The judgment of an old action pending in the STF (Supreme Federal Court) for more than 20 years, which challenges the implementation of the social security factor, could put at risk the entire life review of the INSS (National Social Security Institute), aimed at the 28th of this month.
Approved by the Supreme Court in December 2022, by 6 votes to 5, the lifetime review is a judicial process in which the retiree requests the correction of the benefit to include old salaries, from before July 1994, in the calculation of social security income.
The thesis is contested by the AGU (Attorney General of the Union), which requests the annulment of the decision and the return of the case to the STJ (Superior Court of Justice).
The case was on the Supreme Court’s agenda on February 1, when the new year of the Judiciary began, but was never judged. The initial forecast was that he would go to the plenary this Wednesday (7), which will not happen.
The ministers analyze the embargoes for clarification, which is a request to clarify points of the decision.
The trial was rescheduled for February 28, with the inclusion on the agenda of ADI (Direct Action of Unconstitutionality) 2,111, which calls for the overturn of the social security factor, approved by law 9,876, of 1999, contesting the transition rule in the government’s pension reform Fernando Henrique Cardoso (PSDB) and could overturn the entire life review.
The social security factor was created to limit retirement requests, but, in practice, it reduced the value of the benefit.
The index takes into account the insured’s age at retirement, the length of contribution to the INSS, the life expectancy of Brazilians calculated by the IBGE (Brazilian Institute of Geography and Statistics) and the citizen’s survival.
The formula, classified as “odd” by the CNTM (National Confederation of Metalworkers) in the action that contests it, was in force in pensions based on contribution time —reducing the benefit— until 2019, when the Jair Bolsonaro government’s pension reform was approved ( PL).
It is still possible to use it in some specific cases, but in a limited way.
“The approved formula, in addition to significantly reducing benefit values, given its complexity, makes it difficult and even prevents its understanding by workers”, says part of the process.
The concern of lawyers who defend the review of their entire lives is with the vote of Minister Luís Roberto Barroso, current president of the court, in the action that discusses the social security factor.
For Barroso, if the unconstitutionality of article 3 of law 9,876, which deals with the calculation of the benefit for those who joined the INSS before and after the 1999 law, is declared unconstitutional, it is not possible for the insured to choose between the best rule, a thesis approved in the review of your entire life.
“The 1012 process [revisão da vida toda] it is linked to 2.111 and there is an important concern about what will happen in the STF in this thesis”, says lawyer Adriane Bramante, from the advisory board of IBDP (Brazilian Institute of Social Security Law).
“For the insured, what is being discussed is very complex”, says the expert. “If the STF does not review, the insured will not understand the technical issue.”
Lawyer Gisele Lemos Kravchychyn, president of IBDP and defender of the retiree who took the life review action to court, contests the arguments used by the AGU, opposing them to technical issues provided for in the court’s own rules.
According to Gisele, there was no omission in the judgment of the case, as the AGU says in its defense, which was accepted by minister Cristiano Zanin, and the case should not be discussed again in the STJ, as it had already been evaluated by the physical plenary of the STF in December 2022.
Another issue pointed out by Gisele is that Zanin, substitute for minister Ricardo Lewandowiski, could not vote asking for the trial to be annulled, as he did, since the former Supreme Court minister presented his vote before retiring and did not contest this point.
“His vote would only be allowed on the issue of annulment and plenary reservation if the ‘chair’ he occupies had not voted. He cannot enter into matters that the retiring minister has already voted on”, she explains, recalling the rule from the STF itself.
For lawyer João Badari, who represents Ieprev (Institute of Social Security Studies), ministers will respect the principle of legal certainty and, therefore, must be in favor of the review, without returning the case to the STJ. “The board has already guaranteed a lifetime review,” he says.
UNDERSTAND INSS’ WHOLE LIFE REVIEW
The whole life review is a judicial process in which INSS retirees ask to include old salaries in the retirement calculation, before the Real Plan, paid in other currencies.
The insured person who retired in the last ten years is entitled to correction, as long as it is in accordance with the rules prior to the Social Security reform, established by amendment 103, on November 13, 2019. It is also necessary that the benefit has been granted with based on the rules of law 9,876, of 1999.
The reason why the right to a lifetime review is being discussed is that the 1999 Social Security reform changed the calculation of the average salary of INSS policyholders, guaranteeing new taxpayers more advantageous rules than those who were already paying INSS.
By law, those who were INSS members affiliated until November 26, 1999 have their average salary calculated with 80% of the highest contributions made from July 1994, when the Real Plan came into force.
But those who started contributing to the INSS from November 27, 1999 and reached the conditions to retire by November 12, 2019 have the average calculated on the 80% highest salaries of their entire working life.
The 2019 reform changed that. Anyone who meets the conditions to retire from November 13, 2019 has the average salary calculated with all contributions made from July 1994 onwards.
The review is limited. In general, it pays off for those who had high salaries before the start of the Real Plan, but there may be other profiles that benefit, such as insured people with low salaries, but who only had payments to the INSS before 1994.
In 2022, the winning thesis was that “the insured person who implemented the conditions for the social security benefit after the entry into force of law 9,876, dated 11/26/1999, and before the entry into force of the new constitutional rules, introduced by EC 103/2019, has the right to opt for the definitive rule, if it is more favorable to you.”
How is the score at the STF?
The STF had started the trial of the motions for clarification in the whole life review action, in the virtual plenary, in mid-2023. With Lewandowski’s retirement, Zanin took a seat on the court and requested a view of the process, to better analyze the case .
When he returned it, he was against the review. The case was judged again in the virtual plenary, with different votes between Alexandre de Moraes, rapporteur of the action, Rosa Weber, who retired and left her position in this action, and Zanin.
Edson Fachin and Cármen Lúcia followed Rosa’s vote. Barroso and Dias Toffoli accompanied Zanin. With the differences, Moraes requested a review, taking the case to the physical plenary, and the process was scheduled for February 1st. On the day, he was not judged.