Nursing homes. Can they be characterised as the personal residence of the residents?Can they be exempted from social-security contributions ? The answers of Strasbourg

JUDGMENT 

pital local Saint-Pierre d’Oléron and others v. France 8.11.2018 (no. 18096/12)

see here  

SUMMARY

The case concerned a refusal by the social security contributions collection agency (“the URSSAF”) to
reimburse the employer’s share of the contributions paid in respect of the employees of residential
care facilities for the elderly (“EHPADs”). The applicants had claimed that they were entitled to an
exemption under the Social Security Code.

The Court found in particular that an intervention by the legislature, which, in enacting the Law of 20
December 2010, had interpreted the rules laid down by the Social Security Code, had been
foreseeable and was justified on compelling public-interest grounds. The Court also found that the
Court of Cassation had not failed in its duty to give reasons for the judgments contested by some of
the applicants. Lastly, the Court held that the complaint under Article 14 taken together with Article
1 of Protocol No. 1 was inadmissible for failure to exhaust domestic remedies with regard to most of
the applications and as being manifestly ill-founded with regard to the remaining one

PROVISION 

Article 6 § 1

PRINCIPAL FACTS 

The case originated in 24 applications against the French Republic lodged with the Court by French
legal entities on various dates between 20 March 2012 and 19 June 2014.

The applicant organisations are residential care facilities for the elderly (known as “EHPADs”),
hospitals that include EHPADs, and an association running a centre for disabled people. The URSSAF
is the agency that collects and distributes social security contributions, which constitute the source
of financing of the ordinary social security regime.

The applicant facilities all applied to the URSSAF for reimbursement of the employer’s share of the
contributions paid in respect of their employees. They argued that they provided their residents with
home help services which were exempt under Article L. 241-10 III of the Social Security Code.

The applicants observed that while the term “domicile” (home) was not used in that Article, it
contained the preposition “chez” (at the place of), which in their view identified the place where the
elderly person lived. In that light, the accommodation occupied by the EHPAD residents constituted
their home.

Having had their reimbursement claims dismissed, the applicants appealed to the social security
courts. In the view of most of the first-instance and appellate courts, the exemption under
Article L. 241-10 III could apply only to the salaries of employees who worked in an elderly person’s
private home and not to those of staff working in the EHPAD facilities, which were a form of
collective housing not regarded as a person’s home.

In December 2010, while the first appeal was pending before the Court of Cassation, the legislature
enacted a law in which section 14 replaced the words “chez les” (at the place of the) by the words
“au domicile à usage privatif des” (at the private home of) in the first paragraph of the relevant
Article in the Code.

In the meantime, the law in question had been referred to the Constitutional Council by some
Members of Parliament, who took the view that section 14 of the Law of 20 December 2010, by
excluding people who resided in a care facility from the exemption, breached the principle of
equality.

In December 2010 the Constitutional Council found section 14 to be compatible with the
Constitution on the grounds that the exemption from employer contributions sought to help
dependent persons to remain in their own homes and that the linking of the exemption to the
private nature of the home of the beneficiary of such assistance was thus directly connected to the
purpose of that provision.

THE DECISION OF THE COURT 

Article 6 § 1

With regard to the alleged violation of Article 6 § 1 on account of the legislature’s intervention of
20 December 2010, the Court noted that the Law of 20 December 2010 had been enacted before
any decision had been given by the Court of Cassation. Section 14 of that law had been liable to
reduce the applicants’ prospects of obtaining satisfaction in their actions against the URSSAF.

However, the Court observed that on the date of enactment of the legislative provision in question,
only one of the applicants had obtained a judgment recognising its right to reimbursement of its
contributions. Furthermore, only a handful of isolated decisions had recognised that a collective
housing facility for the elderly constituted the residents’ home for the purposes of the third
sub-paragraph of Article L. 241-10 of the Social Security Code. Lastly, the Court observed that the
aim of section 14 of the Law of 20 December 2010 had been to make clear that the exemption was
designed to facilitate the provision of home help for elderly people continuing to live in their own
homes.

As to whether, prior to the new legislation, the applicants could argue convincingly that employees
of the collective housing facilities came within the scope of application of the exemption, the Court
stressed that the history of the scheme designed to help elderly people to remain in their own
homes showed that the above-mentioned section 14 had not been intended either to favour the
URSSAF or to correct an interpretation of the text which favoured the applicants. It was clear from
that history and from the decision of the Constitutional Council that the applicants could not expect
to benefit from the scheme, which had been devised from the outset so that elderly people could
remain in their own homes. The purpose of the legislature’s intervention had been to clarify the
meaning of Article L. 241-10 III of the Social Security Code and to reaffirm the legislature’s original
intention to exempt the salaries of home helpers for dependent persons from the payment of
employer contributions, in order to allow the persons concerned to continue to live independently in
their own homes.

The Court therefore considered that the legislature’s intervention had been foreseeable and was
justified on compelling public-interest grounds. It thus found that there had been no violation of
Article 6 § 1 of the Convention.

As to the alleged violation of Article 6 § 1 of the Convention on account of the lack of reasoning of
the Court of Cassation judgments of 22 September 2011 and 16 February 2012, the Court observed
that both the applicants concerned, who had argued that Article L. 241-10 III of the Social Security
Code as worded prior to the enactment of the Law of 20 December 2010 had entitled them to the
reimbursement of certain contributions, had received a clear negative response from the Court of
Cassation. The Court therefore found that the Court of Cassation had not failed in the obligation
arising out of Article 6 § 1 of the Convention to give reasons for its judgments. Accordingly, there
had been no violation of that provision.

Article 14 taken together with Article 1 of Protocol No. 1

The Court observed that, with the exception of the applicant in application no. 30287/14, none of
the applicants had raised before the Court of Cassation, either expressly or in substance, the
violation of Article 14 taken together with Article 1 of Protocol No. 1 alleged before the Court.
Consequently, this complaint had to be rejected for failure to exhaust domestic remedies with
regard to all the remaining applicants.

As to application no. 30287/14, the Court observed that both the Social Security Tribunal and the
Court of Appeal had made a distinction between care homes and sheltered accommodation,
stressing that the residence agreement signed by residents of the former precluded their remaining
in their own homes as such. The Court noted that the Government had confirmed that care homes,
unlike sheltered accommodation, did not constitute housing for private use. In these circumstances,
and in view of the scant evidence adduced by the applicant in support of its claim to be in a
relevantly similar or comparable situation to the facilities that qualified for exemption, the Court
considered that claim to be unfounded.

Accordingly, it ruled that this complaint should in any event be rejected as being manifestly ill-founded(echrcaselaw.com editing). 


ECHRCaseLaw

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