Analysis: Scenarios for the trial regarding the Union's monopoly on operating lotteries.
The judgment on the merits of the legislation concerning state lotteries created before Decree-Law 204/1967 and the scope of their operations has always given rise to interpretations by courts and government experts on the subject, particularly regarding the understanding of Article 32 and § 1 of Decree-Law No. 204 of 1967.
Article 32. Maintaining the current situation, as set forth in this Decree-Law, the creation of state lotteries will no longer be permitted.
§1 The currently existing state lotteries may not increase their emissions, being limited to the quantities of tickets and series in effect on the date of publication of this Decree-Law.
There are several possible scenarios regarding the outcome of the Supreme Federal Court's plenary session on this matter:
Scenario 1: Recognition of the argument presented by the Attorney General's Office, the National Treasury Attorney's Office – PGFN, the former Secretariat for Economic Monitoring of the Ministry of Finance – SEAE/MF (Secretariat for Evaluation of Public Policies, Planning, Energy and Lotteries of the Ministry of Economy – SECAP-ME), and the Attorney General's Office, that the lottery service is a monopoly of the Union.
Consequence: end of state lotteries.
Scenario 2. That the creation of state lotteries will no longer be permitted and that existing state agencies will not be able to increase their emissions, being limited to the quantities of tickets and series in effect on the date of publication of Decree-Law 204/1967.
As a consequence, the operation of state lotteries is compromised, as they could only issue the same number of lottery tickets as they did until February 1967.
Scenario 3. There is no Union monopoly on the provision of lottery services because the Federal Constitution did not incorporate articles 1 and 32, caput and § 1, of Decree-Law No. 204/1967.
Consequence: it allows the continuation and expansion of state lottery services, including those that are suspended precisely due to the lack of this legislative definition.
Scenario 4. An evolutionary interpretation of articles 32 and 33 of Decree-Law 204/67 suggests that the limitation on the use of tickets and series, relating to the type of lottery modalities of the time, must be analyzed in light of technological evolution, specifically regarding new technologies and equipment used by the States to carry out the activity.
Consequence: it allows the continuation and expansion of state lottery services, including those that are suspended precisely due to the lack of this legislative definition.
Scenario 5. The ADPFs 492 and 493 are dismissed. The Supreme Federal Court may modulate the effects of the decision in order to preserve current operations, considering the legal certainty of the allocation of resources based on Article 11 of Law No. 9.882/1999.
"When declaring a law or normative act unconstitutional in the process of challenging the violation of a fundamental precept, and considering reasons of legal certainty or exceptional social interest, the Supreme Federal Court, by a two-thirds majority of its members, may restrict the effects of that declaration or decide that it will only be effective from the date of its final judgment or from another moment that may be determined."
Consequence: it will depend on the understanding and modulation of the Supreme Court justices.
Scenario 6. The rapporteur, Gilmar Mendes, presents his vote, and another minister requests a review.
