Observation (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

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).)