Key Benefits:
FINANCING
FOR 2004
Mr President, ladies and gentlemen, the members of the Constitutional Council, we have the honour to refer to you, in accordance with the second paragraph of Article 61 of the Constitution, all of the Social Security Financing Act for 2004 as adopted by Parliament. Several of its provisions are contrary to the Constitution, including articles 17, 18, 54, 55, 39 and 52.
I. - The lack of sincerity of the funding law
for 2004
I-1. Section 17 of the above-mentioned Act sets out the revenue forecasts, by category, of all mandatory basic plans and organizations created to contribute to their funding. As for section 18, it sets out for 2003 the revised revenue estimates for the same categories of all mandatory plans created to contribute to their funding.
These articles must be analysed as presenting unrealistic forecasts, leading, therefore, to the fact that the law ignores the constitutional principle of sincerity as required, under your well-established jurisprudence, to the laws of financing social security (Decision 2000-437 DC of 19 December 2000, considering 16-19; Decision No. 2001-453 DC of 18 December 2001, considering 5 and 6; Decision No. 2002-463 DC of 12 December 2002, considering 4 and 5).
The principle of sincerity is therefore now a principle of full rank of budgetary law, provided for in the Financial Law in Article 32 of the Organic Law of 1 August 2001, as in the law of public social finances. You have specified the conditions of its respect while taking care to avoid the constitutionality debate to the quarrel of financial experts. It follows, therefore, that the manifest error of appreciation, which could, in particular, result from a will of concealment, is one of the assumptions in which you plan to draw all the consequences of this principle (decision of 12 December 2002 above, considering 4).
The obvious error of appreciation will be established when, for example, information is not provided to Parliament at the time it is called upon to rule on the Social Security Financing Bill, whereas it is available or could be.
This would be the case if the Government knowingly underestimated certain revenues, or even did not demonstrate the necessary prudence in the determination of objectives, thus validating the existence of a deficit too large in relation to the requirement of balance, which is nevertheless a principle of the protection of the social security system based on solidarity.
I-1.1. In the first place, it is clear that the lessons of the year 2003 on the drift of social accounts, such as concerns about the evolution of the economic situation that persist in the various countries, clearly illustrate that the estimates from which the Government has prepared this Social Security Financing Bill are less than tangible reality. At this point, there is no question of experts' disputes, but of prudence in the presentation of social security accounts, which guarantees national cohesion.
The Government claims that if the general regime's tendential deficit was to reach 13.6 billion euros in 2004 before the measures taken under the criticized law, it will be reduced by 3.5 billion euros thanks to the stabilization plan presented to be "no longer" than 11.2 billion euros.
This presentation, which in any case endorses the principle of deficit, cannot be seriously accepted. In this case, the notion of social security balance seems far from the Government's concerns, to the point that one can question his real will to preserve it.
On the one hand, it is acquired that public deficits will be 4% for the year 2003. However, the financial bill, such as the Social Security Financing Bill, reported a public deficit of 3.6 per cent for 2004.
However, as everyone agrees to recognize it, the economic situation, both nationally and internationally, must lead to caution as to the evolution of public deficits, particularly that of the general social security regime.
The teachings of the year 2003 should have led to the fact that the revenue forecasts are based on an assessment built from an objectively and rationally prudent vision.
It is important to remember that a proportionally low error can produce very large product deviations. An error of a base point, or 0.1% of a base point, can result in a gap of 182 million euros. That is to say that the estimates on which the Social Security Financing Bill is based must be as accurate as possible and should not leave room for too random assessments.
In other words, any excessive overstatement in the presentation of accounts can only result in a serious error of consequences as to the level of the expected deficit in order to ignore the principle of sincerity.
On the other hand, it is certain that the expenses of the general health insurance industry are steadily increasing. This increase is 6.5 per cent over one year, at the end of October, according to provisional figures published by CNAMTS. CNAMTS stated in a statement dated 21 November 2003 that "the diagnosis remains the same for the whole of 2003: that of an ever-strong growth in city care (...)".
As a result, the weakness of growth and the steady increase in health insurance spending are such a scissor effect on the deficit.
These conditions for the development of the Social Security Financing Bill should have required the Government to be more cautious in the presentation of the social accounts submitted to the vote of the national representation.
The report for opinion, made on behalf of the Finance Committee of the National Assembly, expresses with real delicacy the obvious error of appreciation thus committed: "In view of the magnitude of the forecast errors found on economic growth, due to changes occurring during the year, it is self-evident that the forecast of revenues, and thus of deficit, to evolution of the expenditure unchanged and dependent, in any case
The statement intends to exonerate the Government's appreciation error. Regardless of the skill of the defense, she confirms it.
This manifest error of appreciation is all the less questionable since the Government has knowingly ignored the reality of the situation from which the criticized law was built.
Finally, and this point radically reinforces the criticism of insincerity, the Government announced, during the debates of the National Assembly on this Law, that it would introduce new measures concerning, in particular, the control of health expenses "whose drift is of particular concern to the European Commission". As a report from the Agence France-Presse dated 31 October 2003, France will make new proposals.
The principle of constitutionally binding sincerity presupposes that the information of the European authorities, drawn from the treaty obligations of France, does not prevent the information of the national parliament. The reality of the information transmitted to parliamentary representation is therefore more than subject to bail if, in parallel with the review of the Social Security Financing Act, the Government makes adjustments to the public deficits, including health spending, through other channels.
This admission, now public even if it is late, leads to consider that the assessment of deficits is wrong and that the measures to be taken are only partially in the body of the constitutionally planned legislative framework in this regard.
It would not be seriously inconsistent to claim that these forecasts suffer from the hazards inherent in the exercise or the particular uncertainty of the subject matter.
The obvious error of appreciation committed by the Government could not be made more striking, otherwise that the politically shifted management of the budget calendar allowed it to conceal from Parliament the reality of the relevant figures and the measures to meet the obligations of France among European institutions. In such a way that the forecasts made by the Government reflect a manifest, certain and voluntary misstatement, distorting the exercise by Parliament of its prerogatives.
I-1.2. Second, it should be recalled that the control of the principle of fiscal sincerity cannot remain an empty shell. In fact, while the Government had made the commitment, during the debate on the Social Security Financing Act for 2003, to table, if necessary, a bill of rectificative funding, it did not respect its word.
However, first of all, this commitment, which was set out in item 5.1 of the report annexed to the Social Security Financing Act, had contributed to your reasoning to consider that the principle of sincerity was respected (Decision 2002-463 DC of 12 December 2002, considering 5).
Secondly, the Social Security Accounts Commission of 15 May 2003 highlighted a drift in social accounts that was very important since the deterioration in the balance of the general system was 4 billion euros compared to the law passed in December 2002. This was a degradation corresponding to a little more of the total objective (3.9 billion euros). The Social Security Accounts Commission of September 2003 confirmed the calamitous evolution of social finances by forecasting a deficit of 8.9 billion euros for the year 2003, which is therefore more than 5 billion euros in terms of the target set.
If, under such conditions, a rectificative finance law is not necessary, it is to assume that this normative category is intended to remain empty of application.
It is true that in the present debate, as attested to by the silence of the report annexed this year, the Government retains any commitment of this nature.
Of course, it is not up to you to judge retroactively the lack of knowledge of the principle of sincerity. On the other hand, it is important that the cluster of indexes built through flagrant practices and findings of failure to the principle of sincerity can be used to control the manifest error of appreciation.
In other words, your control should be measured by the lack of awareness of the above-mentioned safeguards.
In this case, the cluster of indexes, far from the quarrels of experts, can only incline you to consider that the Government has made such a manifest error of appreciation and that all the consequences must be drawn from it in accordance with the principle of fiscal sincerity.
I-2. Sections 54 and 55 of the criticized law are subject to similar criticism. These provisions set out the national objective of health insurance expenditures (hereinafter: ONDAM). Objective that you also submit to the monitoring of the principle of fiscal sincerity (Decision 2000-437 DC of 19 December 2000, considering 45 and 46; Decision No. 2002-463 DC of 12 December 2002).
However, there can be no doubt that the NDAM retained is, in this case, covered with a manifest error of appreciation.
According to the criticized articles, expenditures in the NDWA field would increase by 5.5% in 2004. However, the economic measures contained in the legislation of the Government allow the Government to present an ONDAM of only 4%.
Several indices converge to consider that this ONDAM is instigated.
On the one hand, the slightest refund of homeopathic products will have a perverse effect of consumption slip. Patients who will choose, because always sick, to refer to allopathic medications will certainly buy better refunded remedies but on average four times more expensive than homeopathic specialties. It is therefore an increase in expenses that can be seen through this measure.
On the other hand, according to the Court of Auditors, the revalorization of the Generalist consultation price was only weakly offset by the development of generics. Under these conditions, the possibility for NAMUs to enter into contracts with groups of health professionals for the development of improvements in their practices must be appreciated in relation to the June 2002 and January 2003 agreements, the consequences of which in terms of expenditures are those previously recalled.
As a result, the 800 million savings envisaged through the implementation of a medical master's degree in city health spending and the 60 to 70 million savings related to the decline in homeopathy repayment appear to be largely fictitious.
It is true that the Government asked Parliament to vote on these devices while at the same time it announced new measures to meet its European obligations.
In addition, throughout 2003, the Government introduced a set of new measures that are difficult to trace funding in the NDAM. This includes the "Hospital 2007" plan, the cancer control plan, the "emergency" plan, provisions relating to the common classification of medical acts and the dependency plan provisions for institutions hosting dependent elderly people.
Finally, the transfer of charges under section 82 of the Finance Bill for 2004, now passed in accordance with the National Assembly and the Senate, has accentuated the non-speakable nature of the NDAM. The Social Security Financing Bill for 2004 incorporates the consequences of this article, which establishes a package for the care of universal supplementary health coverage. As a result, the participation of the National Health Insurance Fund is increasing as an expenditure from the complementary plan is funded by the general plan.
More sincerity and clarity have been experienced in the NDAM presentation.
II. - On section 39 of the law
This article excludes from the benefit of the cost coverage to which social insured persons can claim, the acts and benefits performed outside of any medical benefit. This is, in particular, the disbursement of the issuance of medical certificates necessary to obtain a sports licence.
Its particularly broad field, which an amendment has only partially restricted, ignores the requirements of the 10th and 11th preambular paragraphs of the 1946 Preamble to the Constitution under which the nation "guarantes to all, especially to the child, mother and old workers, the protection of health", but also rest and leisure, and together the principle of equality. There is a link between the right to health and the right to social protection based on the principle of equality of all before the law.
Such a provision is all the more shocking, this time from the point of view of the principle of equality before public office, as this obligation is evident in certain cases of legal and regulatory constraints.
This measure, which can be seen as directly impairing the principle of equality, also ignores the need for prevention, including the importance of sport and physical activities for the prevention of many diseases, including cardiovascular diseases. As a result, young people and young people will be deprived of sports activities to prevent the risks of certain conditions.
If we are in the context of the purpose of the Social Security Financing Act and its purpose to reduce health spending, we must see that there is a danger to the prevention of diseases that have a cost to health insurance, or even other branches of social security.
By placing itself on the ground chosen by the Government, this article cannot be saved further. All the less, since Parliament has shown itself to be more dubitative about the real scope of this measure (Senate, report, TV, No. 59, Mr.A. Vasselle, page 107).
Of all these leaders, censorship is running.
III. - On section 52 of the law
This article affects the scope of Article 314-6 of the Code of Social Action and Families by amending the procedure for the approval of collective agreements of the social and medico-social sector, by making it impossible for the social partners of this branch to have a rate of change in the wage mass set by ministerial order.
This provision is totally foreign to the scope of social security financing laws as defined by Article LO 111-3 of the Social Security Code in paragraphs I and III (III-1).
It also ignores the principle of contractual freedom (III-2).
III-1. The violation of the scope of funding laws
Social Security:
This article does not contribute to improving social security income or to reducing the costs associated with social security. It does not further contribute to the information of Parliament.
It could be brought closer to the article censored by you and related to the conditions of designation of the members of the CNAMTS Commission on Occupational Accidents and Diseases (decision of 12 December 2002 referred to above, considering 45).
III-2. On the violation of the principle of contractual freedom:
It is the result of your jurisprudence that contractual freedom is guaranteed under Article 4 of the Declaration of Human Rights of 1789, but also the eighth preambular paragraph of 1946 (Decision No. 99-423 D of 13 January 2000, considering 42-45).
In this case, there is no reason for a sufficient general interest to justify such an infringement of these principles through such strict supervision by the administrative authority. It should be added that the predictive nature of this rate is difficult to reconcile with the reality of wage bargaining and with the changes in social relations in the institutions concerned.
This difficulty was remarked by the Social Affairs Committee of the Senate, which pointed to the constitutional problem (Sénat, Report No. 59, TV, page 131).
From these leaders, censorship is inevitable.
We ask you to believe, Mr President, ladies and gentlemen, the members of the Constitutional Council, in the expression of our high consideration.
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(List of signatories: see decision No. 2003-485 DC.)
