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Decision N ° 2012-659 December 13, 2012 Dc

Original Language Title: Décision n° 2012-659 DC du 13 décembre 2012

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Folders Laws




JORF N ° 0294 of 18 December 2012 page 19861
text n ° 4



Decision No. 2012-659 DC of 13 December 2012

NOR: CSCL1242299S ELI: Not available



(
SOCIAL SECURITY FINANCING ACT 2013)


The Constitutional Council has been seized, under the conditions laid down in the second paragraph of Article 61 of the Constitution, of The law of Financing of social security for 2013, 4 December 2012, by MM. Jean-Claude GAUDIN, Pierre ANDRÉ, Gérard BAILLY, Philippe BAS, René BEAUMONT, Michel BÉCOT, Jean BIZET, Pierre BORDIER, Mme Natacha BOUCHART, Mr Joël BOURDIN, Mme Marie-Thérèse BRUGUIÈRE, MM. François-Noël BUFFET, Christian CAMBON, Jean-Noël CARDOUX, Jean-Claude CARLE, Caroline CAYEUX, MM. Gérard CÉSAR, Pierre CHARON, Alain CHATILLON, Jean-Pierre CHAUVEAU, Marcel-Pierre CLÉACH, Christian COINTAT, Gérard CORNU, Raymond COUDERC, Jean-Patrick COURTOIS, Mme Isabelle DEBRÉ, MM. Francis DELATTRE, Robert DEL PICCHIA, Gérard DÉRIOT, Mme Catherine DEROCHE, Marie-Hélène DES ESGAULX, MM. Eric DOLIGÉ, Philippe DOMINATI, Michel DOUBLET, Mme Marie-Annick DUCHÊNE, MM. Alain DUFAUT, André DULAIT, Ambroise DUPONT, Louis DUVERNOIS, Jean-Paul EMORINE, Hubert FALCO, Louis-Constant FLEMING, Michel FONTAINE, Bernard FOURNIER, Jean-Paul FOURNIER, Christophe-André FRASSA, Pierre FROGIER, Yann GAILLARD, Mrs Joëlle GARRIAUD-MAYLAM, MM. Jacques GAUTIER, Patrice GÉLARD, Bruno GILLES, Mrs Colette GIUDICELLI, MM. Alain GOURNAC, Francis GRIGNON, François GROSDIDIER, Charles GUENÉ, Michel HOUEL, Jean-François HUMBERT, Jean-Jacques HYEST, Mme Sophie JOISSAINS, Christiane KAMMERMANN, Fabienne KELLER, Elisabeth LAMURE, MM. Gérard LARCHER, Daniel LAURENT, Jean-René LECERF, Antoine LEFÈVRE, Jacques LEGENDRE, Dominique de LEGGE, Jean-Pierre LELEUX, Jean-Claude LENOIR, Gérard LONGUET, Roland du LUART, Philippe MARINI, Pierre MARTIN, Jean-François MAYET, Mme Colette MÉLOT, MM. Alain MILON, Albéric de MONTGOLFIER, Philippe NACHBAR, Louis NÈGRE, Philippe PAUL, Jackie PIERRE, Xavier PINTAT, Louis PINTON, Rémy POINTEREAU, Christian PONCELET, Ladislas PONIATOWSKI, Sophie PRIMAS, Catherine PROCACCIA, MM. Jean-Pierre RAFFARIN, Henri de RAINCOURT, André REICHARDT, Bruno RETAILLEAU, Charles REVET, Bernard SAUGEY, René-Paul SAVARY, Michel SAVIN, Bruno SIDO, Mme Esther SITTLER, Catherine TROENDLE, MM. François TRUCY, Hilarion VENDEGOU, René VESTRI and Jean-Pierre VIAL, Senators;
And December 5, 2012, by MM. Christian JACOB, Bernard ACCOYER, Yves ALBARELLO, Benoist APPARU, Julien AUBERT, Olivier AUDIBERT TROIN, Jean-Pierre BARBIER, Xavier BERTRAND, Jean-Claude BOUCHET, Xavier BRETON, Yves CENSI, Gérard CHERPION, Alain CHRÉTIEN, Philippe COCHET, François CORNUT-GENTILLE, Edouard COURTIAL, Mrs Marie-Christine DALLOZ, MM. Gérald DARMANIN, Bernard DEFLESSELLES, Jean-Pierre DOOR, David DOUILLET, Mme Marie-Louise FORT, MM. Yves FOULON, Marc FRANCINA, Laurent FURST, Sauveur GANDOLFI-SCHEIT, Bernard GÉRARD, Claude GOASGUEN, Philippe GOSSELIN, Christophe GUILLOTEAU, Michel HERBILLON, Antoine HERTH, Guénhaël HUET, Denis JACQUAT, Mme Valérie LACROUTE, M. Marc LAFFINEUR, Mme. Laure of LA RAUDIÈRE, MM. Marc LE FUR, Bruno LE MAIRE, Pierre LEQUILLER, Philippe LE RAY, Lionnel LUCA, Jean-François MANCEL, Thierry MARIANI, Hervé MARITON, Olivier MARLEIX, Alain MARSAUD, Alain MARTY, Pierre MORANGE, Pierre MOREL-A-L ' HUISSIER, Jean-Luc MOUDENC, Jacques MYARD, Mrs Dominique NACHURY, MM. Yves NICOLIN, Bernard PERRUT, Axel PONIATOWSKI, Mme Josette PONS, MM. Didier QUENTIN, Bernard REYNÈS, Martial SADDIER, François SCELLIER, Mrs Claudine SCHMID, MM. André SCHNEIDER, Fernand SIRÉ, Thierry SOLÈRE, Eric STRAUMANN, Mme Michèle TABAROT, MM. Jean-Marie TETART, Dominique TIAN, Ms Catherine VAUTRIN, MM. Patrice VERCHÈRE, Philippe VITEL, Michel VOISIN and Mme Marie-Jo ZIMMERMANN, MPs.
The Constitutional Council,
Given the Constitution;
Seen underOrder No. 58-1067 du 7 November 1958 amending Organic Law on the Constitutional Council;
Given the decision of the Constitutional Council n ° 2012-653 DC of 9 August 2012 on the Treaty on Stability, Coordination and Governance in the Union Economic and monetary policy, signed in Brussels on 2 March 2012;
Seen Social Security Code ;
Given the General Tax Code ;
Seen currency and financial code ;
Given the rural code and the marine fishery;
Seen Public Health Code ;
In view of Act No. 98-535 of 1 July 1998 concerning the strengthening of health watch and the monitoring of health security of products for human use;
In view of the Law n ° 2000-1353 of 30 December 2000 of amending finances for 2000;
Seen theorder N ° 2005-1087 of 1 September 2005 National public health institutions and disputes relating to blood transfusion;
Seen under Act No. 2008-1330 of 17 December 2008 Financing of social security for 2009;
In view of the Law n ° 2011-2012 of 29 December 2011 on the strengthening of the health safety of medicinal products and products Health;
In view of Directive 2001 /83/EC of the European Parliament And of the Council of 6 November 2001 establishing a Community code on medicinal products for human use;
In view of the Government's observations, registered on 10 December 2012;
The rapporteur has been heard;
1. In view of the fact that the senators and the requesting members of the House of Commons defected to the Constitutional Council the Social Security Financing Act for 2013, that they challenge its Articles 55, 57, 58 and 60; that the requesting senators also challenge its Articles 12, 37, 56 and 72; that the applicants also question its sincerity and dispute its Articles 11, 25, 28 and 61;
On the sincerity of the Social Security Financing Act:
2. Considering that the applicants submit that the Social Security Financing Act is insincere in that it is based on unrealistic growth assumptions in relation to the economic and social situation; At 2.7 % the evolution of the national objective of health insurance expenditure for the year 2013, this law would, moreover, be in contradiction with the commitments to control the public finances of France; that they support, finally, that Decision No. 2012-653 DC of 9 August 2012, the control of the sincerity of the law of The financing of social security cannot be limited to the absence of any intention to distort the broad lines of the balance it determines;
3. Considering, first, that the organic provisions adopted following the decision of the Constitutional Council of 9 August 2012 on the Treaty on Stability, Coordination and Governance in Economic and Monetary Union Have not entered into force;
4. Considering, in the second place, that according to the first sentence of 2 ° of C of paragraph I of Article LO 111-3 of the Code of Social security, the Social Security Financing Act " Determines, for the year to come, in a sincere manner, the general conditions of the financial balance of social security, taking into account, inter alia, the general economic conditions and their foreseeable development " It follows that the sincerity of the Social Security Financing Act of the year is characterised by the absence of any intention to distort the broad lines of the balance it determines;
5. Considering that it is not clear from the elements submitted to the Constitutional Council that the economic assumptions on which the Social Security Financing Act is based are vitiated by an intention to distort the broad lines of The balance of the law referred to;
6. Considering that it follows from the foregoing that the complaint alleging the lack of sincerity of the Social Security Financing Act must be rejected;
On paragraphs I to III of Article 11:
7. Considering that the provisions of paragraphs I to III of Article 11 amend the rules on the basis of sickness insurance contributions for self-employed non-agricultural workers; that they are mainly for the purpose of Remove the cap on this plate;
8. Considering that, according to the applicants, the abolition of the ceiling on the basis for sickness insurance contributions to the self-employed leads to the contributions paid on the base portion exceeding the The limits of the current contribution limit have the characteristics of a taxation of any kind; that the legislature would have disregarded the extent of its jurisdiction by not setting the rate of such contributions by itself;
9. Considering that the applicants also argue that by proceeding with a ceiling on the basis for sickness insurance contributions to the non-agricultural self-employed, the legislator infringers the equality before the Public charges, on the one hand, between self-employed persons and employees and, on the other, between self-employed non-agricultural workers according to whether or not they fulfil the conditions of residence in France or as they perceive or Not their revenues in France; that this reduction would also make Unconstitutional the second of the second subparagraph of Article L. 131-9 of the Social Security Code ;
10. Considering that under Article 34 of the Constitution: The law determines ... the fundamental principles ... of social security " ; that, under the first paragraph of Article 37 of the Constitution, it is for the regulatory authority to determine the procedures for implementing the fundamental principles laid down by the legislator;
11. 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 treating different situations differently or derogate from equality for reasons of public interest, provided that, in either case, the difference in treatment Which results in direct relation to the object of the law which establishes it; that it does not result, provided that the principle of equality requires treating persons in different situations differently;
12. Considering, first, that the sickness insurance contributions payable by non-agricultural self-employed persons are contributions opening up rights to the benefits and benefits served by the compulsory social security scheme of the Self-employed persons; that by making these contributions on a base equal to the total earnings of the self-employed, the impugned provisions have not changed their nature of contributions; and Contributions do not fall within the category of impositions of any kind in the sense of Section 34 of the Constitution; that the legislature could, without knowing the extent of its jurisdiction, refer to the regulatory authority to fix their rate; and
13. Considering, second, that the contributions whose base is amended by the contested provisions are the result of membership of the compulsory social security scheme for self-employed non-agricultural workers; that the difference in Treatment between self-employed persons and employed persons for the treatment of social security contributions is inherent in the manner in which social insurance has progressively developed in France, at The relative diversity of the plans and the choice of sharing The obligation to pay social contributions between employers and employees; that, therefore, the complaint alleging a breach of the principle of equality between these two categories of persons must be rejected;
14. Considering, third, that the impugned provisions amend the rules on the basis of sickness insurance premiums for non-agricultural self-employed persons; that the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006740134&dateTexte= &categorieLink = cid"> second paragraph of article L. 131-9 of the social security code is intended to subject to specific contribution rates Insured persons from a French health insurance scheme who do not meet the conditions of residence in France As well as those that are exempt in whole or in part from direct taxes in respect of their income from activity or replacement under an international agreement or agreement; that compliance with the Constitution of an already enacted law may Be assessed on the occasion of the examination of the legislative provisions which modify it, supplement it or affect its field; that in this case the contested provisions of Article 11 have the effect of affecting the field of application of the second sentence provisions of the second subparagraph of article L. 131-9 of the social security code ;
15. Whereas by submitting to an exemption system of contributions certain insured persons from a French health insurance scheme, the second sentence of the second subparagraph of article L. 131-9 of the social security code creates a break in equality between insured persons The same regime that is not based on a difference in situation in relation to the subject matter of the social contribution; and Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006740134&dateTexte= &categorieLink = cid"> second sentence provisions of the second subparagraph of Article L. 131-9 of the Social Security Code must be declared Contrary to the Constitution;
16. Whereas the provisions of paragraphs I to III of Article 11 are in conformity with the Constitution;
Article 12:
17. Considering that the purpose of Article 12 is to amend the definition of the accountability of the social solidarity contribution to the burden of the companies and of the basis of that contribution; that it also amend the rules for the allocation of Produced this contribution;
18. Considering that, according to the requesting senators, by providing that insurance undertakings will be taxed on the annual positive net result of their currency transactions and their adjustments on variable capital operations, the legislator Would have based its assessment of the contribution capacity of these undertakings on criteria which would not be objective or rational in relation to the aims pursued; that it would also result in a marked breach of equality before the Public charges between companies with alternating net results Positive and negative annual results and those with a positive net result;
19. 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 according to Article 34 of the Constitution, it is for the legislator to determine, in accordance with the constitutional principles and taking into account the characteristics of each tax, the rules according to which the In particular, in order to ensure respect for the principle of equality, it must 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 equality before public office;
20. Considering, in the first place, that the social contribution of solidarity of the companies in charge of undertakings in the insurance sector relates to a modified basis which includes in particular the annual positive net result, on the one hand, of their Currency transactions and, on the other hand, their adjustments on variable capital operations; that the legislator has heard additional revenue from insurance companies by including in the base of the Social contribution of corporate solidarity the annual net results corresponding to Certain specific operations carried out on a regular basis by insurance companies; that the Constitutional Council does not have a general discretion and decision of the same nature as that of Parliament; that it cannot find out whether the Objectives which the legislator had been assigned could have been achieved by other means, provided that the procedures adopted by the law were not manifestly inappropriate for the intended purpose; that by broadening the base of the social contribution of Corporate solidarity for insurance companies, the Legislator has established a base in relation to the contributory capabilities of these enterprises;
21. Considering, second, that the social contribution of the solidarity of the companies is annual; that its base corresponds to the turnover of the companies which are subject to it in respect of each year; that in the case of undertakings in the sector Insurance, this definition of turnover is that set out in 1 of paragraph VI of Article 1586 sexies of the Code General tax ; that by adding a Requirement to take into account the annual positive net result of certain transactions, the legislator has adopted objective and rational criteria in relation to the annual character of the taxation and with the definition of the other part of the plate Subject to this contribution;
22. Considering that it follows from the foregoing that the complaints alleging disregard of the principle of equality before public office must be rejected; that Article 12 is in conformity with the Constitution;
Article 25:
23. Considering that Article 25 inserts in Section VI of Chapter I of Title III of the first part of the book Ier of the General Tax Code an Article 520 D; that this Article introduces a perceived contribution on the " Energy drinks " Made in containers for retail sale and intended for human consumption; that this contribution, the rate of which is set at EUR 50 per hectolitre, is mainly due by the manufacturers of those drinks established in France, their Importers and persons who make intra-Community acquisitions in France, on all quantities delivered for consideration or free of charge;
24. Considering that the product of the contribution provided for in Article 520 D of the General Tax Code is allocated to the financing of sickness, invalidity and maternity insurance benefits of the social protection scheme for non-wage-earners;
25. Considering that, according to the applicants, the basis of the specific contribution created by Article 25 is not defined according to objective and rational criteria in direct relation to the objective invoked; that the health objective The fight against the consumption of alcohol by young people cannot justify a measure that penalises the young people. Energy drinks " ; that these provisions would disregard the principle of equality before the law and public office;
26. Considering that it is clear from the parliamentary proceedings that by establishing this specific contribution Parliament has heard that the consumption of " Energy drinks " Rich in caffeine or taurine which, mixed with alcohol, would have harmful consequences on the health of consumers, in particular younger consumers; and, by taxing drinks that do not contain alcohol for the purpose of combating The alcohol consumption of young people, the legislator has established a taxation which is not based on objective and rational criteria in relation to the objective pursued; that, as a result, it has disregarded the requirements of Article 13 of the Declaration of 1789;
27. Considering that it follows from the foregoing that Article 25 is contrary to the Constitution;
On Article 28:
28. Considering that Article 28 amends the Articles L. 245-2 and L. 245-5-2 of the Social Security Code ; Purpose of extending the base of the contribution on the expenditure on the promotion of medicinal products and medical devices to the costs of scientific or advertising congresses and similar events, including direct or indirect expenditure Accommodation and transportation related thereto; and Also extends this contribution to the charges recorded in respect of outsourced benefits of the same nature as those mentioned in the 1 ° to 3 ° of the aforesaid goods;
29. Considering that, according to the applicants, by treating in an undifferentiated way, from the point of view of taxation, the congresses' Scientific ", congresses" Advertising " And the " Events of the same nature ", whereas all these events do not participate in the same way in the expenditure of health insurance, the legislature disregarded the principle of equality before public office; that it would also have increased Infringement of the right to information of health professionals, a component of the principle of the protection of public health; moreover, that the objective of the constitutional value of accessibility and intelligibility of the law would be disregarded;
30. Considering, in the first place, that by extending the base of the contribution on the expenditure on the promotion of medicinal products and medical devices to the costs of congresses " Scientific or advertising " And others " Events of the same nature ", the legislator has heard that all these promotional expenses, whether direct or indirect, have been taken into account; that it has, therefore, subject to the same rules all the events in the course of the The promotion of a medicinal product or health product allowed for reimbursement; thus, it has not disregarded the principle of equality before the law or the principle of equality before public office;
31. Considering, second, that the impugned provisions have neither the object nor the effect of impairing the right to information of health professionals;
32. Considering, in the third place, that as a result of the parliamentary work, the contribution to be due in 2013 will be determined on the basis of the basis determined for the 2012 financial year; that the contested provisions are not tainted Unintelligibility;
33. Considering that it follows from the foregoing that Article 28 of the law referred to must be declared in conformity with the Constitution;
On Article 37:
34. Considering that Article 37 makes a reform of the financing of administrative management, health and social action and the medical supervision of agricultural social mutuality; that, in particular, it supplements Article L. 723-11 of the Rural Code and of the The maritime fishery relating to the tasks of the central fund of the agricultural social mutuality by a 12 ° under which that body has a mission ' To ensure the common management of the cash flow of the agricultural social mutual societies referred to in Article L. 723-1 and that of the groups referred to in Articles L. 731-30 and L. 752-14. The individualisation of the treasury of the different branches of the employees'and non-wage-earners' plans shall be ensured by continuous monitoring in anticipation and accounting, under conditions laid down by decree " ; furthermore, article 37, paragraph III, provides as follows: " On 31 December 2013, ownership of the reserves previously set up by the agricultural social sharing bodies referred to in Article L. 723-1 of the Rural and Maritime Code and by the Grouping referred to in Article L. 731-31 of the same Code is transferred to the central fund of the agricultural social mutuality. This transfer does not give rise to the collection of any duties, taxes or taxes of any kind. A decree lays down the amount of the reserves concerned " ;
35. Considering that, according to the requesting senators, the transfer to the central fund of the agricultural social mutuality of the reserves set up by the grouping referred to in Article L. 731-31 of the Rural Code and of the maritime fishery constitutes a deprivation Property contrary to the requirements of Article 17 of the 1789 Declaration;
36. Considering that Article 17 of the 1789 Declaration states that: Since property is an inviolable and sacred right, no one can be deprived of it, except when the public need, legally recognized, requires it, of course, and under the condition of fair and prior compensation " ;
37. Considering that Article L. 731-30 of the Rural Code and of the Maritime Fisheries provides that employed persons in the agricultural and similar professions listed in Article L. 722-20 of the same Code ' Shall be insured, at their choice, either by the funds of the agricultural social mutuality or by any insurance body referred to in Article L. 771-1 or by the On the one hand, or by all other insurance, on the one hand, on the one hand, that the said bodies have been empowered by order of their respective ministers of guardianship and, on the other, that they have acceded to the regulation provided for in Article L. 731-34 " ; Article L. 731-31 of the same Code states: Insurers, on the basis of their own status, will have to group by categories, in order to fulfil their legal and regulatory obligations, in particular with regard to compliance with contract clauses, the application of the Tariffs, the exercise of medical supervision and compensation operations " ;
38. Considering that, if the Government maintains that the contested provisions relate to the management of reservations of a social security scheme, it is clear from the wording of Article 37 (III) of Article 37 that those provisions are intended to Transfer to the central fund of the agricultural social mutuality " Ownership of previously constituted reserves " By the group of insurers mentioned above; that no provision ensures that the requirements of Article 17 of the 1789 Declaration are not disregarded; that, as a result, paragraph 3 of that paragraph must be declared unconstitutional; The sixth paragraph of Article 37, the reference to Article L. 731-30 of the Rural Code, which is not separable from it, must also be declared contrary to the Constitution;
39. Considering that, for the remainder, the provisions of Article 37 must be declared in conformity with the Constitution;
On Article 55:
40. Whereas paragraphs I and II of Article 55 are intended to prohibit advertising in favour of medicinal products whose name is the resumption of the name of a medicinal product refundable by compulsory insurance schemes Sickness; that its paragraph III introduces a derogation from the prohibition of advertising in favour of medical devices which are covered or financed, even partially, by compulsory health insurance schemes; that its paragraph IV creates a Financial penalty applicable in the event of failure to comply with the rules on withdrawal Authorisation to advertise or prohibit advertising in favour of medical devices; that its paragraph V specifies the procedures for the entry into force of paragraphs I and II;
41. Considering that the applicants challenge the place of this article in the law on the financing of social security; that the applicants also dispute the too imprecise definition of non-medicinal products Redeemable within the scope of the advertising ban, which would violate both the principle of the legality of offences and penalties and the objective of constitutional value of accessibility and intelligibility of the law;
42. Considering, first, that paragraphs I, II, III and V of Article 55 have no effect, or have a too indirect effect, on the expenditure of basic compulsory schemes or bodies involved in their financing; that, as a result, they do not Find their place in a social security financing law;
43. Considering, second, that, first, paragraph IV of Article 55 establishes a financial penalty for which the product is recovered by the unions for the recovery of social security contributions and family allowances and affected Compulsory basic health insurance schemes; that this provision has an effect on the income of basic compulsory schemes; that, as a result, it finds its place in a social security financing law;
44. Whereas, on the other hand, are stated in sufficiently clear and precise terms the rules for which the absence of respect is penalised and the financial penalty which is incurred; that the principle of the legality of offences and penalties Is therefore not infringed by article 55, paragraph IV; that the objective of the constitutional value of accessibility and intelligibility of the law is not disregarded;
45. Considering that it follows from the foregoing that paragraphs I, II, III and V of Article 55 are contrary to the Constitution; that, for the remainder, Article 55 is in conformity with the Constitution;
On Article 56:
46. Considering that Article 56 inserts Article L. 162-16-4-1 into the Social Security Code; that it provides that the sale price of allergens specially prepared for a single individual, defined at article L. 4211-6 of the Public Health Code and taken care of by health insurance organizations, is established by convention Between the person authorized to prepare and issue them and the Economic Committee for Health Products, or Default, by decision of the committee unless the joint opposition of the Ministers responsible for health and social security, which lays down the price within 15 days after the decision of the committee; that the same article refers to an order in Council of State the task of determining its conditions of application and in particular the procedures and time-limits for fixing the price and the rules according to which certain of these allergens may be excluded from the assumption of health insurance ;
47. Considering that, according to the requesting senators, this article disregards the field of social security financing laws;
48. Considering that allergens prepared specifically for a single individual defined inArticle L. 4211-6 of the Health Code Public are drugs authorized by the National Drug and Health Products Safety Agency after notification of the National Academy of Medicine; that these preparations of allergens are not, like other drugs, evaluated By the Transparency Commission of the High Health Authority before Their inclusion in the reimbursement; that the purpose of the contested provisions is to establish the procedure and the manner in which their prices are to be fixed; that the same provisions refer to an order in the Council of State to determine in particular the Rules according to which some of these allergens may be excluded from the assumption of health insurance coverage; thus, these provisions have a direct effect on the expenditure of compulsory basic social security schemes or bodies Concurrent with their funding; that, as a result, they are not foreign Social security financing laws;
49. Considering that Article 56, which does not ignore any constitutional requirements, must be declared in conformity with the Constitution;
On Article 57:
50. Considering thatArticle L. 5121-12-1 of the Public Health Code defines the cases and conditions in which a speciality Medicinal product may be subject to a requirement which is not in accordance with a marketing authorisation; that Article I of this Article reserves the right to: Lack of appropriate drug alternatives with market authorization or temporary authorization of use " Subject to, inter alia, that the indication or conditions of use considered have been the subject of a temporary recommendation for use by the National Drug and Health Products Safety Agency;
51. Considering that Article 57 is intended to extend to cases where there is a therapeutic alternative to this indication the possibility of adopting a temporary recommendation of use for a pharmaceutical specialty; that its paragraph I Article L. 5121-12-1, cited above by a paragraph V which states: By way of derogation from the I and on an exceptional basis, in the presence of an appropriate drug alternative with a marketing authorisation, a pharmaceutical speciality may be the subject of a temporary recommendation for use Under the conditions set out in the I to IV. This temporary recommendation for use can only be established in order to remedy a proven risk to public health, or to avoid expenditure having a significant impact on health insurance finances " ; that its paragraph II amends the Social Security Code and includes in particular an Article L. 162-17-2-2 in order to enable insurance to be taken care of Disease of these pharmaceutical specialties;
52. Considering that, according to the applicants, these provisions do not have their place in social security financing law; that they would lead to the elucidating, on purely financial grounds, the control of the therapeutic effectiveness of the It would also be contradictory to extend the use of temporary recommendations for use in cases of proven risk to public health when there is an alternative That this would result in an infringement of the principle of equality of patients before Health according to the drug by which they will be treated and a lack of understanding of the constitutional protection of the right to health; and the imprecision of the concept " Significant impact on health insurance finances " Disregard the objective of the constitutional value of accessibility and intelligibility of the law; that these provisions would have the effect of discouraging medical research in conditions affecting the freedom to undertake; Finally, those provisions would disregard the objective of constitutional value for the transposition of directives to the extent that they would be contrary to Directive 2001 /83/EC of the European Parliament and of the Council of 6 November 2001 referred to above ;
53. Considering that it is clear from the parliamentary proceedings that, by adopting the contested provisions, the legislator has heard that certain restrictive practices of competition consisting, on the part of the applicant or the holder of the Authorisation for placing on the market, to limit the therapeutic indications defined by that authorisation or to refuse their extension; that these practices have the effect of aggravating the expenditure on health insurance; that the legislator has Thus pursued a goal of controlling these expenses;
54. Considering, first, that in view of the expected impact of the impugned provisions on health insurance expenditure, these provisions find their place in the Social Security Finance Law;
55. Considering, second, that the constitutional protection of the right of property and of the freedom to undertake does not preclude the legislator from defining the conditions under which the therapeutic indications of a specialty Pharmaceutical products subject to market authorization may be amended;
56. Considering, in third place, that, contrary to the support of the applicants, the contested provisions are not intended to ensure the transposition of Directive 2001 /83/EC; that, consequently, the complaint alleging infringement of Article 88-1 of the Constitution must be rejected;
57. Considering, in the fourth place, that, on the one hand, the contested provisions relate to the conditions under which medicinal products may be prescribed outside the scope of the marketing authorisation; that they do not alter Not the principle, laid down in Article L. 5121-12-1 cited above, that a temporary use recommendation may be issued only for a pharmaceutical speciality which has been the subject of such authorisation; that, as a result, they have neither For the purpose or effect of allowing a medicinal product to be placed on the Market without having received authorization for this purpose;
58. Whereas, on the other hand, the temporary recommendations for use authorised by paragraph V of Article L. 5121-12-1 are established under the conditions laid down in paragraphs I to IV of that Article; that they are established by The National Safety Agency of the medicinal product and health products, after informing the holder of the marketing authorisation; that they are drawn up under conditions laid down by decree in the Council of State; To the decree of the Council of State to determine how the effectiveness of the Therapeutic justifying this recommendation is established; finally, the prescriber must inform the patient that the prescription of the pharmaceutical specialty is not in conformity with its marketing authorisation and reasons for its prescription in The patient's medical record;
59. Considering that, as a result, these provisions do not affect the requirements of the 11th paragraph of the Preamble to the 1946 Constitution relating to the protection of health;
60. Considering, fifth, that it is for the legislature to exercise fully the jurisdiction conferred on it by the Constitution and, in particular, Article 34; that the full exercise of that competence, as well as the objective of value The constitutional accessibility and intelligibility of the law, which follows from Articles 4, 5, 6 and 16 of the Declaration of 1789, requires it to adopt sufficiently precise provisions and unambiguous formulae; that, if it belongs to The National Safety Agency for Drugs and Health Products to Appreciable, Under the Control Of the competent court, the factual situations corresponding to the concept " Significant impact on health insurance finances ", this concept is not ambiguous or ambiguous;
61. Considering that it follows from the foregoing that the provisions of Article 57, which do not infringe the principle of equality, must be declared in conformity with the Constitution;
On Article 58:
62. Considering that article 58, paragraph I, introduces new rules restricting information by walking and prospecting for health products in health care facilities; that its paragraphs II and III entrust Respectively to the director of the public health institution and to the legal representative of the private health establishment, the definition of the terms and conditions of information by way of canvassing or prospecting for health products; that paragraph IV provides for A report to Parliament on the status of the new legislation; That its paragraph V deletes the testing for information by walking or prospecting for health products provided for by the Section I of Section 30 of Law No. 2011-2012 of December 29, 2011 above ;
63. Considering that the senators and the applicants challenge the place of this article in the Social Security Finance Act; that the applicants also argue that the restriction of the possibilities for the presentation of their Pharmaceutical specialities by the undertakings would undermine the freedom to undertake as well as the right of ownership disproportionate to the objective pursued; that the restriction of the information opportunities of professionals Health in institutions, by depriving them of the necessary information, Infringement of the constitutional requirement for the protection of health; that the article would also be contrary to the requirement to transpose Community directives; 64
Considering that the provisions of Article 58 have no effect or have a too indirect effect on the expenditure of basic compulsory schemes or bodies involved in their financing and do not fall within the scope of other categories Mentioned in paragraph V of Article LO 111-3 of the Social Security Code ; that they do not find their Place in a Social Security Financing Act;
65. Considering that, without the need to examine the other grievances, section 58 is contrary to the Constitution;
On section 60:
66. Considering that Article 60 inserts in particular in the Social Security Code article L. 162-22-9-1, which states: I.-The national rates of the services referred to in Article L. 162-22-10 of the health facilities referred to in Article L. 162-22-6 may be reduced by the application of a coefficient, in order to contribute to compliance with The national health insurance expenditure target. The value of this coefficient can be differentiated by category of establishments.
" II. -With regard in particular to the opinion referred to in the penultimate subparagraph of Article L. 114-4-1, the State may decide to pay to health care facilities all or part of the amount corresponding to the difference between the amounts derived from the recovery of the The activity of the establishments by the rates referred to in 1 ° du I of Article L. 162-22-10 and those resulting from the recovery of the same activity by the reduced rates of the coefficient referred to in the I of this Article " ;
67. Considering that, according to the honourable Members and the requesting senators, by allowing the coefficient of minoration of the national rates of health establishments to vary according to the categories of establishments, the legislator has instituted differences of Treatment based exclusively on differences in the legal status of the institutions, while the evolution of health expenditure would not depend on the At the margin " The legal structure of health care facilities and other criteria would be " Significantly more relevant " ; that the legislator thus disregarded the principle of equality before the law; that by failing to frame the conditions of variation of that coefficient and by referring to the decree the fixing of the calculation methods according to which it may be paid, in In whole or in part, the differential amount resulting from this loss, the legislature would also have disregarded the extent of its jurisdiction;
68. Considering, first, that the 1 ° of paragraph I ofL. 162-22-10 of the Social Security Code that the National rates of benefits referred to in Article L. 162-22-6 of the same code as the basis for calculating the insured's participation, " May be differentiated by category of establishments, in particular according to the conditions of employment of medical personnel " ; that paragraph IIa of the same article states: When the Health Insurance Expenditure Development Alert Committee issues an opinion that there is a serious risk of exceeding the national health insurance expenditure target under the last paragraph of Article L. 114-4-1 and since it appears that this risk of exceedance is wholly or partly attributable to the development of the objective referred to in Article L. 162-22-9, the State may, after consulting the Economic Observatory for Public Hospitalization And private, amend the rates of benefits referred to in 1 ° of Article L. 162-22-6 in order to contribute to the fulfilment of the objective referred to in Article L. 162-22-9. This change shall be differentiated, where appropriate, by category of establishment and by rate of benefit " ; that it is clear from these provisions that the national rates of the health care facilities referred to in Article 1 (1) of that Article are fixed and may vary differently according to the categories of establishments; that by supplementing These provisions by the institution of a coefficient of deterioration which may vary according to the categories of establishments, the legislator has relied on differences of situation in direct connection with the object of the law; that the complaint alleging infringement The principle of equality must be rejected;
69. Considering, in the second place, that neither the rules for determining the variation of the coefficient of minoration of the tariffs nor the methods for calculating the part of the differential amount resulting from this minoration which may be paid into Cause the fundamental principles of social security or any other fundamental principles or rules that the Constitution places in the field of the law; that, by failing to lay down these rules itself, the legislator did not misknow The extent of its jurisdiction;
70. Considering that Article 60, which does not disregard any other constitutional requirement, must be declared in conformity with the Constitution;
On Article 61:
71. Considering that Article 61 amendsArticle L. 213-3 of the Monetary and Financial Code in order to enable the centres A regional hospital whose list is fixed by decree to issue cash notes, within the limit of an overall cap on emissions fixed for each of them by the same decree;
72. Considering that the applicants challenge the place of this provision in the Social Security Financing Act;
73. Considering that this provision relates to the cash flow of bodies that manage expenditure under the national objective of health insurance expenditure; that, if the provisions relating to the bodies that manage expenditure under the The national objective of sickness insurance expenditure may be included in the financing law, however, the cash and accounting provisions of these bodies do not find their place in a security financing law That, as a result, section 61 does not fit into a law of Social Security Funding;
74. Whereas Article 61 is contrary to the Constitution;
On Article 72:
75. Taking the view that Article 72 of the Act amends L. 1142-22, L. 1142-23, L. 1142-24-3 and L. 1221-14 of the Code of Public health andarticle 67 of Law No. 2008-1330 of 17 December 2008 referred to above ;
76. Considering that article 72, paragraph I, amendsArticle L. 1142-22 of the Public Health Code to extend the Missions of the National Medical Accident Compensation Board (ONIAM) to the amicable compensation of the victims of the hepatitis B virus and the human T-lymphotropic virus transmitted through the transfusion route; and the 4 ° of the same paragraph, which Amend Article L. 1221-14 of the same Code, provides that the Victims of harm resulting from the contamination of hepatitis B or C virus or human T-lymphotropic virus caused by a transfusion of blood products or an injection of blood-derived drugs are compensated by ONIAM at the National solidarity and that the latter may exercise subrogatory action against the person responsible, whether or not the person has committed a fault; that, under the d of 4 ° of the same paragraph, when the ONIAM has compensated a victim, it may Directly ask to be guaranteed the amounts paid by the insurers of the Structures taken up by the French Blood Establishment (EFS) under 18 of Act No. 98-535 of 1 July 1998 referred to above, fromArticle 60 of Law No. 2000-1353 of 30 December 2000 referred to above and article 14 of Order No. 2005-1087 of September 1, 2005,whether or not the damage suffered by the victim is attributable to A fault; that Article 72, paragraph III, provides that those provisions shall apply to court proceedings commenced on or after 1 June 2010 subject to court decisions in force of res judicature;
77. Considering that article 72, paragraph II, modifies 67, paragraph IV, of the aforementioned Law of 17 December ; Provides that, where in the context of the transitional arrangements provided for in those provisions, ONIAM has compensated a victim and, where appropriate, refunded third party payers, the ONIAM may directly request to be guaranteed sums paid by the insurers The structures taken up by the French Blood Establishment; Article 72, paragraph III, provides that those provisions shall apply to judicial proceedings in progress as of 1 June 2010, subject to court decisions in force of res judicature;
78. Considering that, according to the requesting senators, these provisions infringe the principle of freedom of contract and respect for legally concluded conventions in that they substitute ONIAM for the EFS for rights and obligations As a result of the insurance contracts of the latter; that they would also disregard the principle of non-retroactivity of laws and the principle of equality before the law and public office;
79. Considering, first, that the legislature cannot bring to the contracts legally concluded an infringement which is justified by sufficient general interest without disregarding the requirements arising from Articles 4 and 16 of the Declaration From 1789;
80. Considering that, by the contested provisions, the legislature intended to facilitate the amicable compensation of victims of hepatitis B or C virus contamination or human T-lymphotropic virus caused by a transfusion of products Blood or an injection of medicinal products derived from blood; that, as such, it has entrusted ONIAM with the task of compensating, for national solidarity, victims of damage resulting from such contamination; that it is the result of the work Parliament that the legislator has heard increasing the legal certainty of the conditions In which the ONIAM may exercise in place of the EFS a direct action against the insurers of the former blood transfusion centres to which that institution has succeeded; that the contested provisions are intended solely to enable the ONIAM to benefit from the guarantees provided for in the insurance contracts that the structures covered by the EFS had subscribed and which are still in force; thus, the contested provisions do not modify the legally concluded agreements And confine themselves to referring to the execution of the contracts already subscribed; that, therefore, the Parliament did not disregard the requirements deriving from Articles 4 and 16 of the 1789 Declaration or, in any event, the principle of non-retroactivity of laws;
81. Considering, in the second place, that insurers whose guarantee is committed as a result of contamination by the hepatitis B or C virus or human T-lymphotropic virus caused by a transfusion of blood products or injection of medicinal products Blood derivatives and those which cover another medical risk are not placed in the same situation with regard to the subject-matter of the law; that, therefore, the complaint alleging breach of the principle of equality before the law and public charges must Be discarded;
82. Considering that it follows from the foregoing that Article 72 must be declared in conformity with the Constitution;
On other provisions of the law:
With regard to the provisions adopted at first reading:
83. Considering that the first paragraph of Article 47-1 of the Constitution provides: The Parliament votes the bills for the financing of social security under the conditions laid down by an organic law " ;
84. Considering that article 39 of the Act referred to is intended to establish the certification of the accounts of the National Solidarity Fund for Autonomy;
85. Considering that this provision relates to the accounting of an organisation which manages expenditure under the national objective of sickness insurance expenditure; that, if the provisions relating to the bodies that manage expenditure under the The national objective of sickness insurance expenditure may be included in the financing law; the cash and accounting provisions of these bodies do not fit into a social security financing law; That, as a result, section 39 does not find its place in a financing law of the Social security;
86. Considering that paragraph IV of Article 24 provides for the submission of a report to Parliament on the conditions for the establishment of a coherent parafiscal system for all alcoholic beverages; that Article 74 provides for the surrender to Parliament A report presenting the results of an audit on the piloting of the personal medical file and its management by the Health Shared Information Systems Agency;
87. Considering that these provisions are not intended to improve the information and control of Parliament on the application of social security financing laws; that, as a result, they do not find their place in a financing law of Social security;
88. Considering that Article 54 permits an experiment of a full third paying student for students in three university towns; that the purpose of Article 66 is to amend the rules of limitation applicable to the invoices of the institutions Medico-social for persons with disabilities; that section 92 authorizes an experiment of a third party paying for the payment of the child care supplement; and
89. Considering that these provisions have no effect or have a too indirect effect on the expenditure of basic compulsory schemes or bodies involved in their financing and do not fall within the scope of the other categories mentioned in section V of article LO 111-3 of the social security code ; that they do not find their place in a law Funding for social security;
As regards: Provisions adopted after first reading:
90. Considering that article 11, paragraph IV, opens for a limited period the faculty of child-podologists to be affiliated with the compulsory social security system of the independent professions;
91. Considering that article 67, paragraph VI, is intended to complement the testing scheme on charging rules for facilities for dependent elderly persons;
92. Considering that the provisions of b to g of 3 ° of A and of 5 ° of B of paragraph VIII of Article 73 are intended to amend the rules relating to the operation of the Intervention Fund for quality and coordination of care;
93. Considering that the amendments resulting from the above-mentioned provisions have been introduced in a new reading to the National Assembly; that these additions were not, at this stage of the procedure, in direct relation to a provision That they were not intended to ensure compliance with the Constitution, to coordinate with texts under examination or to correct a material error; that it followed that paragraph IV of the Article 11, paragraph VI of Article 67, the b to g of the 3 ° of A and the 5 ° of B of paragraph VIII of Article 73 has been adopted in accordance with a procedure contrary to the Constitution; that they must be declared to be contrary to the Constitution;
94. Considering that it is not appropriate for the Constitutional Council to raise any other matter of conformity with the Constitution of its own motion,
Decides:

Item 1 Read more about this Article ...


The following provisions of the Social Security Financing Act for 2013 are declared to be contrary to the Constitution:
-paragraph IV of Article 11;
-Article 24, paragraph IV;
-Article 25;
-Article 37, the reference to Article L. 731-30 of Article L. 723-11 of the Rural and Maritime Fisheries Code and the words: " And by the grouping referred to in Article L. 731-31 of the same Code " 3 of paragraph III;
-Articles 39 and 54;
-paragraphs I, II, III and V of Article 55;
-Articles 58, 61 and 66;
-paragraph VI of Article 67;
-the b to g of the 3 ° of A and the 5 ° of B of the paragraph VIII of section 73;
-section 74;
-section 92.

Section 2


Sections 12, 28, 56, 57, 60 and 72 of the Act, as well as Surplus of Articles 11, 37 and 55 are in conformity with the Constitution.

Item 3 Learn more about this Article ...


second sentence of the second subparagraph of Article L. 131-9 of the Social security code is unconstitutional.

Article 4


This decision will be published in the Official Journal of the Republic
Issued by the Constitutional Council at its meeting on 13 December 2012, attended by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Michel CHARASSE, Renaud DENOIX de SAINT MARC, Valéry GISCARD d' ESTAING, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.


The President,

Jean-Louis Debré


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