INSS: what happens now with the lifetime review? – 03/21/2024 – Market

The judgment of an action stopped 25 years ago by the STF (Supreme Federal Court) overturned the thesis of a lifetime review, awaited for two decades by retirees and pensioners of the INSS (National Social Security Institute).

The correction was approved by the STF in December 2022 by 6 votes to 5, guaranteeing INSS policyholders the inclusion of social security contributions prior to July 1994 in the retirement calculation to increase their monthly income.

This Thursday (21), when judging two actions from 1999 on the constitutionality of the social security factor, by seven votes to four, the STF understood that it was not possible to request a review.

The ministers were going to analyze the embargoes for declaration by the AGU (Attorney General of the Union) — an appeal that challenges part of what was defined in 2022 — against life, but there was no time.

WHAT IS THE ACTION THAT TOOK DOWN THE WHOLE LIFE REVIEW

ADI (Direct Action of Unconstitutionality) 2,111 discussed whether article 3 of law 9,876, of 1999, which changes the calculation of benefits and creates the social security factor, is constitutional or not.

The social security factor is a calculation that takes into account the insured’s age, contribution time and life expectancy.

The function was to discourage early retirement and was in force in pensions based on contribution time — reducing the benefit — until 2019, when the Jair Bolsonaro (PL) government’s pension reform was approved.

It is still possible to use it in some specific cases, but in a limited way in transition rules.

The debate was around the constitutionality of article 3 of law 9,876. It deals with calculating the benefit for those who joined the INSS before and after the 1999 law.

The decision in favor of the social security factor and the calculation of the reform was unanimous.

Thus, ministers Cristiano Zanin, Flávio Dino, Nunes Marques, Dias Toffoli, Luiz Fux, Gilmar Mendes and Luís Roberto Barroso voted in favor of making the calculation rule mandatory, which invalidated the whole life review.

HOW EACH MINISTER VOTED

When voting on ADI 2,111, minister Cristiano Zanin, Ricardo Lewandowski’s replacement — in favor of reviewing the entire life in 2022 — argued that it was not possible to leave it up to the insured to choose the best calculation rule if the 1999 reform was considered constitutional.

Alexandre de Moraes, the first to vote, said he was in favor of maintaining the constitutionality of the social security factor, but defended the lifelong review, reinforcing the 2022 position.

In his arguments, the minister stated that the 1999 reform rule harmed policyholders who were already contributing to the INSS and benefited those who were yet to enter the system, which would be unconstitutional.

The newly installed minister Flávio Dino could not vote on the whole life review action, as he replaced minister Rosa Weber, who took a stand before retiring, but gave her opinion in ADI 2,111, following Zanin, as well as Barroso, Gilmar Mendes , Dias Toffoli and Luiz Fux.

Rapporteur of the action, Minister Nunes Marques changed his vote at the end of this Thursday’s trial and was left with the majority.

Ministers Alexandre de Moraes, Edson Fachin, André Mendonça and Cármen Lúcia were defeated.

SCOREBOARD FOR THIS THURSDAY’S VOTE

7 votes for making the 1999 calculation mandatory and against lifelong:

1. Cristiano Zanin
2. Flavio Dino
3. Luiz Fux
4. Toffoli Days
5. Gilmar Mendes
6. Roberto Barroso
7. Nunes Marques (rapporteur)

4 votes for the constitutionality of the 1999 reform and in favor of lifelong:

1. Alexandre de Moraes
2. Edson Fachin
3. Carmen Lucia
4. André Mendonça

How ministers voted 2022 whole life review

6 votes in favor of policyholders:

1. Rosa Weber
2. Carmen Lucia
3. Edson Fachin
4. Alexandre de Moraes
5. Ricardo Lewandowski
6. Marco Aurélio (rapporteur)

5 voted against the correction:

1. Luís Roberto Barroso
2. Gilmar Mendes
3. Luiz Fux
4. Toffoli Days
5. Nunes Marques

At the time, André Mendonça was prevented from voting according to the Supreme Court rule that prohibits the positioning of substitute magistrates for a retired minister with a vote already given.

WHAT HAPPENS NOW

The STF still needs to rule on the motions for declaration against the whole life review presented by the Union.

The legal proceedings are at a standstill, awaiting this judgment. According to the CNJ (National Council of Justice), there are currently 61,411 lawsuits in the Judiciary discussing correction. The processes were suspended pending the decision of the STF ministers.

The Supreme Court’s understanding must be followed by all courts and social security courts in the country until all processes are extinguished.

Policyholders who have not filed a claim should no longer file a claim.

Those who have already won the case will continue to receive a higher pension payment, but when the case comes to an end, the INSS will be able to take rescission actions demanding what has already been paid.

The STF, however, needs to define details about the actions in court, in a phase called modulating the effects of the decision.

Understand Lifetime Review

This is a legal process in which INSS retirees ask to include old salaries — paid in currencies other than the real — in the retirement calculation.

The reason why the right to correction is being discussed is the approval of law 9,876, of 1999, which created the social security factor and changed the rule for calculating the average salary, the basis of INSS benefits.

The Fernando Henrique Cardoso government’s pension reform introduced a transition rule that benefited new insured people and harmed some of those who were already in the job market.

By law, those who joined Social Security until November 26, 1999 have their average salary calculated with the 80% of the highest contributions 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 — therefore, their entire life .