Key Benefits:
FINANCING
FOR 2007
Mr President of the Constitutional Council, 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, the entire Social Security Financing Act for 2007.
We develop the following observations in support of this referral.
1. Respecting the principle of health protection
According to the 10th and 11th preambular paragraphs of the 1946 Constitution: "The Nation shall provide the individual and the family with the necessary conditions for their development. "It guarantees everyone... the protection of health, material security, ...." This constitutional requirement allows for a close link, based on the principle of equality before national solidarity and public office, between the right to health and the right to social protection.
Your jurisprudence has regularly clarified the obligations made to legislators, on the one hand, and to the regulatory authority, on the other, to ensure that these principles are respected. Your Decision No. 2002-463 DC of 12 December 2002 on the Social Security Financing Act for 2003 indicated that it will be the regulatory authority to set the fixed rate of liability so that the constitutional requirements for health protection are not challenged.
Similarly, your decision No. 2004-504 DC of 12 August 2004 specified that the lump-sum participation for certain acts or consultations covered by the health insurance pursuant to the II of Article L. 322-2 of the Social Security Code should be set at such a level that the same requirements are not questioned.
This regularly repeated case law is intended not to make the social insured the adjustment variable of the social protection policy. It reflects to what extent it is possible to work on the necessary adaptations of our system of social security and access to care and the search for sustainable and sustainable financing, without going to a system where social protection would be less for the poorest, where national solidarity would be at two speeds.
The control of health spending must meet specific constitutional standards. But it cannot become a simple way of accounting regulation. Conciliation of various constitutional rights cannot lead to provisions that transform social welfare institutions into repressive authorities.
Article 47 allows the Ministers responsible for health and social security, in the absence of the conclusion by 31 January 2007 of a conventional actor authorizing certain doctors to practice in a supervised manner excesses of fees, to make an order to amend the provisions of the national convention of general practitioners and specialists concluded on 12 January 2005.
Treaty partners and complementary organizations have already begun negotiations on how to implement a so-called optional sector that would be open to certain physicians under certain conditions of title and would allow supervised overtaking practices. They haven't done so far.
Article 47 creates an obligation of result to conventional partners by 31 January 2007 to implement this so-called optional sector. If not, the Government may, by order, amend the national convention of 12 January 2005 in that regard.
This article is intended to address a concern expressed by surgeons in terms of remuneration and practice. But the response leads our social protection system and our health system on a slope that is at least detrimental to access to health care and protection.
In the opinion of the statement of reasons for Government Amendment No. 404 adopted by the Senate, it is a matter of speeding up the implementation of an optional sector to avoid the complete disappearance of the opposable rate area in the field of surgery.
In the name of an emergency for surgery, it would therefore be necessary to strengthen the medical supply by creating an optional sector accessible to professionals with the titles required to access sector 2, but with a supervised overtaking practice. The Government therefore intends to develop the optional sector to the detriment of the free fee sector, initially for surgery, but in the reality of this article, nothing prohibits it from being the same for other specialties.
In the face of a real problem of professional vocation in a particular sector, is proposed a general solution that brings to social insurance the excesses of fees and which leads, given the risks of generalization, to a very strong lack of understanding of the constitutional principles of health protection and equal access to care.
In fact, the risk is important to first see the surgeons in the area at opposable rates, then later the practitioners of other specialties, and eventually the generalists, head to the optional area where the excesses would be allowed.
The effect will be strictly contrary to that displayed by the Government. This article simply opens the door within our social protection system to a new free fees sector that ultimately leads to the disappearance of the sector at opposable rates.
By means of a simple amendment, the Government proposes neither more nor less than surgical acts first, other acts then, are no longer refunded, as is the case currently by health insurance with the sector at opposable rates. Progressively, it is the end of the opposable rates. It is also the programming of the end of the treaty system since the Government replaces it with this article.
The argument that complementary organizations will support the difference between the rate and the refunded rate cannot be used as a guarantee for equal access to care. Not only is agreement with complementary organizations on this point far from being proven, but it is also illusory to imagine that in this case the rates of complementary organizations would not increase to assume these new charges.
In addition, there is no obligation for the complementary bodies to cover the occupational risks associated, for example, with surgical practice, which the Government obviously does not wish to take over immediately.
In total, the social insured will charge the implementation of an optional sector. The rest for patients in the context of surgical acts in general costly will be a real barrier to access to care for all. Beyond surgery, access to heavy and indispensable care will be gradually compromised.
On the pretext of saving the surgical sector, the criticized article challenges the principles of solidarity of our social protection system. At the same time, the social insured person will be less well reimbursed by the supplementary plan, will be subject to increases in the contribution of the complementary organization to which it depends, will have to give up certain care.
There are better provisions than the optional sector to ensure health protection and access to care for all. For these reasons, this article can only be censored.
2. On the principle of equality
According to Article 6 of the 1789 Declaration: "The law... must be the same for all, whether it protects or punishes..." The principle of equality is not opposed to the fact that the legislator rules differently from the different situations, nor does it derogate from equality for reasons of general interest, provided that, in both cases, the difference in treatment resulting from it is directly related to the subject matter of the law that establishes it.
Section 24 provides that health facilities may transfer to the only National Health Insurance Fund of employed workers a portion of the net proceeds of disposal of their land and buildings, with the sums paid out exclusively for hospital investments.
Under law, this provision applies to all health facilities. However, given the reality of the legal nature and structure of institutions, it will only be applicable and applied to public institutions. Indeed, if public hospitals own their land and buildings, this is not the case for private institutions. Their immovable properties are held mainly by ad hoc civil real estate companies or private individuals, without direct connection to the operating company. They are not held by a health facility. In other words, the possibility offered to health facilities to pay the real estate proceeds is ultimately limited to public institutions.
The difference in treatment resulting from the application of section 24 is not justified by the law establishing it. In fact, it is a matter of creating a possibility of payment for the benefit of all health facilities, while the assignment of real property held by real estate companies or private individuals would be maintained in order to contribute to the investment of the associated private establishment.
On the one hand, public institutions are treated through an indifferent payment without certainty of return on investment, on the other, private institutions will be able to continue, through civil real estate companies or private individuals, to directly collect funds useful to their own and unique investment.
This situation is all the more prejudicial to the principle of equality because public health institutions are placed in an objectively different situation related to specific public service continuity missions, for example.
Moreover, the contours of this contribution are not really defined by law. Many questions related to the nature of the debit, the taxable basis, i.e. the nature of the property concerned, are unanswered. The legislator has obviously not exhausted all of its jurisdiction under Article 34 of the Constitution.
3. In the place of certain provisions in the Financing Act, the principle of separation of powers and the principles of clarity and sincerity of parliamentary debates
The Organic Law on Social Security Financing Laws No. 2005-881 of 2 August 2005, pursuant to the twentieth paragraph of Article 34 of the Constitution, has accurately defined the content and subject matter of the four parts of a Social Security Financing Act, respectively relating to the last fiscal year, the current year and, for the coming year, on the one hand, to the revenues and to the general balance, on the other, on the other. The same law also specified the provisions that can be approved only in the context of a social security financing law, or simply can be included in it.
Last year, as part of your decision No. 2005-528 DC of 15 December 2005 on the Social Security Financing Act for 2006, you declared non-conforming to the Constitution several provisions considered foreign to the area of social security financing laws.
Thus, it was declared contrary to the Constitution that the provisions concerning neither compulsory social security bodies nor the bodies referred to in Article LO 111-3 of the Social Security Code. The purpose of this is to respect the perimeter of social security agencies or institutions set out in Article LO 111-3 of the Social Security Code.
Similarly, provisions that have too indirect effect on the income or expenditure of compulsory social security agencies or organizations that contribute to their financing have been declared contrary to the Constitution. This is to explicitly respect the terms of the twentieth paragraph of Article 34 of the Constitution, according to which the laws of financing social security determine the general conditions of its financial balance and set its spending objectives.
Finally, the Constitution has declared provisions not intended to improve the information and control of Parliament on the application of social security financing laws. The aim is to ensure that such provisions relate to the very scope of social security financing laws.
You have thus supplemented and strengthened your jurisprudence on "social riders" in order to avoid, among other things, that the funding bills do not transform into a law "provisions of social order". You have thus reaffirmed a strong desire to refocus funding laws on their own object.
This case law specific to the proposed funding legislation must be reconciled to that relating to the right of amendment, which has been clarified on several occasions, that any amendment must be in direct relation to the subject matter of the text deposited on the office of the first meeting seized or with a provision remaining under discussion in a second reading (Decision No. 2006-533 DC of 16 March 2006). You thus ensure respect for the constitutional principles of clarity and sincerity of parliamentary debates.
In the Social Security Funding Act for 2007, your vigilance in this matter can be exercised on many articles that manifestly do not fall within the scope of funding laws and do not relate to their purpose.
The passage from 71 articles in the original bill to 143 in the law passed by Parliament illustrates a tendency to transform the law of financing of social security into a law of various provisions of a health and social order that are not respectful of the principles of clarity and legibility of parliamentary debates.
Article 15 validates the collective agreement of July 13, 2004, taking into account the decision of the Council of State of October 18, 2006 on the ministerial order of December 30, 2004 decided to extend the advent of July 13, 2004 to the collective agreement of hotels, cafes and restaurants fixing the weekly working period equivalent to the legal duration of thirty-nine hours in this sector and on the decree of December 30, 2004 validating the legal period
The Council of State recalled, pursuant to Article L. 212-4 of the Labour Code, that the institution by decree of a duration equivalent to the legal duration was only possible for specific jobs in the hospitality-restauration sector with periods of inaction and not for all jobs in this sector.
The article therefore reiterates the terms of the collective agreement of 13 July 2004 on the weekly duration of the work pending the conclusion of a branch agreement on the working time to be taken by 31 January 2007.
This article is unrelated to the scope and subject of the social security financing laws. It is only about provisionally defining the legal duration of work in a particular professional sector.
The precision introduced in this section that the mechanism for the reduction of common-law social contributions applies to hours between the legal period and the equivalent time as to hours within the legal period does not allow it to consider that it is part of the area of social security financing laws.
On the contrary, this precision emphasizes that the exemptions from social contributions for hours over the thirty-fifth hour enter the field of general exemptions being compensated, in accordance with the mechanisms of Article L. 131-8 of the Social Security Code. The provisions of this article therefore have no direct effect on the revenues of social security organizations.
The provisions of this section are also retroactively applicable for the period from 1 January 2005 to the date of conclusion of an agreement. You have regularly considered that, if the legislator has the power to adopt retroactive provisions, it can only do so in the light of a sufficient general interest and subject to not depriving legal guarantees of constitutional requirements.
These grievances were highlighted by the rapporteur of the Senate's Social Affairs Committee, who, in report No. 59, set out in number VI (p. 56), the Commission's strong reservations on the admissibility and retroactive nature of the article.
The legislator always has the power to deprive an effect of a decision of the Council of State or to validate an administrative act, provided that it complies with Article 16 of the Declaration of Human and Citizen's Rights of 1789 and the principle of separation of powers resulting from it.
For this purpose, the scope of the invalidation must be strictly defined and must present a sufficient general interest. This case law has been consistently reiterated, even recently in your decision No. 2004-509 DC of 13 January 2005. In this case, the ground of general interest is not proven, unless it is considered that rendering an inoperative decision of the Council of State in itself constitutes a sufficient ground of general interest.
Section 102 supplements articles L. 162-5 and L. 162-33 of the Social Security Code. It amends the rules of the right of opposition of trade union organizations and more generally the rules and criteria of representation of the organizations in question.
This article is the result of the adoption by the Senate of Amendment No. 416, submitted by the rapporteur of the Social Affairs Committee, on which no explanation of the reasons is given.
However, the parliamentary debates made it clear that it was a matter of amending the rules on opposition and representative rights that came out of Act No. 2004-810 of 13 August 2004, with the aim, according to the author of the amendment and the Government, to unlock a treaty situation that was deemed untenable.
In reality, this article is similar to a circumstantial adjustment of the law. By limiting the right of opposition to representative organizations, the criticized article prohibits those who obtained the majority in the professional elections from exercising this right. This is a piece of legislation that leads to the challenge of professional democracy.
The legislator preempts the right of professionals to organize themselves freely and to gain representation in the professional elections. This constitutes an infringement of freedoms, all the more important because a trade union monopoly situation is not necessary in this case.
The legislator could not have a right of appreciation of universal suffrage, if it were of inspiration and professional logic. The recent opinion of the Economic and Social Council on representativeness is consistent with a logic opposed to the objectives of Article 102.
This article can lead to deletion, de-conceiving the conventional system and its actors, as it allows not to take into account the results of the professional elections to the regional unions of the liberal doctors of 29 May 2006.
Beyond the substantive questions on the exercise of the right of opposition limited to only representative organizations and the rules of representativeness, it appears that this article which substantially alters the treaty rules is foreign to the area of the laws of financing social security.
In addition, this is a retroactive measure without sufficient grounds of general interest to justify it, except to consider that modifying the rules of the right of opposition in an unfavourable sense to organizations that have won the professional elections may constitute one.
Section 134 incorporates an article L. 161-36-2 in the Social Security Code to supplement or even delete provisions from the Health Insurance Act of 13 August 2004 on the Personal Medical Record. It is a matter of completing the terms of access to this file in the event that the patient's consent cannot be expressed. It is also a matter of defining the articulation between the personal medical file and the child's health record. It is also a matter of creating a pharmaceutical file based on personal medical records. Ultimately, the goal is to create a health identifier for people taken care of by a health professional or health care institution or a health network to facilitate the coordination, conservation, accommodation and transmission of health information.
This article is not similar to a simple technical adjustment. On the contrary, it contains substantial amendments to the original legislative framework, which highlight the criticisms presented by the applicants during parliamentary debates on the Health Insurance Act of 13 August 2004 in terms of coordination of care and access to health information. The experiments conducted revealed many of the shortcomings and shortcomings of the initial legislative provisions.
Not only must the subject matter of such a record and the conditions of its implementation meet the requirements of our right and ensure the constitutional principles of privacy and health protection, but also the review and adoption of the proposed amendments must meet the requirements of the legibility and clarity of the parliamentary debate. That is not the case. The scope of the amendment is much broader and extends far beyond the general conditions of the financial balance of social security.
In conclusion, these various articles must be censored. Your vigilance may also be exercised on many other provisions of this Social Security Financing Act that exceed the definition of the general conditions of its financial balance and spending objectives, as provided for in Article 34 of the Constitution and whose adoption undermines the sincerity of parliamentary debates.
4. On the right of priority
Article 39 of the Constitution states that social security financing bills are first submitted to the National Assembly. According to your case law, the Senate cannot introduce "full new" financial measures into a financial bill or a social security financing bill, which is a priority for the National Assembly. If not, the right of priority would be emptied from its full scope, especially since the emergency procedure systematically applies, thereby disabling the rights of the National Assembly.
The Social Security Funding Bill for 2007 contains many provisions that ignore the provisions of Article 39 of the Constitution. Articles resulting from amendments submitted by the Government are covered. Indeed, the right of amendment of members of the Senate is not at issue in the assessment of the right of priority.
Section 13, which creates a new mandatory exemption, and section 23, which creates a contribution reduction for companies operating pharmaceutical specialties, are "full new" financial provisions resulting from government amendments to the Senate.
Article 47, already cited above, opening the right of the ministers responsible for health and social security to amend the treaty provisions concerning the tariffs of specialists, was adopted under the same conditions.
Your vigilance in respect of Article 39 of the Constitution may be exercised this year on many "full new" provisions, such as those contained in articles 68, 95, 96 or 134, or other provisions that you may consider, which the Government has preferred to make in the form of an amendment to the Senate, instead of introducing them into the original bill. In doing so, the Government wanted to develop a practice that was to transform the funding laws into a "fake-all" project. Such drifts are not without risk on respect for the principles of clarity and legibility of parliamentary debates.
