes the merits of the action, that is, the validity of the contested sections. This analysis has been suspended since April 10, when Minister Cármen requested to review the case. Five ministers have already voted in favor of declaring the unconstitutionality of both rules.
The action was filed last year. Also in 2024, the Attorney General of the Republic, Paulo Gonet, defended the validity of the contested sections.
The governors argued that the restrictions imposed by the law reduce the participation of companies in bidding processes and favor an environment of competition between states, in which some tend to lose more than others. States with larger populations, or whose population has greater purchasing power, would be more attractive.
Another argument is the violation of free competition, since lotteries were deprived of the right to exploit their full advertising potential to attract new users.
A few days before the auction for the concession of lottery services in the state of São Paulo, Fux, the rapporteur of the case, suspended the rules in question. The Plenary then began to analyze whether to maintain the injunction, but the trial was interrupted by a request for review by Dino.
Vote
The rapporteur maintained the grounds for his injunction. Fux argued that, if the restrictions were maintained, the number of interested companies would tend to be smaller.
The judge considered that there is no reasonable justification for restricting the concession of lottery services to an economic group in more than one state. Fux emphasized that this is not provided for in Article 175 of the Constitution, which deals with concessions or permits for the provision of public services.
He agreed that companies with the technical conditions to provide more efficient services would have to compete for the concession in more populous and more profitable states. This would harm smaller states, which would lose potential revenue and would be forced to sign contracts with companies that are “tendentially less qualified”.
The minister also considered that the ‘Bets’ Law “takes away from states, without any reasonable justification, the possibility of adopting advertising strategies that best suit their business planning.”
Dino agreed with Fux, but with reservations. He considered that it is indeed possible for the same business group, with great economic power and a dominant position in the market, to obtain a large part of the concessions, in order to exercise “abusive economic practices that are harmful to users and consumers”.
On the other hand, it considered that the rule on the activity of concessionaires in only one state is too restrictive — “excessively invasive of federative autonomy and freedom of initiative” — and disproportionate in relation to other alternatives available to protect competition and consumers.
Source: Conjur
