The Supreme Court (STF) formed a majority on Friday (15) to validate the application of the social security factor to pensions granted under the rules of transition from the 1998 Social Security Reform.
The AGU (Attorney General of the Union) estimates that the impact on public coffers in case of defeat could reach R $ 131.3 billion.
“The monetary values, related to the concessive period from 2016 to 2025, point out that the financial impact resulting from the removal of the use of the social security factor in the calculation of retirement benefits during this period represents the amount of R $ 131.3 billion, with a growing trend over the following years,” AGU said in a memorial delivered to the Supreme last week.
In LDO (Budgetary Guidelines Law) of 2025, the expected impact was R $ 89 billion.
The rapporteur, Minister Gilmar Mendes, voted to deny the appeal and was accompanied so far by ministers Alexandre de Moraes, Cristiano Zanin, Flávio Dino, André Mendonça and Luiz Fux. The conclusion of the trial is scheduled for Monday (18).
Most ministers argued that, in the benefits granted to insured members of the RGPS (General Regime of Social Security) until December 16, 1998, the incidence of the social security factor, created by Law 9,876/99, should prevail.
The discussion was whether the social security factor could override the transition rules brought by the EC (Constitutional Amendment) 20/98.
The social security factor is a formula that involves elements such as the age of the insured, the contribution time and the expectation of survival at retirement.
The result of this calculation is decisive for the definition of the monthly benefit amount. The social security factor was extinguished for most workers in the 2019 Social Security Reform.
The case began with the action of a insured against the INSS asking for the revision of the calculation of his retirement by proportional contribution time, granted in July 2003, under the constitutional amendment 20/1998.
For her, the social security factor created in the 1999 Law should not have been applied to the calculation of its benefit because it overlapped the transition rules created in the 1998 amendment and caused the double restriction of the benefit, reducing its monthly income.
For Gilmar, the social security factor is inserted in a context of structural adjustments necessary to maintain the sustainability of the system and that one cannot speak of “absolute crystallization” of current standards.
“In social security matters, legitimate trust operates in a mitigated manner, protecting only consolidated legal situations, such as those in which all the requirements for granting the benefit have already been completed,” he said.
