A new Chamber ruling endorses the increases by decree of retirements and pensions that the Government granted in 2020. It is from Chamber II of the Federal Chamber of Social Security, in addition to the one issued by Chamber I. In both cases, the chambermaids rejected the demand of a retiree so that the unconstitutionality of the increases by decree granted last year was declared unconstitutional.
Those increases by decree totaled in 2020 between 24.3 and 35.3%, according to the ranges of assets, and they were lower than 42% that would have governed with the formula at the end of 2017.
They were fixed through Ia Public Emergency law, approved at the beginning of the Alberto Fernández government at the end of 2019, which “suspended” the application of the previous formula. Instead, during 2018 and 2019 the suspended formula caused a 19.5% drop in relation to inflation in retirements, pensions and social benefits.
Now in the case “Torterola, Jorge Nicolás v / ANSeS”, Judge Juan Fantini, with the adhesion of his colleague Walter Carnota, from Chamber I, points out that “without prejudice to the fact that the modification of the rules by subsequent ones does not give place to any constitutional question, since nobody has an acquired right to the maintenance of the laws and especially to a mobility regime …… in the context of an emergency situation, the guidelines indicated by the authorities in relation to the National Constitution do not appear – to this day – as disproportionate and repugnant to the National Constitution. mobility of benefits ”.
In addition, they add, “there is also no evidence of a complete demonstration that the end of confiscatory that affects their rights of constitutional roots in the terms of the doctrine resulting from the precedent of the Hon. Supreme Court of Justice of the Nation (Actis Caporale) ”.
For her part, chambermaid Nora Dorado, who also rejected the retiree’s demand, says that “it is not observed that the rules that altered the original conditions under which the mobility of benefits had been established, contradict the guarantee of reasonableness, since are justified by the facts that gave rise to them, that is, an economic and emergency crisis that placed the competent authorities of the national government in the need to proceed that way in order to ensure the fulfillment of the basic functions of the National State ”.
Thus the things, until now, there is two rulings of provincial chambers challenging the increases by decree and two rulings that consider them constitutional.
With the Emergency Law, the mobility applied in 2018/2019 was “suspended” and replaced in 2020 by increases by decrees.
Apart from the extraordinary bonuses for retirees with minimum salaries, there were four decrees that increased retirements between 24.3% (maximum) and 35.3% (minimum) versus a year-on-year inflation of 36.1%. The increases were 2.3% in March plus a fixed sum of $ 1,500, 6.12% in June, 7.5% in September and 5% in December.
With the increases by the 2018/2019 formula, last year the numbers would have been different: the four increases would have added 42% for all retirees and pensioners: in March (11.56%), June (10.89% ), September (9.88%) and December (4.48%). Between 6.7 and 17.7 points higher than those granted by decree.
For example, for a retiree who in December 2019 received $ 60,000 with increases by decree in December 2020, he began to collect $ 75,320 while with the suspended formula, his retirement would have amounted to $ 85,538, 13.5% more ($ 10,218). Throughout the 12 months of 2020 the retiree would have received an additional $ 83,211. In addition, starting in 2021, increases were applied on a higher basis.
Given these differences, many retirees started lawsuits and until now, in the federal provincial chambers it was disseminated that there are 2 sentences in favor of the plaintiff retirees and now in CABA two against.
First, in July 2020, in the case “Caliva, Roberto Daniel s / various readjustments” and due to the low increase in the first increases by decree for a sector of retirees, Room II of the Federal Chamber of Salta declared that the rise in assets could not be less than the mobility formula approved in December 2017.
And he ordered that until Congress sanctioned a new mobility law, increases in retirements and pensions by decree could not be lower than the rates set in the rental law that establishes 50% inflation and 50% RIPTE (formal wages).
Then, in November 2020, the Federal Chamber of Paraná in the case “Cabrera, Roque c / ANSeS” directly declared unconstitutional the increases by decree, until then in March and June. Also the decree 542/20 that extended the increases by decree until the end of 2020 when the Emergency law had authorized the Executive to grant the increases by decree only for January-June 2020.
Meanwhile, for the crossed appeals, the issue must be resolved by the Supreme Court that it does not have deadlines to pronounce itself. The hope of retirees is that following their own recent jurisprudence, the Court ratifies that the Emergency does not enable the Government to pay less of what arose from the “suspended” formula.