The Second Section of the Superior Court of Justice (STJ) should soon resume the trial of Special Appeal 1.964.067/ES, whose matter refers to the intention of The Usiminas Pension Society — successor of the Cosipa Social Security Foundation (Femco) — to alter the hitherto peaceful understanding of that collegiate body in the sense that there would be responsibility of the fund for the payment of the retirement complementation benefit plan to former employees of the bankrupt Companhia Ferro e Aço de Victoria (Cofavi).
There is great expectation in relation to the case in view of the possibility of changing the understanding previously signed by the Second Section in the judgment of REsp 1.248.975/ES, when the vote of Minister Raul Araújo prevailed to fix the responsibility of the social security entity "for the payment, contracted in the respective benefit plan, of complementation of retirement due to participants/assisted, former employees of sponsor Cofavi, retired on a date prior to the termination of the adhering agreement, in March 1996 even after the bankruptcy of Cofavi, noting the impossibility of using the assets belonging to the Femco/Cosipa fund when, in the ordinary instance, the absence of solidarity between the funds is recognized."
Furthermore, it is expected that the thesis is fixed on the existence, or not, of solidarity between the submasses[1] of the same supplementary pension plan – since, in the previous judgment, the Supreme Court referred to ordinary authorities the competence for a case-by-case analysis of the subject – in order to ensure legal certainty, which did not occur.
The controversy began with the investigation of a collection action by a former Cofavi employee – who entered into an agreement to support Femco, already existing at the time and maintained by the employees of a diverse company, Companhia Siderúrgica Paulista (Cosipa) – in the face of said pension fund.
The author understood that the bankruptcy of his employer/sponsor would not affect the receipt of the agreed benefit, once the necessary contributions were made until Cofavi was excluded from the plan by decision of the regulatory body. That is, the author intends to receive a lifetime pension due to his contribution period, regardless of the bankruptcy of Cofavi and, consequently, the end of his contributions.
In turn, The Usiminas Pension System argues that the payment of supplementation depends on the contribution of the participants and sponsors in the form of Art. 19 of LC 109/2001,[2] since the entity has no equity and is organized in the form of a non-profit foundation.[3]
A logical consequence is that, if Cofavi ceased the transfer of the contribution of its employees, the financial health of the benefit plan was impaired by the absence of prior costing, leaving it impossible to pay the retirement in view of the non-compliance with the obligations of the sponsor. Thus, the former employees of Cofavi would be entitled only to receive the amounts arising from the liquidation of the specific fund of the bankrupt company.
This is because, according to the entity, there is no solidarity between the plans directed to the employees of each company. Thus, each submass must be in the assets of its respective benefit plan, under penalty of illegally reaching the assets formed by third parties unrelated to the situation that gave rise to the harmfulness indicated by the author (bankruptcy of the sponsor).
The closed complementary pension entity (EFPC) faced unfavorable positions in the first and second instance mainly due to the position already signed by the Second Section in the judgment of REsp 1.248.975/ES.[4]
At the time, the STJ judged the matter on a case-by-case basis, fixing the right of former Cofavi employees retired at the time before the denunciation of the plan (March 1996) to receive the benefit, provided that it recognized the solidarity of the submasses by ordinary bodies. In other words, the controversy over the existence of such solidarity was not resolved in order to guarantee legal certainty.
In this context, REsp 1,964,067/ES was pointed out as a possible indicator of overruling, mainly because, after the judgment of the aforementioned special appeal, "188 appeals were filed on the same matter before the Supreme Court, of which 142 had analysis of the respective ministers and/or by the 3rd and 45th Classes, all (100%) favorable to retirees".
There is no precedent formed in favor of the EFPC even though the Fourth Class has already witnessed a divergent position on the part of Minister Isabel Gallotti,[5] in the same way that the Third Panel diverged from the 2nd Section in appeal judgment with the same background matter.[6]
[1] Pursuant to Article 7 of CNPC Resolution No. 41 of June 9, 2021: "Submast is understood as a group of participants or assisted linked to a benefit plan and having an identity of homogeneous rights and obligations among themselves, but heterogeneous in relation to the other participants and assisted thereof plan".
[2] Art. 19. The contributions destined to the constitution of reserves will have the purpose of providing the payment of social security benefits, in reference to the specificities provided for in this Complementary Law.
[3] Art. 31. Closed entities are those accessible, in the manner regulated by the regulatory and supervisory body, exclusively:
[6] "1. Until the extrajudicial settlement of the private pension plan addressed to employees of Companhia Ferro e Aço de Vitória - COFAVI, the Cosipa Social Security Foundation – Femco, current Usiminas Pension, is responsible for the payment, contracted in the respective benefit plan, of complementation of retirement due to participants/assisted, former employees of sponsor Cofavi, retired on a date prior to the denunciation of the agreement of the in March 1996 even after the bankruptcy of Cofavi, noting the impossibility of using the assets belonging to the Femco/Cosipa fund when, in the ordinary instance, the absence of solidarity between the funds is recognized."
