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Retired: the details of the key case analyzed by the Court

October 25, 2018 - By Joseph Taylor

The Supreme Court began to analyze one of the most sensitive issues that it has in its hands: the readjustment trials of retirees, based on a witness case, that of retired Lucio Orlando Blanco.

From Blanco’s file – who retired in 2003 with less than 50% of the average salary – it appears that if the Court confirms the judgment of judges Luis Herrero and Carmen Dorado of Room II of the Social Security Chamber, corresponds to a 31% higher than the one offered by the ANSeS with the Historical Repair. And a retroactivity 50% greater by the accumulation of these differences over 15 years.

The Court’s decision has an impact on more than 150,000 lawsuits that go back to retirements from 2002 onwards that still do not have a final judgment due to the ANSeS appeals and delays in the Courts. Since last April, this difference extends to the determination of the average salary of the last 10 years fixed by the salaries of new retirees.

These trials correspond to the so-called Elliff case when, in 2009, the Supreme Court upheld the ruling of Chamber II of the Chamber, which determined that, between 1995 and 2008, when the mobility law came into force, those salaries had to be updated by the ISBIC (Basic Salary Index of Industry and Construction).

On the other hand, ANSeS does not accept the Elliff ruling and argues that the updating rates set in the Historical Reparation Act of 2016 must be applied. It is the RIPTE (Average Taxable Salary of Stable Workers) prepared by the Ministry of Labor.

In 97% of the cases, the RIPTE yields an average remuneration and a salary and a retroactive one inferior to those of the sentences. The difference is smaller for those who retired between 2002 and 2005 because during the years of convertibility wages remained almost unchanged. And it enlarges for those who retired later. For this reason, without being the most representative and favorable to the plaintiff, even in the Blanco case, a difference arises in favor of the retiree.

In Justice, the three Chambers of the Social Security Chamber maintain that the RIPTE index was approved by law 27,260 in July 2016 to update the assets and cancel the pension debts of retirees and pensioners who voluntarily adhered to the Historical repair. As a result, the judges say, this index can not be applied to those who did not adhere to or rejected the agreement offered by ANSeS. They also argue that the law 27,260 of 2016 did not rule at the time of beginning the trial and the Elliff doctrine.

In the Blanco case, in addition, the judges Herrero and Dorado insisted that retirement must keep a “fair and reasonable” relationship with what the retiree earned in his active stage. “The pension benefit replaces the income that the petitioner had as a result of his work, so that the standard of life insured by retirement must keep a fair and reasonable relationship with the one that provided the worker and his family with the remunerations that had been receiving and that defined the amount of their contributions, which has led to privilege as a principle of the necessary proportionality between the assets of passivity and activity, says the ruling.

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