Minister Alexandre de Moraes, of the Federal Supreme Court (STF), voted this Friday (20) in favor of guaranteeing the possibility of the so-called “lifelong review” in pensions.
The recalculation is a demand from retirees who seek to review the amounts received monthly from the National Social Security Institute (INSS).
So far, Moraes’ vote is the only one to allow the review.
Five other ministers reject this possibility: Nunes Marques, Cristiano Zanin, Flávio Dino, Cármen Lúcia and Gilmar Mendes.
The case is analyzed in a virtual session that began this Friday (20). The trial runs until September 27th. In the format, there is no debate between ministers and votes are presented in an electronic system.
The Court judges two appeals against a STF decision from March this year, which reviewed pensions.
At the time, the ministers judged a transitional rule created with the 1998 Social Security reform to be constitutional. This rule prevents, in practice, the understanding that serves as the basis for reviewing the entire life.
The STF had authorized the review of pensions, in another process, in 2022. This position ended up being undermined by the March decision.
Moraes’ vote
When presenting his vote, Moraes argued that the validity of the whole life review must be preserved from the effects of the March decision.
This is because, according to him, the transition rule that was validated “favors those who are already more favored”. For Moraes, it is necessary to allow the retiree to opt for the most advantageous rule, which is guaranteed by the whole life review thesis.
Moraes stated that there are differences between what is discussed in the actions on the 1998 Social Security reform and those on the whole life review. Therefore, decisions in one case should not impact the other.
The minister also said that the change in the Court’s position, by blocking the review, was due to the change in the composition of the plenary: Marco Aurélio, Ricardo Lewandowski and Rosa Weber left, and André Mendonça, Cristiano Zanin and Flávio Dino entered.
“It was in the face of this scenario of change in the composition of the Court that the thesis established for the Theme was overcome, not because there was a change in the factual reality or alteration in the dominant legal conceptions that justified overcoming the qualified precedent of this Federal Supreme Court”, he declared.
Decision
In , by 7 votes to 4, the STF ministers understood that retirees cannot opt for the most advantageous rule when calculating their benefit. This, in practice, overturned the “lifelong review” that had been validated in 2022, in another process.
The position was presented by minister Cristiano Zanin and accompanied by Flávio Dino, Luiz Fux, Dias Toffoli, Gilmar Mendes, Roberto Barroso and Nunes Marques.
Ministers Alexandre de Moraes, André Mendonça, Edson Fachin and Cármen Lúcia were defeated.
The decision was given in two actions that questioned points of a 1999 rule that changed points of the Social Security Benefits Law, as a result of the Social Security reform approved the previous year.
By validating one of these points, which deals with a rule for calculating retirement, the ministers voted for it to be compulsorily followed. This, in practice, bars the retiree’s power of choice, which supported the possibility of him opting for the “whole life review” rule.
There is great interest on the part of the federal government in avoiding authorization to review pensions due to the alleged expense that it would cause to the public coffers. An initial impact estimate was calculated at R$480 billion, in a “pessimistic” scenario in which all retirees could review their benefits.
The review
The “lifetime review” has this name because it refers to the recalculation of the retirement value considering all contributions made during the worker’s lifetime, including those prior to the adoption of the Real Plan in 1994.
According to the transition rule adopted after the 1998 pension reform, only contributions made from 1994 onwards should be considered for calculating retirement.
The rule was adopted to avoid harming workers due to high inflation before the Real Plan. It turns out that, in some cases, there was a loss, and the worker would receive a higher pension if he could be covered by the definitive rule and not the transition rule.
In December 2022, the STF decided that retirees could opt for the rule that was most advantageous. Thus, he validated the recalculation considering the contributions made during his pre-Plano Real life (the so-called “whole life”).
