Observación (CEACR) - Adopción: 1990, Publicación: 77ª reunión CIT (1990)

The Committee notes the information supplied by the Government in its report. It notes, in particular, the information concerning the application of Article 5, paragraph 1, of the Convention, branch (d) (invalidity benefit).

1. (a) Article 3, paragraph 1, of the Convention, branch (d) (invalidity benefit). In reply to the Committee's previous comments concerning the provision of supplementary allowance from the National Solidarity Fund granted under section L.815-2 of the Social Security Code that it must be payable to nationals of all the States Members parties to the Convention and not only to French nationals and nationals of countries that have signed an international reciprocity agreement with France (as provided in section L.815-5 of the Code), the Government repeats that the supplementary allowance is not a social security benefit, but an assistance-type benefit payable on the basis of a means test, the object of which is to guarantee to the beneficiaries a minimum subsistence income, irrespective of the type of basic benefit provided. The situation may even arise where there is no basic benefit and it has been observed that this benefit is being provided increasingly to persons who have never worked. A distinction should therefore be made between pension supplements, which are an accessory to a benefit, and income guarantees, which are intrinsically bound up with the living standards of the State in which they are provided and are the expression of national solidarity.

Furthermore, the Government points out that, when awarding supplementary allowance from the National Solidarity Fund, account is taken not only of pensions (and this includes pensions provided by other States), but also of other resources such as occupational income, personal estate, etc. In cases where the applicant possesses personal estate, the institution providing the allowance is bound to require that a mortgage be taken out on this estate and, in the case of an inheritance, the institution may recover the whole or part of the sums that have been paid in the form of the supplementary allowance from the inheritance. Since these procedures are applied to French nationals who make a claim for the allowance, it is not possible to exempt foreign nationals resident in France from the same procedures. It is therefore necessary to conclude bilateral agreements, which take the form of specific protocols distinct from social security agreements reflecting the juridical nature of the National Solidarity Fund allowance and providing for the active participation of the contracting State in the verifications, that are indispensable, of the conditions under which the allowance can be granted and which are specific to each branch depending on whether reciprocity can be found in the legislation of the other State.

The Committee takes note of these statements. It points out that the award of the allowance in question is not subject to discretionary appraisal, but constitutes a right for the applicants who fulfil the required conditions, which is one of the characteristic features of an insurance benefit. It considers that, even though this supplementary allowance can, in certain cases, be awarded without the existence of a basic benefit, this allowance, as its name indicates, is a supplement to a principal benefit and hence it constitutes a social security benefit falling within this provision of the Convention. It is in this sense that the Court of Justice of the European Community, in a judgement that the Committee noted in its previous comments, ruled on 24 February 1988 in the case of Giletti et al. In this connection, the Committee is bound to refer to its previous comments to the effect that, in accordance with the meaning given in the Convention (Article 1, paragraph (b)), the term "benefits" refers to "all benefits, grants and pensions, including any supplements".

As regards the procedures described above, which apply to applicants for the allowance, the Committee agrees with the Government, that these must doubtless be applied without distinction to foreigners when they have property in France. The Committee therefore once again expresses the hope that the Government will take the necessary measures to give full effect to this provision of the Convention.

(b) In its previous comments, the Committee, which had previously taken note of the comments of the General Confederation of Labour (CGT) in relation to Convention No. 97, concerning the conditions of payment of allowance to disabled adults instituted by Act No. 75-534 of 30 June 1975, expressed the hope that the provision of this allowance could be guaranteed to nationals residing in France of all the States that have accepted the obligations of the Convention (subject to the possibility open to the Government of availing itself of Article 4, paragraph 2(b), making the grant of the allowance dependent on a period of residence of up to five years). It stressed the fact that the characteristics of this allowance for disabled adults linked it in law to non-contributory social security benefits, such as those covered by Article 2, paragraph 6(a), and not to assistance benefits. In this connection, the Committee noted from the reply of the Minister of National Solidarity to the written question of a senator (JOS of 3 April 1982, p. 906), that the possibility of granting to all foreigners the right to allowance for disabled adults, subject to a certain period of residence, was being thoroughly examined. Since the Government's report contains no new information in this connection, the Committee can only once again express the hope that the next report will contain information on the progress achieved in the implementation of this provision of the Convention.

(c) Article 4, paragraph 1, branch (d) (invalidity benefit) and branch (f) (survivors' benefit). In its previous comments, the Committee noted that the legislation made the payment of social insurance 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 mining sector scheme (section 184 of Decree No. 46-2769 of 27 November 1946), conditional upon their being resident in France, except where there is an agreement between France and the country of origin of the beneficiary specifically guaranteeing the maintenance of these benefits. The Committee therefore pointed out that, under the above provision of the Convention, the right to invalidity and survivors' benefits without any residence requirement should be guaranteed to nationals of all States Members parties to the Convention. In its report, the Government specifies that section L.311-7 of the Social Security Code does not impose the condition of residence in France on foreigners in order to entitle them to the benefit of pensions. The condition of residence in France is required only at the time of applying for the payment of pension. The Committee takes note of this information with interest. In this connection, it wishes to know whether the condition of residence in France is also required at the time of applying for payment of survivors' and invalidity benefits.

2. Article 6. In reply to the Committee's previous comments concerning the obligation to provide family allowances in respect of children resident abroad, the Government indicates that under the terms of section L.512-1 of the Social Security Code, all persons resident in France are entitled to benefit from family allowances, provided that the children are also resident in France. The criterion of residence is a substantial requirement in view of the fact that, since the abolition in 1975 of the requirement of exercising an occupational activity, it remains the only criterion to obtain family benefits. This criterion is justified by a range of legal, political and financial motives.

With reference to the desire expressed by the Committee that the French Government should complete existing bilateral agreements (with Israel and Norway) and conclude new ones (with the Central African Republic, Libyan Arab Jamahiriya, Bolivia and Viet Nam), if there is any migration of the type referred to in Article 6 with those States, the Government's report points out that it should be recalled that bilateral agreements are co-ordinating instruments concerning certain or all branches of social security which follow certain rules, the most important of which is reciprocity. How is it therefore possible to conclude an agreement for certain branches which it is known do not exist in the other contracting countries. Furthermore, these agreements are negotiated and take into account historical circumstances, the will of the two parties, the abiding interests and the situation of their legislations.

The Committee notes this information. It considers that it would be useful to point out that Article 6 of the Convention does not cover all family benefits (branch (i) of paragraph 1 of Article 2 of the Convention), but only "family allowances", that is "periodical payments granted as compensation for expenditure for the maintenance of children, exclusive of certain special allowances, especially those granted to mothers remaining at home" (see 1977 General Survey on Equality of Treatment (Social Security), paragraph 103). It would also be useful to clarify that this provision does not establish a direct or immediate obligation arising only from the ratification of the Convention, but merely an indirect obligation, conditional on the conclusion of agreements among the member States concerned as to the conditions and the limits within which the guarantee referred to should be applied (see in particular paragraph 108 of the 1977 General Survey on Equality of Treatment (Social Security)). In these circumstances, the Committee requests the Government to re-examine the matter at the appropriate time in order to give effect to this Article of the Convention.

3. Article 10, paragraph 1, of the Convention. With reference to its previous comments, the Committee notes with interest that: (a) the allowance for handicapped adults established by Act No. 75-534 of 30 June 1975, which is payable to persons of French nationality or nationals of a country that has concluded a reciprocity agreement in this connection and who reside or have resided in the metropolitan territory or in any overseas department or territory (section L.821-1 of the Social Security Code), has been extended, by ministerial circulars Nos. 1258 of 2 November 1979 and 7 of 23 January 1980, to refugees and stateless persons who are permanently resident in France, by applying the clause of the most favoured nation; (b) in general, France is endeavouring to include refugees and stateless persons in the scope of most of the social security agreements that it concludes with other countries.

4. In its previous direct request, the Committee requested the Government, taking into account the provisions of Article 2, paragraph 1(a) (medical care) (taken in conjunction with Article 3, paragraph 1, of the Convention), to clarify the scope of Ministerial Letter No. 36 of 13 January 1986 (the Ministry of Social Affairs), which was referred to in the circular dated 12 February 1986 and in the letter dated 16 April 1986 of the National Sickness Insurance Fund for Employees, under which the beneficiaries of French invalidity and old-age benefits and pensions in respect of industrial accidents are refused benefits in kind under sickness insurance when they are foreign nationals resident abroad who are temporarily staying in France, while French nationals resident abroad who are beneficiaries of French benefits and pensions, receive the benefit of medical care when they are staying temporarily in France.

The Government indicates in this connection that the condition of at least three months' lawful residence required of foreign workers cannot be imposed upon French nationals residing abroad who are beneficiaries of French benefits and pensions and who therefore must be awarded benefits in kind under the sickness insurance scheme when they are temporarily staying in France. These beneficiaries are, due to their nationality, considered to be in possession of permanent right to residence in France. The Committee takes note of this statement.