Author of the initiative, the Partido Verde (PV) maintained the unconstitutionality of Law 14,455/2022 with the argument that the rule does not expressly require a bidding procedure for the management of lotteries by private companies.
Additionally, they argued that the allocation of profits to the National Health Fund (FNS) and Embratur was set at very low levels (5% or 3.37%, depending on the type of bet), which would constitute diversion of purpose and disproportionality.
Constitutional requirement
In the vote that led the judgment, minister Alexandre de Moraes, the rapporteur, found that there is no constitutional requirement for a portion of the proceeds from lottery services to be allocated to specific purposes, even if the allocation is socially relevant. Furthermore, the constitutional text does not prohibit the enactment of a law with such a provision, as occurred in the present case.
Regarding the percentages set by the challenged law, the rapporteur noted that the established values are not out of line with other lottery products. Based on information from the case, he cited, for example, that Law 13,756/2018, which regulates the allocation of proceeds from fixed-odds betting lottery, allocates percentages of 2.55% to the National Public Security Fund (FNSP), 1.63% to entities of the National Sports System, and 3% to the Ministry of Sports.
According to the minister, possible disproportions must be assessed from a contractual perspective, in light of the rules of tariff policy, not through concentrated control action in the STF.
Bidding process
Minister Alexandre also found that Law 14,455/2022 does not regulate aspects related to the bidding process nor does it provide for cases of ineligibility or waiver.
He explained that lottery activity has the legal nature of a public service and, as such, the rules governing the delegation of the activity will apply to it.
"The impugned legislation did not waive compliance with bidding rules, which will apply to the extent that the Union, as the service holder and authorized to establish lottery products, takes the necessary steps for contracting," he concluded.
Source: STF
