In January 2023, the Brazilian Federal Supreme Court (STF) included the Direct Unconstitutionality Action - ADI No. 5090 on the trial agenda for 20/04/2023. The object of the action refers to the possibility of replacing the Referencial Rate (TR) with the Consumer Price Index (IPCA) as the index for monetary adjustment of the balances of accounts linked to the FGTS, considering that its application since 1999 has been causing losses to the holders of the accounts because it does not reflect inflation.
In this sense, it is understood that monetary restatement is invariably related to the correction of the purchasing power of money, which is measured and monitored through inflation indexes. Thus, to have monetary restatement, it would be necessary to correct the amounts through inflation indexes.
It is worth pointing out that the issue in question covers all workers with a signed employment contract who have had or still have any resources in the FGTS during this period. Therefore, given the wide range of interested parties, it can be said that the quest for a better return on FGTS has led to an avalanche of lawsuits, which are awaiting the Brazilian Federal Supreme Court's final decision.
Considering the history of other decisions rendered by the STF, particularly those which have ruled unconstitutional the application of the TR to federal writs of payment (court-ordered debt) and lawsuits against the National Institute of Social Insurance (INSS) (RE 870.947/Tema 810), experts believe that the decision may be favorable to a more beneficial correction, but that there must be a modulation of its effects, allowing a retroactive revision of the amounts for those who filed the lawsuit before the decision. There is also the possibility that the modulation provides only for future effects and, based on these possibilities, it was recommended that the interested parties, in order not to run the risk of being without the correction, retroactive or future, file the lawsuits before the matter is judged.
On the other hand, precisely because this is a matter yet to be judged, as well as the fact that the Brazilian Superior Court of Justice (STJ) has already decided in 2018 on the legality of using the TR as the index for monetary adjustment of the FGTS, it is always good to consider the risks of an unfavorable decision to workers, thus implying the need to bear the procedural costs and legal fees.
Another risk that has been discussed on the subject is related to the filing of class actions as a way to dilute the procedural costs among all participants, or even because they are filed by entities that are exempt from procedural costs. However, it is believed that these lawsuits run a considerable risk of being dismissed, due to the individual character that each revision has, according to the period and the balance of each holder.
Therefore, given the variables involving the relevant judgment in question, we are at your disposal to provide further clarification, according to the particularities of each case.
Gustavo Flausino Coelho – gustavo@bastilhocoelho.com.br
Luís Guilherme Naine de Souza – guilherme@bastilhocoelho.com.br