Although the National Bureau of Supplementary Private Pension (Previc) has, by law, the duty and function to inspect closed-end supplementary pension entities (EFPCs), the Federal Accounting Court (TCU) has exercised this function on the argument that it is investigating possible damages to the public purse caused by the bad use of public resources in these entities.[1] This action is supposedly in accordance with the constitutional duty[2] of the body to supervise the application of resources of public entities if there were no mistake in this reasoning.
EFPCs, or pension funds, arose to supplement the retirements of their members in relation to the General Social Security System. They administer the contributions of both the sponsor/institution (which may be a public entity) and its participants/assisted persons, creating a mathematical reserve for the payment of benefits under the benefit plan’s rules. To supervise, inspect, and authorize the creation of these entities and the changes in the regulations of the benefit plans, as required by supplementary laws 108 and 109/2001, Previc was created, which has the nature of a special agency, under the terms of the law that established it (12,154/09).
EFPCs' performance is thus based on the procedures regulated by Previc, under the terms established by the National Bureau of Supplementary Retirement (CNPC). Because they play an essential role in the survival of millions of Brazilian retirees, these pension funds operate in an extremely regulated sector. They must perform their activities in accordance with social security laws and regulations and with the regulations of the supervisory agency, in a context of strict control exercised by Previc.
In the argument used to justify the supervision of EFPCs by the TCU, there is an important error in premises, which needs to be clarified: the contribution of the public sponsor becomes a resource administered by the EFPC, the nature of which is that of private law, for the payment of retirement benefits. All this is done under the terms of the benefit plan’s rules, which is nothing more than a contract also of a private nature.
The reasoning behind the TCU’s control over EFPCs breaks down in the face of this logical fault. And even if it were not so considered, Previc's expertise in assessing supplementary pension issues should be respected. Its basic structure includes the Federal Attorney's Office and several general steering offices, with technical capacity and knowledge of the sector that no accounting court has. According to normative acts promulgated by this authority and by the CNPC, the entire supplementary retirement system is regulated by specialized agencies.
Another issue to be remembered is the overlapping of powers: could the TCU overrule a legal act performed by the agency that by law[3] oversees supplementary retirement? Could the TCU disregard a legal act of the supervisory body that would approve an amendment to the rules of a benefit plan administered by an EFPC? The answer must be a vehement no. Through technical studies and procedures set forth in standards, Previc, in conjunction with the CNPC, establishes a series of forms of conduct that must be respected by pension funds. For example, the conditions and procedures to be observed by EFPCs in the calculation of results, allocation and use of surplus, and in the equation of deficits of the retirement benefit plans[4] are established in a resolution, as are the accounting procedures of EFPCs,[5] among various other matters relevant to the operation of a pension fund.
In addition, according to Complementary Law No. 109/2001[6], the State's actions must always aim to preserve the interests of the participants and assisted persons in the benefit plans. In order to fulfil this purpose, any regulatory changes in an EFPC must go through Previc's approval,[7] which reviews whether the changes are in accordance with the interests of the participants. Once again, it is not appropriate for TCU to examine an act that was approved by an authority of the Federal Public Administration according to clear and pre-established criteria.
In order to highlight the foolishness of inspection of EFPCs by the TCU, which occurs after the inspection carried out by Previc, one may draw a parallel between the actions of the Central Bank of Brazil (BC) and the Administrative Council for Economic Defense (Cade) in the National Financial System (SFN). Cade cannot revisit legal acts issued by BC, which is considered the regulatory body of the SFN. A cooperation between the entities is obviously feasible, but Cade must act in the Brazilian system of competition defense, while the Central Bank acts in the financial sphere, regulating the conduct of economic agents.
It is clear that the TCU goes beyond its scope of functions when supervising EFPCs. With evident specialization to act in the sector of supplementary retirement,[8] Previc is the agency capable of supervising pension funds and has all the necessary features to perform this function. And considering the principle of efficinecy, which governs the Public Administration, it is also untenable to argue that the TCU should supervise EFPCs when another body fulfills this duty perfectly.
[1] TC Consultation 012.517/2012/7.
[2] Article 70. The accounting, financial, budgetary, operational, and asset oversight of the Federal Government and of the direct and indirect bodies of the administration, as to the legality, legitimacy, economy, application of subsidies, and waiver of revenues, shall be exercised by the National Congress, through external control, and by the internal control system of each Power.
[3] Complementary Law No. 108, of May 29, 2001:
Article 24. The inspection and control of benefit plan and closed-end supplementary pension fund entities dealt with in this Complementary Law is the responsibility of the regulatory and inspection agency of the closed-end supplementary pension fund entities.
[4] See CGPC Resolution No. 26, of September 29, 2008.
[5] See CNPC Resolution No. 8, of October 31, 2011.
[6] Article 3. The action of the State shall be exercised with the objective of: VI - protecting the interests of participants and assisted persons in benefit plans.
[7] Complementary Law No. 109/2001: Article 33. The following require prior and express authorization from the regulatory and supervisory body: I - the creation and operation of the closed-end entity, as well as the application of the respective bylaws, benefit plan rules, and amendments thereto;
[8] Law No. 12,154/2009: Article 2. The following is incumbent on Previc: I - to inspect the activities of closed-end supplementary pension fund entities and their operations;
