With 7 votes against 4, the Supreme Court understood that policyholders cannot opt for the rule most favorable to them, as was decided in 2022
BRASILIA-IL Federal Supreme Court (STF) decided this Thursday 21st, with 7 votes in favor and 4 against, to cancel the 2022 decision on the so-called “permanent review” of the INS, which gave victory to the pensioners. The cancellation occurred indirectly, because the ministers did not evaluate the provision that called the revision into question; on Thursday they ruled on another issue: the social security factor, which was linked to the “permanent review”. The reason for the annulment is a procedural matter.
The majority of ministers understood that, based on Thursday’s ruling, insured persons cannot opt for the rule that is most favorable to them. Ministers validated the law establishing the social security factor, a transitional rule for calculating pensions. The decision frees the Union from an estimated impact of 480 billion reais on public finances. The ministers Cristiano Zanin, Flávio Dino, Luiz Fux, Dias Toffoli, Gilmar Mendes, Luís Roberto Barroso and Kássio Nunes Marques voted in this sense.
“The pension reforms were faced with a growing and chronic deficit that would have driven the country into bankruptcy. The pension reforms should not be interpreted as meaning that they have come to improve the lives of the insured,” Minister Luís told the trial Roberto Barroso.
Dino, who supported the government’s request, said that “there is no need to give a case-by-case interpretation” and that there is no need to “consider whether this is good or bad for these or those segments “.
The Federal Attorney General’s Office (AGU) considered the decision “paradigmatic”. In a statement, Minister Jorge Messias congratulated the STF. “Among other aspects, it (decision) guarantees the integrity of public accounts and the financial balance of Social Security, a heritage of all Brazilians,” he says.
The AGU’s assessment is that the resolution “avoids the establishment of a scenario of judicial and administrative chaos that the INSS would inevitably find itself in if it were to implement the so-called whole-life review thesis”. For the minister, the STF’s decision guarantees legal certainty and confirms the agreement established by the Court itself more than 20 years ago.
Lawyers who followed the trial criticized the decision. “They used all possible maneuvers to overturn the life review, even after the pensioners had won in two plenary sessions, and this time, unfortunately, they succeeded,” said lawyer João Badari, member of the board of directors of the Institute of Social Security Studies (Instituto de Estudos Previdenciários) (Ieprev).
Understand
Although the subject of Thursday’s ruling was the social security factor, there was already a consensus that this rule would be declared constitutional, given the Supreme Court’s jurisprudence on the matter thus far.
The focus of the discussion revolved around the impact of this ruling on the whole life review decision, when the Supreme Court recognized, in 2022, the right of policyholders to opt for the most advantageous rule for calculating the benefit.
In December 2022, the majority of ministers held that pensioners have the right to opt for the application of the most advantageous rule when calculating their pension, allowing those who apply to the tribunal to request the recalculation of the benefit based on all contributions paid for life. Until then, contributions had only been recorded starting from 1994, when the real stabilized.
The INSS claims billions in losses with the pension revision. The trials of insured people asking for a review of their lives have been interrupted since July last year, when Minister Alexandre de Moraes suspended the trial at all levels of justice. In the decision, he noted that the suspension would be valid until the end of the appeal.
The issue was adjudicated again this Thursday because, within the same law that established the social security factor, there is also the transitional rule that establishes that only contributions after July 1994 will be counted in the benefit.
According to the majority of ministers, an injunction issued by the Supreme Court 24 years ago already recognized the constitutionality of the transitional provision. Therefore, the whole life review ruling could not even have allowed policyholders to opt for the general rule.
Social security factor
On Thursday, the STF ruled on an action that challenges the Social Security Factor, an index created in 1999 that takes into account several criteria to define the value of pensions. The aim was to encourage insured people to work longer. To do this, it reduced the benefit of those who retired early. In 2019 the Social Security reform replaced the factor with other forms of calculation. But it is still applied in cases that fall under the transitional rules or when the insured already benefited from the benefit before the reform.
Experts consulted by Station/Broadcast they already assessed the possibility that the Supreme Court would declare the social security factor unconstitutional as “practically nil”. This is because the Court has expressed itself, on other times, in favor of the validity of the law. The case has been pending before the Supreme Court for 25 years./With Sandra Manfrini
Source: Terra
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