07/10/2019
Written by Anaïs Abbati
CE July 10, 2019 n° 417919 – The “Conseil d’Etat” dismisses the appeal for excess of power against the circular on the subsidiary health contribution
The French Social Security Financing Act for 2016 introduced a subsidiary health contribution (CSM) designed to ensure that people who, while receiving income from assets above a certain level, do not receive any professional income or receive insufficient professional income for the contributions based on this income to constitute a sufficient contribution towards the cost of health care.
As this vote went virtually unnoticed at the time, many of our colleagues were outraged when their customers received their first calls for contributions.
Since then, however, there has been little comment on case law in this area, as illustrated by the Conseil d’Etat’s recent decision of 07/10/2019 n°417919.
Anaïs ABBATI
Partner
It should be remembered that an appeal for excess of power had been lodged against Circular no. DSS/5B/2017/322 of November 15, 2017 relating to the CSM, and that the Conseil d’Etat had deferred ruling until the Conseil Constitutionnel could rule on the QPC attached to the appeal (CE no. 417919 of July 4, 2018).
Subsequently, the Conseil Constitutionnel had declared the CSM compliant with the Constitution, while attaching an important reservation of interpretation, namely that it was “up to the regulatory authority to set the rate and the terms of application in such a way that the contribution does not lead to a characterized breach of equality before public charges” (Decision no. 2018-735 QPC of September 27, 2018).
In a decision no. 417919 of July 10, 2019, the Conseil d’Etat was finally able to rule on the appeal for excess of power initially referred to it, unfortunately in a direction unfavorable to litigants.
While reiterating the absolute scope of the Constitutional Council’s reservation on interpretation, the Conseil considered that the methods for calculating the subsidiary health contribution, although not capped until 2019, did not result in a breach of equality before public charges.
This decision is surprising and open to criticism, as it removes all scope from the aforementioned reservation of interpretation, which was clearly understood by the legislator and led him to introduce a capping mechanism for contributions due for periods running from January 1, 2019.
As the judicial judge has issued several favorable decisions on the merits, we can only hope that he will continue in this vein and be more receptive to the various arguments than was the administrative judge, probably constrained by budgetary considerations.
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