Key Benefits:
(CAISSE SELF TO RETIREMENT FRANCE AND OTHER PHYSICIANS)
The Council Was seized on 20 July 2015 by the Council of State (Decision No 372907 of 17 July 2015), under the conditions laid down in Article 61-1 of the Constitution, of a priority question of constitutionality laid down for the autonomous pension fund of doctors of France and MM. Hervé E., Philippe K., Thierry L., Yves L. and Mrs Sylviane D., by the CPC Foussard-Froger, lawyer at the Conseil d' Etat and the Court of Cassation, on the conformity with the rights and freedoms guaranteed by the Constitution of Articles L. 134-1 and L. 134-2 of the Social Security Code, registered in the General Secretariat of the Constitutional Council under number 2015-495 QPC.
The Constitutional Council,
Given the Constitution;
Seen Order n ° 58-1067 of 7 November 1958 as amended by the Organic Law on the Constitutional Council;
Seen Social Security Code ;
Seen Law n ° 74-1094 of 24 December 1974 on the social protection common to all French people and establishing compensation between basic and social security schemes Required;
Given the 2011-1906 Act of December 21, 2011 Social Security Funding for 2012;
Seen Order No. 85-1353 dated December 17 1985 on the Social Security Code ;
In view of the Rules of Procedure of 4 February 2010 on the procedure before the Constitutional Council for questions Priorities for constitutionality;
In view of the observations submitted by the applicants by the SCP Foussard-Froger, recorded on 11 and 26 August 2015;
In view of the observations made by the Prime Minister, recorded on 11 August 2015;
Vu Exhibits filed and attached to the file;
Me Dominique Foussard, for the applicants, and Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on 13 October 2015;
The rapporteur was heard;
1. Considering that the terms of Article L. 134-1 of the Social Security Code, in its wording from December 21, 2011 Act : " Compensation shall be instituted between compulsory social security schemes with a minimum workforce, other than supplementary schemes within the meaning of Articles L. 635-1, L. 644-1 and L. 921-4 of this Code and of Article 1050 of the Rural code. This compensation relates to the expenses of the old-age insurance in respect of their own rights.
" Compensation tends to address the inequalities arising from demographic imbalances and the disparities in capacity between different regimes. However, as long as the contributory capabilities of all the non-employees cannot be defined under the same conditions as those of the employees, the compensation between all the employee plans and the non-employee plans will have Only for the purpose of correcting demographic imbalances.
" The compensation provided for in this Article shall be calculated on the basis of a reference benefit and an average assessment; it shall be made after the application of the compensation Existing.
" The resulting balances between the various plans are Set by inter-ministerial orders, after consulting the compensation committee provided for in Article L. 114-3 " ;
2. Considering that, according to Article L. 134-2 of the same Code, in its drafting of the Decree of 17 December 1985 referred to above :
" decrees shall lay down the conditions Of the application of Article L. 134-1 and shall determine in particular:
"1 ° The minimum workforce necessary for a social security scheme to participate in the compensation established by this article;
" 2 ° The rules for determining the basis for calculating transfers made under compensation Provided for in this article " ;
3. Taking the view that the applicants maintain that the contested provisions, which establish between compulsory old-age insurance schemes of employees and non-employees, compensation based solely on a demographic basis, Infringe the principles of equality before the law and public office; moreover, they would disregard the objective of accessibility and intelligibility of the law, the principle of clarity of the law, the requirements of " Legitimate expectation " And legal certainty and would be tainted by negative incompetence;
4. Considering that the priority question of constitutionality relates to second sentence of the second subparagraph of Article L. 134-1 Social Security Code ;
On grievances arising from the infringement of the principles of equality before the law and public charges:
5. Considering that, according to the applicants, by establishing a compensation based solely on demographic bases between the old-age insurance schemes of employees and those of non-employees, whereas the compensation within the schemes Of employees' old-age insurance also takes into account the contributory abilities of the contributors to each scheme, the impugned provisions undermine the equality before the law; and the absence of consideration of the contribution faculties For the offset between the old-age pension schemes of Employees and those of non-employees would lead to an excessive burden on the contributors of certain schemes in relation to their contributory abilities, in disregard of the principle of equality before public office;
6. 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 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 legislation that establishes it;
7. 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'. ; in particular, in order to ensure respect for the principle of equality, the legislator must base its assessment on objective and rational criteria according to the aims it proposes; that this assessment should not, however, lead to A marked breakdown of equality before public office;
8. Considering that, in accordance with the contested provisions, in contrast to the compensation between compulsory old-age pension insurance schemes, the purpose of which is to remedy the inequalities arising from the imbalances Demographic and contributory capacity disparities between, on the one hand, all employees'plans and, on the other hand, each of the non-wage-earners' plans is intended solely to remedy the imbalances Demographic; that it is the result of preparatory work for Law of 24 December 1974, above that the legislator has thus heard the general interest objective of solidarity implemented within each basic scheme of Social security between different regimes;
9. Considering, first, that prior to the compensation between, on the one hand, the compulsory basic old-age insurance schemes of employees and, on the other hand, the compulsory basic old-age insurance schemes of non-salaried employees, it is Compensation between the employee plans only; that this difference in treatment between compulsory old-age insurance schemes according to whether they are in charge of employees or non-employees is inherent in the terms and conditions Which has gradually developed the old-age insurance in France As well as the correlative diversity of these schemes; that, therefore, the complaint alleging that the principle of equality before the law between these two categories of schemes is disregarded must be rejected;
10. Considering, second, that, on the one hand, the generalised compensation between compulsory old-age insurance schemes introduced by the legislature is primarily aimed at neutralising the financial imbalances which may result, Within the framework of a distribution system which distinguishes between schemes organised on a socio-professional basis, the ratio between the number of contributors and the number of pensioners of the same scheme; that by providing for compensation between, On the one hand, all the employee schemes and, on the other hand, each of the Non-employee schemes are based exclusively on demographic criteria, without these criteria being weighted by the taking into account of contribution capacities, the legislator has adopted objective and rational criteria in relation to the objective Continued;
11. Considering that, on the other hand, the compulsory basic old-age insurance schemes, which receive contributions mainly on a ceiling basis and are also used for basic retirement pensions which are also capped, operate in The framework of a pension scheme by allocation; it follows that the contested provisions, by providing financial compensation between schemes based on demographic criteria, do not lead to a marked breakdown in equality To public payloads;
12. Whereas it follows from the foregoing that the of the second sentence of the second subparagraph of Article L. 134-1 of the Social security code does not ignore the principles of equality before the law and the public charges;
On the complaint alleging ignorance by the legislator of its own jurisdiction:
13. Considering that, according to the applicants, by not laying down sufficiently precisely the term of compensation based on solely demographic criteria between the old-age insurance schemes of employees and non-employees, the Parliament would have disregarded the scope of its jurisdiction in conditions affecting the principles of legal certainty and legitimate expectations, clarity of law and equality before the law and public burdens;
14. Whereas under the first paragraph of Article 61-1 of the Constitution: Where, on the occasion of an ongoing proceeding before a court, it is submitted that a legislative provision infrings the rights and freedoms guaranteed by the Constitution, the Constitutional Council may be seized of this matter on Reference by the Council of State or the Court of Cassation, which shall take a decision within a specified period of time " ; that the legislator's lack of knowledge of his own jurisdiction can be invoked in support of a priority question of constitutionality only in the case where that ignorance affects by itself a right or freedom that the Constitution Ensures;
15. Considering that under Article 34 of the Constitution: The law determines the fundamental principles ... of social security " ;
16. Considering that the basic principles of social security need to be stored, and as such are in the field of the law, the very existence of a social security system; that the same applies to the determination of conditions According to which financial solidarity can be organised between the different social security schemes; that, in the present case, the contested provisions lay down the criterion by which the financial compensation between the schemes is carried out Compulsory old-age insurance for employees and those of non-employees; that Those of those provisions referring to the impossibility of defining the contribution capacities of non-employees under the same conditions as those of employees are devoid of any normative scope and cannot entrust to power The right to decide that a conciliation taking account of contributory capabilities must be made; that, as a result, the complaint alleging ignorance by the legislature of its jurisdiction must be rejected;
17. Considering that the provisions of the second sentence of the second subparagraph of Article L. 134-1 of the Social Security Code, Which are not in any case unintelligible and do not disregard the guarantee of rights, are contrary to any other right or freedom guaranteed by the Constitution; that they must be declared in conformity with the Constitution,
Decides:
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 Order of 7 November 1958 aforesaid.
Deliberated by the Constitutional Council at its meeting on 20 October 2015, attended by Mr Jean-Louis DEBRÉ, President, Mrs Claire BAZY MALAURIE, Nicole BELLOUBET, MM. Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Jean-Jacques HYEST, Lionel JOSPIN and Ms Nicole MAESTRACCI.
