INSS (National Social Security Institute) retirees who won a lifetime pension review in court would not need to return the amount they received through preliminary injunction, according to the understanding of four ministers of the STF (Federal Supreme Court) in a trial taking place in the court's virtual plenary.
Minister Dias Toffoli presented, on Tuesday (24), a vote in two appeals of the ADIs (Direct Actions of Unconstitutionality) that overturned the review in March of this year, stating that, as there was a decision in favor of the correction in 2022, those who received it in advance would not need to pay these amounts to the INSS.
Toffoli's position was followed on Wednesday (25) by ministers Alexandre de Moraes and Luís Roberto Barroso, president of the court, and this Thursday (26) by Nunes Marques, rapporteur of the appeals.
Marques' vote, however, is against the declaration of embargoes, indicating that the review of the entire life remains without the possibility of being granted, and has the majority so far. The trial ended this Friday (27).
In his position, Toffoli rejects the declaration of embargoes — a challenge to the STF's decision — as does Nunes Marques, but proposes modulation of another issue that was not being debated in the process.
For him, there is no right to correction, as requested by CNTM (National Confederation of Metalworkers) and Ieprev (Institute of Social Security Studies), but amounts received up to April 5, when the STF ruling against the review was published, should not be returned.
This would prevent the INSS from filing so-called rescission actions, charging retirees for the differences paid when they obtain an injunction in court, but which would no longer be valid with the STF's denial of the review.
"There will be no need to return it, considering that it is for food and salary purposes. It would be important for the Supreme Federal Court to address this issue," says Rômulo Saraiva, a lawyer specializing in Social Security and a columnist for Sheet, about Toffoli's vote.
Luís Roberto Barroso, who had already voted and followed Nunes Marques' position, presented a new position, following part of Marques' thesis, that is, against the review, but following Toffoli and being against the rescission actions.
“I would like to point out, however, that there is no need to refund the amounts received by the insured parties as a result of court decisions issued up to the date of publication of the minutes of the judgment of the direct actions (April 5, 2024). Such amounts constitute alimony received in good faith, which eliminates the obligation to return them, in accordance with precedents of this court,” he states.
Nunes Marques adds his vote to ensure that retirees who have already received benefits do not have to repay them. "I share Justice Luís Roberto Barroso's understanding and, therefore, I agree with the explanation presented in the joint opinion delivered by His Excellency," he says.
Lawyer João Badari, from Aith, Badari e Luchin, considered Toffoli's vote correct due to the fact that the favorable decisions granted in court to retirees are related to the 2022 position of the STF, which approved the review, and the STJ (Superior Court of Justice), which had already been in favor of lifelong retirement.
"Justice Toffoli modulated his vote, stating that INSS retirees don't have to return what they received. I think that's fair. Because it wasn't a precarious decision, one that comes from the first instance and the second instance. It was a decision that the TRFs [Federal Regional Courts] understood this way, the Superior Court of Justice understood this way, and the Supreme Federal Court itself, in its plenary session, with general repercussions."
Adriane Bramante, president of the Social Security Law Committee of the OAB SP and advisor to the IBDP (Brazilian Institute of Social Security Law), states that the debate surrounding this modulation is being held in the action that directly discusses the review of the entire life, in theme 1.102, in the STF.
“This issue is in the embargoes of the entire life review, and not in the two ADIs,” says Adriane.
Toffoli's position has not yet received any votes in favor. For now, the majority of ministers are against the review. The trial of ADIs 2.110 and 2.111 ends this Friday (27).
Until then, there may be a change of vote, a request for a highlight, when the case is taken to trial in the physical plenary of the Supreme Court, or a request for review, when a minister asks for more time to better analyze the action.
The review of the entire life is a legal process in which the retiree requests the recalculation of the benefit to include old salaries, from before July 1994, paid in other currencies.
In March, when judging two ADIs of more than 20 years old, filed in 1999 against law 8.213, which created the social security factor, the ministers understood, by 7 votes to 4, that the correction is not possible, contradicting the decision of 2022, when they approved the review when judging topic 1.102, which deals directly with the case.
The requests presented in the appeals of both actions are for the STF to reconsider its decision and maintain its previous understanding, allowing the review, or at least guaranteeing payment of the correction to those who have legal action.
Among the arguments put forward by Ieprev and CNTM is that the Supreme Court had previously upheld the review, and therefore, judges were ruling in favor of the insured simply by complying with the court's ruling. Another point concerns the cost of the lawsuits.
Both were denied by Nunes Marques in his report, who understood that it was not possible to accept the Ieprev appeal, and told CNTM that there were no flaws in the judgment of the entire life review in March.
The minister explains that, in 2022, when approving the matter, the court disregarded the fact that the 1999 actions had already had a favorable position, which would overturn the correction.
With information from Folha de São Paulo
