Supreme sets lifetime review trial for Wednesday; see what’s at stake

The STF (Federal Supreme Court) has scheduled for next Wednesday (30), starting at 2 pm, the trial of the review of the entire life of the INSS (National Social Security Institute). The theme, which was the second item on the agenda for last Wednesday (23), was postponed and was not discussed by the ministers in plenary — the analysis of an ADI (Direct Action of Unconstitutionality) on the Public Ministry extended until the end of the session.

According to the STF calendar, there are two other cases on the agenda of the face-to-face plenary on the 30th. As it has recognized general repercussions, whatever is decided by the Supreme Court will be used as a reference for all other actions in court. When the decision is taken on theme 1.102, the stocks that were stopped will also start moving again.

The whole life review discusses whether retirees have the right to include old salaries, paid in other currencies, in the calculation of the average salary, which is the basis for calculating pensions. With the lawsuit, there are cases in which the insured person is entitled to more than R$ 100,000 in overdue amounts.

According to social security lawyer João Badari, the government has been pressing for the review not to be accepted by the STF. “The government’s financial argument does not reflect reality at all and we demonstrated this in the process. It adds in the process that it is BRL 46 billion, but we have already demonstrated that it is not. There are studies that show that this cost is less than BRL 10 billion in ten years”, he says.

A lifetime review cannot be requested by any INSS (National Social Security Institute) retiree. The correction can be requested in up to ten years, counting from the month following the first payment of the benefit.

If the first retirement payment was made in November 2012, for example, the deadline to request a calculation review ends in December 2022. In addition, the benefit must have been granted based on the rules of Law 9,876, of November from 1999.

There is also another limitation: retirement cannot have been granted after the beginning of the Social Security reform, valid since November 2019.

Judgment already had maneuver and turnaround

The process came to be judged in the virtual plenary in March 2022, after being stopped for about a year. At the time, the 11 justices presented their votes: 6 in favor of the revision and 5 against, but a request made by Justice Kassio Nunes Marques less than 30 minutes before the deadline interrupted the trial.

Nunes Marques’ maneuver, contrary to the theme, would do what if it were judged again, this time in the physical plenary, starting from scratch. A new report would be made by Minister André Mendonça, substitute for Marco Aurélio, rapporteur of the revision of the whole life.

In June, however, a new decision by the STF brought changes. The plenary decided that the votes of retired ministers presented in cases in the virtual plenary should be maintained in a new trial. The understanding of the Supreme affected the whole life review and other processes. In this case, Marco Aurélio’s vote must be maintained, but this is one of the definitions that experts expect for the trial.

UNDERSTAND THE CORRECTION

The 1999 Social Security reform created two calculation formulas for the average salary (which is the basis of the benefit amount):

1. Transition rule: For those who were already insured with the INSS until November 26, 1999

2. Permanent rule: For those who started contributing to the INSS from November 27, 1999

With this, those who were already Social Security insured and concentrated their largest payments at the beginning of their professional life, before the creation of the Real Plan, were harmed.

With the review of their entire lives, retirees who started contributing to Social Security up to November 26, 1999 want the same rule to be applied to them as the group that started collecting from November 27 of that year.

WHO CAN BENEFIT FROM THE REVIEW

Lifetime review can only be applied to beneficiaries who fit the following requirements:

• Entered the formal job market (with a formal contract or contributing individually) before July 1994

• He made a considerable part of his highest contributions to the INSS until July 1994 and then concentrated payments on lower amounts

• Received the first retirement payment less than ten years ago (maximum period to exercise the right to review the benefit)

• Retired before the beginning of the pension reform, in November 2019