Key Benefits:
(MME ANNICK D., EPOUSE L.)
The Constitutional Council was entered on 17 January 2013 by the Court of Cassation (Second Civil Chamber, Judgment No. 208 of 17 January 2013), under the conditions laid down in the Article 61-1 of the Constitution, of a priority question of constitutionality put forward by Mrs Annick D., wife L., on the conformity with the rights and freedoms guaranteed by the Constitution Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006744205&dateTexte= &categorieLink = cid"> article L. 756-5 of the social security code in its output from section 3 of Law No. 2000-1207 of 13 December 2000 for overseas orientation.
The Constitutional Council,
Given the Constitution;
SeenOrder No. 58-1067 of 7 November 1958 Amending Organic Law on the Constitutional Council;
Given the Social Security Code ;
Seen law n ° 2000-1207 of 13 December 2000 for overseas orientation;
In view of the judgment of the Court of Cassation (Second Civil Chamber) No 06-18611 of 22 November 2007;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure followed before the Council Constitutional for priority matters of constitutionality;
In view of the observations submitted to the applicant by the CPC Alain Benabent and Marielle Jehannin, a lawyer at the Conseil d' Etat and the Court of Cassation, registered on 31 January February 19, 2013;
Seen the comments of the Prime Minister, Registered on February 8, 2013;
Seen the exhibits filed and attached to the file;
Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on March 26, 2013;
The rapporteur was heard;
1. Considering that the terms of Article L. 756-5 of the Social Security Code in its wording from December 13, 2000 law : " By way of derogation from the provisions of Article L. 242-11, the first paragraph of Article L. 612-4, the first paragraph of Article L. 633-10 and the first and fourth paragraphs of Article L. 131-6, contributions of family allowances, insurance Sickness and old-age insurance of non-agricultural non-agricultural workers operating in the departments referred to in Article L. 751-1 shall be calculated, on a final basis, on the basis of the last professional income of the penultimate Year or, if applicable, flat income.
" By way of derogation from the provisions of the sixth paragraph of Article L. 131-6, the person commencing the exercise of a non-agricultural self-employment activity shall be exempt from contributions and contributions for a period of twenty-four months from the date of Creating the activity " ;
2. Whereas, according to the applicant, the contested provisions introduce into certain overseas departments rules on the calculation of the social contribution base for non-agricultural non-agricultural workers different from those Applicable in metropolitan France and which are not justified by any particular characteristic or constraint specific to those overseas departments; that this would result in a breach of equality before the public charges between the workers Independent according to their geographic location;
3. Considering that, according to article 6 of the Declaration of the Rights of Man and the Citizen of 1789, the Act " Must be the same for all, either protecting or punishing " ; that the principle of equality does not conflict with the rule of law in different situations, nor that it derogates from equality for reasons of public interest, provided that, in either case, the difference in treatment Resulting in direct relation to the object of the law that establishes it;
4. 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, Leading to a marked breakdown of equality before public office;
5. Whereas under the first paragraph of Article 73 of the Constitution: In the overseas departments and regions, laws and regulations are applicable in full. They may be adapted to the specific characteristics and constraints of these communities." ;
6. Considering, first, that theArticle L. 756-5 of the Social Security Code provides that, where workers are not Non-agricultural employees carry on their business in the departments of Guadeloupe, French Guiana, Martinique or Réunion, the basis used for the calculation of contributions of family allowances and sickness insurance and contributions In respect of the social Final, the professional income of the penultimate year or, where applicable, a flat income; that the same is true of the base used for the calculation of old-age insurance contributions, including craftsmen, industrialists and traders Must discharge; that this section also exempts from these contributions and social contributions, for a period of twenty-four months, the person commencing the exercise of a non-agricultural self-employment activity in the overseas departments By adopting those provisions, the legislator has heard The special situation of self-employed workers in these departments and encourage the development of independent activities in these territories; that the employment situation and that of the self-employed in the departments Within the meaning of Article 73 of the Constitution, constitute " Special features and constraints " To enable the legislator to adapt the rules for determining the basis of contributions and social contributions payable by these self-employed workers and to exempt them from the payment of such contributions and contributions during a period of Limited duration; that, therefore, the legislator has not undermined equality before the law and public charges;
7. Considering, in the second place, that for all non-agricultural workers in the abovementioned overseas departments, the contested provisions are applicable only to sickness insurance contributions, to contributions Family allowances and social contributions while, for craftsmen, industrialists and traders, these provisions are also applicable to old-age insurance contributions; rather, by retaining a wider scope for the Contributions by artisans, industrialists and traders benefiting from the mode Calculation and the specific exemption from the contested provisions, the legislature based its assessment on the fact that these workers, who are members of an old-age insurance scheme separate from that of the other workers, Non-agricultural workers, are in a more precarious situation than other non-agricultural non-agricultural workers in the overseas departments; that it based its assessment on an objective and rational criterion in relation to the objective pursued; That it does not result from a marked breakdown of equality before the charges Public;
8. Considering, third, that the second paragraph of Article L. 756-5 of the Social Security Code reserves the benefit of The biennial exemption from contributions and social contributions to " The person commencing the exercise of a non-agricultural self-employment activity " ; that, as the Court of Cassation held in its judgment of 22 November 2007, any person beginning to engage in a self-employed non-agricultural activity in an overseas department shall be entitled to such relief, even if Previously engaged in a non-farm self-employment activity in another part of the national territory; that, under these conditions, the Href=" /viewCodeArticle.do?cidTexte=LEGITEXT000006073189&idArticle=LEGIARTI000006744205&dateTexte= &categorieLink = cid"> second paragraph of article L. 756-5 of the security code Social does not misunderstand the principle of equality before the law and public charges;
9. Considering that the contested provisions are not contrary to any other right or freedom that the Constitution guarantees; that they must be declared in conformity with the Constitution,
Decides:
Article L. 756-5 of the Social security code, as a result of Act No. 2000-1207 of 13 December 2000, is in conformity with the Constitution.
This decision will be published in the Official Journal of the French Republic and notified under the conditions set out in section 23-11 of the order of November 7, 1958, above.
Deliberated by the Constitutional Council in its April 4 session Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Hubert HAENEL and Nicole MAESTRACCI.
Public Rendu public April 5, 2013.
The President,
Jean-Louis Debré
