A (in)constitucionalidade da art. 26, § 2o, III, da emenda constitucional nº 103/2019: uma análise jurisprudencial das turmas recursais federais

Abstract

The Pension Reform - Constitutional Amendment n.o 103/2019 aimed to ensure the sustainability of the Brazilian pension system in the face of accelerated population aging and increasing pension expenses. This study analyzes the constitutionality of the amendment introduced by Article 26, §2o, III, of the aforementioned Amendment, which changed the calculation method for permanent disability retirement of a common nature, reducing it from 100% to 60% of the average contributions, adding 2% for each contribution year exceeding 20 years for men and 15 years for women. The methodology, both qualitative and quantitative, included bibliographic research and jurisprudential analysis of Federal Recursal Panels, focusing on the impact of this modification on insured individuals and the guarantee of their constitutional rights, such as dignity, equality, and the prohibition of social regression. The jurisprudential research revealed divergent interpretations among Regional Federal Courts and highlighted the pursuit of standardization of the issue by the National Uniformization Panel. The relevance of the topic persists in assessing the limits and perceptions of the content of the Brazilian Federal Constitution. It was concluded that, in the balance of principles, the financial equilibrium of the pension system cannot outweigh constitutional guarantees. The results reflect the importance of debating social guarantees in the face of economic constraints. Finally, the role of the legal interpreter in applying the material plan of the Constitution is emphasized.