THE INTERPRETATION OF ARTICLE 22 OF CONSTITUTIONAL AMENDMENT NO. 103/2019 AND THE CONTROVERSY REGARDING THE CALCULATION OF BENEFITS FOR FEDERAL PUBLIC SERVANTS WITH DISABILITIES IN LIGHT OF THE PRINCIPLE OF MATERIAL EQUALITY

Abstract

This article analyzes the controversial interpretation of Article 22 of Constitutional Amendment No. 103/2019 regarding the calculation of retirement benefits for federal public servants with disabilities. The study traces the constitutional evolution of the Social Security Regime for Public Servants, highlighting successive reforms that altered granting requirements and calculation methods - transitioning from the original model of full pay and parity to the consolidation of the arithmetic average calculation. The central focus lies on the conflict between the automatic application of the average calculation (provided for in Complementary Law No. 142/2013 and referenced by the 2019 reform) and the right to transition rules that ensure full benefits for servants who entered public service by December 31, 2003. Using the technique of "interpretation in accordance with the Constitution," the paper questions the current administrative directive (Ordinance SGP/SEDGG/ME No. 10,360/2022), which imposes the average calculation on all servants with disabilities, regardless of their entry date. The study concludes that such practice may constitute indirect discrimination and an affront to the principle of substantive equality, as it provides a less advantageous pension treatment to a group in a situation of greater vulnerability.