Segurança jurídica e regimes previdenciários: a atuação dos tribunais de contas à luz do tema 1254 do STF

Abstract

Social security in Brazil has evolved from traditional models of individual and mutual protection to consolidate itself as a public policy aimed at promoting well-being and social justice. The 1988 Federal Constitution established a clear distinction between the Special Social Security Regime (RPPS), restricted to tenured public servants admitted through public competitive examinations, and the General Social Security Regime (RGPS), applicable to other situations provided for in the Constitution and supplementary legislation. In this context, the Federal Supreme Court, when ruling on Theme 1254 of general repercussion, held that only tenured public servants may be linked to the RPPS, reaffirming the competitive examination as a constitutional requirement. The Court also modulated the effects of its decision to ensure legal certainty, preserving the rights of individuals who were already retired or had fulfilled the requirements for retirement by June 17, 2024. The thesis affects not only public servants stabilized under Article 19 of the Transitional Constitutional Provisions Act but also others who entered public service without a competitive examination, reinforcing that affiliation to the RPPS is restricted to holders of tenured positions. This understanding directly impacts the oversight of retirements by Courts of Accounts, which have adopted a more rigorous approach in analyzing the legal nature of public service appointments. It thus becomes evident that aligning constitutional jurisprudence with administrative reality is essential, harmonizing the principles of legality and merit-based admission with legal certainty and the protection of legitimate expectations.