Another ruling against the retrospective amendment of the Macri government

Announced the second chamber of the Federal Chamber of Social Security It is against the constitution The Retrospective application Of the Mobility Act, which was enacted at the end of December 2017, at the initiative of the government of Mauricio Macri, as was a previous ruling by the First and Third Circuits of the same room and judged by the Prosecutor General of the Nation.

With the voices of maids Norma Carmen Dorado s Walter Carnota And partial opposition to Juan Fantini, In “Coleman Torales Benicio v. / ANSeS regarding various amendments”, the ruling states that under Law No. 27426 on Mobility approved by Congress at the end of December 2017, retirees received in March 2018 5,71% – According to the development of 70% inflation and 30% of wages in the third quarter of 2017 – when They should have gotten mobility from the previous law Number 26.417 – which was estimated at approx 14.6%For the second semester 2017.

On the basis of her vote, Judge Norma Dorado affirms that “the Argentine Republic has pledged to sign the American Convention on Human Rights (Charter of San José de Costa Rica), in order to achieve“ progressive ”the full effectiveness of social human rights. The services provided in this document, so that demonstrations are not By applying the mobility formula stipulated in Law No. 27426, to already due periods in effect under Law No. 26417 (from July to December 2017), a simple matter, Decrease the percentage increase“.

Likewise, in March 2019, the first room (“Lavecchia Roberto c / ANSeS) and before that, in June 2018, the third room (“ Fernández Pastor, Miguel Ángel c / ANSeS), Judgments appealed by ANSeS to the Supreme Court, Which has not yet been pronounced.

For his part, the Attorney General of the Republic said, Victor Abramovich In October 2019. With regard to the judgment of the Third Chamber, the Prosecutor deemed it “based on the constitutional principle Not retroactive According to the rules for the mobility of the retirement pension and the theory of acquired rights in this regard, “plaintiff Fernandez Pasteur” has the right to update his retirement assets in the period from July to December 2017, which were objectively standardized in the period governed by the validity of (previous) Law 26417. Thus, after retirement, integrated With the mentioned update, The actor’s estate entered into an acquired right in December 2017, Although the collection date was set in March of the following year.

Meanwhile, the judgment of the second chamber refused to declare Law No. 27426 unconstitutional (of Macri) “straight ahead” Because it was approved as a result of the legislative exercise of Congress.

Judge Fantini states in his dissenting vote that “despite the supportive opinion of the prosecution, Hon. To date, the Supreme Court has not rendered a judgment in the case of“ Fernández Pastor, Miguel Ángel v / ANSeS. ”Thus, in my opinion, such a circumstance is important When it comes to resolving outstanding issues. So the Supreme Court does not explicitly rule on this pointShe adds that Article 2 of Law 27426 stipulates that the first increase based on the portability of this law will be in effect from March 1, 2018, “It cannot lead to the conclusive result stipulating mobility … It should have been calculated with the indicators for July, August, September, October, November and December of 2017.

The sentence also declares art unconstitutional. 9 Article 3) of Law 24463 (approved in March 1995) “In the event that the application of limits to the plaintiff’s pension benefits is proven to generate a reduction of more than 15% – the forfeiture limit established by the Supreme Court …”