No parágrafo 109, a CONTESTAÇÃO expõe a argumentação do Departamento de Normas e Legislação da SPC, contida no Parecer nº 55/2008/SPC/DELEG, de 12/06/2008: “Quando o equilíbrio é abalado,…, aparecendo um déficit,…, ter-se-á uma anormalidade que deve ser sanada o quanto antes. Serão chamados a saná-la patrocinadores, participantes e assistidos, ou seja, os diretamente ligados na preservação do plano,.., na manutenção integral de sua finalidade… Por outro lado, (aliás, o lado oposto da mesma moeda), a apuração do resultado pode, eventualmente, revelar superávit. Nesta hipótese, o legislador … manda que, primeiro, se constitua uma reserva de contingência… Constituída essa reserva de contingência, aí sim, com um superávit mais expressivo,… poderá ser constituída a chamada reserva especial… a presunção é que o superávit já pode ser utilizado para a revisão do plano. A partir do início do quarto exercício, a revisão já será obrigatória, pois entra em cena outra presunção legal, a de que o superávit é crônico e já compromete seriamente o equilíbrio do plano.”
Minha opinião.
Já nos deparamos em outro texto anterior com esse argumento das “duas faces da mesma moeda”.
O primeiro grande equívoco dessa argumentação é que ela ignora o único critério, que pode existir, para determinar a legalidade de uma Resolução previdenciária privada complementar, que é a LC 109/01. A legalidade dessa Resolução se faz comparando seus mandamentos e proibições com os mandamentos e proibições da LC 109/01. Em lugar desse cotejo, o Departamento da PREVIC (SPC) localizou na LC 109/01 uma NORMA RESTRITIVA (específica para o caso de DESFALQUE DE RESERVA, como vimos no texto “324. A CONTESTAÇÃO da PREVIC à ACP – XX” do meu blog) e, contra a evidente ordem da Lei, a torna AMPLA, abrangendo também o caso de RESERVA EXCEDENTE. Esse procedimento é claramente contrário às normas de uma boa Hermenêutica!…
A CONTESTAÇÃO nega-se a ler os artigos 19 e 21-§3º e insiste em ler erroneamente os artigos 20 e 21. Isso está ligado também àquele outro equívoco inicial, quando ela não quis ler no artigo 202 da Constituição Federal Brasileira a, na minha opinião, PRINCIPAL CARACTERÍSTICA DA PREVIDÊNCIA PRIVADA, a saber, que é REGIME (Ver o texto “308. A CONTESTAÇÃO da PREVIC à ACP – IV”). E esse meu entendimento estou encontrando expresso pelo Ministro Villas Bôas Cuevas, do STJ (Revista Consultor Jurídico, de 13/12/2014): “O ministro ressaltou que as normas editadas pelo poder público com relação às entidades de previdência privada fechada são de caráter impositivo e devem integrar as regras estatutárias, ainda que não tenha havido a devida alteração no plano de benefícios, sobretudo porque não dependem, para a sua eficácia, de ato de vontade da administração do fundo de pensão para providenciar a adaptação do regulamento ao novo sistema legal em vigor.”
Por oportuno, cabe-me igualmente informar que, nesse mesmo julgamento, o citado Ministro também expressa o entendimento que tenho defendido em meu blog, a saber, a relação jurídica de previdência complementar, construída pela LC 109/01. é exclusivamente entre EFPC e PARTICIPANTES/ASSISTIDOS, e a ela é completamente alheio o Patrocinador. Se ele é alheio como PROVEDOR DO BENEFÍCIO, muito mais o é como BENEFICIÁRIO. A Contribuição e o Patrocínio são doações gratuitas e definitivas de uma pessoa para outra com a finalidade de suportar as despesas com determinada atividade. Patrocínio é somente obrigação. Não tem a direito a nada. Eis como se expressou a respeito o Ministro, segundo a acima citada Revista Consultor Jurídico: “A orientação da jurisprudência do STJ é no sentido de que a empresa não possui legitimidade para figurar no polo passivo de demandas que envolvam participante e entidade de previdência privada, ainda mais se a controvérsia se referir ao plano de benefícios, como a concessão de aposentadoria suplementar. Isso se deve ao fato de que o patrocinador e o fundo de pensão são dotados de personalidades jurídicas próprias e patrimônios distintos, sendo o interesse daquele meramente econômico, e não jurídico.”
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