Last Friday (27), the Ministry of Finance issued Normative Ordinance 1,330, which sets rules for fixed-odds betting. It aims to establish regulations for the sector's operation, advertising and marketing, best practices for responsible gaming, consumer rights, and the fight against money laundering and the financing of terrorism.
In terms of licensing, it was determined that the sector will be operated in a competitive regime, with no limit on the number of licenses granted. Thus, the market can have the participation of as many companies as are interested in becoming legal in Brazil, whether in the physical or digital format.
However, there is a point that deserves attention. Article 25 of Ordinance 1330 prohibits the dissemination of advertising in nationally significant sports competitions by operators authorized to exclusively operate fixed-odds betting in the states and the Federal District.
The question raised is: can the Ordinance genuinely restrict this right to advertise in national competitions for operators that operate exclusively within the states or the Federal District?
This question involves the theme of the hierarchy of laws.
As taught by J. Cretella Jr., the descending hierarchy is clear: constitutional provision, legal provision, regulatory provision. Constitution. Law. Regulation. Hierarchy of a formal nature only because materially or substantially the regulation shares common traits with the law. Law is an act of the legislature. Regulation is an act of the executive. Regulation is a general administrative act, and in this, it is identified with the law.
The law holds a unique place in terms of legal imperativeness. No pronouncement can be made against the express text of the law.
The reason for this is simple: the separation of powers. The executive branch cannot assume legislative powers. If a regulation cannot create rights and prohibitions, much less can an Ordinance.
Therefore, the operators affected by the new Ordinance could seek judicial protection through an injunction and challenge this provision (Article 25) as it limits their rights.
Filipe Alves Rodrigues
Lawyer and director of IGE
