Espírito Santo requests to participate as amicus curiae in lawsuit regarding municipal lotteries.

Another state requests the Supreme Federal Court (STF) to participate as amicus curiae in the Argument of Non-Compliance with Fundamental Precept (ADPF) 1212. The State of Espírito Santo filed a formal request to act as amicus curiae in the action that questions the constitutionality of the exploitation of lottery services by Brazilian municipalities. The document was presented by the State Attorney General's Office (PGE-ES) this Monday (6) to the Supreme Federal Court.

The state of Espírito Santo has its own legislation regarding lottery operations, established by State Complementary Law No. 1.069 of December 2023. This law authorizes the creation of the Espírito Santo State Lottery, operated by a subsidiary of the Bank of the State of Espírito Santo (BANESTES).

The state law establishes: “Article 1. The public lottery service of the State of Espírito Santo, created by Law No. 1.928, of January 2, 1964, will be operated and exploited exclusively through a subsidiary of the Bank of the State of Espírito Santo – BANESTES, encompassing the same lottery modalities that have been legalized by the Union, which may constitute or participate in other companies, according to the modalities of operation foreseen by Federal Law No. 13.303, of June 30, 2016, and under the terms of Law No. 11.617, of May 19, 2022.”

The legislation of Espírito Santo state stipulates that up to 12% of the total revenue collected from lottery operations will be allocated to state coffers. These resources will be used for programs in the areas of culture, sports, leisure, social assistance, and tourism, according to regulations to be established by decree.

The amicus curiae institute aims at "improving the judicial decision, providing the magistrate and the process with more in-depth arguments and considerations, for the proper definition of the dispute." Law No. 9.868/99, applicable to ADPFs (Actions for Declaration of Unconstitutionality by Omission), provides that "The rapporteur, considering the relevance of the matter and the representativeness of the applicants, may, by unappealable order, admit, within the time limit set in the preceding paragraph, the manifestation of other bodies or entities."

The state of Espírito Santo claims to have standing in this matter, as the controversy involves a subject within its material jurisdiction, already recognized by the Supreme Federal Court (STF). In previous rulings (ADPFs 492 and 493 and ADI 4.986), the Supreme Court recognized the states' competence to operate lotteries, classifying the activity as a public service.

In these decisions, the Supreme Court understood that, although the Union has legislative competence to deal with "consortium and lottery systems," the states have material competence to operate lotteries, based on the residual attribution provided for in article 25, §1, of the Federal Constitution.

The Attorney General's Office of Espírito Santo emphasizes that previous Supreme Court decisions did not extend lottery operation authority to municipalities. According to the state, municipal responsibilities are limited to matters of local interest and do not include lottery operation.

One of the main arguments presented by Espírito Santo is the risk of potentially allowing lottery operations in more than 5.600 Brazilian municipalities. According to the Attorney General's Office, this could lead to regulatory disorder and institutional disarray, given the lack of an adequate regulatory structure at the municipal level.

The state points to the excessive fragmentation of lottery services and the social risks associated with gambling addiction. The extensive distribution network of these games at the municipal level is also cited as an obstacle to effective enforcement.

The state's argument mentions that the municipal operation of lotteries could violate the principle of federalism and affect free competition and economic order. The request is awaiting analysis by the rapporteur of ADPF No. 1.212 in the STF (Supreme Federal Court), Minister Nunes Marques.

In addition to Espírito Santo, the Attorney General's Offices of the States of Paraná, Santa Catarina, and Rondônia also requested to participate as amicus curiae in the same action. The requests were filed on September 12th and 17th, respectively, with similar arguments that only the Union, States, and Federal District have the authority to legislate and exploit this type of activity.

Santa Catarina established its own state lottery (LOTESC) through State Law No. 18.334, of January 6, 2022, linked to the State Finance Secretariat, allocating its net proceeds to actions to combat poverty, with priority given to housing. In the state, municipalities such as Balneário Camboriú, Balneário Piçarras, Chapecó, Irani, and Nova Itaberaba have already created their own lotteries, which, according to the Attorney General's Office, compromises the collection and social allocation of LOTESC's resources.

Minister Nunes Marques authorized, on August 6, 2025, the participation of four entities as amicus curiae in the same 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 Government of the State of Paraná.

The ADPF (Arguição de Descumprimento de Preceito Fundamental - Claim of Non-Compliance with a Fundamental Precept) was filed by the Solidarity party, which questions the constitutionality of the creation and operation of lotteries by several Brazilian municipalities. The party requests that the Supreme Federal Court suspend and declare unconstitutional all municipal laws and decrees that regulate lotteries, as well as annul bidding procedures, contracts, and licenses related to these activities.

Among the municipal laws questioned by the Solidarity party are those of São Vicente, Guarulhos, Campinas, and São Paulo, in the state of São Paulo; Belo Horizonte (Minas Gerais); Anápolis and Caldas Novas, in Goiás; Foz do Iguaçu (Paraná); Pelotas and Porto Alegre, in Rio Grande do Sul; Bodó (Rio Grande do Norte); and Miguel Pereira (Rio de Janeiro). The party warns about the proliferation of municipal lotteries operating irregularly.
In March of this year, Minister Nunes Marques did not grant the injunction against municipal autonomy for the operation of public lottery services, opting instead to request information from the authorities responsible for the questioned actions and ordering a statement from the Attorney General's Office and an opinion from the Prosecutor General's Office.

The Attorney General's Office of the State of Espírito Santo requests that its admission as amicus curiae be granted in ADPF No. 1.212 and expresses its support for the merits of the request presented in the argument.