Observation (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

1. Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). (a) With regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government states that the ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France have not yet been concluded. It adds that the financial impact of such an extension would be immediate and very heavy and would have to be borne entirely by the state budget, which would be difficult in view of the budgetary and economic constraints. The Committee notes this information. It hopes that once the above-mentioned ministerial consultations have been concluded, the Government will be able, in accordance with this provision of the Convention, to take the necessary measures to extend in both law and practice the provision of the FNS supplementary allowance to nationals of all member States that have accepted the obligations of the Convention (and not only to nationals of countries that have signed an international reciprocity agreement as provided in section L.815-5 of the above Code).

(See also under 2 as regards the scope of the reciprocity allowed by Article 4, paragraph 1, of the Convention.)

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Government indicates that the issues relating to its extension to all foreigners residing in France are very similar to those of extension of the FNS supplementary allowance. In these circumstances, the Committee hopes that the Government's examination of this matter will lead to the Convention being fully applied in this respect by providing the allowance for disabled adults to nationals, who reside in France, of all States that have accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), under which it may make the grant of a benefit conditional upon a period of residence of up to five years).

2. Article 4, paragraph 1 (branch (d)) (Invalidity benefit) and branch (f) (Survivors' benefit). In its previous comments, the Committee noted that the legislation imposed the condition of residence in France for the provision of social security 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 mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946). According to the explanation given by the Government in its report, the condition of residence is required only when insured persons apply for liquidation of the pension and, in practice, is considered to have been fulfilled if the foreign national can show that he has resided lawfully in France for more than three months. With regard more particularly to invalidity pensions proper, and invalid widows' or widowers' pensions, the Government states, without indicating however the relevant provisions of the law, that there is no residence requirement for foreign beneficiaries either for payment of the benefit or for liquidation of the pension, once entitlement is established and can be verified. The Committee understands from the Government's statement that condition of residence is still required of foreign beneficiaries but only at the time of entitlement, i.e. when application is made for liquidation of an invalidity benefit or survivors' pension.

Furthermore, the Government repeats its view that the notion of reciprocity which is the foundation of all international Conventions would clearly be meaningless if it meant, for France, the unilateral abolition of the condition of residence required on application for the liquidation of a social security benefit, while other signatories to the Convention continue to apply this condition. The Government considers that this general principle underlies the text of Article 4, paragraph 1, of the Convention which must be applied in its entirety. In this connection, the Committee wishes to point out that the basic principle laid down in Article 4, paragraph 1, is that equality of treatment which must be granted to nationals of all States that have ratified the Convention must be ensured without any condition of residence, on the basis of automatic reciprocity between member States which is established by this instrument. However, this provision does allow an exception from the principle in respect of benefits of a specified branch of social security in the case of nationals of any Member the legislation of which makes the grant of benefits under that branch conditional on residence on its territory. This exception is not a general one and its application must be examined in each individual case and for each branch of social security and in the light of the Member's legislation thereon. The fact that such an exception is possible cannot justify maintaining in French legislation a general rule which makes the grant of benefits to foreign nationals conditional upon residence, even if it is restricted to residence at the time when application is made for liquidation of the pension. In these circumstances, the Committee again expresses the hope that, in all cases where the insured person or the deceased were covered by French social security at the time of the contingency, appropriate measures will be taken to ensure, as regards branches (d) and (f), in both law and practice, that effect is given to this provision of the Convention, under 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.