Article 40 of the Constitution of Brazil

receiving the remuneration of a public office, position or function is forbidden, with the exception of offices that may be accumulated under the terms of this c onstitution, elective offices, and commission offices declared by law as being of free appointment and discharge.” “ a rticle 40. e mployees holding effective posts in the u nion, the s tates, the f ederal d istrict, and the Municipalities, therein included their associate government agencies and foundations, are ensured of a social security scheme on a contributory basis, with due regard for criteria that preserve financial and actuarial balance and for the provisions of this article. pa ragraph 1. th e employees covered by the social security scheme set forth in this article shall go into retirement, their pensions being calculated according to the amounts stipulated under the terms of paragraph 3: miolo_constitution_versao_camara.indd 252 17/6/2010 15:01:11 Constitutional Amendments 253 i – for permanent disability, with a pension in proportion to the period of contribution, except when such disability results from a work injury, a professional disease, or a serious, contagious, or incurable illness, as specified by law; ii – compulsorily, at seventy years of age, with a pension in proportion to the period of contribution; iii – voluntarily, upon completing at least ten years of effective exercise in public administration and five years in the effective post from which retirement is going to take place, with due regard for the following conditions: a) sixty years of age and thirty-five of contribution, if a man, and fifty-five years of age and thirty of contribution, if a woman; b) sixty-five years of age, if a man, and sixty, if a woman, with pay in proportion to the period of contribution. p aragraph 2. a t the time they are granted, retirement pensions and other pensions may not exceed the remuneration of the respective employee in the effective post from which he retired or which was taken as a parameter for the granting of the pension. pa ragraph 3. at the time it is granted, the retirement pension will be calculated according to the remuneration of the employee in the effective post from which he is retiring and will be equivalent to the total remuneration, under the terms of the law. p aragraph 4. t he adoption of differentiated requirements and criteria for the granting of retirement to those covered by the scheme set forth in this article is forbidden, with the exception of the cases, as defined by a supplementary law, of activities carried out exclusively under special conditions which are harmful to health or to physical wholeness. pa ragraph 5. th e requirements concerning age and period of contribution will be reduced by five years, as regards the provision of paragraph 1, item i ii, letter a, for teachers who document exclusively a period of effective exercise of teaching functions in children education and in elementary and secondary education. Paragraph 6. W ith the exception of the cases of retirement from posts that can be accumulated under the terms of this co nstitution, receiving more than one retirement pension charged to the social security scheme set forth in this article is forbidden. Paragraph 7. T he law shall provide for the granting of the benefit of a death pension, which will be equal to the retirement pension of the deceased employee, or to the remuneration that the employee in active service would be entitled to at the date of his death, with due regard for the provision of paragraph 3. miolo_constitution_versao_camara.indd 253 17/6/2010 15:01:11 Constitution of the Federative Republic of Brazil 254 Paragraph 8. W ith due regard for the provision of article 37, Xi, retirement pensions and other pensions shall be revised in the same proportion and on the same date, whenever the remuneration of employees in active service is changed, and any benefits or advantages subsequently granted to employees in active service shall also be extended to retirees and to pensioners, including those arising from the transformation or reclassification of the post or function from which retirement was taken, or which was taken as a parameter for the granting of a pension, as the law provides. p aragraph 9. t he period of contribution in a federal, state, or municipal post shall be computed for the purpose of retirement, and the corresponding period of service shall be computed for the purpose of placement on paid availability. pa ragraph 10. th e law may not establish any method of computation of fictitious periods of contribution. Paragraph 11. The limit set forth in article 37, XI, applies to the total amount of the retirement pension and other pensions, including those resulting from the accumulation of public posts or positions, as well as from other activities which must contribute to the general social security scheme, and to the amount resulting from the addition of pensions and the remuneration of a post which may be accumulated under the terms of this co nstitution, a commission office declared by law as being of free appointment and discharge, and an elective office. p aragraph 12. i n addition to the provisions of this article, the social security scheme of government employees who hold effective posts shall comply, whenever appropriate, with the requirements and criteria stipulated for the general social security scheme. p aragraph 13. t he general social security scheme applies to employees who hold exclusively commission offices declared by law as being of free appointment and discharge, as well as other temporary posts or public positions. p aragraph 14. t he u nion, the s tates, the f ederal d istrict, and the Municipalities, provided that they establish a complementary social security scheme for their respective employees who hold effective posts, may stipulate, for the amount of retirement pensions and other pensions to be granted by the scheme referred to in this article, the maximum limit set forth for the benefits of the general social security scheme referred to in article 201. Paragraph 15. W ith due regard for the provisions of article 202, a supplementary law shall provide for the general rules for the establishment of a complementary social security scheme by the miolo_constitution_versao_camara.indd 254 17/6/2010 15:01:12 Constitutional Amendments 255 un ion, the st ates, the fe deral di strict, and the Municipalities, to serve their respective employees who hold effective posts. p aragraph 16. t he provisions of paragraphs 14 and 15 may be applied to an employee who has entered public administration on or before the date of publication of the act which instituted the corresponding complementary social security scheme only if such employee has previously expressed such option.” “ a rticle 42. .............................................................................. ..................................................................................................Paragraph 1. The provisions of article 14, paragraph 8; article 40, paragraph 9; and of article 142, paragraphs 2 and 3, apply to the military of the s tates, of the f ederal d istrict, and of the te rritories, in addition to other provisions that the law may establish, it being incumbent upon specific state legislation to provide for the matters of article 142, paragraph 3, item X, the ranks of the officers being awarded by the respective State Governors. Paragraph 2. The provisions of article 40, paragraphs 7 and 8, apply to the military of the s tates, of the f ederal d istrict, and of the territories, and to their pensioners.” “Article 73. .............................................................................. .................................................................................................. p aragraph 3. the Justices of the f ederal a udit c ourt shall have the same guarantees, prerogatives, impediments, remuneration, and advantages as the Justices of the s uperior c ourt of Justice, their retirement pensions and other pensions being ruled by the provisions of article 40. ................................................................................................ ”“ a rticle 93. .............................................................................. ..................................................................................................VI – the retirement of judges as well as the pensions for their dependents shall comply with the provisions of article 40; ................................................................................................ ”“ a rticle 100. ............................................................................ p aragraph 3. t he provision contained in the head paragraph of this article, regarding the emission of court orders, does not apply to bonds defined by law as being of a small amount, which must be paid by the federal, state, or municipal finance authorities by virtue of a final and unappealable court decision.” “ a rticle 114. ............................................................................ miolo_constitution_versao_camara.indd 255 17/6/2010 15:01:12 Constitution of the Federative Republic of Brazil 256 .................................................................................................. p aragraph 3. i t is also incumbent upon the l abour Justice to enforce, ex officio, the welfare contributions set forth in article 195, I, a, and II, and their legal raises, arising from the judgments it pronounces.” “ a rticle 142. ............................................................................ .................................................................................................. p aragraph 3. ........................................................................... IX – the provisions of article 40, paragraphs 7 and 8, apply to the military and to their pensioners;................................................................................................ ”“Article 167. ............................................................................ ..................................................................................................X i – to use the funds arising from the welfare contributions set forth in article 195, i , a, and ii , to defray expenses other than the payment of benefits of the general social security scheme referred to in article 201. ................................................................................................ ”“ a rticle 194. ............................................................................ .................................................................................................. s ole paragraph. ...................................................................... VII – democratic and decentralized character of administration, by means of a quadripartite management, with the participation of workers, employers, retirees, and the Government in the collegiate bodies.” “ a rticle 195. ............................................................................ ..................................................................................................I – of employers, companies, and entities defined by law as being comparable to companies, assessed on:a) the payroll and other labour earnings paid or credited, on any account, to individuals who render services to them, even when there is no employment bond; b) income or revenues;c) profits;II – of workers and other persons insured by social security, no contribution being assessed on retirement pensions and other pensions granted by the general social security scheme referred to in article 201; .................................................................................................. miolo_constitution_versao_camara.indd 256 17/6/2010 15:01:12 Constitutional Amendments 257 paragraph 8. rural producers, sharecroppers, tenant farmers, a nd self-employed fishermen, as well as their spouses, who exercise their activities within a household system and without permanent employees shall contribute to social welfare by applying a rate to the proceeds from the sale of their production and shall be entitled to the benefits provided by law. pa ragraph 9. th e welfare contributions set forth in item i of this article may have differentiated rates or assessment bases, according to the economic activity or the intensive use of labour. Paragraph 10. T he law shall define the criteria for the transfer of funds allocated to the unified health system and for social assistance initiatives, from the un ion to the st ates, the fe deral di strict, and the Municipalities, and from the st ates to the Municipalities, with due regard for the respective transfer of funds. pa ragraph 11. it is forbidden to grant remission or pardon of the welfare contributions referred to in itens i , a, and ii of this article, for debits which exceed the limit stipulated by a supplementary law.” “Article 201. The social security system shall be organized as a general scheme, of a contributory basis and mandatory participation, with due regard for criteria that preserve financial and actuarial balance, and shall provide for, in accordance with the law: i – coverage for the events of illness, disability, death, and old age; II – protection to maternity, especially to pregnant women;III – protection to workers in a situation of involuntary unemployment; IV – family allowance and confinement allowance for the dependents of the low-income insured; v – pension for death of the insured, man or woman, to the spouse or companion, and dependents, complying with the provision of paragraph 2. pa ragraph 1. th e adoption of differentiated requirements and criteria for the granting of retirement to the beneficiaries of the general social security scheme is forbidden, with the exception of the cases, as defined by a supplementary law, of activities carried out under special conditions which are harmful to health or to physical wholeness. Paragraph 2. No benefit which replaces the contribution salary or labour earnings of the insured shall have a monthly amount lower than the minimum monthly wage. miolo_constitution_versao_camara.indd 257 17/6/2010 15:01:12 Constitution of the Federative Republic of Brazil 258 pa ragraph 3. al l contribution salaries included in the calculation of the benefit shall be duly updated, under the terms of the law. Paragraph 4. Adjustment of the benefits is ensured, to the end that their real value is permanently maintained, in accordance with criteria defined by law. pa ragraph 5. pa rticipation in the general social security scheme, in the quality of an optional insured, is forbidden for a person who participates in a special social security scheme. p aragraph 6. t he c hristmas bonus for retirees and pensioners shall be based on the amount of the earnings in the month of d ecember of each year. Paragraph 7. Retirement is ensured under the general social security scheme, in accordance with the law, upon compliance with the following conditions: I – thirty-five years of contribution, if a man, and thirty years of contribution, if a woman; II – sixty-five years of age, if a man, and sixty years, if a woman, this age limit being reduced by five years for rural workers of both sexes and for those who exercise their activities within a household system, therein included rural producers, placer miners, and self-employed fishermen. pa ragraph 8. th e requirements referred to in item i of the preceding paragraph will be reduced by five years, for teachers who document exclusively a period of effective exercise of teaching functions in children education and in elementary and secondary education. pa ragraph 9. fo r purposes of retirement, the reciprocal computation of the period of contribution in government bodies and in private activity, either rural or urban, shall be ensured, in which case the various social security schemes shall offset each other financially, in accordance with criteria established by law. pa ragraph 10. th e law shall regulate the coverage of employment- injury risks, and such coverage shall be provided both by the general social security scheme and the private sector. p aragraph 11. t he amounts habitually earned by an employee, on any account, shall be incorporated into his monthly salary for purposes of social security contribution and the resulting effects on benefits, in the cases and in the manner provided by law.” “ ar ticle 202. th e private social security scheme, of a complementary nature and organized on an autonomous basis as regards the general social security scheme, shall be optional, miolo_constitution_versao_camara.indd 258 17/6/2010 15:01:12 Constitutional Amendments 259 based on the formation of reserves which guarantee the contracted benefit, and regulated by a supplementary law. p aragraph 1. t he supplementary law referred to in this article shall ensure that the participant in benefit plans of private pension plan companies is provided with full access to information regarding the management of their respective plans. Paragraph 2. The contributions of employers, the benefits, and the terms of contracts set forth in the bylaws, regulations, and benefit plans of the private pension plan companies are neither an integral part of the employment contract of participants, nor, with the exception of the benefits granted, an integral part of the remuneration of participants, under the terms of the law. pa ragraph 3. th e un ion, the st ates, the fe deral di strict, and the Municipalities, their associate government agencies, foundations, public enterprises, joint stock companies, and other public entities are forbidden to contribute funds to private pension plan companies, save in the quality of sponsors, in which case their standard contribution may not, under any circumstances, exceed that of the insured. pa ragraph 4. a supplementary law shall regulate the relationship between the un ion, the st ates, the fe deral di strict, or the Municipalities, including their associate government agencies, foundations, joint stock companies, and enterprises controlled either directly or indirectly, in the quality of sponsors of closed private pension plan companies, and their respective closed private pension plan companies. pa ragraph 5. th e supplementary law referred to in the preceding paragraph shall apply, insofar as pertinent, to private companies holding a permission or concession to render public services, when such companies sponsor closed private pension plan companies. p aragraph 6. t he supplementary law referred to in paragraph 4 of this article shall establish the requirements for the appointment of board members of the closed private pension plan companies, and shall regulate the inclusion of participants in the collegiate bodies and decision-making bodies in which their interests are subject to discussion and decision.” ar ticle 2. th e following articles are added to the General co nstitutional pr ovisions of the Federal Constitution: “Article 248. The benefits paid, under any auspices, by the agency in charge of the general social security scheme, even if they are financed by the National Treasury, and those benefits not subject to the maximum amount stipulated for benefits miolo_constitution_versao_camara.indd 259 17/6/2010 15:01:12 Constitution of the Federative Republic of Brazil 260 granted by such scheme shall comply with the limits set forth in article 37, XI. ar ticle 249. fo r the purpose of securing monies for the payment of retirement pensions and other pensions granted to their respective employees and their dependents, in addition to the monies of their respective treasuries, the u nion, the s tates, the f ederal d istrict, and the Municipalities may establish funds, made up of monies arising from contributions, and of property, rights, and assets of any kind, by means of a law that shall provide for the nature and the management of such funds. ar ticle 250. fo r the purpose of securing monies for the payment of benefits granted by the general social security scheme, in addition to the monies arising from taxation, the u nion may establish a fund made up of property, rights, and assets of any kind, by means of a law that shall provide for the nature and the management of such a fund.” a rticle 3. t he granting of retirement pensions and other pensions is ensured, at any time, to public employees and to participants in the general social security scheme, as well as to their dependents, who, by the date of publication of this a mendment, have complied with the requirements to be entitled to such benefits, in accordance with the criteria of the legislation in effect at that time. pa ragraph 1. th e public employee referred to in this article, who has met the requirements for retirement with full pay and who chooses to remain in active service, shall be entitled to exemption from social security contribution until he meets the requirements for retirement set forth in article 40, paragraph 1, i ii, a, of the fe deral co nstitution. p aragraph 2. t he retirement pay to be granted to the public employees referred to in the head paragraph of this article, either in full or in proportion to the period of service completed by the date of publication of this a mendment, as well as the pensions for their dependents, shall be calculated in accordance with the legislation in effect at the time the requirements therein contained for the granting of such benefits were met, or with the terms of the current legislation. p aragraph 3. a ll rights and guarantees ensured by constitutional provisions in effect at the date of publication of this a mendment, to civil servants and military, retirees and pensioners, amnestied persons and war veterans, as well as to those who, by such date, have met the requirements to be entitled to such rights, with due regard for the provision of article 37, XI, of the Federal Constitution, shall be maintained. a rticle 4. W ith due regard for article 40, paragraph 10, of the Federal Constitution, the period of service taken into account by the current legislation for the purpose of retirement, and completed by the time the law regulates the matter, shall be computed as a period of contribution. a rticle 5. t he provision of article 202, paragraph 3, of the f ederal c onstitution, regarding the requirement of parity between the contribution of the sponsor and miolo_constitution_versao_camara.indd 260 17/6/2010 15:01:12 Constitutional Amendments 261 that of the insured, shall come into force two years as from the publication of this a mendment, or on the date of publication of the supplementary law mentioned in paragraph 4 of the same article, if such publication takes place first. a rticle 6. t he closed private pension plan companies sponsored by public entities, including public enterprises and joint stock companies, must review, two years as from the publication of this Amendment, their benefit and service plans, so as to adjust them to their assets in terms of actuarial calculations, otherwise subject to intervention, and their managers as well as those of their respective sponsors shall bear civil and criminal liability for non-compliance with the provision of this article. ar ticle 7. th e bills of supplementary laws stated in article 202 of the fe deral c onstitution shall be presented to the n ational c ongress within ninety days as from the publication of this a mendment. a rticle 8. (Revoked). (CA No. 41, 2003) a rticle 9. W ith due regard for the provision of article 4 of this Amendment, and excepting the right to opt for retirement under the terms established by this am endment for the general social security scheme, the right to retirement is ensured to participants who join the general social security scheme, before the date of publication of this Amendment, when they meet the following cumulative conditions: I – fifty-three years of age, if a man, and forty-eight, if a woman; II – a period of contribution equal to at least the sum of:a) thirty-five years, if a man, and thirty, if a woman; andb) an additional period of contribution equivalent to twenty percent of the period which, at the date of publication of this a mendment, would still be necessary to reach the limit set forth in the preceding letter. pa ragraph 1. th e participants mentioned in this article, with due regard for its item i, and in accordance with article 4 of this am endment, may go into retirement with pay in proportion to the period of contribution, if they meet the following conditions: I – a period of contribution equal to at least the sum of:a) thirty years, if a man, and twenty-five years, if a woman; andb) an additional period of contribution equivalent to forty percent of the period which, at the date of publication of this am endment, would still be necessary to reach the limit set forth in the preceding letter; ii – the proportional retirement pay shall be equivalent to seventy percent of the retirement pay referred to in the head paragraph of this article, increased by the addition of five percent per year of contribution which exceeds the sum referred to in the preceding item, up to the limit of one hundred percent. pa ragraph 2. th e period of service performed until the publication of this am endment shall be increased by the addition of seventeen percent, for a male teacher, and twenty percent, for a female teacher, who, until the date of publication of this a mendment, has exercised teaching activities and opts to retire under the terms of miolo_constitution_versao_camara.indd 261 17/6/2010 15:01:12 Constitution of the Federative Republic of Brazil 262 the head paragraph of this article, provided that such retirement is based exclusively on the period of effective exercise of a teaching function. a rticle 10. t he complementary social security scheme referred to in article 40, paragraphs 14, 15, and 16, of the fe deral co nstitution, may only be instituted after the publication of the supplementary law set forth in paragraph 15 of the same article. a rticle 11. The prohibition set forth in article 37, paragraph 10, of the Federal c onstitution, is not applicable to members of government branches and to retired employees, both civil and military, who, until the publication of this am endment, have reentered public administration by means of a public sector competitive examination consisting of tests, or of tests and presentation of academic and professional credentials, and by other means set forth in the f ederal c onstitution, and they are forbidden to receive more than one retirement pay under the social security scheme referred to in article 40 of the f ederal c onstitution, the limitation mentioned in paragraph 11 of the same article being applicable to them under any circumstances. a rticle 12. u ntil such time as the laws providing for the contributions set forth in