Judgment in the STF of the review of life must start over from scratch

A prominent request made by Minister Kassio Nunes Marques less than 30 minutes before the deadline for the trial of the lifetime review should make the decision on the subject restart from scratch in the STF (Supreme Federal Court).

With the request, the process must leave the virtual plenary to be judged in the physical plenary. There is no date for a new vote on topic 1,102, which has general repercussions. The decision taken by the ministers will apply to all actions of the type in progress in the country.

The whole-life review is a lawsuit in which policyholders ask that all their contributions to the INSS, including those made before the creation of the real, in 1994, be considered in the calculation of the average salary to increase social security income.

In the virtual plenary, the judgment was favorable to retirees. Six of the 11 ministers had been in favor of the request for review, indicating the constitutionality of the thesis. Five of them were against the correction, after a government report indicated that there would be expenditures of R$ 46 billion in ten years if the measure were approved.

With the request of Nunes Marques, there could be a turning point in the case. The reason is that one of the favorable ministers, the rapporteur of the measure, Marco Aurélio, is retired and will not be able to vote. In addition to Marques, nominated by President Jair Bolsonaro (PL) for the vacancy, and contrary to the theme, André Mendonça, who took the place of Marco Aurélio and is very close to First Lady Michelle Bolsonaro, was also nominated by Bolsonaro and, in expert opinion, can vote against the review.

The trial of the case had begun in June of last year and was interrupted after a request for a view from Minister Alexandre de Moraes. At the time, the score was tied at 5 to 5. On February 25th of this year, voting resumed. In the first few hours, Moraes published his vote and it was already possible to know his decision.

Like Marco Aurélio, rapporteur of the case, Edson Fachin, Cármen Lúcia, Rosa Weber and Ricardo Lewndowski, the minister was also in favor of the review. In his vote, in addition to guaranteeing the right to the best benefit, he defined who could make the request.

“The insured who implemented the conditions for the social security benefit after the enactment of Law 9,876, of 11/26/1999, and before the new constitutional rules, introduced by the EC in 103/2019, which made the transitory rule definitive, have the right to opt for the definitive rule, if it is more favorable”, he said.

In June 2021, ministers Nunes Marques were against the decision, who opened the divergence based on the government report, followed by Dias Toffoli, Roberto Barroso, Gilmar Mendes and Luiz Fux.

Decision may correct error of 1999 reform

For specialists in social security, the decision to be taken in the process may correct an error in the 1999 reform, which brought losses to some insured persons already enrolled in Social Security. The transition rule applied two formulas to calculate the average salary used in the calculation of benefits.

According to the new law, those who were already insured with the INSS until November 26, 1999 would have their average salary calculated on the 80% higher contributions made from July 1994 onwards.

As for workers who started their contributions from November 27, 1999, the permanent rule established that the average salary would be calculated with the highest salaries of the entire contribution period. Correction of the benefit in court can yield arrears of more than R$ 100 thousand.

Those who already contributed to Social Security and had a higher salary before the Real Plan may have been harmed when retiring after the law. The reason is that the larger amounts were left out of the INSS account to grant the benefit. In court, the policyholders try to correct the damage.

This is the case of retired Carlos Eduardo Robba, 70 years old. He started working at the age of 18 and, according to his family, is still active today. He applied for the age benefit to the INSS at age 65 and, even after working for 47 years in a row, the retirement amount he receives is a minimum wage, today at R$1,212.

“He only receives a minimum wage. With the review, his retirement will triple. We have already won part of the process in Justice”, says his wife, Maria Cristina Robba, 67. When asking for the benefit, 25 years of work between 1969 and 1994 were outside the Social Security calculation, period in which the retiree worked most of the time with a formal contract.

Then, when he became self-employed and ran his own company, there were times when he was unable to pay Social Security contributions and others when he contributed low amounts. “These were very difficult years, of crisis”, she says.

Retired Tânia Cristina Garcia Lopes Bernucci, 62, also seeks to correct distortions in the value of her benefit. Today, the monthly income of R$2,500 that she earns from Social Security is not enough to pay her bills. “Luckily I have a husband, who is riding the wave, and a son, who is also working,” she says.

According to his lawsuit, which is waiting for the Supreme Court’s decision, the retirement value should rise to R$ 4,000. She, who worked from 18 to 49 years old, when she retired, says she is confident. “We are experiencing a horrible scenario, of war, sadness, pain, of a bad internal situation in the country, which I thought there was sensitivity when he [Alexandre de Moraes] proved favorable”, he says.

Next steps

With the request for prominence, the trial goes back to square one and should receive a new rapporteur, by means of a lottery in the STF’s electronic system, say experts. According to lawyer Priscila Arraes Reino, from Arraes & Centeno Advocacia, the case now goes to the president of the STF to schedule a new date for trial in the plenary session.

João Badari, partner at Aith, Badari e Luchin Advogados, classifies the outstanding request as “atypical”. “This is very atypical. I think everything will be raffled again, that the process really starts again”, he says.

2019 renovation limited review

The insured person who retired in the last ten years is entitled to review, provided it is before the pension reform, instituted by amendment 103, on November 13, 2019. It is also necessary that the benefit has been granted based on the rules of law 9,876 of 1999.

The correction pays off, however, for those who had high salaries before the start of the Plano Real. Workers who earned less will have no advantage. If they include the old, low-value salaries, they can reduce the pension they receive today.

Lawyer Roberto de Carvalho Santos, from Ieprev (Institute of Social Security Studies), says that the ten-year period, called decadence, is a limiting factor for policyholders. “It is necessary to start from the premise that ten years have not passed, because the consolidated understanding of the jurisprudence is that after ten years it is not possible to review the whole life.”

Priscila states that there is a right to pay late amounts limited to the last five years before the correction request, which means that the amount to be received is not so high in most cases.