Equality of Treatment (Social Security) Convention, 1962 (No. 118) - France (Ratification: 1974)

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

A Government representative noted that the Committee of Experts' observation comprised two sections. The first concerned the application of Article 3, paragraph 1, and Article 4, paragraph 1, of the Convention, and referred to the supplementary allowance of the National Solidarity Fund (FNS), the allowance for disabled adults and the invalidity and survivors' benefits. The second referred to all the social security benefits which had not been paid to non-nationals since the adoption of Act No. 93-1027 of 24 August 1993 concerning the supervision of immigration and the conditions for entry, reception or stay of foreigners in France. According to the Committee of Experts, this second point concerned also the correct application of the Migration for Employment Convention (Revised), 1949 (No. 97). The common denominator of these two sections was a discrepancy in the treatment between nationals and foreigners regarding, on the one hand, several benefits due to all foreigners living in France, and, on the other hand, all the benefits due to certain foreigners whose conditions of residence in France had been radically modified by the 1993 Act. As for the application of Article 3, paragraph 1, and more specifically the implementation of section (d) (invalidity benefit), sections L.815-2 and L.815-3 of the Social Security Code determined the conditions for the right to the supplementary allowance of the FNS for nationals, amongst which there was an obligation of residence in French metropolitan Departments or Overseas Departments or territories. He noted that the Parliament had progressively extended the places of residence, therefore giving an entitlement to the allowance to the Overseas Departments in 1961, and then to the overseas territories in 1987. The payment of this allowance to nationals was conditional upon their retaining a place of residence on French territory in conformity with section L.815-11 of the Social Security Code. For foreigners residing in France who wished to obtain this allowance, section L.815-5 stipulated that it was due to foreigners only if international agreements had been agreed upon. The application of this provision engendered several court cases. In 1991 the Supreme Court of Appeal decided that Algerian nationals residing in France could benefit from the FNS allowance under the same conditions as nationals. By six rulings handed down on 17 October 1996, the same Court overruled the interpretation according to which this allowance was due to foreigners only where international agreements of reciprocity had been agreed upon with the State from which these workers came. Although such agreements did not exist in that particular case, the Court based its decision prohibiting discrimination between nationals and foreigners on the cooperation treaties which existed between the State of the worker concerned and the European Community. The Court emphasized that Convention No. 118 was not an obstacle to the implementation of these treaties. Contrary to the Social Security Tribunal of Loire (which was a first-instance jurisdiction under the authority of the Supreme Court of Appeal) which was quoted by the Committee of Experts, the Supreme Court of Appeal did not base itself on the Convention but merely pointed out that it was not incompatible with certain cooperation treaties concluded by the European Community which forbade discrimination in their direct application. In a seventh decision handed down on the same day, the Supreme Court of Appeal applied the same reasoning to the payment to foreigners of the allowance for disabled adults, basing itself solely on European Community law and without mentioning the Convention. Therefore, the Government did not have at its disposal an interpretation from the highest judicial body regarding the scope of the provisions of the Convention concerning the allowance for disabled adults. The comments of the Committee of Experts in respect of the application of Article 4, paragraph 1, branch (d) (invalidity benefit) and branch (f) (survivors' benefit) referred to the residency requirement placed on foreigners in order to receive these benefits. By decision No. 89-269 DC of 22 January 1990, the Constitutional Council ruled that the principle of equality meant that foreigners residing in France would not be deprived of social security payments, so long as they were legal residents in the country prior to receipt of the benefit. Therefore, there was constitutional and court jurisprudence which recognized the principle of equality of treatment between nationals and foreigners with respect to social security benefits and which determined the conditions of their payments which could be included in agreements between the European Community and third countries. This jurisprudence led the Government to wonder whether the Convention was fully applied when such an agreement existed and, if so, whether it was only a form of supplement in view of the direct application of this agreement. This drew attention to the theme often discussed of the link between the standard-setting system of the ILO and that of the European Union.

The second part of the observation concerned the entitlement of social security benefits to foreigners who were not authorized to stay on the national territory since the adoption of the 1993 Act. The loss of right of residency could indeed occur although foreigners had contributed during the period when they were in a regular situation or even after the extinction of their rights. The newly elected Government had called for the repeal of this Act in the coming months. It was difficult to predict the contents of new legal provisions that would replace it but the Government would not fail to examine the real situations arising from the current legislation.

The Workers' members thanked the Government representative for the information provided as well as the additional details concerning the provisions currently applied and the recent jurisprudence. It was essential that this information be now provided in writing to the Office in order for the Committee of Experts to analyse it. In fact, the information provided verbally seemed to raise new questions. The Workers' members attached importance to the application of Conventions on equality of treatment for foreign workers in respect to fundamental rights, working conditions and social security, as had been demonstrated during the discussion on the application of Convention No. 97. Besides, that Convention would be the subject of a General Survey in the near future. The observation of the Committee of Experts noted discrepancies between the legislation and practice with respect to the requirements of Article 3, paragraph 1, and Article 4, paragraph 1, of the Convention. It noted the observations formulated by the French Democratic Confederation of Workers (CFDT) concerning the entitlement of social security benefits to foreigners who were illegal residents of the country, in order to clarify the scope of the Convention on this point by making it clear that foreign workers were entitled to these allowances as soon as they had contributed to social security for the periods in which they were in a regular situation. As regards Article 3, paragraph 1, the Committee of Experts pointed out that for several years the nationals of all States which signed Convention No. 118 were entitled to invalidity allowances. Being a national of a country which had signed a bilateral agreement was a requirement not included in the Convention and therefore constituted a violation of the Convention. In that respect, the Committee of Experts quoted a judicial decision. Regarding the requirement of residence, the Committee of Experts was of the opinion that it went beyond what was provided for in the Convention, which only provided that equality of treatment be guaranteed, without any condition of residence, to the nationals of the country which had ratified the Convention. Therefore, the Government had to reconsider the situation and modify its legislation and practice accordingly.

The Employers' members thanked the Government representative for the information supplied, pointing out, however, that it would have been preferable to have it in writing so that the Committee of Experts could examine it. The complexity of the question made it difficult to comment on the basis of oral statements alone. The question raised was that of the preconditions for the right of a foreigner to receive supplementary benefits: was it sufficient that the State from which this person came had also ratified the Convention, or could France impose a condition of reciprocity? The Committee of Experts had mentioned a court decision where a foreigner had been granted his rights since his country had also ratified the Convention. According to the Government's explanations, a bilateral agreement was necessary, whereas the Committee of Experts was of the opinion that it was sufficient that the two States involved both ratify the Convention. The question of the scope of the obligations under the Convention was thus open. Another point of disagreement between the Government and the Committee of Experts was the residency requirement. A third question concerned persons in irregular situations who, although having paid contributions for many years, would lose their right to benefits in case of non-renewal of their residency permit. The Committee of Experts stressed that the loss of right of residence should not affect rights in the course of acquisition which the insured person can claim for the period of contribution in which he was in a regular situation. Since the Government representative had indicated that the 1993 Act would soon be repealed, it was important that this provision be eliminated rapidly, and that the Government provide full information so that the Committee of Experts would be in a position to assess the new situation and so that this Committee would, if necessary, be able to decide whether to discuss the case again.

The Workers' member of France thanked the Government representative for the detailed information provided. Nevertheless, he recalled that the Convention was an international treaty which should therefore prevail over internal law and that reciprocity agreements of the European Community with third countries could not exclude the application of Convention No. 118. The recent legislation and jurisprudence were contrary to the provisions of the Convention and the Government should submit to Parliament draft legislation in order to bring the law into conformity with the Convention. It was useful to place the problem in its general context. To lure the xenophobic electorate, the legislation relating to the conditions of entry and residency for foreigners had become increasingly restrictive in the last few years for migrant workers and asylum seekers, with the consequence that numerous well-integrated workers had suddenly became illegal workers without social protection. The new Government had just announced new measures to regularize their status, taking into account their family situation and their integration into society as well as a reform of the conditions of entry and residency. But one had to be vigilant, particularly with respect to the application of the legislation regarding Conventions Nos. 97 and 118. The Government should provide rapidly a report in which the compliance with the provisions of the Convention with respect to migrant workers would be demonstrated. In the meantime, French trade unions would make sure that the national policy vis-à-vis migrant workers was in conformity with the tradition of their country as well as international labour standards.

The Workers' member of Pakistan stressed the need to bring the legislation into conformity with Convention No. 118, particularly with regard to migrant workers. These workers contributed enormously to the national economy and therefore deserved the same rights as citizens. He concurred with the Committee of Experts' observation that the loss of residence by a foreigner should not result in the loss of all benefits from contributions paid for numerous years to the social security system. He was happy to know that the new Government elected in France had undertaken to make the necessary changes to the legislation.

The Workers' member of Germany associated himself with the interventions of other Workers' members and stated that the application of Convention No. 118 was very important and that it was justifiable that this Committee discussed it, even though the subject matter appeared to be very technical. In effect, migrant workers needed special protection in order to guarantee equality in social security. The Government representative was to be thanked for his explanations on national legislation and case-law. In this respect, the fact that a further judgment of a Tribunal of the First Instance (Montbéliard, June 1996) referred to the Convention as a basis for its positive ruling guaranteeing the allowance for disabled adults (referred to in the Committee of Experts' observation) should be noted with interest. However, it was not up to workers to take individually legal action before the courts to enforce their rights guaranteed by international Conventions. Thus, the Government should be urged to bring national legislation into conformity with the provisions of the Convention.

The Government representative thanked those who had taken the floor for their comments on this particularly complex legal situation and assured them that their comments would be faithfully transmitted to the authorities. This unusual debate on questions that were rarely raised encouraged further improvement in the dialogue with the Committee of Experts. Written information to this effect would be sent.

The Committee took note of the detailed information supplied by the Government representative and the discussion which had taken place of the questions which had, for many years, been the subject of comments by the Committee of Experts. Nevertheless, the Committee regretted that the Government's report on this Convention for 1996 had not been received. The Committee trusted that the Government would continue the dialogue with the ILO's supervisory bodies so as to find appropriate solutions that would be in full conformity with the Convention both in law and in practice. The Committee stressed the importance of the principle of equality of treatment between nationals and non-nationals in the field of social security. Given the technical complexity of this matter, the Committee trusted that the Government would send in the very near future a detailed report on all the questions raised by the Committee of Experts. The Committee reminded the Government that it could resort, if it so desired, to the technical assistance of the Office.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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In order to provide a comprehensive overview of the issues relating to the application of the ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 12 (workers’ compensation in agriculture) and 118 (equality of treatment, social security) together in a single comment.

The Committee notes the observations made by the National Federation of Farmers’ Unions (FNSEA) on the application of Convention No. 12, which were provided with the Government’s report.

Article 1 of Convention No. 12. Extension to all agricultural wage-earners of laws and regulations on compensation for employment injury. The Committee notes the observations of the FNSEA on the difference between the general scheme and the agricultural scheme with regard to the procedure for the recognition of the occupational nature of accidents, which is necessary for entitlement to compensation. In particular, the FNSEA indicates that, under the general scheme, the victim of an accident or her or his representatives and the employer shall be informed of the period during which they may consult the file relating to the investigation of the accident and make their observations at the latest ten days before the beginning of this period (section R441-8 (II) of the Social Security Code, as amended by Decree No. 2019-356 of 23 April 2019). The FNSEA adds that the obligation to give advance notice of the period of consultation is not set out in the agricultural scheme governed by the Rural and Maritime Fishing Code. In this regard, the Committee notes the Government’s reply indicating that a draft decree is under preparation with a view to resolving the problem raised by the FNSEA. The Committee requests the Government to provide information on the progress made in the adoption of the decree and to provide a copy of the decree once it has been adopted.

Articles 4(1) and 5 of Convention No. 118. Employment injury benefit. The Committee notes the Government’s indication that, in accordance with section 434-20(1) of the Social Security Code, nationals of countries which are not Members of the European Union (EU) or the European Economic Area (EEA) and nationals of countries with which France has not concluded a bilateral social security agreement, who cease to be resident on French territory, receive a lump sum equivalent to a multiple of the annual sum of the annuity envisaged in the event of employment injury or occupational disease. The Committee further notes that, in accordance with section 434-20(4) of the Social Security Code, the legislative provisions respecting the provision of a lump sum instead of an annuity to victims of employment injury or their survivors who are resident abroad may be modified by international treaties or agreements. In this regard, the Committee recalls the indication provided by the Government in its 2017 report that the ILO Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), which has been ratified by France, applies to the provision of employment injury benefit. The Committee further notes the reference by the Government to judicial decisions emphasizing the direct application of Convention No. 118, and particularly Article 4(1), which provides for equality of treatment without any condition respecting residence. The Committee requests the Government to indicate whether nationals of countries that have ratified Conventions Nos 19 and/or 118 and who cease to be resident on the French territory continue to receive the annuity envisaged in the event of employment injury.

Article 5 of Convention No. 118. Payment of benefits abroad. (i)Invalidity pensions. The Committee notes the Government’s indication that invalidity pensions are provided for persons with disabilities who are resident in a country that has not concluded an agreement with France, subject to administrative and medical checks undertaken with the assistance of the French consular representative in the country of residence of the person concerned.

(ii)Widow’s allowance. The Committee notes the Government’s indication that, in order to receive a widow’s allowance, the surviving spouse must be resident in metropolitan France or an overseas department (Guadeloupe, Guyana, Martinique, Réunion, and Mayotte), Polynesia or New Caledonia when making the claim. The Government also refers to bilateral agreements with certain countries, under which other places of residence are possible, depending on the nationality of the surviving spouse and the deceased insured person.

The Committee recalls that, under the terms of Article 5 of Convention No. 118, each Member State shall guarantee both to its own nationals and to the nationals of any other Member State which has accepted the obligations of the Convention in respect of the branch in question, when they are resident abroad, provision of survivors’ benefits and death grants irrespective of their place of residence. The Committee therefore requests the Government to provide information on the measures adopted to ensure the provision of the widow’s allowance abroad to French nationals and to the nationals of countries which have accepted the survivors’ benefits branch, namely Barbados, Brazil, Cabo Verde, Ecuador, Egypt, Guinea, Iraq, Israel, Italy, Jordan, Kenya, Libya, Mauritania, Mexico, Norway, Philippines, Rwanda, Syrian Arab Republic, Tunisia, Türkiye and Bolivarian Republic of Venezuela, irrespective of their place of residence.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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Article 4(2)(b) of the Convention. Supplementary invalidity allowance. The Committee notes the Government’s indication in its report that, in order to be able to benefit from a supplementary invalidity allowance, an applicant for the allowance who is of foreign nationality must have been in possession of a residence permit authorizing them to work uninterruptedly for at least ten years from the date of the effect of the benefit claimed (section L816-1(1) of the Social Security Code). The Committee recalls that, under the terms of Article 4(2)(b) of the Convention, the grant of invalidity benefits, such as the supplementary invalidity allowance, may be made subject to the condition that the beneficiary has resided on the territory of the Member for a period which shall not exceed five consecutive years immediately preceding the filing of the claim. In this regard, the Committee observes that the provisions of section L816-1(1) of the Social Security Code affect the entitlement to supplementary invalidity allowances of the nationals of Members which have ratified Convention No. 118, namely Bangladesh, Barbados, Plurinational State of Bolivia, Brazil, Cabo Verde, Central African Republic, Democratic Republic of the Congo, Ecuador, Egypt, Guatemala, Guinea, India, Iraq, Israel, Jordan, Kenya, Libya, Madagascar, Mauritania, Mexico, Pakistan, Philippines, Rwanda, Suriname, Syrian Arab Republic, Tunisia, Türkiye, Uruguay and Bolivarian Republic of Venezuela. The Committee requests the Government to take the necessary measures to ensure the provision of the supplementary invalidity allowance to the nationals of Members which have ratified Convention No. 118 who have been resident in France for a period no longer than five consecutive years, in accordance with Article 4(2)(b) of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 4(1) of the Convention. Equality of treatment without any condition of residence. The Committee notes the information provided by the Government in reply to its previous request concerning a condition of residence for entitlement to social security benefits.

Article 4 (2)(b). Supplementary invalidity allowance. The Committee notes that in accordance with article L816-1(1) of the Social Security Code, a supplementary invalidity allowance (allocation supplémentaire d’invalidité) is granted to non-nationals in case they have a work permit for at least ten years. The Committee notes that this requirement does not apply to EU citizens, citizens of the countries that belong to the European Economic Area (EEA) and citizens of Switzerland (article L816-1(3) of the Social Security Code). The Committee recalls that as prescribed by Article 4(2)(b) of the Convention, the grant of invalidity benefit may be made subject to the condition that the beneficiary has resided on the territory of the Member for a period which shall not exceed five consecutive years immediately preceding the filing of claim. The Committee therefore requests the Government to explain how the provision of supplementary invalidity allowance is ensured to nationals of Members which have accepted the branch of invalidity benefit and to which article L816-1(3) of the Social Security Code does not apply.

Article 5. Payment of benefits abroad. The Government states that in the case of residence abroad, the condition of residence for the entitlement to benefits is lifted subject to bilateral agreements. The Committee notes the list provided by the Government indicating countries which have concluded such bilateral agreements with France. The Government further states that the condition of residence is lifted with respect to countries that belong to the EEA and countries which are party to the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19). The Committee recalls that in accordance with Article 5 of the Convention, the provision of invalidity benefits, survivors’ benefits and death grants, and employment injury pensions shall be guaranteed by a Member to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of the branch or branches in question, when they are resident abroad. The Committee therefore requests the Government to explain how provision of benefits abroad is ensured to French nationals and nationals of countries which are non-EEA Members which have accepted the same branch of social security and which have not concluded a bilateral agreement with France, particularly:

• – invalidity benefit: Brazil, Democratic Republic of the Congo, Ecuador, Egypt, Iraq, Jordan, Kenya, Libya, Mexico, Rwanda, Syrian Arab Republic and Bolivarian Republic of Venezuela;
• – survivors’ benefit and death grant: Barbados, Brazil, Ecuador, Egypt, Guinea, Iraq, Jordan, Kenya, Libya, Mexico, Rwanda, Syrian Arab Republic, and Bolivarian Republic of Venezuela;
• – as regards employment injury benefit, the Committee requests the Government to indicate the manner in which it gives effect to the Convention with respect to the following four countries which have accepted the provisions of the Convention for this branch but are not party to Convention No. 19: Ecuador, Guinea, Jordan and Libya.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 4(1) of the Convention. Equality of treatment without any condition of residence, including when establishing entitlement. The Committee refers to its previous comments and notes that French law and practice continue to impose a condition of residence for sickness benefit, maternity benefit, invalidity benefit and family benefit, subject to the provisions of certain bilateral agreements. The Committee further notes that the condition of residence is not applied with respect to employment injury pensions for the nationals of the other countries party to the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), (120States). In the absence of a bilateral agreement, the condition of residence does not apply in practice in cases where the medical and administrative checks required for the provision of benefits can be carried out in the State of residence. As regards the lifting of the condition of residence for nationals of countries party to Convention No. 118, the Government indicates that most States which have a social security system impose the condition of residence on their territory for the grant and provision of benefits in cash, especially pensions and annuities. This leads France to place its undertakings in this field in the context of the second phrase of Article 4(1), which provides for the possibility of imposing a condition of residence in cases where the legislation of the country of residence also subjects the grant of benefits to the same condition. The Government adds that French law provides, where necessary, for a partial or total lifting of the reciprocal conditions of residence by means of a bilateral agreement with each State concerned.

The Committee recalls that, under Article 4(1), countries which have ratified the Convention are bound by a system of general reciprocity and undertake to ensure equality of treatment without any condition of residence for the nationals of any other State for which the Convention is also in force. However, the application of this guiding principle of the Convention may be suspended with regard to the benefits of a given branch of social security with regard to the nationals of any Member whose legislation imposes a condition of residence on its territory to the grant of the same benefits. In view of the intention expressed by the Government in its report to systematically apply the reservation provided for in the second phrase of Article 4(1), the Committee requests the Government to indicate in its next report which countries, among those that have ratified the Convention, apply a condition of residence to the grant of benefits to French nationals with respect to the branches of social security that are also accepted by France, namely:

• – medical care: Plurinational State of Bolivia, Brazil, Cape Verde, Denmark, Ecuador, Egypt, Finland, Germany, Guinea, India, Iraq, Ireland, Italy, Libya, Mexico, Philippines, Sweden, Tunisia, Turkey, Uruguay and Bolivarian Republic of Venezuela;
• – sickness benefit: Barbados, Plurinational State of Bolivia, Brazil, Cape Verde, Denmark, Ecuador, Egypt, Finland, Germany, Guinea, India, Iraq, Ireland, Italy, Libya, Madagascar, Mexico, Philippines, Sweden, Tunisia, Turkey, Uruguay and Bolivarian Republic of Venezuela;
• – maternity benefit: Bangladesh, Barbados, Plurinational State of Bolivia, Brazil, Cape Verde, Central African Republic, Ecuador, Egypt, Germany, Guatemala, Guinea, India, Iraq, Israel, Italy, Jordan, Libya, Madagascar, Mexico, Pakistan, Philippines, Sweden, Tunisia, Turkey, Uruguay and Bolivarian Republic of Venezuela;
• – invalidity benefit: Brazil, Cape Verde, Democratic Republic of the Congo, Ecuador, Egypt, Iraq, Italy, Jordan, Kenya, Libya, Madagascar, Mauritania, Mexico, Philippines, Rwanda, Syrian Arab Republic, Tunisia, Turkey and Bolivarian Republic of Venezuela;
• – survivors’ benefit: Barbados, Brazil, Cape Verde, Ecuador, Egypt, Guinea, Iraq, Israel, Italy, Jordan, Kenya, Libya, Mauritania, Mexico, Norway, Philippines, Rwanda, Syrian Arab Republic, Tunisia, Turkey and Bolivarian Republic of Venezuela;
• – family benefit: Plurinational State of Bolivia, Cape Verde, Central African Republic, Guinea, Ireland, Israel, Italy, Libya, Mauritania, Norway, Tunisia and Uruguay;
• – as regards employment injury benefit, the Committee requests the Government to indicate the manner in which it gives effect to the Convention with respect to the nationals of the following five States which have accepted the provisions of Convention No. 118 for this branch but are not party to Convention No. 19: Ecuador, Guinea, Jordan, Libya and Turkey.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 2 of the Convention, branch (g) (Employment injury benefit). The Committee notes that the Government’s report does not contain any replies to the issues raised in its 2002 direct request concerning the payment of benefits due in the event of employment injury to foreign workers. The Committee recalls that the first three indents of section L.434-20 of the Social Security Code restrict or suppress the right of foreign workers and their dependants who no longer reside in French territory to benefits due in the event of employment injury, although these provisions may be modified by international agreements. In this regard, in its report for the 1998-2001 period, the Government indicated that, in the case of residence abroad, the provision of benefits is not ensured for death grants and employment injury pensions, although this condition of residence is lifted for States that have concluded a bilateral agreement with France. With regard to multilateral agreements, such as the ILO Conventions, the report indicated that, apart from death grants, the condition of residence was also lifted for States bound by Convention No. 19 which has been ratified by France. With regard to Convention No. 118, the Government indicated in its report for the 1977-79 period that this Convention established an automatic reciprocity system between France and other States that had ratified the Convention and that, as a consequence, such restrictions could not affect nationals of States which have accepted the obligations of the Convention for branch (g) (Employment injury benefit). The Committee therefore requests the Government to indicate the extent to which the abovementioned provisions of section L.434-20 of the Social Security Code are effectively amended in law and practice by Convention No. 118 so as to lift the condition of residence, in accordance with Article 4, paragraph 1, of the Convention, for the nationals of all the member States of the Convention, and guarantee both to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of branch (g), when they are resident abroad, the provision of employment injury pensions, in accordance with Article 5, paragraph 1. The Committee requests the Government to communicate copies of all regulatory or administrative measures taken in this regard and to indicate, if appropriate, the bilateral arrangements that guarantee the payment of employment injury pensions in the case of residence abroad. The Government is also requested to indicate the manner in which effect is given to these provisions of the Convention in practice, in respect of the benefits provided in the context of survivors’ insurance.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information provided in the Government’s report in response to its previous comments.

Article 4, paragraph 1, of the Convention. Under section L.311-1 of the Social Security Code, the social insurance of the general scheme cover risks and expenses relating to illness, invalidity, old age, death, widowhood, maternity and paternity, under the conditions set forth in the subsequent sections. With regard to foreign workers, section L.311-7 provides that, with the exception of old-age insurance benefits, the receipt of these benefits is conditional upon justification of their residence in France. In its previous comments, the Committee noted that the condition of residence for the provision of benefits also applies to foreign nationals insured under the agricultural scheme (section 1027 of the Rural Code) and the mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946), that the condition of residence in France must be fulfilled particularly when entitlement is acknowledged and that it primarily affects nationals of countries which have not concluded a bilateral agreement with France. With regard to the receipt of benefits, the Committee recalls that, under Article 4, paragraph 1, of the Convention, equality of treatment shall be accorded without any condition of residence, which includes the initial acknowledgement of entitlement, to nationals of all member States that have accepted the requirements of the Convention and not only to nationals of countries that have concluded a reciprocal bilateral or multilateral agreement. In this respect, the Committee recalls that the Council of State, Litigation Section, in its ruling of 23 April 1997 (23 April 1997, Information and Support Group for Migrant Workers – GISTI), found that Article 4, paragraph 1, of the Convention is directly applicable in French internal procedures. The Committee asks the Government to indicate the legal scope and the effect in practice of the decisions adopted by the Council of State. Moreover, the Committee once again hopes that the Government will take the necessary steps to ensure the application of this provision of the Convention, both in law and in practice, in respect of all the branches of social security covered by the Convention which have been accepted by France and, in particular, branch (d) (invalidity benefit), which was referred to in the Committee’s previous comments, in all cases in which the insured person is covered by the French social security system and fulfils the general conditions for entitlement to invalidity benefit at the time of the contingency.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Article 5 of the Convention. In its report, the Government indicates that the grant of benefits is ensured in the case of residence abroad, except for death grants and, unless covered by the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), (ratified by France), employment injury annuities.

The Committee notes that the first three indents of section 434-20 of the Social Security Code restrict or suppress the right of foreign workers and their dependants to benefits due in the event of employment injury, although these provisions may be modified by international Conventions. It recalls in this respect that in its report for the period 1977-79, the Government indicated that Convention No. 118 established an automatic reciprocity system between France and other States that had ratified the Convention and that, as a consequence, such restrictions could not affect nationals of States which have accepted the obligations of the Convention for branch (g) (Employment injury benefit). The Committee requests the Government to confirm that this is still the case and, if so, to provide copies of any regulations or administrative provisions (such as circulars) setting forth this practice, in accordance with Article 5 of the Convention, which provides for the provision of employment injury annuities in case of residence abroad for both French nationals and the nationals of any other State which has accepted the obligations of the Convention for branch (g).

Please also indicate the manner in which effect is given to this provision of the Convention with regard to benefits provided in the context of life insurance schemes.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). The Committee notes with satisfaction that, according to the information and legislation provided by the Government, following the adoption of sections L.816-1 and L.821-9 of the Social Security Code (section 42 of Act No. 98-349 of 1998), entitlement to the supplementary allowance of the National Solidarity Fund (FNS) and the allowance for disabled adults is now available to persons of foreign nationality possessing one of the residence permits or other documents regularizing their stay in France, notwithstanding the provisions of sections L.815-5 and L.821-1 of the Social Security Code, which subject this entitlement to the conclusion of reciprocity agreements. The Committee also notes with interest the list of the abovementioned residence permits and other documents provided by the Government (sections D.816-3 and D.821-8, read in conjunction with section D.115-1).

Article 4, paragraph 1, branch (d) (Invalidity benefit) and branch (f) (Survivors’ benefit). 1. With reference to its previous comments, the Committee notes with satisfaction that section L.311-7 of the Social Security Code (section 41 of Act No. 98-349 of 1998) has abolished the requirement of residence in France for foreign workers and their dependants for the provision of old-age insurance benefits including, according to the information provided by the Government, survivors’ pensions, in accordance with Article 4, paragraph 1, of the Convention (branch (f)).

2. With regard to invalidity benefit, the Committee notes, from the information contained in the Government’s report, that residence requirements continue to be imposed on foreign workers; however, in the event of the subsequent transfer of the beneficiary’s residence to a State not bound to France by an agreement, the invalidity pension is not suspended if the beneficiary can be supervised at the medical and administrative levels. The Committee recalls that, under the terms of Article 4, paragraph 1, of the Convention, equality of treatment as regards the grant of benefits shall be accorded without any condition of residence. The Committee therefore hopes that the Government will be able to re-examine the issue and take the necessary measures to ensure the application of this provision of the Convention with regard to branch (d) (Invalidity benefit) in both law and practice in all cases in which the insured person was entitled to the benefit of the social security system in France and fulfilled the general conditions for entitlement to invalidity benefit at the time of the contingency.

Furthermore, the Committee requests the Government to provide detailed information on the conditions under which supervision of the beneficiary of an invalidity pension is carried out in the absence of mutual administrative arrangements with the beneficiary’s country of residence. Please also provide statistics on the number of cases in which the provision of invalidity pensions abroad has been refused on the ground that it is impossible to supervise the beneficiary.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Article 3, paragraph 1, of the Convention (branch (d)) (Invalidity benefit). With reference to its previous comments, the Committee notes with interest that section 42 of Act No. 98-349 of 11 May 1998 on the entry and residence of foreigners in France and on the right to asylum has inserted into the Social Security Code sections L.816-1 and L.821-9, according to which Titles I and II of Book Eight of the Social Security Code, providing respectively the supplementary allowance of the National Solidarity Fund (FNS) and the allowance for disabled adults, have been made applicable to foreign nationals possessing residence permits or other documents regularizing their stay in France, notwithstanding any provision to the contrary. The Committee understands therefore, from the Government's report, that the provisions of sections L.815-5 and L.821-1 of the Social Security Code, which subject the entitlement of foreign citizens to these allowances to the existence of a reciprocity agreement with the country concerned, have been repealed. It would ask the Government to confirm in its next report the implicit abolition of these provisions if this is the case or, in the negative, to indicate the manner in which they continue to be applied. Please supply also the list of residence permits and documents referred to in sections L.816-1 and L.821-9 of the Social Security Code.

Article 4, paragraph 1 (branch (d)) (Invalidity benefit) and branch (f) (Survivors' benefit). In its previous comments, the Committee had noted that the legislation imposed the condition of residence in France for the provision of social security benefits (in this case invalidity and survivors' benefits) to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946). In its report for the period 1 July 1991 to 30 June 1992, the Government had indicated that concerning invalidity pensions, and invalid widowers' or widows' pensions, the condition of residence shall be fulfilled at the time of making a claim in the case of nationals of a country with which France does not have an agreement. It added that, with regard to survivors' pensions, the benefit of a reversionary pension may, in the case where the deceased insured was not a national of a country with which France has entered into an agreement, be obtained in the following situations: the deceased insured person has already obtained validation of the right to an old-age pension; the insured person who had not exercised the right to the pension had resided in France at the moment of death. The Committee had noted that a condition of residence always exists for non-national beneficiaries, but only at the moment of exercising the right to benefit, that is to say, at the time when presenting the request to receive the invalidity or survivors' pension.

In these conditions, the Committee hopes that, in all cases where the insured or the deceased was subject to the social security system in France at the moment of the contingency, appropriate measures will be taken, concerning branches (d) and (f), to ensure the application of this provision of the Convention for payment of benefits, both in law and practice, without condition of residence for nationals of all States bound by the Convention.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes with regret that the report of the Government does not contain any reply to its previous comments that it has been making for a number of years. It also notes that this case was discussed at the Conference Committee in June 1997 and that on that occasion the Government representative referred to numerous decisions, in particular of the "Cour de Cassation", and of the constitutional council which recognize the principle of the equality of treatment between nationals and foreigners in the area of social security, and determine the conditions of its realization, in particular through the agreements between Third World countries and the European Community. The Government representative referred also to new legislative provisions to be adopted by the Government which have been recently put in place. Together with the Conference Committee, the Committee must once again stress the importance it attaches to the principle of the equality of treatment in social security, which has to be applied, in accordance with Articles 3 and 4 of the Convention, without any condition as to residence, to the nationals of all States having accepted the obligations under the Convention, and not only to nationals of countries which are a party to a bilateral or multilateral agreement based on international reciprocity. The Committee therefore hopes that the Government will not fail to supply a detailed report for examination at its next session containing full information both on the situation in law and in practice and on the measures taken or contemplated to bring the national legislation and practice into full conformity with the Convention on the following points raised in its previous observation.

1. Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). (a) With regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government had referred in its previous comments to ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France. The Committee once again expresses the hope that the Government will be able to indicate in its next report the measures taken to grant in law and practice the FNS supplemental benefit to nationals of all member States which have accepted the obligations of the Convention (and not only to nationals of a country which has signed an international reciprocity agreement, as provided in section L.815-2 of the Social Security Code).

Concerning the scope of the retaliation clause allowed by Article 4, paragraph 1, of the Convention, the Committee refers to its observation of 1993.

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Committee hopes that the Government's next report will contain detailed information on the measures taken to ensure the payment of this benefit to foreigners residing in France who are nationals of any State that has accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), of the Convention under which it may make the grant of a benefit conditional upon a period of residence of up to five years).

2. Article 4, paragraph 1 (branch (d)) (Invalidity benefit) and branch (f) (Survivors' benefit). In its previous comments, the Committee had noted that the legislation imposed the condition of residence in France for the provision of social security benefits (in this case invalidity and survivors' benefits) to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946). In its report for the period 1 July 1991 to 30 June 1992, the Government indicated that concerning invalidity pensions, and invalid widowers' or widows' pensions, the condition of residence shall be fulfilled at the time of making a claim in the case of nationals of a country with which France does not have an agreement. It added that, with regard to survivors' pensions, the benefit of a reversionary pension may, in the case where the deceased insured was not a national of a country with which France has entered into an agreement, be obtained in the following situations: the deceased insured person has already obtained validation of the right to an old-age pension; the insured person who had not exercised the right to the pension had resided in France at the moment of death. The Committee noted that a condition of residence always exists for non-national beneficiaries, but only at the moment of exercising the right to benefit, that is to say, at the time when presenting the request to liquidate the invalidity or survivors' pension.

In these conditions, the Committee again hopes that, in all cases where the insured or the deceased was subject to the social security system in France at the moment of the contingency, the appropriate measures will be taken, concerning branches (d) and (f), to ensure the application of this provision of the Convention for payment of benefits, both in law and practice concerning equality of treatment, without condition of residence for nationals of all States bound by the Convention.

3. In its previous observation the Committee noted the observations of the French Democratic Labour Confederation (CFDT) on the modifications of the Social Security Code by Law No. 93-1027 of 24 August 1993 (concerning the supervision of immigration and the conditions for entry, reception of stay of foreigners in France) which introduced the requirement of regular residence to receive benefits and which has resulted in the denial of all right to social security benefit for persons in irregular situations. The CFDT added in a new observation that this legislation has created situations which are unacceptable. Foreigners having the right to stay for numerous years have paid contributions to the social security fund. The loss of this right, in case of non-renewal of a residency permit, for example, would result in the loss of all benefits from these contributions since the person would cease to be a member of the fund.

The Committee also has noted the Government's statement in its report for Convention No. 97 that the provisions of the above-mentioned law do not violate the principle of equality of treatment for foreigners in conditions of regular residence or stay in French territory.

The Committee recalls that the principle of equality of treatment provided in Articles 3 and 4 of the Convention is intended to eliminate discrimination based on a person's nationality. Consequently, a requirement of lawful residence in the country or of lawful authorization to be in employment does not appear to be contrary to this principle; where such conditions are imposed the difference in treatment does not appear to be motivated by the alien status of the persons concerned but rather by their legal position under the regulations governing entry into and residence in the country, or access to employment.

The Committee wishes to stress that the loss of right of residence should not affect rights in the course of acquisition which the insured can claim for the periods of contribution in which he was in a regular situation. In this case, the rights in course of acquisition of the insured shall be maintained under the agreements provided for in Articles 7 and 8 of the Convention. Furthermore, in the case where the loss of right to remain occurs after the liquidation of rights, the provision of long-term benefits shall be guaranteed even after the insured person has left the national territory, in accordance with Article 5 of the Convention.

The Committee asks the Government to indicate any new developments in this respect.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

I. The Committee notes that the Government's report has not been received. Consequently, it would like to draw the Government's attention to the following points:

1. Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). (a) With regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government had referred in its previous comments to ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France. In this respect, the Committee notes with interest the decision of 5 December 1994 of the Loire Social Security Tribunal, in the district of Saint-Etienne and Montbrison. In this decision, the Tribunal, referring to Article 3 of Convention No. 118, concluded that the supplemental benefit paid by the National Solidarity Fund (FNS), which supplemented old-age or invalidity pension, should be paid to a Mauritanian national entitled to an invalidity pension, since Mauritania has ratified Convention No. 118. Consequently, the Committee expresses the hope that the Government will be able to indicate in its next report the measures taken to grant in law and practice the FNS supplemental benefit to nationals of all member States which have accepted the obligations of the Convention (and not only to nationals of a country which has signed an international reciprocity agreement, as provided in section L.815-2 of the Social Security Code). It also asks the Government to furnish information on the impact of the decision by the Social Security Tribunal in Saint-Etienne.

Concerning the scope of the retaliation clause allowed by Article 4, paragraph 1, of the Convention, the Committee refers to its observation of 1993.

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Committee hopes that the Government's next report will contain detailed information on the measures taken to ensure the payment of this benefit to foreigners residing in France who are nationals of any State that has accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), of the Convention under which it may make the grant of a benefit conditional upon a period of residence of up to five years).

2. Article 4, paragraph 1 (branch (d)) (Invalidity benefit) and branch (f) (Survivors' benefit). In its previous comments, the Committee had noted that the legislation imposed the condition of residence in France for the provision of social security benefits (in this case invalidity and survivors' benefits) to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946). In its report for the period 1 July 1991 to 30 June 1992, the Government indicated that concerning invalidity pensions, and invalid widowers' or widows' pensions, the condition of residence shall be fulfilled at the time of making a claim in the case of nationals of a country with which France does not have an agreement. It added that, with regard to survivors' pensions, the benefit of a reversionary pension may, in the case where the deceased insured was not a national of a country with which France has entered into an agreement, be obtained in the following situations: the deceased insured person has already obtained validation of the right to an old-age pension; the insured person who had not exercised the right to the pension had resided in France at the moment of death. The Committee cannot but note that a condition of residence always exists for non-national beneficiaries, but only at the moment of exercising the right to benefit, that is to say, at the time when presenting the request to liquidate the invalidity or survivors' pension.

In these conditions, the Committee again hopes that, in all cases where the insured or the deceased was subject to the social security system in France at the moment of the contingency, the appropriate measures will be taken, concerning branches (d) and (f), to ensure the application of this provision of the Convention for payment of benefits, both in law and practice concerning equality of treatment, without condition of residence for nationals of all States bound by the Convention.

II. The Committee notes the observations of the French Democratic Labour Confederation (CFDT) on the modifications of the Social Security Code by Law No. 93-1027 of 24 August 1993 (concerning the supervision of immigration and the conditions for entry, reception of stay of foreigners in France) which introduced the requirement of regular residence to receive benefits and which has resulted in the denial of all right to social security benefit for persons in irregular situations. The CFDT adds in a new observation that this legislation has created situations which are unacceptable. Foreigners having the right to stay for numerous years have paid contributions to the social security fund. The loss of this right, in case of non-renewal of a residency permit, for example, would result in the loss of all benefits from these contributions since the person would cease to be a member of the fund.

The Committee also has noted the Government's statement in the previous report for Convention No. 97 that the provisions of the above-mentioned law do not violate the principle of equality of treatment for foreigners in conditions of regular residence or stay in French territory.

The Committee recalls that the principle of equality of treatment provided in Articles 3 and 4 of the Convention is intended to eliminate discrimination based on a person's nationality. Consequently, a requirement of lawful residence in the country or of lawful authorization to be in employment does not appear to be contrary to this principle; where such conditions are imposed the difference in treatment does not appear to be motivated by the alien status of the persons concerned but rather by their legal position under the regulations governing entry into and residence in the country, or access to employment.

The Committee wishes to stress that the loss of right of residence should not affect rights in the course of acquisition which the insured can claim for the periods of contribution in which he was in a regular situation. In this case, the rights in course of acquisition of the insured shall be maintained under the agreements provided for in Articles 7 and 8 of the Convention. Furthermore, in the case where the loss of right to remain occurs after the liquidation of rights, the provision of long-term benefits shall be guaranteed even after the insured person has left the national territory, in accordance with Article 5 of the Convention.

The Committee also refers to its observation for November-December 1995 under Convention No. 97.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 6 (Provision of family allowance for children residing abroad). In reply to the Committee's previous comments, the Government indicates that, in the context of the EEC - and particularly with regard to Ireland, Italy and the Netherlands which are among the States that have accepted the obligations of Conventions No. 118 in respect of branch (i) - virtually all French family benefits are provided to family members who have remained abroad while the worker is employed in France. Furthermore, in such cases France's bilateral agreements with Cape Verde, Mauritania and Tunisia provide for the payment of family allowances specified by the agreements. The Committee asks the Government to continue to provide information, in its future reports, on any new agreements concluded to this effect with other member States that have accepted the obligations of the Convention for the family benefit branch.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

1. Article 3, paragraph 1, of the Convention, branch (d) (Invalidity benefit). (a) With regard to the supplementary allowance of the National Solidarity Fund (FNS) provided for in section L.815-2 of the Social Security Code, the Government states that the ministerial consultations on the question of extending the provision of this allowance to all foreigners resident in France have not yet been concluded. It adds that the financial impact of such an extension would be immediate and very heavy and would have to be borne entirely by the state budget, which would be difficult in view of the budgetary and economic constraints. The Committee notes this information. It hopes that once the above-mentioned ministerial consultations have been concluded, the Government will be able, in accordance with this provision of the Convention, to take the necessary measures to extend in both law and practice the provision of the FNS supplementary allowance to nationals of all member States that have accepted the obligations of the Convention (and not only to nationals of countries that have signed an international reciprocity agreement as provided in section L.815-5 of the above Code).

(See also under 2 as regards the scope of the reciprocity allowed by Article 4, paragraph 1, of the Convention.)

(b) With regard to the allowance for disabled adults, instituted by Act No. 75-534 of 30 June 1975, the Government indicates that the issues relating to its extension to all foreigners residing in France are very similar to those of extension of the FNS supplementary allowance. In these circumstances, the Committee hopes that the Government's examination of this matter will lead to the Convention being fully applied in this respect by providing the allowance for disabled adults to nationals, who reside in France, of all States that have accepted the obligations of the Convention (subject to the Government's entitlement to avail itself of Article 4, paragraph 2(b), under which it may make the grant of a benefit conditional upon a period of residence of up to five years).

2. Article 4, paragraph 1 (branch (d)) (Invalidity benefit) and branch (f) (Survivors' benefit). In its previous comments, the Committee noted that the legislation imposed the condition of residence in France for the provision of social security benefits (in this case invalidity and survivors' benefits) to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mines scheme (section 184 of Decree No. 46-2769 of 27 November 1946). According to the explanation given by the Government in its report, the condition of residence is required only when insured persons apply for liquidation of the pension and, in practice, is considered to have been fulfilled if the foreign national can show that he has resided lawfully in France for more than three months. With regard more particularly to invalidity pensions proper, and invalid widows' or widowers' pensions, the Government states, without indicating however the relevant provisions of the law, that there is no residence requirement for foreign beneficiaries either for payment of the benefit or for liquidation of the pension, once entitlement is established and can be verified. The Committee understands from the Government's statement that condition of residence is still required of foreign beneficiaries but only at the time of entitlement, i.e. when application is made for liquidation of an invalidity benefit or survivors' pension.

Furthermore, the Government repeats its view that the notion of reciprocity which is the foundation of all international Conventions would clearly be meaningless if it meant, for France, the unilateral abolition of the condition of residence required on application for the liquidation of a social security benefit, while other signatories to the Convention continue to apply this condition. The Government considers that this general principle underlies the text of Article 4, paragraph 1, of the Convention which must be applied in its entirety. In this connection, the Committee wishes to point out that the basic principle laid down in Article 4, paragraph 1, is that equality of treatment which must be granted to nationals of all States that have ratified the Convention must be ensured without any condition of residence, on the basis of automatic reciprocity between member States which is established by this instrument. However, this provision does allow an exception from the principle in respect of benefits of a specified branch of social security in the case of nationals of any Member the legislation of which makes the grant of benefits under that branch conditional on residence on its territory. This exception is not a general one and its application must be examined in each individual case and for each branch of social security and in the light of the Member's legislation thereon. The fact that such an exception is possible cannot justify maintaining in French legislation a general rule which makes the grant of benefits to foreign nationals conditional upon residence, even if it is restricted to residence at the time when application is made for liquidation of the pension. In these circumstances, the Committee again expresses the hope that, in all cases where the insured person or the deceased were covered by French social security at the time of the contingency, appropriate measures will be taken to ensure, as regards branches (d) and (f), in both law and practice, that effect is given to this provision of the Convention, under which equality of treatment as regards the grant of benefits shall be accorded, without any condition of residence, to nationals of any State bound by the Convention.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that the Government's report contains no further information with reference to its previous comments. It must therefore repeat its previous observation which read as follows:

1. (a) Article 3, paragraph 1, of the Convention, branch (d) (invalidity benefit). In its previous comments, the Committee drew the Government's attention to the need to ensure that the supplementary allowance of the National Solidarity Fund FNS) (section L.815-2 of the Social Security Code) is provided to nationals of all the member States that are bound by the Convention and not only to French nationals and the nationals of countries that have signed an international reciprocity agreement with France (as provided in section L.815-5 of the Code). In its reply, the Government indicates once again that the above allowance is not a social security benefit, but an assistance-type benefit. It adds that the FNS allowance, in contrast with social security benefits, is recoverable from the beneficiary's personal estate in the same way as allowances that are paid as social assistance. According to the Government, this feature marks the difference in French law between social security benefits and assistance benefits. In the case of assistance benefits, national solidarity only temporarily replaces family solidarity, the basis of which is to assist family members in cases of need. The Government also considers that the fact that this allowance is payable as a legally protected right does not mean that it is a social security benefit. Even the right to social assistance is "legally protected", except for some marginal discretionary or isolated allowances. The Committee notes this information. It is bound to refer to its previous comments in which it emphasised that, in accordance with Article 1, paragraph (b), of the Convention, the term "benefits" refers to "all benefits, grants and pensions, including any supplements". As confirmed by the preparatory work for the Convention, this term must therefore be taken in its broadest meaning (in this connection, see ILC, 46th Session, Geneva, 1962, Report V(1), p. 24). The Committee also points out that the FNS supplementary allowance is payable to beneficiaries as of right and is not dependent of any discretionary assessment of their needs, which is a characteristic of an assistance benefit. In this connection, the possibility of recovering the amount of the supplementary allowance in certain cases from the beneficiary's personal estate cannot be considered to be a determining factor since it is not a consequence of an assessment of resources. The Committee, however, notes with interest the Government's statement that it is examining the possibility of applying equality of treatment as regards the award of the FNS allowance on French territory to foreigners who, although not covered by European Community regulations or bilateral reciprocity agreements in this connection, satisfy certain requirements regarding length of residence on the territory. Ministerial consultations have been commenced on this question, although their outcome is not yet known. In this context, the Committee also notes with interest the ruling of the Constitutional Council, No. 89-269DC of 22 January 1990, which declares unconstitutional section 24 of the Act containing various provisions respecting social security and health, which extended entitlement to the supplementary allowance to nationals of the European Communities, while maintaining the requirement of a reciprocity agreement for nationals of other States. In its preamble to the ruling, the Constitutional Council states that the exclusion of foreigners who regularly reside in France from entitlement to the supplementary allowance, in cases where they cannot avail themselves of international undertakings or regulations in this respect, is in violation of the constitutional principle of equality. The Committee hopes that the inter-ministerial consultations that have commenced to this effect, will result in the extension in both law and practice of entitlement to the supplementary allowance of FNS to the nationals of all member States which are bound by the Convention and not only to the nationals of countries that have signed an international reciprocity agreement, in accordance with Article 3, paragraph 1, of the Convention. Furthermore, the Committee points out that by virtue of Article 4, paragraph 2, the Convention only permits restrictions on equality of treatment with reference to length of residence within certain limits and only for benefits of the type set out in paragraph 6(a) of Article 2 (that is, benefits other than those the grant of which depends either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity). (b) With reference to its previous comments concerning the allowance for disabled adults instituted by Act No. 75-534 of 30 June 1975, the Committee notes with interest that the Government is continuing its examination of the possibility of providing this allowance to persons of foreign nationality other than nationals of the EEC (or members of their family) and Swedish nationals (who already benefit from it within the framework of the bilateral agreement concluded with Sweden). It hopes that this examination will result in the full application of the Convention on this point by ensuring the grant of the above allowance to nationals, who are resident in France, of all States that have accepted the obligations of the Convention (subject to the possibility open to the Government of availing itself of Article 4, paragraph 2(b), making the grant of the allowance dependent on a period of residence of up to five years). (c) Article 4, paragraph 1, branch (d) (invalidity benefit) and branch (f) (survivors' benefit). The Committee refers to its previous comments concerning the condition of residence placed upon the payment of social insurance benefits (in this case, invalidity and survivors' benefits) to foreign nationals insured under the scheme, whose country of origin has not concluded a social security agreement with France specifically guaranteeing the maintenance of these benefits. In its report, which does not contain information concerning invalidity pensions as such, the Government indicates that the condition of residence is not required for pensions for disabled widows and widowers, although it does not indicate the legal basis for this statement. It also confirms that a residence requirement is maintained in certain cases for widows' pensions for foreign nationals who cannot avail themselves of EEC regulations or bilateral reciprocity instruments, and also as regards widows' insurance. The Committee notes this information. In view of the fact that, contrary to the Convention, the payment of social insurance benefits to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mining sector scheme (section 184 of Decree No. 46-2769 of 27 November 1946) is explicitly conditional upon their being resident in France, the Committee once again hopes that the Government will be able to indicate the measures that have been taken or are envisaged, as regards branches (d) and (e), to ensure the application in law and practice of this provision of the Convention, under the terms of which equality of treatment as regards the grant of benefits shall be accorded without any condition of residence to nationals of any State bound by the Convention. 2. Article 6. In reply to the Committee's previous comments concerning the obligation to provide family allowances in respect of children resident abroad on the territory of a member State that has accepted the obligations of the Convention for branch (i) (family benefit), the Government indicates that rights that are identical to those of French nationals are guaranteed to foreigners who are regularly resident in France - provided that their children are also regularly resident in France - as regards the grant of family benefits under the internal social security scheme, in conformity with sections L.512-1 and L.512-2 of the Social Security Code. Furthermore, certain family benefits (particularly family allowances) can be paid under Community regulations. Finally, a certain type of family allowance can also be paid abroad under the various bilateral social security agreements concluded by France. The Committee notes this information. It hopes that the Government will endeavour to conclude agreements with other member States concerned that have accepted the obligations of the Convention for the family benefit branch in so far as there exists migration with such States. The Committee requests the Government to supply information on any agreement concluded to this effect. (In addition to France, the following States have accepted the obligations of the Convention for branch (i): Bolivia, Cape Verde, Central African Republic, Guinea, Ireland, Israel, Italy, Libyan Arab Jamahiriya, Mauritania, Netherlands, Norway, Tunisia, Uruguay and Viet Nam.)

[The Government is asked to report in detail for the period ending 30 June 1992.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its report.

1. (a) Article 3, paragraph 1, of the Convention, branch (d) (invalidity benefit). In its previous comments, the Committee drew the Government's attention to the need to ensure that the supplementary allowance of the National Solidarity Fund FNS) (section L.815-2 of the Social Security Code) is provided to nationals of all the member States that are bound by the Convention and not only to French nationals and the nationals of countries that have signed an international reciprocity agreement with France (as provided in section L.815-5 of the Code).

In its reply, the Government indicates once again that the above allowance is not a social security benefit, but an assistance-type benefit. It adds that the FNS allowance, in contrast with social security benefits, is recoverable from the beneficiary's personal estate in the same way as allowances that are paid as social assistance. According to the Government, this feature marks the difference in French law between social security benefits and assistance benefits. In the case of assistance benefits, national solidarity only temporarily replaces family solidarity, the basis of which is to assist family members in cases of need. The Government also considers that the fact that this allowance is payable as a legally protected right does not mean that it is a social security benefit. Even the right to social assistance is "legally protected", except for some marginal discretionary or isolated allowances.

The Committee notes this information. It is bound to refer to its previous comments in which it emphasised that, in accordance with Article 1, paragraph (b), of the Convention, the term "benefits" refers to "all benefits, grants and pensions, including any supplements". As confirmed by the preparatory work for the Convention, this term must therefore be taken in its broadest meaning (in this connection, see ILC, 46th Session, Geneva, 1962, Report V(1), p. 24). The Committee also points out that the FNS supplementary allowance is payable to beneficiaries as of right and is not dependent of any discretionary assessment of their needs, which is a characteristic of an assistance benefit. In this connection, the possibility of recovering the amount of the supplementary allowance in certain cases from the beneficiary's personal estate cannot be considered to be a determining factor since it is not a consequence of an assessment of resources.

The Committee, however, notes with interest the Government's statement that it is examining the possibility of applying equality of treatment as regards the award of the FNS allowance on French territory to foreigners who, although not covered by European Community regulations or bilateral reciprocity agreements in this connection, satisfy certain requirements regarding length of residence on the territory. Ministerial consultations have been commenced on this question, although their outcome is not yet known. In this context, the Committee also notes with interest the ruling of the Constitutional Council, No. 89-269DC of 22 January 1990, which declares unconstitutional section 24 of the Act containing various provisions respecting social security and health, which extended entitlement to the supplementary allowance to nationals of the European Communities, while maintaining the requirement of a reciprocity agreement for nationals of other States. In its preamble to the ruling, the Constitutional Council states that the exclusion of foreigners who regularly reside in France from entitlement to the supplementary allowance, in cases where they cannot avail themselves of international undertakings or regulations in this respect, is in violation of the constitutional principle of equality.

The Committee hopes that the inter-ministerial consultations that have commenced to this effect, will result in the extension in both law and practice of entitlement to the supplementary allowance of FNS to the nationals of all member States which are bound by the Convention and not only to the nationals of countries that have signed an international reciprocity agreement, in accordance with Article 3, paragraph 1, of the Convention. Furthermore, the Committee points out that by virtue of Article 4, paragraph 2, the Convention only permits restrictions on equality of treatment with reference to length of residence within certain limits and only for benefits of the type set out in paragraph 6(a) of Article 2 (that is, benefits other than those the grant of which depends either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity).

(b) With reference to its previous comments concerning the allowance for disabled adults instituted by Act No. 75-534 of 30 June 1975, the Committee notes with interest that the Government is continuing its examination of the possibility of providing this allowance to persons of foreign nationality other than nationals of the EEC (or members of their family) and Swedish nationals (who already benefit from it within the framework of the bilateral agreement concluded with Sweden). It hopes that this examination will result in the full application of the Convention on this point by ensuring the grant of the above allowance to nationals, who are resident in France, of all States that have accepted the obligations of the Convention (subject to the possibility open to the Government of availing itself of Article 4, paragraph 2(b), making the grant of the allowance dependent on a period of residence of up to five years).

(c) Article 4, paragraph 1, branch (d) (invalidity benefit) and branch (f) (survivors' benefit). The Committee refers to its previous comments concerning the condition of residence placed upon the payment of social insurance benefits (in this case, invalidity and survivors' benefits) to foreign nationals insured under the scheme, whose country of origin has not concluded a social security agreement with France specifically guaranteeing the maintenance of these benefits. In its report, which does not contain information concerning invalidity pensions as such, the Government indicates that the condition of residence is not required for pensions for disabled widows and widowers, although it does not indicate the legal basis for this statement. It also confirms that a residence requirement is maintained in certain cases for widows' pensions for foreign nationals who cannot avail themselves of EEC regulations or bilateral reciprocity instruments, and also as regards widows' insurance. The Committee notes this information. In view of the fact that, contrary to the Convention, the payment of social insurance benefits to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mining sector scheme (section 184 of Decree No. 46-2769 of 27 November 1946) is explicitly conditional upon their being resident in France, the Committee once again hopes that the Government will be able to indicate the measures that have been taken or are envisaged, as regards branches (d) and (e), to ensure the application in law and practice of this provision of the Convention, under the terms of which equality of treatment as regards the grant of benefits shall be accorded without any condition of residence to nationals of any State bound by the Convention.

2. Article 6. In reply to the Committee's previous comments concerning the obligation to provide family allowances in respect of children resident abroad on the territory of a member State that has accepted the obligations of the Convention for branch (i) (family benefit), the Government indicates that rights that are identical to those of French nationals are guaranteed to foreigners who are regularly resident in France - provided that their children are also regularly resident in France - as regards the grant of family benefits under the internal social security scheme, in conformity with sections L.512-1 and L.512-2 of the Social Security Code. Furthermore, certain family benefits (particularly family allowances) can be paid under Community regulations. Finally, a certain type of family allowance can also be paid abroad under the various bilateral social security agreements concluded by France. The Committee notes this information. It hopes that the Government will endeavour to conclude agreements with other member States concerned that have accepted the obligations of the Convention for the family benefit branch in so far as there exists migration with such States. The Committee requests the Government to supply information on any agreement concluded to this effect. (In addition to France, the following States have accepted the obligations of the Convention for branch (i): Bolivia, Cape Verde, Central African Republic, Guinea, Ireland, Israel, Italy, Libyan Arab Jamahiriya, Mauritania, Netherlands, Norway, Tunisia, Uruguay and Viet Nam.)

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government in its report. It notes, in particular, the information concerning the application of Article 5, paragraph 1, of the Convention, branch (d) (invalidity benefit).

1. (a) Article 3, paragraph 1, of the Convention, branch (d) (invalidity benefit). In reply to the Committee's previous comments concerning the provision of supplementary allowance from the National Solidarity Fund granted under section L.815-2 of the Social Security Code that it must be payable to nationals of all the States Members parties to the Convention and not only to French nationals and nationals of countries that have signed an international reciprocity agreement with France (as provided in section L.815-5 of the Code), the Government repeats that the supplementary allowance is not a social security benefit, but an assistance-type benefit payable on the basis of a means test, the object of which is to guarantee to the beneficiaries a minimum subsistence income, irrespective of the type of basic benefit provided. The situation may even arise where there is no basic benefit and it has been observed that this benefit is being provided increasingly to persons who have never worked. A distinction should therefore be made between pension supplements, which are an accessory to a benefit, and income guarantees, which are intrinsically bound up with the living standards of the State in which they are provided and are the expression of national solidarity.

Furthermore, the Government points out that, when awarding supplementary allowance from the National Solidarity Fund, account is taken not only of pensions (and this includes pensions provided by other States), but also of other resources such as occupational income, personal estate, etc. In cases where the applicant possesses personal estate, the institution providing the allowance is bound to require that a mortgage be taken out on this estate and, in the case of an inheritance, the institution may recover the whole or part of the sums that have been paid in the form of the supplementary allowance from the inheritance. Since these procedures are applied to French nationals who make a claim for the allowance, it is not possible to exempt foreign nationals resident in France from the same procedures. It is therefore necessary to conclude bilateral agreements, which take the form of specific protocols distinct from social security agreements reflecting the juridical nature of the National Solidarity Fund allowance and providing for the active participation of the contracting State in the verifications, that are indispensable, of the conditions under which the allowance can be granted and which are specific to each branch depending on whether reciprocity can be found in the legislation of the other State.

The Committee takes note of these statements. It points out that the award of the allowance in question is not subject to discretionary appraisal, but constitutes a right for the applicants who fulfil the required conditions, which is one of the characteristic features of an insurance benefit. It considers that, even though this supplementary allowance can, in certain cases, be awarded without the existence of a basic benefit, this allowance, as its name indicates, is a supplement to a principal benefit and hence it constitutes a social security benefit falling within this provision of the Convention. It is in this sense that the Court of Justice of the European Community, in a judgement that the Committee noted in its previous comments, ruled on 24 February 1988 in the case of Giletti et al. In this connection, the Committee is bound to refer to its previous comments to the effect that, in accordance with the meaning given in the Convention (Article 1, paragraph (b)), the term "benefits" refers to "all benefits, grants and pensions, including any supplements".

As regards the procedures described above, which apply to applicants for the allowance, the Committee agrees with the Government, that these must doubtless be applied without distinction to foreigners when they have property in France. The Committee therefore once again expresses the hope that the Government will take the necessary measures to give full effect to this provision of the Convention.

(b) In its previous comments, the Committee, which had previously taken note of the comments of the General Confederation of Labour (CGT) in relation to Convention No. 97, concerning the conditions of payment of allowance to disabled adults instituted by Act No. 75-534 of 30 June 1975, expressed the hope that the provision of this allowance could be guaranteed to nationals residing in France of all the States that have accepted the obligations of the Convention (subject to the possibility open to the Government of availing itself of Article 4, paragraph 2(b), making the grant of the allowance dependent on a period of residence of up to five years). It stressed the fact that the characteristics of this allowance for disabled adults linked it in law to non-contributory social security benefits, such as those covered by Article 2, paragraph 6(a), and not to assistance benefits. In this connection, the Committee noted from the reply of the Minister of National Solidarity to the written question of a senator (JOS of 3 April 1982, p. 906), that the possibility of granting to all foreigners the right to allowance for disabled adults, subject to a certain period of residence, was being thoroughly examined. Since the Government's report contains no new information in this connection, the Committee can only once again express the hope that the next report will contain information on the progress achieved in the implementation of this provision of the Convention.

(c) Article 4, paragraph 1, branch (d) (invalidity benefit) and branch (f) (survivors' benefit). In its previous comments, the Committee noted that the legislation made the payment of social insurance benefits (in this case invalidity and survivors' benefits) to foreigners insured under the general scheme (section L.311-7 of the Social Security Code), the agricultural scheme (section 1027 of the Rural Code) and the mining sector scheme (section 184 of Decree No. 46-2769 of 27 November 1946), conditional upon their being resident in France, except where there is an agreement between France and the country of origin of the beneficiary specifically guaranteeing the maintenance of these benefits. The Committee therefore pointed out that, under the above provision of the Convention, the right to invalidity and survivors' benefits without any residence requirement should be guaranteed to nationals of all States Members parties to the Convention. In its report, the Government specifies that section L.311-7 of the Social Security Code does not impose the condition of residence in France on foreigners in order to entitle them to the benefit of pensions. The condition of residence in France is required only at the time of applying for the payment of pension. The Committee takes note of this information with interest. In this connection, it wishes to know whether the condition of residence in France is also required at the time of applying for payment of survivors' and invalidity benefits.

2. Article 6. In reply to the Committee's previous comments concerning the obligation to provide family allowances in respect of children resident abroad, the Government indicates that under the terms of section L.512-1 of the Social Security Code, all persons resident in France are entitled to benefit from family allowances, provided that the children are also resident in France. The criterion of residence is a substantial requirement in view of the fact that, since the abolition in 1975 of the requirement of exercising an occupational activity, it remains the only criterion to obtain family benefits. This criterion is justified by a range of legal, political and financial motives.

With reference to the desire expressed by the Committee that the French Government should complete existing bilateral agreements (with Israel and Norway) and conclude new ones (with the Central African Republic, Libyan Arab Jamahiriya, Bolivia and Viet Nam), if there is any migration of the type referred to in Article 6 with those States, the Government's report points out that it should be recalled that bilateral agreements are co-ordinating instruments concerning certain or all branches of social security which follow certain rules, the most important of which is reciprocity. How is it therefore possible to conclude an agreement for certain branches which it is known do not exist in the other contracting countries. Furthermore, these agreements are negotiated and take into account historical circumstances, the will of the two parties, the abiding interests and the situation of their legislations.

The Committee notes this information. It considers that it would be useful to point out that Article 6 of the Convention does not cover all family benefits (branch (i) of paragraph 1 of Article 2 of the Convention), but only "family allowances", that is "periodical payments granted as compensation for expenditure for the maintenance of children, exclusive of certain special allowances, especially those granted to mothers remaining at home" (see 1977 General Survey on Equality of Treatment (Social Security), paragraph 103). It would also be useful to clarify that this provision does not establish a direct or immediate obligation arising only from the ratification of the Convention, but merely an indirect obligation, conditional on the conclusion of agreements among the member States concerned as to the conditions and the limits within which the guarantee referred to should be applied (see in particular paragraph 108 of the 1977 General Survey on Equality of Treatment (Social Security)). In these circumstances, the Committee requests the Government to re-examine the matter at the appropriate time in order to give effect to this Article of the Convention.

3. Article 10, paragraph 1, of the Convention. With reference to its previous comments, the Committee notes with interest that: (a) the allowance for handicapped adults established by Act No. 75-534 of 30 June 1975, which is payable to persons of French nationality or nationals of a country that has concluded a reciprocity agreement in this connection and who reside or have resided in the metropolitan territory or in any overseas department or territory (section L.821-1 of the Social Security Code), has been extended, by ministerial circulars Nos. 1258 of 2 November 1979 and 7 of 23 January 1980, to refugees and stateless persons who are permanently resident in France, by applying the clause of the most favoured nation; (b) in general, France is endeavouring to include refugees and stateless persons in the scope of most of the social security agreements that it concludes with other countries.

4. In its previous direct request, the Committee requested the Government, taking into account the provisions of Article 2, paragraph 1(a) (medical care) (taken in conjunction with Article 3, paragraph 1, of the Convention), to clarify the scope of Ministerial Letter No. 36 of 13 January 1986 (the Ministry of Social Affairs), which was referred to in the circular dated 12 February 1986 and in the letter dated 16 April 1986 of the National Sickness Insurance Fund for Employees, under which the beneficiaries of French invalidity and old-age benefits and pensions in respect of industrial accidents are refused benefits in kind under sickness insurance when they are foreign nationals resident abroad who are temporarily staying in France, while French nationals resident abroad who are beneficiaries of French benefits and pensions, receive the benefit of medical care when they are staying temporarily in France.

The Government indicates in this connection that the condition of at least three months' lawful residence required of foreign workers cannot be imposed upon French nationals residing abroad who are beneficiaries of French benefits and pensions and who therefore must be awarded benefits in kind under the sickness insurance scheme when they are temporarily staying in France. These beneficiaries are, due to their nationality, considered to be in possession of permanent right to residence in France. The Committee takes note of this statement.