A CONTESTAÇÃO DA PREVIC À ACP embasa toda a sua argumentação, a favor da legalidade da Reversão de Valores e da legalidade dessa inominável transferência de recursos da Reserva Especial do Plano de Benefícios 1 da PREVI para o Patrocinador, operada em início do ano de 2010, nesta premissa: É VEDADA A MELHORIA DO BENEFÍCIO PREVIDENCIÁRIO, isto é, pagamento de benefício previdenciário acima do valor contratado do benefício previdenciário.
Com efeito, assim se pronuncia a CONTESTAÇÃO:
“… as relações jurídicas devem ser, necessariamente, regidas com base NO QUE FOI CONTRATADO ENTRE AS PARTES, prevalecendo neste sistema o princípio do pacta sunt servanda.” (item “Direito”)
“Se fosse possível manter no plano PBS-A o superávit em questão, visando a um infinito aumento no valor dos benefícios, ou a UM AUMENTO ACIMA DO PREVISTO CONTRATUALMENTE estaria consagrada a atuação do fundo de pensão como instituição financeira ou fundo de investimento na busca de lucros aos Participantes, e não na busca do objetivo de pagar benefícios de natureza previdenciária.” (parágrafo 55).
“Em outras palavras, FOGE AO OBJETIVO DO PLANO PREVIDENCIÁRIO PROMOVER A EXTENSÃO DA RENDA ACIMA DAQUELE PATAMAR SALARIAL QUE DEU ORIGEM AO PRÓPRIO BENEFÍCIO, pois o preceito previdencial não é o de dar ganho real aos benefícios.” (parágrafo 110/26).
Ora, o §3º do artigo 21 da LC 109/01, a Lei Básica da Previdência Complementar, o critério autêntico e constitucional da legalidade de uma norma jurídica de previdência complementar, manda textualmente: “Na hipótese de retorno à entidade dos recursos equivalentes ao déficit previsto no caput deste artigo, … , OS RESPECTIVOS VALORES DEVERÃO SER APLICADOS NECESSARIAMENTE NA REDUÇÃO PROPORCIONAL DAS CONTRIBUIÇÕES devidas ao plano ou EM MELHORIA DOS BENEFÍCIOS.”
Atente-se bem para esse NECESSARIAMENTE! Então, essa supramencionada premissa (É VEDADA A MELHORIA DO BENEFÍCIO PREVIDENCIÁRIO), fixada pela a CONTESTAÇÃO, é certa ou errada? É verdadeira ou falsa? É legal ou ilegal? Na minha opinião essa supramencionada premissa é errada, falsa e ilegal (contra legem).
Ora, argumentação e conclusão, baseadas em premissa errada, falsa e ilegal, são igualmente erradas, falsas e ilegais.
Logo, toda aquela CONTESTAÇÃO, que, incluindo seus anexos, se estende por 60 (sessenta) páginas, bem como sua conclusão, a saber, a legalidade da Reversão de Valores e dessa supramencionada inominável transferência de parcela Reserva Especial para o Patrocinador, são erradas, falsas e ilegais, na minha opinião.
O artigo 19 da LC 109/01, igualmente, manda que se promova melhoria do valor contratado do benefício previdenciário : “As contribuições destinadas à constituição de RESERVAS terão como finalidade prover O PAGAMENTO DE BENEFÍCIOS DE CARÁTER PREVIDENCIÁRIO…” É óbvio o mandamento deste artigo, o mais importante artigo da LC 109/01 e que, não obstante tal importância, não mereceu uma só referência da parte da CONTESTAÇÃO: A RESERVA SÓ PODE SER GASTA NO PAGAMENTO DE BENEFÍCIOS PREVIDENCIÁRIOS, MESMO QUE O VALOR SUPERE O VALOR DO BENEFÍCIO CONTRATADO. É que este artigo, sim, é AMPLO, vale para os TRÊS tipos de reservas (matemáticas, de Contingência e Especial), não é nada restritivo!
Assim, o próprio nome RESERVA Especial está autorizando a melhoria do benefício previdenciário!
A LC 108/01 é a lei que trata dos assuntos atinentes aos Planos de Benefícios Previdenciários das EFPC com Patrocinador Público. Ela também claramente admite a MELHORIA DO BENEFÍCIO PREVIDENCIÁRIO CONTRATADO, nos parágrafos 2º e 3º do artigo 6º.
E, por fim, a própria Resolução CGPC 26 o admite nos artigos:
2º-§1º – “A revisão do plano de benefícios em decorrência da apuração de superávit ou de déficit poderá ser realizada por meio da ADEQUAÇÃO DO SEU PLANO de custeio ou DOS BENEFÍCIOS oferecidos no regulamento do plano de benefícios…”
20-III – “MELHORIA DOS BENEFÍCIOS e/ou reversão de valores de forma parcelada aos participantes, aos assistidos e/ou ao patrocinador.”
23 – “A destinação da reserva especial para MELHORIA DOS BENEFÍCIOS DOS PARTICIPANTES E ASSISTIDOS está condicionada à sua previsão no regulamento e na nota técnica atuarial do plano de benefícios.”
Assim, também é, na minha opinião, como já afirmei aqui acima, errada, falsa e ilegal a consequência que, dessa supramencionada errada, falsa e ilegal premissa, a CONTESTAÇÃO infere:
“Nessas condições, e com base na interpretação teleológica dos dispositivos acima citados, tendo em conta a especial incidência do princípio do não ENRIQUECIMENTO SEM CAUSA (já que se trata de valores em excesso, assegurado o pagamento do benefício contratado), é perfeitamente viável concluir pela possibilidade, …, de reversão de valores como etapa final do saneamento da situação de superávit…”.(parágrafo 108 da CONTESTAÇÃO, e 27 do PARECER/CONJUR/MPS/Nº 436/2008)
Eis, pois, que a conclusão da extensa CONTESTAÇÃO DA PREVIC, a saber, o GASTO INTEGRAL DA RESERVA ESPECIAL NA MELHORIA DO BENEFÍCIO PREVIDENCIÁRIO DE PARTICIPANTES/ASSISTIDOS É ENRIQUECIMENTO SEM CAUSA, ILÍCITO, é errada, falsa e ilegal, na minha opinião.
Portanto, o que, de fato, é ENRIQUECIMENTO SEM CAUSA, ILÍCITO, é tanto a Reversão de Valores, quanto essa inominável transferência de parte da Reserva Especial para o Patrocinador do Plano de Benefícios 1 da PREVI, operada em início do ano de 2010, na minha opinião.
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