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Old Constitutional Rule Still Influences Retirement Requests at INSS, but Only in Specific Cases of Acquired Right, Involving 40% Toll, Lower Minimum Age, and Rigorous Proof of Contribution Time Before the Social Security Reform.
Amid simulators, transition rules, and successive changes, a common question arises among INSS policyholders: is there any old pathway that can still be applied to those with a long contribution history?
The answer depends on acquired right.
In specific situations, an old constitutional transitional rule with a toll and a minimum age lower than the current general rule can still be used, provided that the person has met all the requirements while the norm was still applicable.
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This topic comes up again because this transition anticipated proportional retirement with a 40% toll and a minimum age lower than that currently associated with the general RGPS rule.
In theory, this can remove the requirement of 62 years for women and 65 years for men, but only when the policyholder had already formed the right before the changes of the Social Security Reform.
Why Old Rule Still Appears in Retirement Requests at INSS
The reason is legal: although the rule has been revoked, it can still be applied in current requests when there is acquired right.
In this scenario, the debate does not rely on a “loophole,” but rather on preserving conditions already met in the past.
Another important point is that the possibility is not defined by having a “signed contract.”
The constitutional text refers to affiliation with the General Social Security System and the fulfillment of age and contribution, according to the terms provided in the norm.
What Does Acquired Right Mean in INSS Retirement
The constitutional basis for requests made later, but with requirements met earlier, is in Article 3 of Constitutional Amendment 103, which guarantees the concession “at any time” to the RGPS policyholder, provided that the conditions for the benefit were fulfilled before the amendment was enforced, following the legislation in force when the right was completed.
In practice, the analysis focuses on the date on which the person met the required age, time, and toll by the invoked rule.
If these requirements were only met after the Social Security Reform, the request does not qualify as an acquired right for the application of this old transition.
How the 40% Toll of EC 20 Works in Proportional Retirement
The 40% toll is provided for in Article 9, § 1, of Constitutional Amendment 20, as a transitional rule for those who were already affiliated with the RGPS by the amendment’s publication date.
The calculation starts from the time remaining, on the reference date specified in the text, to reach the minimum required.
On this remaining time, an additional 40% is applied, which must be fulfilled along with the minimum age and minimum contribution time.
For men, the proportional transition requires 53 years of age and contribution time equivalent to, at minimum, the sum of 30 years plus an additional period equal to 40% of what was left on the reference date to complete 30 years.
For women, the minimum age is 48 years, and the sum starts from 25 years, also increased by the 40% toll calculated on the remaining time.
The provision does not establish a specific requirement for formal employment ties.
The criterion is affiliation with the RGPS and the fulfillment of constitutional conditions.
Thus, different categories of policyholders can have periods computed, as long as they are recognized by the INSS and proven according to applicable rules.
Value of Proportional Retirement and Impact of the Toll
The same rule defines how the value is calculated.
The Constitution stipulates that proportional retirement will be equivalent to 70% of the reference value, with an increase of 5% for each year of contribution that exceeds the minimum required, up to a limit of 100%.
Since it is a proportional benefit, the final percentage depends on the total number of years accumulated beyond the constitutional floor.
What the Social Security Reform Revoked and What Was Preserved
Constitutional Amendment 103 consolidated new rules for the RGPS and revoked previous provisions, including transitional rules from Constitutional Amendment 20, such as Article 9.
At the same time, it preserved the acquired right of those who had already met the conditions before its entry into force.
This allows revoked norms to continue to be applied in these cases, even when the request is submitted later.
That is why the 40% toll continues to appear in social security discussions, even if it is not part of the current rules for those who did not complete the requirements in the due period.
Difference Between Old Tolls and Rules Created After the Reform
The term “toll” appears in more than one generation of transitions in the RGPS.
Before the Reform, there was a constitutional transition with a 40% toll for proportional retirement.
After Constitutional Amendment 103, rules known for the 50% and 100% tolls emerged, with distinct requirements for age and time.
Despite the similar logic, the calculation benchmarks and requirements are not the same, which requires attention in the analysis of each case.
CNIS, Proof of Time, and Difference Between Contribution and Caretaking
Even when the policyholder believes they have an acquired right, the analysis may depend on the consistency of records in the CNIS and the proof of ties and contributions.
Long histories often show periods without registration, registration discrepancies, or the need for additional documentation.
Moreover, contribution time and caretaking are different concepts in the social security system.
The INSS has already recorded guidelines that late contributions can be recognized as time in certain situations, and still not be considered for caretaking, depending on the type of policyholder and the context of the payment.
Without confirmation of the periods in the registration and documentation, the old rule does not apply automatically.
What Constitutional Amendment 103 does is allow the use of previous legislation when the right was already complete, and not reopen the possibility to opt for revoked norms.
If your contributory life began before 1998, have you checked in the CNIS and in the documents which requirements were effectively met and on what date your right would have been formed?
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