ANSEJA requests to act as amicus curiae in a lawsuit regarding municipal lotteries at the Supreme Federal Court.

The National Association for Legal Security of Games and Bets (ANSEJA) requested Minister Nunes Marques to admit it as amicus curiae in ADPF No. 1212, which questions the constitutionality of municipal laws on lotteries. The request was filed this Wednesday (8) at the Supreme Federal Court.

The entity, based in São Paulo, based its request on article 138 of the Code of Civil Procedure. The ADPF under analysis challenges legislation from 13 municipalities that created their own lottery systems, including São Vicente, Guarulhos, Campinas and São Paulo (SP), Belo Horizonte (MG), Anápolis and Caldas Novas (GO).

The plaintiff alleges violation of fundamental precepts of articles 1 (IV), 3 (III and IV), 19 (III), 22 (XX) and 170 of the Federal Constitution. The central argument is that the Constitution establishes the exclusive competence of the Union to legislate on consortium and lottery systems.

Minister Nunes Marques, rapporteur of ADPF 1212, has already granted this Wednesday (6) the entry of four entities as amicus curiae in the process. The National Association of Municipal and State Lotteries (ANALOME), the National Association of Games and Lotteries (ANJL), the National Confederation of Services (CNS) and the State of Paraná were accepted. The rapporteur denied the request of the company Bethanus Assessoria Empresarial Ltda.

ANSEJA intends to present arguments in favor of the legality of municipal lotteries. The association cites positions taken by Supreme Court justices in previous rulings (ADPFs 492 and 493 and ADI 4986) that recognized the material competence of the States to operate lottery services.

In its statement, the organization highlights the understanding of Minister Gilmar Mendes, who differentiated between legislative competence and material competence for the operation of lottery services.

“(…) it seems correct to infer that state (or municipal) legislation that establishes lotteries in their territories merely conveys the material competence granted to them by the Constitution. Such state regulations, whether laws or decrees, would only offend the Federal Constitution if they established a discipline or modality of lottery not foreseen by the Union itself, given that, in this case, the state legislation would deviate from its character of materializing the public service that the State (or municipality, or Federal District) holds, which is incompatible with Article 22, XX, of the Federal Constitution of 88. It is therefore permissible to conclude that the Union's competence to legislate exclusively on consortium and lottery systems, including lotteries, does not preclude the material competence for the exploitation of these activities by state or municipal entities.”

The association also mentions the position of Minister Alexandre de Moraes, who expressly included municipalities in his analysis.

“(…) because there is no express prohibition for states and municipalities, the Union could not – under the terms of Article 19, III, of the Constitution, which enshrines one of the important federal prohibitions – when exercising its exclusive legislative competence, create distinctions or preferences between the Union and states, between the Union, states and municipalities, or between different states.”

The minister added that "(...) the power, the true power to regulate, to establish the entire lottery system, belongs to the Federal Government, an exclusive competence. Once this is established, it's not only the Federal Government that can operate. States and municipalities can, provided they strictly observe federal regulations."

ANALOME, one of the entities already admitted to the process, submitted its request demonstrating its representativeness in the lottery sector. The State of Paraná formalized its request arguing that it holds the public lottery service in its territory and has accredited concessionaires for operation. Paraná mentioned in its petition that it had already been admitted as amicus curiae in ACO No. 369, a process related to the topic of state lotteries.

ANSEJA is a non-profit private legal entity that works to promote legality and integrity in the gaming and betting sector. The organization has a Directorate for Relations with States and Municipalities, as stipulated in Article 15 of its Bylaws, responsible for maintaining contact with government authorities that operate lottery services.

Among the responsibilities of this Board is the preparation of best practice manuals for municipal and state lotteries. The association's bylaws also expressly provide for representation before government bodies, the judiciary, and the Supreme Federal Court.

The organization argues that the creation of municipal lotteries promotes equality among federated entities, as per article 19, III of the Constitution. ANSEJA proposes an interpretation of article 35-A of Law 14.790/2023 that does not exclude municipal operation of lottery services, provided that governance criteria and inter-federative cooperation are observed.

The association pledged to provide studies on the economic impact of municipal lotteries and legal opinions on the compatibility between federal legislation and local regulations, should its request be accepted by the rapporteur.

In the lawsuit, the Solidarity party requests that all municipal laws and decrees establishing lottery systems involving drawing lots or betting be temporarily suspended until the Supreme Federal Court (STF) rules on their unconstitutionality. The party argues that these local rules infringe upon the exclusive competence of the Federal Government to legislate on the subject, with the aim of increasing its revenue "at any cost."

The Solidarity party warned during the legal proceedings about the proliferation of municipal lotteries operating irregularly. "There are countless municipalities that open up public infrastructure to unauthorized companies so that, through the exploitation of lottery activities, they can appropriate citizens' resources in a manner disguised as legitimate municipal laws, but illegally," they stated.

In March of this year, Minister Nunes Marques did not grant the injunction against municipal autonomy for the operation of public lottery services. In his decision, he highlighted the relevance of the matter and its impact on social order and legal certainty, opting instead to request information from the authorities responsible for the questioned actions.