THE (UN)CONSTITUTIONALITY OF THE NEW CALCULATION RULE FOR THE PERMANENT DISABILITY RETIREMENT BENEFIT UNDER THE GENERAL SOCIAL SECURITY REGIME AFTER CONSTITUTIONAL AMENDMENT NO. 103/2019: AN ANALYSIS OF EXTRAORDINARY APPEAL NO. 1,469,150 (THEME 1,300) IN LIGHT OF THE PRINCIPLES OF ISONOMY AND THE PROHIBITION OF SOCIAL RETROGRESSION

Abstract

Constitutional Amendment No. 103/2019 substantially changed the calculation rule for the permanent disability retirement benefit under the General Social Security Regime, reducing its amount for insured individuals whose incapacity does not arise from a workplace accident or an occupational disease. When ruling on Extraordinary Appeal No. 1,469,150 (General Repercussion Theme 1,300), the Brazilian Federal Supreme Court recognized, by a narrow majority of six votes to five, the constitutionality of this new system. This article aims to critically analyze that decision in light of the principles of equality, isonomy and the prohibition of social retrogression. To this end, the deductive method was used, through bibliographic, doctrinal, legislative and jurisprudential research, with particular focus on the judgment of the aforementioned appeal. The work is divided into four chapters, addressing, respectively, the changes brought about by Constitutional Amendment No. 103/2019, the judgment of Extraordinary Appeal No. 1,469,150, the compatibility of the new rule with the principles of equality and isonomy and, finally, its compatibility with the principle of prohibition of social retrogression. It is concluded that, despite the prevailing position at the Supreme Court, consistent grounds remain – especially those set out in the dissenting opinion of Justice Flávio Dino – indicating that the new calculation rule establishes unreasonable distinctions and compromises the essential core of the right to social security protection of permanently disabled insured individuals.