In a decision that will cause an avalanche of lawsuits due to the expectations raised in class passive, the Supreme Court of the Nation (CSJN) was again siding with the retired, following the generous spirit of the event Badaro.
But this time, the update increased holding Alberto Elliff, which is covered in a subsequent rule: Act 24241.
The opinion is extremely important and mark a turning point in this matter. It happens that this is the first time after this important precedent, the High Court issued on mobility retirement.
The difference lies in the cause Badaro it was applied to a previous law, the 18,037 (passed in 1969) and therefore included only to retirees who were covered under this policy.
Following this decision expands the horizon of passive class can now claim to justice by having a date.
Ie: if Badaro, but was applied in particular, served to all those who retire until 1993 could sue, citing this precedent.
If Elliff, who also settled the question of a person opens a huge door for all those who retired between 1993 and 2006 may also take legal action.
Also, the novelty of this ruling is that the judges of the High Court decided to apply the index Salaries INDEC, between January 2002 and December 2006, to adjust the credit of the retired, and not as it was doing National Administration of Social Security (ANSES) did so only until March 31, 1991.
In addition ordered the agency to recalculate the credit of launching a pensioner applying the update to the value of wages received during the last 10 years of activity. This is important because it is the average of these years which takes into account in calculating the initial retirement.
"The Court responds to this failure to question what to do with the new retirees," said an expert on social security, Adrián Troccoli, Sobral-Study Troccoli.
This decision will bring more of a headache to the Government by the thousands and thousands of complaints and ANSES land on the impact on the national budget.
To realize this, just look at the data provided by this body, after the case Badaro, in 2008, had to pay 26,000 judgments for $ 2,000 million in assets for updating forecasts.
But the concern is not only for the costs that this cause will, but by the flood of lawsuits after this court decision will be launched in the charter of Social Security. The numbers reflect the seriousness of the situation: between February and May these courts received 36,529 claims at a rate of 400 per working day. Until the middle of this year 9132 cases were taken per month.
One of the main reasons for this collapse was the number of complaints initiated, after the failure Badaro, where the Court ruled in late 2007 that the plaintiff should have to be updated following the rhythm of the rise in wages between 2002 and 2006.
"It will encourage the beneficiaries of the Act to provide 24,241 new demands that are now assured of their right to complain," Troccoli said.
Because until last year the pension increases were granted by governments with discretion and in different ways depending on the income bracket, this assumption was not met for a significant number of liabilities. That led to a delay in the purchasing power of assets, which in some cases came to be ranked at 40 percent.
This distortion was not corrected by the law now in force mobility. This rule provides for automatic adjustments and periodic function of the assets in an index, but applies only in March.
The analysis of the cause
Mr Elliff retired in 2004, according to the provisions of Act 24,241. To obtain the benefit of 35 years credited service in the public domain, two years in the judiciary and 33 in the AFIP. Their functions ceased in May 2000 for hosting a buyout (Law 25237), had a waiting period of three years and met the required age for retirement in January 2004.
Elliff initiated a lawsuit seeking to re-calculate your retirement have initial reset since it was granted to the present and setting a pattern of correction thereafter.
In his presentation before the court, said that for the calculation of the compensatory and providing annual retention, taking into account the fees collected during the last 10 years of work, updated in part accrued until March 31, 1991, no and the following.
To justify its claim, the pensioner referred to the crisis of 2002, the collapse of the currency and the deterioration of the currency.
Furthermore argued that, if any, might apply the same rationale of the majority in the "Sanchez" (2005).
They used to argue that the failure to update the salaries for the period after 31-3-91, the calculation provided for in Article 24 of Law 24,241, it is important to have a reduction in the compensatory or which infringes the right property and obtain a retirement mobile, as indicated by articles 17 and 14a of the Constitution.
Also, Elliff said the fact that the last increase was granted on April 11, 1994 involves a freeze and stresses that the laws of general budgets, beginning in 1995, were approved without giving mobility to retirement.
Regarding the aforementioned mobility, if the retiree claimed "Badaro, as noted by the nature of the alternative retirement benefit for which the amount needed to keep a reasonable proportion to the incomes of workers.
In short, what Elliff was intended to have the initial adjustment, from March 1991 until January 15, 2004, the date of allocation of profit.
When you reach your claim to the highest court in a unanimous vote, the judges decided that the findings made in the ruling "Badaro" apply to this case, since the situation of those who obtained their insurance benefit under the Act differs 24,241 those who have done so the previous system of Law 18,037.
In short, this ruling applies to the Wage Index of the National Institute of Statistics and Censuses (INDEC) between January 2002 and December 2006, since from 2007 to date, the increases granted by the government are correct in comparison with the summary record.
To Elsa Rodríguez Romero, director of Social Security Bar, this ruling makes invalid the application of inflation adjustments for retirees covered by the Law 24,241 to date and not until March 31, 1991, as the ANSES.
In this regard counsel stressed that the ruling sets the standard for all cases that come to justice.
"Shortening the time of the trials, because the decision of the Court to have the judges much of 1 instance of the House must abide by," said Romero Rodriguez.
Which paved the way: Sanchez and Badaro
The first step was a case Sánchez in 2005. At that time, the Court reinstated the 82% to plaintiff and "restored the right to mobility."
In the case Badaro, which caused so much impact on public opinion, the High Court was issued in two occasions: one in 2006 in which judges asked Congress and the Executive to legislate with regard to mobility retirement. In the absence of a favorable response in 2007 due to issue a resolution that ultimately gave rise to the retiree.
To decide in this direction, taking into account two variables: the cost of living and rising wages. Following this logic, consider that for the period 2002/2006 were granted an increase of 88.57 percent.
SOURCE:
Victoria Perez Zabala - Daniela San Giovanni
iProfesional.com
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