The case under judgment concerns a company from Fortaleza that intended to operate lottery activities similar to those known as “Loteria dos Sonhos” ("Dream Lottery"), a product offered by the Ceará State Lottery (Lotece).
The request was initially granted by the 11th State Public Treasury Court. However, the Appeals Court accepted the state's appeal and denied authorization, arguing that the exercise of the lottery activity, since it is a public service, must be preceded by a bidding process.
In the STF, the company argued that third parties already operate the service without a prior bidding process and that requiring a bidding process in its case would establish unequal treatment.
When analyzing the appeal, Justice Luís Roberto Barroso emphasized that the STF, in the judgment of the Claims of Noncompliance with Fundamental Precept (ADPFs) 492 and 493, affirmed the public service nature of lottery contests and, consequently, the requirement of a bidding process for their operation by private agents.
In the present case, Barroso emphasized that the fact that there are private parties operating the service without a bidding process does not change its nature as a public service. According to the Justice, the State is the holder of this service and, therefore, it cannot be performed under a free enterprise regime.
Thesis
The thesis of general repercussion established was the following:
“The execution of the public lottery service by private agents depends on state delegation preceded by a bidding process.”
Source: GMB
