Supreme denies greater correction to FGTS balance in Plano Collor 2

The justices of the STF (Supreme Federal Court) decided, in a judgment in the virtual plenary, that there is no right to a greater correction of the balance of the FGTS (Guarantee Fund for Length of Service) during the Plano Collor 2. The decision was unanimous.

The nine ministers of the court followed the vote of the rapporteur Alexandre de Moraes. According to the thesis confirmed in the vote, “there is no vested right to the difference in monetary correction of the balances of the accounts linked to the FGTS referring to Plano Collor 2 (February 1991)”.

In the final approved text, the rapporteur also cites the court’s understanding in two other judgments on the correction of the FGTS at the time of the economic plans. In the first of them, in 2000, the STF decided that there is no vested right to restate the balances of the FGTS linked accounts for the inflation indices that ceased to be valid in July 1987 (Bresser Plan), May 1990 (Collor Plan 1) and February 1991 (Collor Plan 2).

However, in 2018, the matter returned to the court and there was a decision that favored workers who filed such action, contrary to the position of Caixa Econômica Federal. The case was dealt with in theme 360. However, what was discussed at the time was the understanding of a specific article of the CPC (Code of Civil Procedure). The workers won the action and got the biggest fix.

In the trial that took place in the virtual plenary this year, between December 3 and 13, Minister Alexandre de Moraes argued that the decision taken on the 360 ​​issue did not apply to the current case. In this discussion, a worker from Paraná went to the STF against the decision of the 1st Appeal Panel of the Special Federal Court of Paraná.

The worker claims that, based on theme 360, his account balance linked to the FGTS should be corrected by the inflation measured by the IPC (Consumer Price Index) in February 1991, in Plano Collor 2, which was at 21.87% , and not by the TR (Referential Rate), used in the fund, which was 7% at the time.

For the lawyer Alexandre Berthe, a specialist in review processes for savings accounts during economic plans, the debates are different. “When it comes to savings, the issue of vested rights, which is super important, applies,” he says.

The same would not be the responsibility of the FGTS, as the Supreme Court decided in 2000. “The Guarantee Fund for Length of Service (FGTS), contrary to what happens with savings accounts, is not contractual in nature, but statutory , because it follows from the law and because it is disciplined”, says the STF.

For the lawyer Rômulo Saraiva, from the Rômulo Saraiva law firm, “after 30 years of waiting, the STF decision is bad for the worker”. According to him, losses can be large, depending on the amount in the account. “The TR rate, the same index applied to savings, is too small to correct assets”, he says.

According to him, the decision can be appealed, but there will be hardly any reversal. “There is not much chance of reversibility of this decision, it would be an embargo of declaration or some regimental appeal, but normally it has no modifying effect. So, it seems, the decision will have to stabilize in that way”, he affirms.

The correction of the employee’s balance in the Guarantee Fund is under discussion at the Supreme Court, but it involves another period. The argument is that TR should not be used to correct fund money. The current formula for monetary restatement of the FGTS uses the TR plus interest of 3% per year.

The decision, which could benefit 60 million workers, was scheduled for trial in May this year, but the process was withdrawn from the agenda and there is no date to be analyzed.