STF returns to judge life review for INSS, on the 25th

The virtual plenary of the STF (Supreme Federal Court) will resume the judgment of the whole life review on February 25th. The forecast is that the final decision on the topic 1102 will be released by March 9th.

The whole-life review is a lawsuit in which retirees ask that all their contributions to the INSS (National Social Security Institute), including those made before the creation of the real, in 1994, be considered in the calculation of the benefit to increase retirement. .

The judgment that will define whether the correction is constitutional began in June of last year, but was suspended after a request for inspection made by Minister Alexandre de Moraes. The score is tied at 5-5, and Moraes’ vote will be decisive.

The rapporteur, Minister Marco Aurélio, was in favor of the review, accompanied by ministers Edson Fachin, Cármen Lúcia, Rosa Weber and Ricardo Lewndowski. The divergence occurred with the vote of minister Nunes Marques, which was followed by ministers Dias Toffoli, Roberto Barroso, Gilmar Mendes and Luiz Fux.

The inclusion of all salaries in retirement began to be requested in court to try to correct a distortion created by the 1999 Social Security reform. At the time, the transition rule applied to INSS insured persons created two formulas for calculating the average salary used in the calculation of pension benefits.

According to the rules, those who were already insured by the INSS until November 26, 1999 would have their average salary calculated on the 80% greater contributions made from July 1994. As for workers who started their contributions from November 27, 1999 , the permanent rule established that the average salary would consider the 80% highest salaries of the entire time of contribution.

As a result, those who were already insured by the Social Security and concentrated their largest contributions at the beginning of their professional life, before the creation of the Real Plan, in July 1994, were harmed. It is this distortion that retirees try to reverse in court.

The request to withdraw the case from the agenda occurred after lawyers requested the suspension of the trial, questioning calculations presented in the vote of Minister Kássio Nunes Marques, the first to open a disagreement. Nunes Marques presented a technical note from the Ministry of Economy indicating that the review would bring a breach of R$ 46 million to public coffers in ten years.

At the time, Ieprev (Institute of Social Security Studies) sent a petition to the rapporteur, Minister Marco Aurélio, for the presentation of economic studies that prove the impact of the decision favorable to the insured.

2019 Pension Reform limited review

The pension reform of the Bolsonaro government, which came into effect on November 13, 2019, again modified the calculation of the average salary, limiting the possibility of revision.

The new rule says that, for everyone who reaches conditions to retire from November 13, 2019, the average salary is calculated with all contributions from July 1994, that is, it brought clarity about the period of contributions that enter into the calculation of social security benefits paid by the INSS.

Therefore, the lifetime review could only be applied to those who completed the requirements to retire by November 13, 2019.

In addition, it is necessary to have received the first retirement payment less than ten years ago, respecting the decay period for the request for correction of social security benefits. The review pays arrears for the past five years.

What to expect from the decision?

According to experts, there is no way to predict the vote of Minister Alexandre de Moraes, which will be definitive on the subject. In addition, other ministers can change their vote after the trial begins. “There can only be no change in the vote of Minister Marco Aurélio”, explains lawyer Carolina Centeno, from Arraes & Centeno Advocacia.

The reason is that the minister, rapporteur of the case, retired. In his place, the name of André Mendonça was approved. For Carolina, there are many arguments in favor of the decision, and the main one is the thesis of the best benefit. In addition, she says that, economically, the correction should not weigh too much on the public coffers because the public entitled to it is not so broad.

Lawyer Hilário Bocchi Junior, from Bocchi Advogados, believes that, if he is going to take a stand for what he calls the “legality” of the issue, the Supreme Court must approve the review. However, in many such judgments, the court has made decisions based on political and economic issues, limiting the rights of retirees.

“By the 5-5 tie itself, we can already see that the issue is stormy. “If you look at the legality of the issue, the STJ [Superior Tribunal de Justiça] has already unanimously positioned itself in favor, which leads us to believe that, legally, it is feasible. It is a legal court, but by the very historical form of the supreme courts, not only in Brazil, in the world, it is also a political court”, he says.

For lawyer João Badari, a partner at Aith, Badari e Luchin Advogados, the decision to be taken in this trial is one of the most important in recent years. “Minister Alexandre de Moraes will vote on the future of thousands of retirees. It is one of the most awaited issues pending a decision by the court. He is a great constitutionalist”, he says.