Cour de Cassation
National case details
Registration ID: 15-16.312
Instance: Cassation (review)
Case status: Final
Area of law
Identification of the case
- Articles L. 111-1, L. 111-2-1 and L. 111-2-2 of the Social Security Code
- Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance
Summary of the case
A company manager is affiliated to the French social security schemes providing health and maternity insurance for self-employed persons in non-agricultural trades (the Fund). He requested to be removed from this scheme after subscribing health insurance with a private organisation based in Great Britain. The Fund issued him an enforcement order. The claimant lodged an objection before a social security court.
The social security court confirmed the enforcement order. The claimant appealed and the Court of Appeal confirmed the judgment.
The claimant appealed against this decision with regard to the principle of contractual freedom and of competition in the field of insurance. Then, he raised, in a separate memorandum, a priority question of constitutionality concerning the conformity with the Constitution of the provisions of the articles L. 111-1, L. 111-2-1 and L. 111-2-2 of the Social Security Code. The Court of Cassation held that the disputed articles meet the constitutional requirements resulting from the eleventh paragraph of the Preamble of the Constitution of 1946 and that it could not be seriously argued that they infringed freedom of contract, freedom of enterprise and personal freedom, as derived from Article 4 of the Declaration of the Rights of Man and Citizen of 26 August 1789. Therefore the Court rejected the referral to the Constitutional Council.
The applicant then asked the Court of Cassation to refer the following question to the Court of Justice of the European Union for a preliminary ruling: Considering the judgments of the Court of Justice in Watts of 16 May 2006, (C-372/04) and BBK of 3 October 2013 (C-59/12) is the monopoly granted to the compulsory French social security schemes compatible with the principle of freedom to insure oneself with the insurer of one's choice and with the principle of competition in the field of insurance, as laid down by Directives 92/49/EEC and 92/96/EEC?
- Civil judicial enforcement
Article 267 TFEU makes it mandatory for national courts to refer a question to the Court of Justice of the European Union for a preliminary ruling when the question is raised before a court or tribunal against a decision who is not subject to judicial review under national law. This obligation disappears when the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case. In this case, the Court of Justice of the European Communities had already been seized of an identical question and had ruled on it by judgment of 26 March 1996 (case C.238/94) that:
Article 2(2) of Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 is to be interpreted as meaning that social security schemes such as the French statutory social security schemes providing health and maternity insurance for the self-employed in non-agricultural trades, old-age insurance for those in skilled manual trades and old-age insurance for those in industrial and commercial trades are excluded from the scope of Directive 92/49. That provision quite clearly excludes from the scope of the directive not merely social security organizations but also the types of insurance and operations which they provide in that capacity. Furthermore, the Member States retain their powers to organize their social security systems and thus to set up compulsory schemes based on the principle of solidarity, which would be unable to survive if the directive were to be applied to them, removing the obligation to contribute.
The Court of Cassation therefore logically made use of the praetorian derogation from the obligation to refer to the Court of Justice, recalling that this obligation "disappears when the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case". The Court therefore refused to refer the question for a preliminary ruling.
The appeal was therefore rejected by the Court of cassation. It stated that it follows from Articles L 111-1 and L 111-2 of the Social Security Code that all persons working and residing in France are obliged to be affiliated to the French social security scheme to which they are subject. Following the reasoning of the Court of justice of the European Union and according to Article 137 of the EC Treaty, Member States retain full control over the organisation of their social protection systems. The Court of Justice of the European Communities has recognised that it is up to the legislation of each Member State to determine the right or obligation to join a social security scheme and the conditions which give entitlement to benefits.
Directives 92/49 and 92/96 of 18 June and 10 November 1992 have progressively established a single European market for private insurance and, since 1994, have allowed European insurers, on the basis of a set of common rules, to operate on the territory of the Union, so that everyone can choose their insurer in their own State or in another State of the Union. However, although these insurance directives and their transposition cover personal insurance and thus include rules on accident, health, life and death, they do not affect social security legislation and do not apply in any case to basic social security schemes. On the contrary, this Directives explicitly exclude from their scope insurance included in a statutory social security scheme and the bodies that manage it.
Since it is responsible for the management of a statutory social security scheme operating on a pay-as-you-go basis and not on a capitalisation basis, which is based on national solidarity and not on the pursuit of a profit-making aim, the Fund does not constitute a company within the meaning of the Treaty establishing the European Community which is likely to fall within the scope of the above-mentioned directives.
As a result, the manager's affiliation to the statutory social security scheme is mandatory. The self-employed person cannot avoid it by relying on an alleged freedom of choice because the status of the Fund does not make him an enterprise dependent on free competition within the meaning of European Union law, nor on an alleged unconstitutionality based on the freedom to contract.
Elements of judicial dialogue
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU C-372/04, Watts and C-59/12, BBK