In the plenary session of April 23, 2014, the Supreme Federal Court, by unanimously of votes, was dismissed by the extraordinary appeal nº 595,838, declaring the unconstitutionality of item IV of Article 22 of Law No. 8,212 / 91, with a given wording by Law 9,876 / 99, which provides for social security contribution on the total value of services provided through work cooperatives, at the rate of 15%.

Social security sources are carved in Article 195 of the Federal Constitution. Paragraph 4 of this article provides that new sources may be established only through complementary law.

Meanwhile, Law 9,876 / 99, which entered in Law No. 8.212 / 1991 item IV of Article 22, which deals with the obligation of the undertakings concerning the payment of 15% on the services provided by cooperatives of work, is an ordinary law.

In this way, the legislator has not observed the competence determined by the Federal Constitution, according to which new sources of social security cost may be established only by complementary law.

For the Federal Supreme Court, in addition to formal unconstitutionality, said law also has extrapolated constitutional rules, disregarding the legal personality of the cooperative. This is because the intersubjective relationship exposed in Article 195 (I) of the Federal Constitution, the Social Security Contribution should focus on the Sales Folha and not on the gross value of the invoice or invoice of service, as said to Ordinary law.

According to the rapporteur of the appeal, Minister Dias Toffoli, the legislation also affirms the Federal Constitution, as this provides that social security will be funded only in employment relations between a legal entity and an individual. This does not occur in cases of work cooperative service, since this relationship is between two legal entities, what are: "Bottom of Services" and "Cooperative Work".

In this sense, the rapporteur for the appeal, Minister Dias Toffoli, arranged on this relationship:

The relationship is not mere intermediate. The cooperative is created precisely to overcome the isolated relationship between provider (autonomous) and service borrowers (enterprises). This is a grouping under solidarity.

In this way, the torter service companies may, through lawsuits, plead their right to further collect this social security contribution declared unconstitutional by the Federal Supreme Court, as well as require the refund of figures paid unduly in the last five years. / p>