The disputes over the legal nature of lottery activities are traditionally explored in Brazil’s doctrine and jurisprudence from the traditional dichotomy of Economic Law, which segregates the regime of so-called economic activities in the strict sense from that attributed to so-called public services.
Relevant Brazilian publicists, such as professors Caio Tácito, Geraldo Ataliba, Diogo de Figueiredo Moreira Neto, Celso Antônio Bandeira de Mello, Hely Lopes Meirelles, Carlos Ari Sundfeld and Luís Roberto Barroso, have insisted for decades on the framing of lotteries as a public service in a sense formal.
Within the scope of the Judiciary, the Brazilian courts have debated their legal nature for a long time, and in the current jurisprudence of the Federal Supreme Court, the current that classifies such activities among public services prevailed.
In this regard, consult the considerations made in the leading vote of the paradigmatic joint judgment, within the scope of the Federal Supreme Court, of the Allegations of Non-compliance with Fundamental Precept No. 492/493 and of the Direct Action of Unconstitutionality No. 4.986:
"(...) Translating this parameter to the discussion faced in these abstract control actions is that the doctrine frames lotteries as typical public service activities. Since 1932, as seen, the legislator does not hesitate to attribute a legal regime of Public Law to these activities. The provision is also expressly contained in Decree-Law No. 6.259/44 and Decree-Law 204/67, which is discussed in these abstract control actions".
For this reason, it seems to us, on the whole, that is correct the statement of Minister Luís Roberto Barroso, in a doctrinal article, to confirm that "with regard to the legal nature of the lottery activity, legem habemus".
According to his excellence: "It is possible to state, thus, in line with the prevailing doctrinal position, that in Brazil the activity of lottery exploration has long been qualified, and until now, as a public service" (Barroso, Luís Roberto. Op. Cit., P. 254) (Rapporteur: minister Gilmar Mendes; 23/09/2020 Plenary; Date of Publication 12/2020).
Above all, the Brazilian Supreme Court considered the historical fact: since the 1930s, the legal regime given to these activities goes beyond common law, establishing a regime of privilege of the public power in the exploration of these activities.
Thus, regardless of reflections on the extent to which lotteries, per se, have public utility or are relevant to social interdependence, the STF classifies lottery activities as a public service, taking into account, above all, the legal regime to which these services were submitted.
The judgment highlighted corresponds to a real inflection point in the understanding of the Federal Supreme Court on the possibility of the member states (including, obviously, the Federal District) of the federation to institute their own lottery systems. We will address this issue in another text.
Flávio Germano de Sena Teixeira Júnior
Special advisor to the Secretary of State for Special Projects of the Federal District Government, taking a Masters in State Law and Regulation from the Federal University of Pernambuco (UFPE), lawyer, member of the Research Group on Challenges in Control of Contemporary Public Administration - UFPE and member of the GEDA Research Group (Study Group on Administrative Law) - UNICAP.
Rodrigo Torres Pimenta Cabral
Head of the executive unit of the Public-Private Partnerships Management Council of the Federal District Government, with a postgraduate degree in Administrative Law from the Brazilian Institute of Teaching, Development and Research (IDP) and a lawyer.
Source: Revista Consultor Jurídico
