Brazilian Court may set deadline for gaming law approval

I explain:
The question referred, regarding the notice of admissibility of the Extraordinary Appeal referred to (RE 966,177) published on November 21, 2016 (recognition of General Repercussion) by the STF, on merit refers to the (non) applicability of Article 50 of DL 3,688 / 41 , against confrontation (or syntony, in case of origin of the RE) with the Constitution of the Federative Republic of Brazil.

It is observed that the alleged offense to Article 5, individualized in so many paragraphs by the authors of the RE (indicating even state secularism), was the object of divergence between the public prosecutors themselves of the Public Ministry, all of them irresigned with the decision of the Class of Appeals of the Court of Justice of Rio Grande do Sul.

As it is known, the General Repercussion is a constitutional procedural instrument that allows the Supreme Court to select the Extraordinary Remedies to be analyzed, according to criteria of legal, political, social or economic relevance, in order to reduce the number of cases referred to the Supreme Court And subsequent application of the decision by the lower courts, in identical cases, without such a decision having a binding effect (which obliges the lower courts to adopt the STF's understanding), such as those summoned under the terms of Law 11,417 / 2006.

First:
It is evident that, whatever the decision of the STF, it will not have an effect that prejudices the matter analyzed in in the National Congress (PL 442/91 and PLS 186/2014), since, if the Court does not grant Appeal - RE 966.177 / RS, will only remove the unlawfulness of the exploitation of gaming, which does not remove the need for control of the Public Power (norms, permit, etc.) and submission to taxes on the activity.

What the Chamber of Deputies and the Federal Senate are doing is exactly what directs the STF when interpreting Article 22 of CF/ 88 and Binding Precedent 02, that is, using the prerogative of exclusivity to legislate on consortiums and draws (With the divergence of Minister Marco Aurelio, who understands that the states can also legislate on the matter, thesis in which I am affiliated), including bingos, lotteries and everything else that fits the concept.

As to the merits, I understand that the exploitation of gaming in Brazil, in any of its modalities, does not represent a risk to legal rights of others, which makes it illegitimate to prevent fully tolerated conduct. I am also in line with the understanding that "the limitation to the performance of the individual in this field is fully legitimate, justifying only the restriction of free initiative, reserving to the State control over gambling, punishing civilly, administratively and criminally, the conduct that violates the prohibition, which removes the freedom of the economic activity of the individual, since this only develops within the scope of lawfulness."

I repudiate the schizophrenic manifestation of the MP of Rio Grande do Sul in the RE with the STF, in which he affirms that "Brazil does not have the structure and professional or technical qualification to deal with the legalized gaming" whose despicable analysis finds obstacles in the successful experiences of more than 100 countries (OECD, G20, UNO, UN) and in the recognition of gambling as an economic and recreational activity whose regulation and control by the state is the ONLY way to control gambling and ensure the responsible exploitation for this activity with employment generation and tax revenue.

Second:
At this moment, in view of the proximity of the debate on the lawfulness of the exploitation of "games of chance" in the STF, I envisage the possibility of a SOLUTION for the "gaming market in Brazil", to be won in the Supreme Court, taking advantage of what was once built in parliament (PL 442/91 and PLS 186/2014) and in lower courts (RE 966.177 / RS).

I refer to the Injunction Order, considered in article 5, LXXI of CF / 88, recently regulated by Law n. 13,300, published on 06/24/16, whose procedure fits perfectly at this moment.

The Injunction Order is to "make the exercise of constitutional rights and freedoms viable" because of the delay of the legislature, establishing "the conditions under which the exercise of the rights, freedoms or prerogatives claimed or, in such case, the conditions under which the interested party may take action in order to exercise them, if the legislative delay is not met within the specified period." The action may still have subjective effectiveness limited to the parties and will take effect until the advent of the regulatory norm and / or may be granted ultra parties or erga omneseffectiveness to the decision, when this is inherent or indispensable to the exercise of the right, freedom or prerogative object of impetration."

Thus, I conclude:
Considering that senators and federal deputies are discussing and continuing to approve the regulation of gaming (PLS 186/2014 and PL442 / 91) - what they do in the exercise of the exclusive prerogative conferred on them by the Federal Constitution (article 22, XX and SV 02 / STF), after the issuance of a Injunction Order in the STF, the Constitutional Court may (and should) ESTABLISH A REASONABLE PERIOD for the National Congress to issue a standard for the exercise of economic freedom set forth in art. 170 and followings of the Brazilian Constitution, regulating the exploitation of gaming.

Roberto Carvalho Brasil Fernandes, Brazilian, postgraduate in Law, lawyer of ABLE - Brazilian Association of State Lotteries, accredited in the Chamber of Deputies to represent the interest of the state Lotteries (RICD / 3,008,963), signatory of the defense of the Lotteries in the Supreme Federal Court in ADI, ADPF and other constitutional actions.
Guest Conference on Gaming and Lottery, by Clarion Events (BGC and ICE / 2016), by STF in the Great Judgments program, in the II Encuentro Latinoamericano Del Juego / Peru, in the seminar Challenges and Prospects for Regulation of Games / ALMG-Minas Gerais / 2015 and others.
Authority invited by the Special Commission of the Regulatory Framework of Gaming in Brazil to expose the perspective of the state Lotteries and interest in the bills that are processed in the Chamber of Deputies; Author of several articles on the market of Gaming in Brazil. Specialist in international law and internalization of capital and customs.

e-mail:[email protected]