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Case:
R.F.D.A. March-April 1999, 15 (2), 357 Case M. Rouquette et Mme Lipietz et autres
Date:
05 March 1999
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

Given that article L.521-1 of the Code of Social Security, in the version resulting from article 23 of the Law of 19 December 1997, provides that “Family allowances are awarded in respect of the second child and further children. These allowances … are payable if the resources of the recipient household or individual do not exceed a threshold which varies in accordance with the number of children cared for.

As to the argument that the provisions introduced into article L.521-1 of the Code of Social Security by the Law of 19 December 1997 are incompatible with the requirements of the International Pact on Economic, Social and Cultural Rights (articles 2, 9, and 10) and the European Code of Social Security (articles 39 and 45):

Given that according to article 2 of the International Pact on Economic, Social and Cultural Rights, which was published in the Official Journal of the French Republic on 1 February 1981, “The States signatories of this pact undertake to guarantee that the rights contained herein shall be exercised without any discrimination based on … wealth”; and that under article 9 “The States signatories recognise the right of every person to social security, including social insurance”; that article 10 provides that “The family must be protected and assisted within the limits of the possible”, that article 39 of the European Code of Social Security, published in the Official Journal of the French Republic on 9 April 1987, provides that “Every contracting party which has adopted this part of the Code must guarantee family allowances to protected persons”; that article 45 provides “If the allowances take the form of periodical payments they must be paid for the entire duration of the situation”; and article 40 provides that the situation in question is “children in care”;

Given however that these provisions confer no direct rights on individuals, so they cannot be usefully invoked as a ground for annulment of the decree under attack;

On the argument that the provisions which the Law of 19 December 1997 introduced into article L.521-1 of the Code of Social Security are incompatible with the provisions of article 14 of the European Convention for the Protection of Human Rights and Fundamental Liberties and article 1 of the First Protocol thereto:

Given that article 14 of the European Convention for the Protection of Human Rights and Fundamental Liberties provides that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as .. property…”; that article 1 of the First Protocol to the Convention lays down that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions…”

Given that in relating family allowances to the wealth of the recipient the aim of the legislator was to maintain the financial equilibrium of the social security system as it affects families, which is an objective of public utility, and that the criteria adopted are objective and rational in relation to the aims of the law; that therefore the complainants cannot to maintain that the provisions of article L.521-1 of the Code of Social Security involve a disproportionate breach of their right to respect for their possessions or are in conflict with the principle of non-discrimination in that regard which results from the provisions of article 14 of the Convention taken in conjunction with article 1 of the First Protocol thereto

Given that as the legislator has laid down a higher threshold in the case where both parents are in paid employment, the complainants cannot assert that the provisions of article 521-1 of the Code of Social Security penalise the professional activity of the mother so as to constitute discrimination on the grounds of sex in contravention of the provisions of article 14 of the Convention taken in conjunction with the first article of the First Protocol thereto;

On the argument based on legitimate expectations;

Given that as the provisions of article L.521-1 of the Code of Social Security, in the form resulting from the Law of 19 December 1997, were not designed to incorporate Community law the complainants cannot effectively argue that the Conseil d’État must disapply that article as being contrary to the principle of legitimate expectations emanating from the Treaty of 25 March 1957 which instituted the European Economic Community, now the European Community;

On the argument that the decree disregarded the report annexed to the Law of 19 December 1997:

Given that under article L.O. 111-3, added to the Code of Social Security by the organic law of 22 July 1996, “The annual law on the financing of the social security system will every year 1° Endorse the policies for health and social security and the aims on which the general conditions of the financial stability of the social security system depend”; that by virtue of article L.O. 111-4, added to the Code by the same law, the bill for the financing of the social security system shall be accompanied by a “report which presents the policies for health and social security and the aims on which the general conditions of the financial stability of the social security system depend”

Given that the projections and aims presented in the report which accompanies the law for the financing of the social security system do not have the normative force which attaches to the provisions of the law itself, and that in consequence the argument of M. du Besset that the decree ignored the content of the report annexed to the law of 19 December 1997 is unsustainable;

On the argument that the decree under attack infringes the principle of the equality of citizens faced with public expenditure:

Given that since the principle whereby family allowances are granted only where needed is inherent in very terms of the law, it is not for the Conseil d’État in litigation to inquire into the conformity of the law with the constitutional principle that public expenditure must fall on citizens equally;

Given again that the differential treatment which the decree under attack implements is laid down by law on the basis of objective and rational criteria relating to the purpose of the law, especially as to the kind of charges which are tax-deductible; that these regulatory provisions do not infringe the principle that public expenditure must fall on citizens equally;

On the argument that the decree is retrospective and therefore unlawful:

Given that when a regulatory authority acting within its powers lays down that the conditions under which a social security benefit are payable may depend on prior events it does not infringe the general principle that administrative acts must not be retrospective, especially as the decision has legal effects only as to the future;
Given that it follows that the complainants cannot demand the annulment of the decree in question, which is not perceptibly unlawful…

 

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