The Federal Supreme Court (STF) decided, by 8 votes to 3, to definitively cancel the “lifelong review” thesis of the National Social Security Institute (INSS) given the Court’s change of position on the subject in 2024. The ministers also decided to release the processes that are suspended by decision of the rapporteur, Alexandre de Moraes. The trial concluded in the virtual plenary session that ended at 11:59 pm on Tuesday, 25th.
The “lifelong review” thesis sought to include, in the calculation of INSS benefits, salaries prior to July 1994, when the Real Plan was implemented. The Supreme Court was in favor of the retirees’ claim in December 2022, with a tight score of 6 to 5. At the time, the understanding was that policyholders would have the right to opt for the calculation that was most beneficial to them.
However, in April 2024, the Court already had a different composition, after the entry of Cristiano Zanin and Flávio Dino, it rejected the application of the thesis. In the judgment of another action, which dealt with the social security factor, the ministers decided that the rule that counts salaries from 1994 onwards is mandatory and retirees cannot choose the most favorable calculation.
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The case had great relevance for the Union, which estimated an impact of up to R$480 billion on public accounts if the Supreme Court ordered a review of benefits.
As the decision that annulled the “whole life review” was taken in another process, the Supreme Court has now judged an INSS appeal in the original action to adapt it to the new understanding. In his vote, Moraes considered that the thesis was “overcome”.
“There is, therefore, an overcoming of the understanding that previously prevailed in this Court, consolidated in the thesis of general repercussion set out in this Theme 1102”, stated the minister in his vote.
He was accompanied by Cristiano Zanin, Gilmar Mendes, Luís Roberto Barroso (who voted before retiring), Cármen Lúcia, Kássio Nunes Marques, Dias Toffoli and Luiz Fux.
The Supreme Court also adapted the thesis to the Court’s most recent decision that prohibited the INSS from requesting the return of benefits paid based on the “whole life review” until April 5, 2024, the date on which the Supreme Court overturned the thesis in the context of another action. Fees and legal costs for actions up to that date also cannot be charged to the beneficiaries.
By 2024, many retirees have obtained favorable decisions to review the benefit. The Court considered that they could not be harmed because they went to court based on a favorable understanding of the Supreme Court that was in force at the time. According to data cited in the trial, there are around 140 thousand actions being processed in the Judiciary on the subject.
