Observation (CEACR) - adoptée 1991, publiée 78ème session CIT (1991)

The Committee notes the information supplied by the Government in its report.

1. (a) Article 3, paragraph 1, of the Convention, branch (d) (invalidity benefit). 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).

(b) With reference to its previous comments concerning the allowance for disabled adults instituted by Act No. 75-534 of 30 June 1975, the Committee notes with interest that the Government is continuing its examination of the possibility of providing this allowance to persons of foreign nationality other than nationals of the EEC (or members of their family) and Swedish nationals (who already benefit from it within the framework of the bilateral agreement concluded with Sweden). It hopes that this examination will result in the full application of the Convention on this point by ensuring the grant of the above allowance to nationals, who are resident in France, of all 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).

(c) Article 4, paragraph 1, branch (d) (invalidity benefit) and branch (f) (survivors' benefit). The Committee refers to its previous comments concerning the condition of residence placed upon the payment of social insurance benefits (in this case, invalidity and survivors' benefits) to foreign nationals insured under the scheme, whose country of origin has not concluded a social security agreement with France specifically guaranteeing the maintenance of these benefits. In its report, which does not contain information concerning invalidity pensions as such, the Government indicates that the condition of residence is not required for pensions for disabled widows and widowers, although it does not indicate the legal basis for this statement. It also confirms that a residence requirement is maintained in certain cases for widows' pensions for foreign nationals who cannot avail themselves of EEC regulations or bilateral reciprocity instruments, and also as regards widows' insurance. The Committee notes this information. In view of the fact that, contrary to the Convention, the payment of social insurance 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) is explicitly conditional upon their being resident in France, the Committee once again hopes that the Government will be able to indicate the measures that have been taken or are envisaged, as regards branches (d) and (e), to ensure the application in law and practice of this provision of the Convention, under the terms of 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.

2. Article 6. In reply to the Committee's previous comments concerning the obligation to provide family allowances in respect of children resident abroad on the territory of a member State that has accepted the obligations of the Convention for branch (i) (family benefit), the Government indicates that rights that are identical to those of French nationals are guaranteed to foreigners who are regularly resident in France - provided that their children are also regularly resident in France - as regards the grant of family benefits under the internal social security scheme, in conformity with sections L.512-1 and L.512-2 of the Social Security Code. Furthermore, certain family benefits (particularly family allowances) can be paid under Community regulations. Finally, a certain type of family allowance can also be paid abroad under the various bilateral social security agreements concluded by France. The Committee notes this information. It hopes that the Government will endeavour to conclude agreements with other member States concerned that have accepted the obligations of the Convention for the family benefit branch in so far as there exists migration with such States. The Committee requests the Government to supply information on any agreement concluded to this effect. (In addition to France, the following States have accepted the obligations of the Convention for branch (i): Bolivia, Cape Verde, Central African Republic, Guinea, Ireland, Israel, Italy, Libyan Arab Jamahiriya, Mauritania, Netherlands, Norway, Tunisia, Uruguay and Viet Nam.)