Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

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.]