LexInter | March 31, 2003 | 0 Comments

CSG AND CROSS-BORDER WORKERS

CIVIL BULLETIN – INFORMATION BULLETIN.

On the appeal brought by Mr. Eric André, residing at 22, rue Principale, Chavanatte, 90100 Delle,

 

in cassation of a judgment rendered on January 4, 2000 by the Besançon Court of Appeal (social chamber), in favor of:

1 ° / of the Union for the recovery of social security contributions and family allowances (URSSAF) of the Territoire de Belfort, whose registered office is 12, rue Strolz, 90020 Belfort Cédex,

2 ° / from the Regional Director of Health and Social Affairs of Franche-Comté, domiciled at 16, rue des Villas, 25044 Besançon Cédex

defendants in cassation;

The applicant invokes, in support of his appeal, the single means of cassation annexed to this judgment;

Means produced by SCP Richard and Mandelkern, lawyer advising for Mr. André

MEANS OF TERMINATION

OBJECTS TO the judgment under appeal for having dismissed Mr ANDRE of his request for the URSSAF DU TERRITOIRE DE BELFORT to be ordered to restore to him the sum of 5,584 francs, which it had recovered against him under the Generalized Social Contribution;

FOR THE REASONS THAT if it is true that a major dispute relates to the payment of the Generalized Social Contribution by French border workers, working in particular in Switzerland and residing in France, and that the Court of Justice of the European Communities was referred on April 1, 1998 by the Commission of the European Communities for the non-respect, according to it, of the community regulations, the answer to the questions asked by Mr. ANDRE does not suffer any difficulty however in the state of the French legislation in force to date, and in view of the inescapable decision pronounced on December 28, 1990 by the Constitutional Council, concerning the finance law for 1991; that in fact, it can only be seriously contested in accordance with the provisions of Article 62 of the Constitution, the decisions of the Constitutional Council are binding on the public powers, as well as on all administrative and judicial authorities, which a lawyer such as a lawyer cannot ignore; that the Constitutional Council was led to rule on the constitutionality of the aforementioned finance law instituting the Generalized Social Contribution, and that a clear answer was given to all the questions put to this Court by Mr. ANDRE; that thus, the Constitutional Council decided that the contributions which constitute the Generalized Social Constituency come under the category of taxes of all kinds within the meaning of article 34 of the Constitution, of which it is up to the legislator to fix the rules concerning the base, rate and methods of recovery; than’ on the other hand, the Constitutional Council did not find unconstitutional the provisions of article 131 of the aforementioned finance law entrusting the recovery of the General Social Contribution on income from activity and on replacement income to organizations which are already authorized to collect social contributions; that consequently, since Mr. Eric ANDRE is subject to income tax in France, where he has his domicile, he is necessarily subject to the General Social Contribution on his income from his activity in Switzerland ; that Mr. ANDRE cannot base an argument on the position taken by the Commission of the European Communities qualifying the Generalized Social Contribution as a social contribution, being noted in addition that Mr. ANDRE works in Switzerland and that this state has not accepted the community rules; that URSSAF therefore only applied the law by recovering from Mr. ANDRE, a frontier worker, the Generalized Social Contribution to which he is still subject, even if, for reasons relating to the administration, a suspension of this recovery was decided by the Minister of Social Affairs on November 28, 1994, such a decision obviously having no effect on the legality of the recovery carried out previously, including in the terms used;

1 °) WHEREAS community law takes precedence over domestic law; that the declaration of the Court of Justice of the European Communities is binding on the internal judge and is applicable to situations which arose previously; that, by a decision of February 15, 2000 (Plenary Court, Ass. C-169/98: Commission of the European Communities v / French Republic), the Court of Justice of the European Communities ruled that the Generalized Social Contribution has nature a social contribution and not that of a tax; that by nevertheless deciding that the Generalized Social Contribution constitutes a tax, to deduce that Mr. ANDRE could not escape its payment by invoking the Social Security Convention concluded on July 3, 1975 between the Swiss Confederation and the French Republic, the Court of ‘

2 °) WHEREAS community law takes precedence over domestic law; whereas it is applicable to a dispute between a social security body of one of the Member States and one of its nationals, residing in its territory, for the payment of a contribution provided for by the legislation of that Member State; that in deciding nevertheless that Mr. ANDRE could not oppose to URSSAF the qualification of social contribution, recognized by community law as the Generalized Social Contribution, reason taken from his working in Switzerland and that the latter did not not acceded to the European Community, the Court of Appeal violated Articles 3 B and 227 of the Treaty establishing the European Economic Community;

3 °) ALORS THAN French salaried workers, domiciled in France but exercising their professional activity on the territory of Switzerland are subject to Swiss social legislation; that such workers are therefore not subject to the Generalized Social Contribution, which has the nature of a social contribution; that in deciding nevertheless that Mr. ANDRE, who carried out his salaried activity under such conditions, was liable for the Generalized Social Contribution, the Court of Appeal violated Article 7, paragraph 1, of the Social Security Convention concluded on July 3, 1975 between France and the Swiss Confederation;

4 °) WHILE Mr. ANDRE maintained that URSSAF had implemented, against him, the recovery procedure on the basis of article R.243-4 of the Social Security Code, under the terms of which “the insured reporting to an employer whose company does not have an establishment in the metropolitan area are responsible for the fulfillment of the obligations incumbent on their employer and in particular for the payment of social security contributions and family allowances “; that he added that by virtue of the Social Security Convention concluded on July 3, 1975 between France and the Swiss Confederation, he did not have the status of social security in France and that in any event, that the Contribution Generalized Social has been qualified as tax or social contribution, his Swiss employer was not indebted to URSSAF, so that he himself could not be held responsible for the non-payment of this contribution on the basis of the aforementioned text; that Mr. ANDRE deduced from it that the URSSAF could not legally implement against him the procedure of recovery on the basis of article R.243-4 of the Code of the social security; that by failing to respond to these conclusions, which were likely to modify the outcome of the dispute, the Court of Appeal violated Article 455 of the new Code of Civil Procedure. had been able to legally implement the recovery procedure against him on the basis of article R.243-4 of the Social Security Code; that by failing to respond to these conclusions, which were likely to modify the outcome of the dispute, the Court of Appeal violated Article 455 of the new Code of Civil Procedure. had been able to legally implement the recovery procedure against him on the basis of article R.243-4 of the Social Security Code; that by failing to respond to these conclusions, which were likely to modify the outcome of the dispute, the Court of Appeal violated Article 455 of the new Code of Civil Procedure.

THE COURTYARD,

On the single means, taken in its first three forms:

Having regard to articles 227 of the Treaty of 25 March 1957 establishing the European Economic Community, then in force, L. 136-1 of the Social Security Code, and 7, paragraph 1, of the Franco-Swiss Convention on Social Security of 3 July 1975;

Whereas Mr. André, who lives in France and holds a salaried job in Switzerland, requested the reimbursement from URSSAF of the sums recovered by the latter under the general social contribution of the years 1993 and 1994;

Whereas, in order to dismiss his appeal, the judgment under appeal holds that, according to the decision of the Constitutional Council of December 28, 1990, the generalized social contribution falls into the category of taxes, and that Mr. André, subject in France to tax on income, cannot avail himself of the Community provisions, because he exercises his professional activity in a State which is not a member of the European Economic Community;

Whereas by ruling thus, while it results from the provisions of Article L. 136-1 of the aforementioned Social Security Code, as interpreted by the Court of Justice of the European Communities, that due to the ‘social allocation of the social contribution on activity and replacement income created by this text, this has the nature of a social contribution, and not of a tax, so that Mr. André, a French national residing in France, but affiliated to the Swiss social security system in application of the Franco-Swiss convention on social security, is not liable, the court of appeal violated the aforementioned texts;

And whereas the Court of Cassation is able to put an end to the dispute by applying the appropriate rule of law, in accordance with article 627, paragraph 2, of the new Code of Civil Procedure;

FOR THESE REASONS, and without there being any need to rule on the fourth part of the plea:

BREAK AND CANCELED, in all its provisions, the judgment rendered on January 4, 2000, between the parties, by the Besançon Court of Appeal;

DIT there to be referral;

Orders the URSSAF of the Territoire de Belfort to pay Mr. André the sum of 5,584 francs or 851.28 euros, with interest at the legal rate as of July 23, 1997;

Orders the URSSAF of the Territoire de Belfort and the DRASS of Franche-Comté to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns URSSAF of the Territoire de Belfort to pay Mr. André the sum of 15,000 francs or 2,286.74 euros;

Said that on the diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;

On the report of Mr. Ollier, adviser, the observations of SCP Richard and Mandelkern, lawyer of Mr. André, the conclusions of Mr. Benmakhlouf, first general counsel; Mr. GOUGE, senior adviser, acting as chairman.

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