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Referral To The Constitutional Council Dated December 3, 2002, Presented By More Than Sixty Members, Pursuant To Article 61, Paragraph 2, Of The Constitution, And Referred In Decision No. 2002-463 Dc

Original Language Title: Saisine du Conseil constitutionnel en date du 3 décembre 2002 présentée par plus de soixante députés, en application de l'article 61, alinéa 2, de la Constitution, et visée dans la décision n° 2002-463 DC

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JORF of 24 December 2002 page 21503
text No. 5



Seizure of the Constitutional Council of 3 December 2002 submitted by more than sixty members, pursuant to Article 61, paragraph 2, of the Constitution, and referred to in Decision No. 2002-463 DC

NOR: CSCL0206139X ELI: Not available



FINANCING OF SOCIAL SECURITY FOR 2003


Mr.President, ladies and gentlemen, the members of the Constitutional Council, we have the honour to refer, in accordance with the second paragraph of Article 61 of the Constitution, all of the Social Security Financing Act for 2003 as adopted by Parliament. Several of its provisions are contrary to the Constitution and in particular articles 7, 13, 20, 21, 23, 42, 43, 49, 50, 51 and 56.


I. - On the absence of sincerity of the law
Social Security Funding 2003
I-1. Articles 20 and 21


Section 20 of the Act provides for the year 2003 for revenue estimates, by category, of all mandatory basic plans and organizations created to contribute to their funding. As for section 21, it sets out for 2002 the revised revenue estimates, by category, 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 in question ignores the constitutional principle of sincerity as required, according to your 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).
Certainly, your jurisprudence seems to consider censorship only in the case of a manifest error of appreciation, to the extent, in particular, where there are hazards inherent in such assessments as well as particular uncertainties regarding the evolution of the economy in certain periods (decision of 18 December, referred to above, considering 6). It must therefore be assumed that, in the event that the Government and Parliament have objective and rational information that they voluntarily do not take into account in setting the relevant forecasts, the manifest error can only be noted, with all consequences.
In this case, the obvious error of appreciation cannot be questioned. It is the result of a cluster of indexes illuminated by the Government's own statements and statements which, in the face of the evolutions of the national and global economy, has knowingly underestimated the slowing of growth with all its consequences on the evolution of the payroll and, consequently, on the social accounts.
For example, the Government is based on a 2.5 per cent growth base in gross domestic product for the year 2003. However, it is realized that the economic results duly observed since the beginning of the calendar year 2002, and particularly those of the third quarter, have led the same Government, by the voice of the Minister of Economy and Finance, to nuance this estimate. In other words, the number of growth that has been chosen to base the balance of the country's social finances is now reduced, and in any case, to remain a desirable assumption, is absolutely not realistic.
The same erroneous estimate must be found in respect of the revised revenue estimates under Article 21. It is clear that this article does not include any of the economic developments in the third quarter of 2002.
It is therefore no longer a rationally determined forecast, but an approach deliberately ignoring the probable or even already observed evolutions. In this case, these are not forecasts that are subject to hazards inherent in the particular fiscal year or uncertainty. This funding law, in fact presented as a transition, is based on estimates that make the impoverishment of the evolution of declining-reviewed growth in terms of the tangible information available to experts.
This analysis is illustrated by at least two elements.
On the one hand, the Government submitted, as part of the discussion in the Senate of the 2003 Finance Bill, an amendment (No.I-225) to review the revenue forecasts to a decrease of €700 million. In the same vein, it appears that the 2002 Corrigendum Finance Bill, adopted at the Cabinet of Ministers on November 20, 2002, recognizes that, compared to the revised evaluations for the year 2002 and associated with the 2003 Finance Bill, net tax revenues are expected to record an estimated decrease of €1.5 billion.
The result of these quantified and objective elements is that the estimates in sections 20 and 21 of the criticized law are based on assumptions that are necessarily wrong because they do not take into account the information available on the state of the national economy.
On the other hand, it is clear that the Government is seeking to mask this ins sincerity only in the form. To be convinced more, please refer to the Report on Health and Social Security Policy Guidance and the objectives that determine the general conditions of the financial balance of social security set out in the annex to this Act. Point 5.1 of this report is indeed very illuminating. Entitled "Engaging for the credibility of the objectives", this paragraph is an opportunity for the Government to take "the commitment to present to Parliament at the beginning of May a bill of rectificative funding, in the event that the revenue and expenditure forecasts made under the Spring Accounts Committee would show a significant offset to the objectives set out in the Financing Act for 2003" (page 36 of the attached report).
This presentation is a pre-existing announcement, without normative scope, of the actual and already known evolutions of the forecasts criticized, and thus, implicitly but necessarily, shows that the Government is unaware of the unrealistic nature of the figures on which it bases the measures taken by this text. Insincerity can not be more blatant than through the announcement of a law to finance social security rectificative to overcome the shortcomings that will arise because of this overestimation of growth; overstatement which can no longer be doubted that it is consciously organized.
It will not be surprising, in this regard, in the formulation of the above-mentioned report which sounds as a direct echo to your jurisprudence that it would belong to the Government, if the conditions of the financial balance of the mandatory basic social security regimes were challenged, to submit to Parliament the necessary adjustments in a law of rectificative financing (decision of 18 December 2001, considering no. 6, prec.).
It is too clear that, in doing so, the Government is attempting, in advance but in vain, to avoid censorship for violation of the principle of sincerity. The reality is simple: the Government, knowing that the figures used as the basis for the criticized law are clearly wrong, is preparing the ground for a billing financing law. The manoeuvre is skillful but, paradoxically, sheds light on the error made with respect to the forecasts set out in Articles 20 and 21 in question. Under these conditions, the Government's recognition of a lesser growth for 2002 confirms the unrealistic nature of its forecast originally announced for 2003 and, consequently, of the change in the payroll for the same year.
Invalidation for breach of the principle of sincerity is therefore inevitable.


I-2. Articles 49, 50 and 51


The same applies to the articles of the law setting the national objective of health insurance expenditures (hereinafter: ONDAM). Objective that you also submit to your control under the principle of sincerity (Decision 2000-437 DC of 19 December 2000, paragraphs 45 and 46).
However, there can be no doubt that this objective is, in this case, covered by a manifest error of appreciation.
The increase proposed by the Social Security Financing Act for 2003 is 5.3 per cent compared to 2002. This is a rate of progression less than the actual progression, and noted, of health insurance expenditures recorded over the past three years. For 2000 and 2001, it was 5.6 per cent and 7.2 per cent for 2002. The rapporteur in the Senate acknowledges, in this regard, that the NDAM rate for 2003 is significantly lower than that for 2002 (Sénat, report by Alain Vasselle, no. 58, page 72). The Government has therefore set a goal that it knows, particularly in relation to the structural causes of the growth of health spending also found in OECD countries, that it will be exceeded. The Minister of Health does not make it a mystery if one wants to understand the barely hidden meaning of his statements, during his hearing before the Committee of Cultural, Family and Social Affairs of the National Assembly (National Assembly, Report No. 330, Volume I, Part 2, page 25).
In addition, and on this occasion, the Minister of Health has taken care to indicate that a "health and social collective" will be presented in the first half of 2003 in the event of a significant difference between forecasts and announced objectives (report, No. 330, idem). Presented at the end of a reasoning insisting on the structural growth of health spending, such an announcement shows that the Government knows that it has determined a particularly unrealistic NDAM rate of progression.
In these known and recognized economic, social and structural conditions, the Government, by determining a rate of progress for 2003 below almost 2% of that observed for the year 2002, has therefore knowingly set an ONDAM "desirable" but not serious (see hearing of Mr. the Minister, above-mentioned report, page 25).
This is all the less serious because the quarrelled law does not contain any measures to control the said health insurance expenses. As the Government has stated and claimed, it is a transitional law. Under these conditions, it is understandable that there is no provision that seriously alters the structure of health expenditures, taken in its various aggregates, and therefore no objective and rational reason for the structural growth of these expenditures to decrease from 2002. The reduction of the evolution of the NDAM is therefore conscious and cannot be admitted.
Of all these leaders, the ignorance of the principle of sincerity is certain.


II. - On Article 13


This article provides a special assessment based on so-called strong beers, "because of the risks associated with the immoderate use of these products for health". Such a surtaxation ignores the principle of equality when it leads to differential treatment of products that are objectively in a situation similar to the purpose pursued by law.
The fight against alcoholism and its ravages deserves an incessant and vigorous action as possible, but cannot lead to a pretext for a measure whose purpose seems somewhat foreign to the public health goal as stated. It appears, in fact, on the reading of the reason in the law that beers intended to undergo the surtaxation of which this is not in a particular situation regarding the risks of alcoholism. Thus, when the criticized article indicates that this additional contribution is perceived "because of the risks associated with the unmodified use of these products for health", it is permissible to say that the unmodested use of any alcoholic beverage not only leads to an immediate risk of intoxication, but also a risk of dependence on this type of substance, and dangerous behaviours such as those related to motor driving.
In addition, it is necessary to admit that a beer with a degree of alcohol of 6 or 7 degrees consumed in an immoderate manner will produce the same effects as those covered by the criticized article. Moreover, the risk is great, in order not to say certain, that this measure by its mechanical effect, intended, to increase the cost of purchasing the products concerned, leads to a shift in consumption to less expensive products and whose health consequences, and especially that of young people, will also be detrimental. It can even be considered that the consumption of drinks with a lower degree of alcohol leads to a higher consumption in order to find the sensations that some seek through these drinks.
The parliamentary work showed that the intended purpose was not the one set out in the criticized article, including by the vote of a subamendment to the National Assembly to exempt beers of the same characteristic but local production from this assessment. Of course, this amendment disappeared during the shuttle, but it illustrates the will behind this provision. Again, for the authors of the referral, the struggle against this scourge of alcoholism deserves better than such a measure.
From these leaders, censorship can only intervene.


III. - On Article 43


The purpose of the currently criticized article is to organize a drug repayment regime under specific terms. From now on, the social insured will be reimbursed on the basis of a flat rate, still known as the "prisoner rate", which is intended, it is claimed, to be responsible for social insurance. If the control of health spending rests, and no one disagrees with, the accountability of all concerned, including social insurance and the implementation of an ambitious health education policy, it remains that such a measure ignores the 10th and 11th preambular paragraphs of the 1946 Constitution, under which the right to health is guaranteed for all and together the principle of solidarity which is equal and equal.
Your jurisprudence has had the opportunity to enforce these norms of constitutional value. On several occasions, you have recalled the prevalence of the principle of public health protection (e.g. Decision No. 90-269 DC, § 25 and 26; Decision No. 90-283 DC of 8 January 1991). It is clear in this respect that the decision under which you have found that if it is the responsibility of the legislative and regulatory authorities to implement this right, it does not exclude, however, the use of a convention to govern the relationship between the primary health insurance funds and the doctors, as this "is intended to reduce the share of the fees paid by the social insured persons" (Decision No. 89-269 DC). As the State Council noted in its 1998 report on the right to health: "In the end, if one wishes to mention a right to health, it must be understood as a principle of equality before the public health service" (Council of State, public report for 1998, page 239). The coherence of the 10th and 11th preambular paragraphs of 1946 is between the right to health and the right to social protection, a link based on equality before the law.
The proposed mechanism, behind its misleading-eye presentation, will only lead to the implementation of a less repayment accounting logic, one of which will be to no longer guarantee equal access to care. The so-called liability rate will place social insured persons in a situation that they will not control the objective parameters. Thus, for example, it is important to question the situation of a social insured person to whom his/her treating physician has not prescribed a generic and to whom the pharmacist has not proposed a substitute product in relation to the Princeps drug he/she seeks to issue under the prescription of the practitioner.
Following the logic of the criticized article, the social insured will be refunded on the basis of the package, even though neither his will to overconsumption nor his refusal to benefit from a generic product at a lower cost will be in question. In other words, in this case, it is the social insured who, without having the means to overcome it, will have to bear concretely a lesser reimbursement for his medication.
Implicitly, this logic that makes the social insured the adjustment variable of this drug policy is described by the rapporteur for the disease branch, when he writes in his report that "the success of the measure is partly based on the joint and detailed information of the three concerned actors: the prescriber, the pharmacist and the patient" (see above report, page 81). The morality of this sad fable is that if the prescriber and pharmacist fail to have their duty of information, it will be up to the patient to suffer the consequences.
It is true, on the other hand, that Mr. the Minister of Health indicated during the debates that "we are moving towards the generic package and self-medication", adding "that people who choose a drug should be held accountable to the SMR [medical service rendered] sufficiently interesting for them to take it but not enough for national solidarity to exercise" (National Assembly, 1st meeting of October 30, 2002). We can see here the meanders of the critical mechanism. As there are, according to some parliamentarians, small risks and heavy risks, and thus different treatments, there would be drugs of interest to the patient but not to the point that national solidarity is taking place!
A two-speed national solidarity is not compatible with the principles as set out in the 10th and 11th preambular paragraphs, and together with the principle of equality.
Of all these leaders, invalidation will not fail to intervene.


IV. - On the subject of financing laws
Social Security


The law criticized includes several provisions which, obviously, are outside the scope of the Social Security Financing Act as defined by the fourth paragraph of Article 34, by the first paragraph of Article 47-1 of the Constitution and, pursuant to these constitutional rules, by the organic law. In particular, articles 7, 23, 31, 42 and 56 cannot be included in the Social Security Financing Act.


IV-1. On Article 7


This section provides that the Government shall transmit annually to Parliament, by 15 October, a report analyzing the evolution of health care funded under the national health insurance expenditure target.
Case law considers that only the organic law can determine the reports to be annexed to the Social Security Financing Bill and invalid, for example, a provision providing for a report on the oral health of the population attached to an annex to the bill (Decision No. 98-404 DC of 18 December 1998, considering No. 20). Similarly, you have censored the provision that, within three months, the Government submits to Parliament a report setting out the conditions under which laboratory technicians could be classified as active category B of the public hospital service (Decision No. 2002-453 DC of 18 December 2001, cons. No. 86).
In this case, it is certain that the report in question cannot be included in the Social Security Financing Act. The unconstitutional nature of the provision did not escape the rapporteur for the occupational health insurance industry (National Assembly, report No. 330, Volume II, page 41). Certainly, in an attempt to avoid censorship, the article in question transformed this report not as an annex to the Social Security Financing Bill, whose number and content are limited by the I and II of Article LO 111-4, but as a "small report".
The subterfuge will, however, not be deceived when the rapporteur himself admits the artificial character of this purely editorial process and, above all, it appears that this report must be submitted to the same date, on 15 October of each year, as the draft law for financing social security including the report and the annexes mentioned in I and II of article LO 111-4 of the Social Security Code.
That is to say that this article 7 was introduced into the law criticised in the knowledge of the cause of its conflict with the Constitution. The circumstance that the rapporteur suggests to amend the organic law, on this point, will not be in a way that would evade the provision in question for censorship.


IV-2. On Article 23


Article 23 taken in paragraph II amends section 1 of Act No. 78-753 of 17 July 1978, which provides for various measures to improve the relations between the administration and the public.
It is little to say that this provision is perfectly foreign to the scope of social security financing laws as defined, in particular by the article LO 111-3 taken in its § I and III of the Social Security Code.
In fact, it is not clear how to exclude from the category of administrative documents that are communicable to the public the documents before the preparation of the accreditation report of the health institutions provided for in Article L. 6113-6 of the Public Health Code and the audit reports of the health institutions referred to in Article 40 of the Social Security Financing Act for 2001, concerns the orientations of the health policy in its various dimensions,
On the contrary, there is an attempt to see a restriction on the rights of citizens to access information on the definition and implementation of public policies. This unfounded restriction on the freedom of access to administrative documents is, moreover, in contradiction with the displayed willingness to empower social insurance. The principle of transparency of administrative action and the right to information of citizens are therefore unrecognized, and invalidation is certain.


IV-3. On Article 31


This section provides that the Minister for Social Security, in approving the agreements, conventions, annexes and amendments referred to in sections L. 162-1-13, L. 162-14-1 and L. 162-14-2 of the Social Security Code, shall send a report to the competent committees of Parliament on the consistency of these acts with the objective set out in 4° of the I of Article LO 111-3, and shall transmit a copy of this report to the Supervisory Board of the National Employee Insurance Fund.
Such provisions, whose usefulness in terms of information cannot be denied, however, do not find their place in the Social Security Financing Act. In particular, it will be noted that the second paragraph of the criticized section, organizing the transmission of the Minister's report to the Supervisory Board of the National Fund, does not contribute to the improvement of Parliament's control over funding laws or to the financial balance of mandatory basic plans.
While it is a matter of new social governance - a concept which is ignored as it covers more satisfying than democratic principles - such a provision seems to anticipate developments that cannot be ensured that they will, in the future, guarantee the role of Parliament in this matter. The fact that the final drafting of this article provides for the transmission to Parliament of the said report must not doubt the intent at the origin of the provision.
Again, as in the drafting of Article 7, this wording does not further bring this section 31 into the scope of the Social Security Financing Act.


IV-4. On Article 42


The purpose of this article is to extend the deadline for the signing of tripartite conventions by institutions providing accommodation for dependent older persons, deferring the deadline of 31 December 2003 to 31 December 2006.
However, this extension may not be included in the provisions of § I of Article LO 111-3 of the Social Security Code providing that the funding law provides for the revenue forecasts and expenditure targets for each year, or in those of Article II of the same section for the improvement of the control of Parliament or the financial balance of the mandatory regimes.
This postponement obviously does not fall into the forecasts in the I of the above-mentioned section LO 111-3, as it does not have an impact on the objectives for the coming year alone. It cannot further meet the requirement of a significant impact on the financial balance of mandatory basic social security schemes. This is how you found that a provision in the Social Security Financing Act for 2000 but having no direct effect on the financial balance of 2003 was a social rider (Decision No. 99-422 DC, considering 32 to 34, Rec. page 143).
The measure in question cannot therefore be included in the law.


IV-5. On Article 56


Section 56 of the criticized law is presented as organising the autonomy of the operation of the occupational accident branch and occupational disease of health insurance. In particular, it is proposed by paragraph II that the members of the Industrial Accidents Commission be appointed directly by representative trade union and employers organizations.
Such requirements, however, cannot be found within the framework of the Social Security Funding Act as long as they do not enter the forecasts of § I of Article LO 111-3 or within the framework of Article III of this Article, since they do not improve the control of Parliament on the implementation of the Financing Act and do not significantly affect the financial balance of the basic plans.
In fact, it is a matter of allowing the appointment of the members of the commission in question without connection with the board of directors of the National Health Insurance Fund of Employee Workers. It is necessary to measure, at this moment, that, behind the idea of self-named management of this branch, advances masked the end of paritarism as guaranteed by law. If we see the link with the Social Security Financing Act, we understand, on the other hand, the risk of questioning the foundations of social protection as conceived under genuine national consensus.
This link is so unexistent that Mr. the rapporteur before the National Assembly does not embarrass himself with any cracks to indicate the exact purpose of this measure. Noting that these new terms and conditions for the appointment of members of the Industrial Accidents Commission will now be unrelated to the Board of Directors of the CNAM, he adds that "this should allow the MEDEF, who left the said Board of Directors in September 2001 and therefore by way of the commission of industrial accidents, to reintegrate this commission without re-secuting to the CNAM" (AN Report, No. The mask falls.
We cannot be clearer or more sincerely state the diversion of proceedings.
It would be in vain for the Government to invoke, in this regard, the precedent of Article 75 of the Financing Act for 2002 that reformed the missions and management modes of the Union of National Social Security Funds and that you have validated (Decision No. 2001-453 DC of 18 December 2001, considering 75). In this case, it was a matter of making possible the continuation of negotiations with a direct impact on the remuneration of the staff of these caisses as a means to resume the collective bargaining interrupted by some leaders. In this case, nothing like this and no blockage prevents the commission of work accidents from working. The view of the rapporteur himself shows quite well that the financial balance of social security cannot be significantly affected by this article.
Censorship is therefore certain.
(List of signatories: see decision No. 2002-463 DC.)


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