Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

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.]