Will the Ministry of Finance end state lotteries?

We were recently questioned by a distinguished journalist to whom I refer this column, if "The Ministry of Finance will end the state lotteries?" (Sic) provoking us to answer the question. Honored with the challenge, we report the recent article published on our website about the "Regularity of State Lotteries", on the work of this signatory and on the lawyer João Carlos Dalmagro Junior, with whom I write a book on the subject.

In order to answer, we adopted the concept of Lottery as a public institution that manages the exploration of draws of economic forecasts, in light of the provisions of articles 22, XX, and 195, III, of the Federal Constitution. Therefore, Lottery is not Game.

The New Federal Pact inaugurated by the Federal Constitution of 1988 considerably strengthened the States and the State Lotteries.

Federal legislation assigned to the Secretariat of Economic Monitoring of the Ministry of Finance (SEAE / MF), the exercise of implementing actions that ensure competition and efficiency in the provision of Lottery services, according to institutional mission and constitutional principles linked to Public Administration (art. 37, caput, of the CF), therefore, it would be incoherent to pretend "to end state lotteries".

In the current economic crisis that the states are experiencing in Brazil, the Lottery, which is a state development activity, generates non-tax revenue for social security financing (article 195, III, of the CF) and composes the state budget, gaining importance.

Instead of "ending", the state and federal Lottery must be exploited directly by the state entity or indirectly by the private initiative, the service must always be adequate, satisfying the conditions of efficiency, regularity, continuity and actuality, thus including the modernity of techniques, equipment and facilities, as well as the improvement and expansion of services, as provided in § 2° of article 6 of the Concessions and Permission to Public Services Law Act (Law 8,987/95).

Therefore, [...] established, or authorized to be a particular game by the central legal entity of the Federation (although by ordinary law, only), any of the two peripheral state units (Member State or Federal District), may compete with it, Federal Union. It can, in the territory of each of them, compete with the Central Government for the preference of the bettors. Provided that the same federal norms of regency of the subject are used, with adaptations only of mechanical or linear order; That is to say, adaptations dictated by the natural differences of administrative organization of each of these peripheral federated persons "(Supreme Federal Court / ADI 2847. Vote of the Min. Carlos Ayres Britto).

In order to avoid doubts about the solidity of the State Lotteries, the issue has already been analyzed by the Federal Supreme Court, when it received Constitutional Complaint no. 5716 and suspended the decision that tried to "end" the Lottery.

Thus, the operation of the Lottery services (public service instituted by law) by the Member States and the Federal District is strictly regulated, with federal regulation as a paradigm, being unconstitutional (article 177) a monopoly on the exploitation of drawings in Brazil.

Roberto Carvalho Brasil Fernandes/João Carlos Dalmagro Junior

Roberto Carvalho Brasil Fernandes: Lawyer (OAB/SC 20080) of the Brazilian Association of State Lotteries(ABLE); Specialist in International Law and Internalization of Capital, accredited in the Chamber of Deputies to represent the interest of State Lotteries (RICD / 3,008,963) and Partner at the Brazil Fernandes Advogados Associados office.

João Carlos Dalmagro Junior: Graduated in Legal and Social Sciences from the Pontifical Catholic University of Rio Grande do Sul (2002) and Specialist in Civil Procedure and New Rights from the University of Western Santa Catarina (2008). Lawyer (OAB/SC 19.752-B), working in the areas of criminal and constitutional law. Former Professor of Constitutional Law and Constitutional Procedural Law (Universidade do Oeste de Santa Catarina).