CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

Please refer to the comments made under Convention No. 35.

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 3, of the Convention. The Committee notes with interest that section 42 of Act No. 98-349 of 11 May 1998 respecting the entry and residence of foreigners in France and the right of asylum has provided for the insertion in the Social Security Code of section L.816-1 by virtue of which Chapter I of Book Eight of the Social Security Code, establishing in particular the supplementary allowance of the National Solidarity Fund (FNS), is applicable to persons of foreign nationality who are in possession of a resident's permit or other documents justifying their lawful residence in France, notwithstanding any provision to the contrary. The Committee also notes that, according to the information provided by the Government, section 42 of the above Act repeals any condition of nationality for the granting of non-contributory benefits (benefits for disabled adults, supplementary old-age pensions, special old-age pensions) to foreigners who reside in France on a regular and permanent basis. Consequently, the Committee is given to understand that section L.815-5 of the Social Security Code, under which supplementary benefits are only due to foreigners on condition of the conclusion of reciprocal international agreements, has been repealed. The Committee would be grateful if the Government would confirm in its next report whether this is the case and, should this not be the case, to provide information on the manner in which section L.815-5 of the Social Security Code would continue to be applied.

Moreover, the Committee would be grateful if the Government would provide a detailed list of the residents' permits or documents which justify the lawful residence in France of foreign nationals referred to under section L.816-1 of the Social Security Code.

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 3, of the Convention. The Committee recalls that with regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government had referred previously to ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France. Consequently, the Committee expresses the hope that the Government will be able to indicate in its next report the measures taken to grant in law and practice the FNS supplemental benefit to nationals of all member States which are bound by the Convention (and not only to nationals of a country which has signed an international reciprocity agreement, as provided in section L.815-5 of the Social Security Code).

See also, Article 3, paragraph 1, branch (d) (invalidity benefits), of Convention No. 118, as follows:

1. Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). (a) With regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government had referred in its previous comments to ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France. In this respect, the Committee notes with interest the decision of 5 December 1994 of the Loire Social Security Tribunal, in the district of Saint-Etienne and Montbrison. In this decision, the Tribunal, referring to Article 3 of Convention No. 118, concluded that the supplemental benefit paid by the National Solidarity Fund (FNS), which supplemented old-age or invalidity pension, should be paid to a Mauritanian national entitled to an invalidity pension, since Mauritania has ratified Convention No. 118. Consequently, the Committee expresses the hope that the Government will be able to indicate in its next report the measures taken to grant in law and practice the FNS supplemental benefit to nationals of all member States which have accepted the obligations of the Convention (and not only to nationals of a country which has signed an international reciprocity agreement, as provided in section L.815-2 of the Social Security Code). It also asks the Government to furnish information on the impact of the decision by the Social Security Tribunal in Saint-Etienne.

Concerning the scope of the retaliation clause allowed by Article 4, paragraph 1, of the Convention, the Committee refers to its observation of 1993.

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Committee hopes that the Government's next report will contain detailed information on the measures taken to ensure the payment of this benefit to foreigners residing in France who are nationals of any State that has accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), of the Convention under which it may make the grant of a benefit conditional upon a period of residence of up to five years).

CMNT_TITLE

See under Convention No. 35, France, as follows:

Article 12, paragraph 5, of the Convention. The Committee once again requests the Government to indicate the legal provisions or regulations under which pensions, when they become payable, are provided to beneficiaries who are nationals of a State which is bound by the Convention and who are resident on the territory of any one of these States.

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 3, of the Convention. In reply to the Committee's previous comments concerning the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government states that the ministerial consultations concerning the question of the extension of the provision of this allowance to the whole of the foreign population resident in France have not yet been completed. It adds that such an extension would have a very high immediate financial impact which would have to be wholly borne by the state budget; this would be difficult in view of budgetary and economic constraints. The Committee notes this information. It hopes that following the above ministerial consultation the Government will be able, in accordance with this provision of the Convention, to take the necessary measures to extend, in both law and practice, the coverage of the supplementary allowance of the FNS to the nationals of member States which are bound by the Convention and not only to the nationals of countries which have concluded an international reciprocity agreement.

(See also under Convention No. 118, article 3, paragraph 1, branch (d) (Invalidity benefit), as follows:)

1. Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). (a) With regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government states that the ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France have not yet been concluded. It adds that the financial impact of such an extension would be immediate and very heavy and would have to be borne entirely by the state budget, which would be difficult in view of the budgetary and economic constraints. The Committee notes this information. It hopes that once the above-mentioned ministerial consultations have been concluded, the Government will be able, in accordance with this provision of the Convention, to take the necessary measures to extend in both law and practice the provision of the FNS supplementary allowance to nationals of all member States that have accepted the obligations of the Convention (and not only to nationals of countries that have signed an international reciprocity agreement as provided in section L.815-5 of the above Code).

(See also under 2 as regards the scope of the reciprocity allowed by Article 4, paragraph 1, of the Convention.)

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Government indicates that the issues relating to its extension to all foreigners residing in France are very similar to those of extension of the FNS supplementary allowance. In these circumstances, the Committee hopes that the Government's examination of this matter will lead to the Convention being fully applied in this respect by providing the allowance for disabled adults to nationals, who reside in France, of all States that have accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), under which it may make the grant of a benefit conditional upon a period of residence of up to five years).

2. Article 4, paragraph 1 (branch (d)) (Invalidity benefit) and branch (f) (Survivors' benefit). In its previous comments, the Committee noted that the legislation imposed the condition of residence in France for the provision of social security benefits (in this case invalidity and survivors' benefits) to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946). According to the explanation given by the Government in its report, the condition of residence is required only when insured persons apply for liquidation of the pension and, in practice, is considered to have been fulfilled if the foreign national can show that he has resided lawfully in France for more than three months. With regard more particularly to invalidity pensions proper, and invalid widows' or widowers' pensions, the Government states, without indicating however the relevant provisions of the law, that there is no residence requirement for foreign beneficiaries either for payment of the benefit or for liquidation of the pension, once entitlement is established and can be verified. The Committee understands from the Government's statement that condition of residence is still required of foreign beneficiaries but only at the time of entitlement, i.e. when application is made for liquidation of an invalidity benefit or survivors' pension.

Furthermore, the Government repeats its view that the notion of reciprocity which is the foundation of all international Conventions would clearly be meaningless if it meant, for France, the unilateral abolition of the condition of residence required on application for the liquidation of a social security benefit, while other signatories to the Convention continue to apply this condition. The Government considers that this general principle underlies the text of Article 4, paragraph 1, of the Convention which must be applied in its entirety. In this connection, the Committee wishes to point out that the basic principle laid down in Article 4, paragraph 1, is that equality of treatment which must be granted to nationals of all States that have ratified the Convention must be ensured without any condition of residence, on the basis of automatic reciprocity between member States which is established by this instrument. However, this provision does allow an exception from the principle in respect of benefits of a specified branch of social security in the case of nationals of any Member the legislation of which makes the grant of benefits under that branch conditional on residence on its territory. This exception is not a general one and its application must be examined in each individual case and for each branch of social security and in the light of the Member's legislation thereon. The fact that such an exception is possible cannot justify maintaining in French legislation a general rule which makes the grant of benefits to foreign nationals conditional upon residence, even if it is restricted to residence at the time when application is made for liquidation of the pension. In these circumstances, the Committee again expresses the hope that, in all cases where the insured person or the deceased were covered by French social security at the time of the contingency, appropriate measures will be taken to ensure, as regards branches (d) and (f), in both law and practice, that effect is given to this provision of the Convention, under which equality of treatment as regards the grant of benefits shall be accorded, without any condition of residence, to nationals of any State bound by the Convention.

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 5, of the Convention. The Committee refers to its previous comments concerning the question of whether, in view of the condition of residence in France explicitly required by the legislation (section L.311-7 of the Social Security Code) in order to benefit from social insurance benefits, foreign insured persons, who are nationals of a country that has ratified the present Convention and who are residing in the territory of any one of the Members bound by the said Convention, but not signatories of a social security agreement with France, continue to enjoy the same contributory advantages as French insured persons.

In its report the Government only confirms that a foreign insured person who is a national of a country not having concluded an agreement with France can claim his rights to the old-age insurance scheme only to the extent that he resides on French territory at the time of the request for settlement of the pension. However, after receiving the benefit he can claim the same advantages as the French insured persons i.e. he will be able to receive the periodical payments under his pension abroad, even if he resides in a country which had not concluded an agreement with France.

The Committee notes this information. It is however bound to point out that, in accordance with the Convention, any restrictions which may apply in the event of residence abroad shall only apply to pensioners and their dependants who are nationals of any Member bound by this Convention to the extent to which they apply to nationals of the country in which the pension has been acquired. In these circumstances, the Committee is bound once again to hope that the Government will study the necessary measures to give effect to this provision of the Convention. In particular, it would like the Government to indicate the relevant legal provisions or rules under which pensions, once settled, are paid to beneficiaries who are nationals of any State bound by the Convention and reside in any such State.

CMNT_TITLE

See under Convention No. 35, as follows:

The Committee notes that the Government's report contains no new information in reply to its previous comments. It must therefore repeat its previous observation which read as follows:

Article 12, paragraph 3, of the Convention. In its previous comments, the Committee drew the Government's attention to the need to provide the supplementary allowance of the National Solidarity Fund (FNS) (section L.815-2 of the Social Security Code) to nationals of all member States that are bound by the Convention and not only to French nationals and to foreigners who are nationals of countries which have signed an international reciprocity agreement (as set out in section L.815-5 of the Code). In its reply, the Government indicates once again that the above allowance is not a social security benefit, but an assistance-type benefit. It adds that the FNS allowance, in contrast with social security benefits, is recoverable from the personal estate of the beneficiary, as are allowances that are paid as social assistance. According to the Government, in French law this feature marks the difference between social security benefits and assistance benefits. For assistance benefits, national solidarity only temporarily substitutes family solidarity, which is intended to assist family members in need. The Government also considers that the fact that the grant of this allowance is a legally protected right does not mean that it is a social security benefit. Indeed, entitlement is "legally protected" even for social assistance, except for a few marginal discretionary or isolated allowances. Although it notes this information, the Committee is bound to refer to its previous comments on the nature of this allowance. It points out in particular that the supplementary allowance of the FNS is payable to beneficiaries as of right, without any discretionary assessment of needs, which is a characteristic of an assistance benefit. In this connection, the possibility of recovering the amount of the supplementary allowance in certain cases from the personal estate of the beneficiary cannot be considered a determining factor since it is not a consequence of the assessment of resources. The Committee however notes with interest the Government's statement that it is examining the possibility of applying equality of treatment as regards the award of the FNS allowance on French territory to foreigners who, although not covered by European Community regulations or bilateral reciprocity agreements in this respect, satisfy certain conditions concerning their length of residence on the national territory. Ministerial consultations have been commenced on this matter, although their outcome is not yet known. In this context, the Committee also notes with interest the ruling of the Constitutional Council, No. 89-269 DC of 22 January 1990, which declares unconstitutional section 24 of the Act containing various provisions respecting social security and health, which extended the grant of the supplementary allowance to nationals of the European Communities, while maintaining the requirement of the existence of a reciprocity agreement for nationals of other States. In the preamble to its ruling, the Constitutional Council considered that the exclusion of foreigners who are regularly residents in France from the grant of the supplementary allowance, in cases when they cannot avail themselves of international commitments or regulations in this matter, disregards the constitutional principle of equality. The Committee hopes that the inter-ministerial consultations that have been commenced in this respect will result in the extension in law and practice of the grant of the supplementary allowance of the FNS to nationals of all member States that are bound by the Convention and not only to nationals of countries that have signed an international reciprocity agreement, in accordance with Article 12, paragraph 3, of the Convention. (See also under Convention No. 118, Article 3, paragraph 1, branch (d) (invalidity benefit), as follows:

In its previous comments, the Committee drew the Government's attention to the need to ensure that the supplementary allowance of the National Solidarity Fund FNS) (section L.815-2 of the Social Security Code) is provided to nationals of all the member States that are bound by the Convention and not only to French nationals and the nationals of countries that have signed an international reciprocity agreement with France (as provided in section L.815-5 of the Code). In its reply, the Government indicates once again that the above allowance is not a social security benefit, but an assistance-type benefit. It adds that the FNS allowance, in contrast with social security benefits, is recoverable from the beneficiary's personal estate in the same way as allowances that are paid as social assistance. According to the Government, this feature marks the difference in French law between social security benefits and assistance benefits. In the case of assistance benefits, national solidarity only temporarily replaces family solidarity, the basis of which is to assist family members in cases of need. The Government also considers that the fact that this allowance is payable as a legally protected right does not mean that it is a social security benefit. Even the right to social assistance is "legally protected", except for some marginal discretionary or isolated allowances. The Committee notes this information. It is bound to refer to its previous comments in which it emphasised that, in accordance with Article 1, paragraph (b), of the Convention, the term "benefits" refers to "all benefits, grants and pensions, including any supplements". As confirmed by the preparatory work for the Convention, this term must therefore be taken in its broadest meaning (in this connection, see ILC, 46th Session, Geneva, 1962, Report V(1), p. 24). The Committee also points out that the FNS supplementary allowance is payable to beneficiaries as of right and is not dependent of any discretionary assessment of their needs, which is a characteristic of an assistance benefit. In this connection, the possibility of recovering the amount of the supplementary allowance in certain cases from the beneficiary's personal estate cannot be considered to be a determining factor since it is not a consequence of an assessment of resources. The Committee, however, notes with interest the Government's statement that it is examining the possibility of applying equality of treatment as regards the award of the FNS allowance on French territory to foreigners who, although not covered by European Community regulations or bilateral reciprocity agreements in this connection, satisfy certain requirements regarding length of residence on the territory. Ministerial consultations have been commenced on this question, although their outcome is not yet known. In this context, the Committee also notes with interest the ruling of the Constitutional Council, No. 89-269DC of 22 January 1990, which declares unconstitutional section 24 of the Act containing various provisions respecting social security and health, which extended entitlement to the supplementary allowance to nationals of the European Communities, while maintaining the requirement of a reciprocity agreement for nationals of other States. In its preamble to the ruling, the Constitutional Council states that the exclusion of foreigners who regularly reside in France from entitlement to the supplementary allowance, in cases where they cannot avail themselves of international undertakings or regulations in this respect, is in violation of the constitutional principle of equality. The Committee hopes that the inter-ministerial consultations that have commenced to this effect, will result in the extension in both law and practice of entitlement to the supplementary allowance of FNS to the nationals of all member States which are bound by the Convention and not only to the nationals of countries that have signed an international reciprocity agreement, in accordance with Article 3, paragraph 1, of the Convention. Furthermore, the Committee points out that by virtue of Article 4, paragraph 2, the Convention only permits restrictions on equality of treatment with reference to length of residence within certain limits and only for benefits of the type set out in paragraph 6(a) of Article 2 (that is, benefits other than those the grant of which depends either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity).)

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 5, of the Convention. The Committee refers to its previous comments concerning the question of whether, in view of the condition of residence in France explicitly required by the legislation (section L.311-7 of the Social Security Code) in order to benefit from social insurance benefits, foreign insured persons, who are nationals of a country that has ratified the present Convention and who are residing in the territory of any one of the Members bound by the said Convention, but not signatories of a social security agreement with France, continue to enjoy the same contributory advantages as French insured persons. It requested it to specify whether administrative instructions had been issued so that the term "international agreements" used in the aforementioned section, which reserve the situation of workers who are nationals of countries with which France is bound by an agreement, are understood to apply to this present Convention. In its report, the Government indicates that the concept of automatic reciprocity in respect of the nationals of any Member bound by the present Convention, which is advanced by the Committee, would be void of content if it were to mean for France the unilateral suppression of the condition of residence required when applying for the payment of a pension, if this condition could be maintained in other States that had ratified the Convention. The Committee notes the Government's statement. It is however bound to point out that, in accordance with the Convention, any restrictions which may apply in the event of residence abroad shall only apply to pensioners and their dependants who are nationals of any Member bound by this Convention to the extent to which they apply to nationals of the country in which the pension has been acquired. In these circumstances, the Committee is bound once again to hope that the Government will study the necessary measures to give effect to this provision of the Convention.

[The Government is asked to report in detail for the period ending 30 June 1991.]

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 3, of the Convention. In its previous comments, the Committee drew the Government's attention to the need to provide the supplementary allowance of the National Solidarity Fund (FNS) (section L.815-2 of the Social Security Code) to nationals of all member States that are bound by the Convention and not only to French nationals and to foreigners who are nationals of countries which have signed an international reciprocity agreement (as set out in section L.815-5 of the Code).

In its reply, the Government indicates once again that the above allowance is not a social security benefit, but an assistance-type benefit. It adds that the FNS allowance, in contrast with social security benefits, is recoverable from the personal estate of the beneficiary, as are allowances that are paid as social assistance. According to the Government, in French law this feature marks the difference between social security benefits and assistance benefits. For assistance benefits, national solidarity only temporarily substitutes family solidarity, which is intended to assist family members in need. The Government also considers that the fact that the grant of this allowance is a legally protected right does not mean that it is a social security benefit. Indeed, entitlement is "legally protected" even for social assistance, except for a few marginal discretionary or isolated allowances.

Although it notes this information, the Committee is bound to refer to its previous comments on the nature of this allowance. It points out in particular that the supplementary allowance of the FNS is payable to beneficiaries as of right, without any discretionary assessment of needs, which is a characteristic of an assistance benefit. In this connection, the possibility of recovering the amount of the supplementary allowance in certain cases from the personal estate of the beneficiary cannot be considered a determining factor since it is not a consequence of the assessment of resources.

The Committee however notes with interest the Government's statement that it is examining the possibility of applying equality of treatment as regards the award of the FNS allowance on French territory to foreigners who, although not covered by European Community regulations or bilateral reciprocity agreements in this respect, satisfy certain conditions concerning their length of residence on the national territory. Ministerial consultations have been commenced on this matter, although their outcome is not yet known. In this context, the Committee also notes with interest the ruling of the Constitutional Council, No. 89-269 DC of 22 January 1990, which declares unconstitutional section 24 of the Act containing various provisions respecting social security and health, which extended the grant of the supplementary allowance to nationals of the European Communities, while maintaining the requirement of the existence of a reciprocity agreement for nationals of other States. In the preamble to its ruling, the Constitutional Council considered that the exclusion of foreigners who are regularly residents in France from the grant of the supplementary allowance, in cases when they cannot avail themselves of international commitments or regulations in this matter, disregards the constitutional principle of equality.

The Committee hopes that the inter-ministerial consultations that have been commenced in this respect will result in the extension in law and practice of the grant of the supplementary allowance of the FNS to nationals of all member States that are bound by the Convention and not only to nationals of countries that have signed an international reciprocity agreement, in accordance with Article 12, paragraph 3, of the Convention. (See also under Convention No. 118, Article 3, paragraph 1, branch (d) (invalidity benefit).)

[The Government is asked to report in detail for the period ending 30 June 1991.]

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 5, of the Convention. In reply to the Committee's earlier comments concerning whether foreign insured persons, who are nationals of a country that has ratified the present Convention, and who are residing in the territory of any one of the members bound by the said Convention but not signatories of a social security agreement with France, continue to enjoy the same contributory advantages as French insured persons, the Government indicates that section L.311-7 of the Social Security Code (formerly section L.245) does not make residence in France a condition for foreigners to benefit from pensions. Residence in France is a required condition only when a request is made for payment of the pension. Bearing in mind that under the provisions of this Convention any restrictions which may apply in the event of residence abroad shall only apply to pensioners and their dependants who are nationals of any member bound by this Convention and reside in the territory of any member bound thereby to the extent to which they apply to nationals of the country in which the pension has been acquired, and that consequently reciprocity should automatically be granted, the Committee can only repeat its hope that the Government will study the necessary measures to give effect to this provision of the Convention and requests it once again to specify whether administrative instructions have been issued so that the term "international agreements" used in the aforementioned section, which reserve the situation of workers who are nationals of countries with which France is bound by an agreement, are understood to apply to this present Convention.

CMNT_TITLE

See under Convention No. 35, as follows:

Article 12, paragraph 3, of the Convention. The Committee refers to its comments formulated over the past few years and relating to the supplementary allowance from the National Solidarity Fund granted under sections L.815-2 and L.815-5 of the Social Security Code and payable only to nationals and to foreigners who are nationals of countries which have signed a reciprocal agreement with France as well as to workers and former workers who are nationals of the European Economic Community (EEC) and residing in France. The Committee takes note that the Government reiterates that the above-mentioned allowance is not a social security allowance but a supplementary assistance payable on the basis of a means test, the object of which is to guarantee to its beneficiaries a minimum means of existence, irrespective of the nature of the basic benefit. The situation may even arise where there is no basic benefit, as it has been increasingly observed that this allowance is paid to people who have never worked. A distinction must thus be made between pension supplements which constitute an accessory allowance and guaranteed means which are intrinsically bound up with the living standards of the State in which they are paid and are the expression of national solidarity. Furthermore, in allocating supplemenary allowances from the National Solidarity Fund, account is taken not only of pensions (including pensions paid by other States), but also of other means such as possible professional income, personal estate, etc. If an applicant possesses a personal estate, the institution which issues the allowance must require that a mortgage be registered on this estate and, if there is a succession, the institution can recover all or part of the sum paid in supplementary allowance on this inheritance. Since these procedures are applied to French applicants for the allowance, foreign nationals residing in France cannot be exempted from them. Hence, the necessity of concluding bilateral agreements, which are separate protocols distinct from social security conventions reflecting the juridical nature of the solidarity fund allowance, providing for the active participation of the contracting State in the indispensable verification of the conditions under which the allowance can be granted, and which are different in each situation depending on whether or not reciprocity can be found in the legislation of the other State.

The Committee takes note of the statement. It points out that the granting of the allowance in question is not subject to discretionary judgement, but constitutes a right for applicants who fulfil the required conditions, this being one of the elements of insurance benefits. It also considers the fact that this allowance can be granted in certain cases where there is no basic benefit. The supplementary allowance, as its name indicates constitutes the complement of a principal benefit, that is to say, an increase payable at present out of public funds, and therefore comes under this provision of the Convention. With regard to the procedures described above which apply to applicants for the allowance, the Committee agrees with the Government that these should also apply without distinction to foreigners if they have property in France. Consequently, it again expresses the hope that the Government will make provision to extend the benefit of the above-mentioned allowance to the nationals of States bound by this instrument at least if they are already beneficiaries of contributory social security benefits and continue to reside in France.

The attention of the Government is invited to the observation of the Committee in regard to Convention No. 118 (Article 4, paragraph 1). [The Government is asked to report in detail for the period ending 30 June 1990.]