Observation (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

The Committee notes with regret that the report of the Government does not contain any reply to its previous comments that it has been making for a number of years. It also notes that this case was discussed at the Conference Committee in June 1997 and that on that occasion the Government representative referred to numerous decisions, in particular of the "Cour de Cassation", and of the constitutional council which recognize the principle of the equality of treatment between nationals and foreigners in the area of social security, and determine the conditions of its realization, in particular through the agreements between Third World countries and the European Community. The Government representative referred also to new legislative provisions to be adopted by the Government which have been recently put in place. Together with the Conference Committee, the Committee must once again stress the importance it attaches to the principle of the equality of treatment in social security, which has to be applied, in accordance with Articles 3 and 4 of the Convention, without any condition as to residence, to the nationals of all States having accepted the obligations under the Convention, and not only to nationals of countries which are a party to a bilateral or multilateral agreement based on international reciprocity. The Committee therefore hopes that the Government will not fail to supply a detailed report for examination at its next session containing full information both on the situation in law and in practice and on the measures taken or contemplated to bring the national legislation and practice into full conformity with the Convention on the following points raised in its previous observation.

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 had referred in its previous comments to ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France. The Committee once again expresses the hope that the Government will be able to indicate in its next report the measures taken to grant in law and practice the FNS supplemental benefit to nationals of all member States which have accepted the obligations of the Convention (and not only to nationals of a country which has signed an international reciprocity agreement, as provided in section L.815-2 of the Social Security Code).

Concerning the scope of the retaliation clause allowed by Article 4, paragraph 1, of the Convention, the Committee refers to its observation of 1993.

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Committee hopes that the Government's next report will contain detailed information on the measures taken to ensure the payment of this benefit to foreigners residing in France who are nationals of any State that has accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), of the Convention 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 had 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). In its report for the period 1 July 1991 to 30 June 1992, the Government indicated that concerning invalidity pensions, and invalid widowers' or widows' pensions, the condition of residence shall be fulfilled at the time of making a claim in the case of nationals of a country with which France does not have an agreement. It added that, with regard to survivors' pensions, the benefit of a reversionary pension may, in the case where the deceased insured was not a national of a country with which France has entered into an agreement, be obtained in the following situations: the deceased insured person has already obtained validation of the right to an old-age pension; the insured person who had not exercised the right to the pension had resided in France at the moment of death. The Committee noted that a condition of residence always exists for non-national beneficiaries, but only at the moment of exercising the right to benefit, that is to say, at the time when presenting the request to liquidate the invalidity or survivors' pension.

In these conditions, the Committee again hopes that, in all cases where the insured or the deceased was subject to the social security system in France at the moment of the contingency, the appropriate measures will be taken, concerning branches (d) and (f), to ensure the application of this provision of the Convention for payment of benefits, both in law and practice concerning equality of treatment, without condition of residence for nationals of all States bound by the Convention.

3. In its previous observation the Committee noted the observations of the French Democratic Labour Confederation (CFDT) on the modifications of the Social Security Code by Law No. 93-1027 of 24 August 1993 (concerning the supervision of immigration and the conditions for entry, reception of stay of foreigners in France) which introduced the requirement of regular residence to receive benefits and which has resulted in the denial of all right to social security benefit for persons in irregular situations. The CFDT added in a new observation that this legislation has created situations which are unacceptable. Foreigners having the right to stay for numerous years have paid contributions to the social security fund. The loss of this right, in case of non-renewal of a residency permit, for example, would result in the loss of all benefits from these contributions since the person would cease to be a member of the fund.

The Committee also has noted the Government's statement in its report for Convention No. 97 that the provisions of the above-mentioned law do not violate the principle of equality of treatment for foreigners in conditions of regular residence or stay in French territory.

The Committee recalls that the principle of equality of treatment provided in Articles 3 and 4 of the Convention is intended to eliminate discrimination based on a person's nationality. Consequently, a requirement of lawful residence in the country or of lawful authorization to be in employment does not appear to be contrary to this principle; where such conditions are imposed the difference in treatment does not appear to be motivated by the alien status of the persons concerned but rather by their legal position under the regulations governing entry into and residence in the country, or access to employment.

The Committee wishes to stress that the loss of right of residence should not affect rights in the course of acquisition which the insured can claim for the periods of contribution in which he was in a regular situation. In this case, the rights in course of acquisition of the insured shall be maintained under the agreements provided for in Articles 7 and 8 of the Convention. Furthermore, in the case where the loss of right to remain occurs after the liquidation of rights, the provision of long-term benefits shall be guaranteed even after the insured person has left the national territory, in accordance with Article 5 of the Convention.

The Committee asks the Government to indicate any new developments in this respect.