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Traditional private pension plans can veto sporadic contributions

Due to the risk of contractual imbalance, the 2nd Civil Chamber of the Espírito Santo Court of Justice validated the impossibility of a participant in a traditional private pension plan making sporadic contributions. Amounts that have already been transferred must be returned, plus monetary correction, without the return applicable to the plan.

In the plan analyzed, the return was the General Market Price Index (IGP-M) plus 6% interest per year. Plans of this type were marketed by the private pension organization in the 1990s, when inflation and interest rates were very high in Brazil.

The lawsuit was filed by a participant after she was informed that extraordinary contributions and sporadic contributions could no longer be made. According to the organization, the guarantee of an income indexed by the IGPM + 6% has become unsustainable in the current economic scenario.

In addition, contributions of this kind with the expected return encouraged the detour of the pension plan’s purpose. Participants began to use it as a form of investment, with a financial return considerably higher than any other offered on the market, instead of providing a supplementary retirement income.

Finally, at the time the plan was taken out, the life expectancy of Brazilians was 66 years, while today it is almost 77 years. The marketing of this type of plan was closed in 2013, with authorization from the Superintendence of Private Insurance (SUSEP), precisely because of the economic and financial imbalance.

Even so, the 1st Civil and Commercial Court of Linhares (ES), in an injunction, forced the organization to accept the plaintiff’s extraordinary contributions and sporadic contributions.

At the Court of Justice of Espírito Santo, the rapporteur Justice Fernando Estevam Bravin Ruy noted that the transaction sought by the plaintiff generates an additional contract to increase the value of the benefit initially agreed. For this reason, it must meet certain requirements and be accepted by the entity. “In other words, the participant’s expression of will does not mean that the extra contribution is automatically accepted,” she said.

The entity proved the high profitability of the plan category and the recent rise in the IGP-M. It was also shown that maintaining sporadic contributions would compromise its financial health, as it would need to exceed the technical limits of its plans in order to be able to cope with accepting unplanned risks.

The pension entity was sponsored by Santos Bevilaqua Advogados. Lawyers Gabriella Balthar, Juliana Moura and Leonardo Lopes Santinho worked on the case, led by partner Keila Manangão.