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Compulsory retirement does not apply to commissioned positions, Plenary decides.

Thursday, December 15, 2016

By majority of the votes, the Plenary of the Brazilian Federal Supreme Court (STF) decided that only titular servant of effective position is subject to compulsory retirement, this rule not imposed to holders of commissioned positions. In the session of this Thursday (15), the Justices dismissed the Extraordinary Appeal (RE) 786540, with constitutional matter whose general repercussion was recognized.

The appeal was filled by the State of Rondônia against decision of the Brazilian Superior Court of Justice (STJ) which decided that the compulsory retirement is inapplicable to servants who exclusively occupy commissioned positions, to whom is applied the General Regime of Social Security. For the STJ, the rule that obligates the retirement of servant that completes 70 years old is inserted in article 40, of the Federal Constitution, “which expressly addresses the legal regime of the effective employees, provided in their positions by public examination”. In the RE, the State argued that the constitutional norm set forth in subsection II of paragraph 1st of article 40 should also reach the occupants of commissioned positions.

In the instance of origin, it is a writ of mandamus filed against act of the President of the Court of Accounts of Rondônia (TCE-RO) that dismissed the appellee from the commissioned position of technical advisor of that institution due to have reached 70 years old.

Rapporteur’s vote

According to the rapporteur, Justice Dias Toffoli, the retirement rule set forth in article 40, of the Constitution, is applied only to effective servants. He remembered that the Constitutional Amendment (EC) 20 restricted the reach of article 40, of the Federal Constitution, when it changed the expression “servants” to “titular servants of effective positions”. Therefore, the rapporteur evaluated that, since that amendment, the Supreme Court has recognized to be no doubt that only titular servant of effective position is obligated to retire when he/she completes 70 years old, or 75 years old, as disposed in complementary law, in the text given by Constitutional Amendment 88/2015.

In his vote, the Justice noted that the effective servants enter the public service through a public examination, besides having stability "and tending to maintain a long and solid relationship with the State, which turns admissible the 'expulsion' as a form of oxygenation and renewal". The commissioned employees enter the state structure to hold positions of leadership, direction or advisory, presupposing the existence of a relationship of personal trust and of an unusual expertise, specialized technical qualification. "If the foundation of the appointment is this, there is no reason to submit the individual to compulsory retirement when, besides the maintenance of a relationship of trust and of technical and intellectual specialization, the servant is dismissible at any time, regardless of motivation," he said.

According to the rapporteur, this logic does not apply to the functions of trust, which are exercised exclusively by servants occupying an effective position and to whom certain attributions, obligations and responsibilities are conferred. In that position, the free appointment and dismissal refer only to the function, not to the effective position. "What should be taken into account is that the compulsory retired effective servants, although he maintains this link with the Administration even after his transition to inactivity, when he/she takes office in commissioned position, he/she inaugurates, with the Administration, a second and new relationship, now related to the commissioned position ", he explained, adding that it is not a question of creating a second effective tie," which is strictly forbidden by the constitutional text, not including the exceptions declined by him/her. "

Justice Dias Toffoli noted that every servant with a commissioned position can be dismissed at any time and without motivation, but he evaluated that, in the concrete case, the reason for the dismissal was solely the fact that the servant was 70 years old. Thus, he dismissed the appeal, upholding the Superior Court of Justice's judgment, as he considered null the act that dismissed the appellee of the TCE-RO, adding that the dismissed servant should be reinstated to the function with all other legal consequences.

According to the rapporteur, after the return of the server to activity, the institution is not prevented from dismissing him based in any other reason or even by the discretionary nature of commissioned positions. "The decision does not create a res judicata of permanence in the commissioned position, only removes the motivation of the act", he emphasized.

On the other hand, Justice Marco Aurélio understood that it is not possible to continue providing service after the 70 years, in effective position or commissioned. "In the case, the rupture was made in a motivated way, in consonance with the Federal Constitution," he evaluated, when voting for the provision of the RE.

Thesis

Accordingly, the Justices agreed to the thesis proposed by the rapporteur: 1 - Servants occupying a position exclusively in commission are not submitted to the compulsory retirement rule provided for in article 40, paragraph 1, subsection II, of the Federal Constitution, which affects only the servants occupying effective position, also not existing age limit for appointment to commission. 2 - With the exception of impediments of infraconstitutional order, there is no constitutional obstacle for a effective servant compulsorily retired remaining in the commissioned position he or she already occupies or being nominated for free appointment and exoneration positions, since it is not a question of continuity or creation of effective bond with the Administration.

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