Key Benefits:
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AND TERRESTRES AND
INDUSTRIAL WORKS AND OTHER)
The Constitutional Council was seized on 7 July 2011 by the Court of Cassation (Second Civil Chamber, Judgments No. 1553, 1554 and 1555 of 7 July 2011), under the conditions laid down in Article 61-1 of the Constitution, of a priority question of constitutionality posed by the Maritime and Land Industrial Works, Fouré Lagadec and Isotherma relating to the Conformity with the rights and freedoms guaranteed by theof Article 47 of Law No. 2004-1370 of 20 December 2004 Social Security funding for 2005.
The Council Constitutional,
Given the Constitution;
Seen fromOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen Law No. 98-1194 of December 23, 1998 of Social Security Funding for 1999, as amended;
Seen Law n ° 2004-1370 of December 20, 2004 Financing of social security for 2005;
In view of the regulation of 4 February 2010 on the procedure followed before the Constitutional Council on priority constitutionality issues;
Due to the observations made for the Fund Mr Dominique Foussard, a lawyer at the Conseil d' Etat and the Court of Cassation, registered on 8 August 2011;
In view of the observations made by the Prime Minister, registered on 8 August 2011 ;
In view of the submissions filed for the applicants by the CPC Sagon Lasne Loevenbruck, a lawyer at the Bar of Le Havre, registered on 29 August 2011;
Seen the documents filed and attached to the file;
Me Bruno Sagon for the applicants, Dominique Foussard, for the Pension and Health Insurance Fund at the South East work and Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 27 September 2011;
The rapporteur was heard;
1. Considering that the terms of article 47 of the aforementioned law of 20 December : " I.-It is hereby established, for the benefit of the Fund for the Early Separation of Workers of Asbestos Workers created by Article 41 of the Social Security Financing Act for 1999 (No 98-1194 of 23 December 1998), a contribution, due for each Employee or former employee on account of his or her admission to the benefit of the early termination allowance. This contribution shall be borne by the undertaking which has borne or which bears, in respect of its contributions for accidents at work and occupational diseases, the burden of expenditure caused by the occupational disease caused by The asbestos reached by the employee or former employee. Where the employee is not affected by any occupational disease caused by asbestos, this contribution shall be borne by:
" 1 ° of one or more undertakings whose establishments are mentioned in the first paragraph of Article 41;
" 2 ° Of one or more handling undertakings or of one or more port management bodies for, respectively, professional dockers and port personnel handling the ports referred to in the sixth paragraph of the I Section 41.
" For the determination of the undertaking or body liable for the contribution under 1 °, the following rules shall apply:
" (a) Where the establishment is operated successively by several undertakings, the contribution shall be due by the undertaking which carries on the establishment on the date of admission of the employee to the allowance;
" (b) Where an employee has worked in several enterprises operating separate establishments, the amount of the contribution shall be allocated according to the duration of the work performed by the employee in those establishments during the course of the Period of manufacture or treatment of asbestos or asbestos-containing materials.
" For the application of 2 °, where an employee has been employed by several undertakings or organisations, the amount of the contribution shall be prorated for the period worked in those undertakings or bodies. When a professional docker admitted to the allowance reports or has identified intermittent professional dockers within the meaning of III of article L. 511-2 of the sea ports code, the contribution corresponding to the period of intermittency is divided between All employers of labour in the port, within the meaning of Article L. 521-6 of the same code, in proportion to the gross total remuneration paid to the dockers Intermittent professionals during this period of intermittency.
" The contribution is not due to the first recipient admitted in a calendar year.
" II. -The amount of the contribution varies according to the beneficiary's age at the time of admission to the benefit of the allowance. It is equal, by beneficiary of the allowance, to 15 % of the gross annual amount of the allocation plus 40 % for old-age and supplementary pension contributions to the fund, multiplied by the number of years included Between the above age and the age of sixty years.
" The amount of the contribution, which may not exceed EUR 4 million per calendar year for each person liable, shall be capped, for enterprises liable for the contribution under the I, to 2.5 % of the total mass of salaries paid to staff For the last known year.
" Companies placed in reorganization or liquidation shall be exempt from the contribution.
" III. -The contribution shall be called, recovered and controlled, in accordance with the rules and under the guarantees and penalties applicable to the recovery of contributions from the general scheme, by the bodies mentioned in article L. 213-1 of the Social Security Code designated by the Director of the Central Agency of Security Organizations Social.
" It is due on the first day of the third month of each calendar quarter for persons entering the device during the previous quarter.
" For employees or former employees covered by or having raised the social protection scheme of employed persons in the agricultural professions, the contribution due is called, recovered and controlled by the funds of agricultural social mutuality according to the The rules and under the guarantees and penalties applicable to the recovery of contributions due to the social protection scheme for employed persons in the agricultural professions. The deadline for payment of the contribution shall be the fifteenth day of the second month of each calendar quarter for persons entering the device during the preceding quarter.
" IV. -A decree shall lay down the rules for the application of this Article
V.-The provisions of this Article shall apply to admissions to the benefit of the allowance for early termination of activity as of 5 October 2004 ' ;
2. Whereas, according to the applicant companies, these provisions impose on an undertaking not having placed its employees in contact with asbestos to contribute to the Fund for the early termination of employment of the asbestos workers, That it succeeds a company which has placed its employees in contact with asbestos; that so, they would violate the principles of equality before the law and equality before public office; that the same provisions would also be disregarded Freedom to undertake, the principle of legal certainty and the principle of Quality of the law;
3. Considering that the priority issue of constitutionality relates to Article 47, paragraph , of the Law of 20 December 2004 above ;
4. Considering that Article 6 of the 1789 Declaration of the Rights of Man and the Citizen states: The law ... must be the same for all, either that it protects, or that it punishes " ; that the principle of equality does not preclude the legislator from dealing with different situations in different ways, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in The resulting treatment is directly related to the purpose of the law which establishes it; it does not, however, result in the principle of equality requiring different treatment of persons in different situations;
5. Considering that Article 13 of the 1789 Declaration states that: For the maintenance of the public force, and for administrative expenditure, a common contribution is essential: it must also be allocated among all citizens, because of their faculties'. ; that the legislator must, in order to comply with the principle of equality before public office, base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, Cause a marked breakdown of this equality;
6. Whereas, pursuant to41 of the abovementioned Act of 23 December 1998, an allowance for early termination of activity May be paid to employees and former employees of establishments for the manufacture of asbestos-containing materials, asbestos-blocking and caloriing establishments or naval construction and repair facilities; that the same article creates The Fund for the early termination of activities Asbestos workers responsible for funding this allowance;
7. Considering that the purposeArticle 47 of the abovementioned Act of 20 December is to ensure the financing of this allowance; To that end the legislator has made the contribution to the Fonds de Cessation d' Cessation d' Activity des travailleurs de l' asbestos à la charge des entreprises exploiting establishments de fabrication de materials Containing asbestos, des establishments Of blocking and caloriing with asbestos or of Naval construction and repair; whereas, by holding that, where the establishment is operated successively by several undertakings, the contribution is due by the undertaking which carries on the establishment on the date of admission of the employee to the The allocation of early termination of activity, the legislator relied on an objective and rational criterion in direct relation to the purpose assigned to it;
8. Considering that the principle of equality does not oblige the legislator to treat persons in different situations differently; that by designating as liable for the contribution the undertakings which have taken the succession of The operator of an establishment having exposed its employees to the risk of asbestos, without making any distinction according to whether or not they themselves exposed their employees to that risk, the legislator did not disregard the principle of equality;
9. Considering that, by virtue of the of paragraph I of Article 47 of the aforementioned Law of 20 December, the Did not disregard the freedom to undertake; that it did not bring to the legally acquired situations an infringement which would be contrary to the guarantee of the rights proclaimed by Article 16 of the 1789 Declaration; that the lack of knowledge of The objective of the constitutional value of intelligibility and The accessibility of the law cannot in itself be invoked in support of a priority question of constitutionality on the basis of article 61-1 of the Constitution;
10. Considering that Article , paragraph I, of the aforementioned Law of 20 December does not conflict with any other right Or freedom that the Constitution guarantees,
Decides:
A of Article 47 of Act No. 2004-1370 of 20 December 2004 the financing of social security for 2005 is in conformity with the Constitution.
This decision will be Published in the Official Journal of the French Republic and notified under the conditions laid down inArticle 23-11 of the 7 November 1958.
Deliberated by the Constitutional Council at its meeting on 6 October 2011, attended by Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
