A new victory on the CSG/CRDS front at the Bourg-en-Bresse Court, Social security section, December 7, 2020
This new victory concerns CERN pensioners who also receive a compulsory French pension and are therefore automatically affiliated to the social security system.
Since 2015, when “replacement income” from foreign sources was also made subject to the CSG/CRDS social charge, these former colleagues have had CSG/CRDS payments deducted from their CERN pension.
One of our retired colleagues. objecting to this on the basis it amounts to an automatic affiliation to the CPAM (“Caisse primaire d'assurance maladie”), started a legal action under the aegis of the GAC-EPA and with the help of a specialised lawyer in 2016.
After four years of legal battles, the social security section of the Bourg-en-Bresse Court ruled completely in favour of our colleague in a judgement delivered on December 7, 2020.
The reasoning and the judgment of the court have been summarised as follows by the GAC-EPA lawyer:
1° CERN is endowed with legal personality and as such constitutes a subject of law distinct from the French and Swiss States.
2° Reference should thus be made to the social security agreement of 30 December 1970, signed between France and CERN, and particularly to Article 1 thereof, which states that CERN members of personnel are not subject to French legislation on social security and family benefits, as the International Organization provides its members with a guarantee against risks related to illness, disability and old age under the terms of the insurance scheme it has instituted.
3° These provisions have a higher authority than those of Article L 311-9 of the Social Security Code.
4° Consequently, the certification of the option to maintain the scheme offered by UNIQA in place of CPAM at the time of retirement by the person concerned is binding on the latter body since affiliation to the CERN social protection scheme is exclusive of any other affiliation with CPAM.
The Court ordered CPAM to grant the request for cancellation of automatic affiliation and to issue a certificate of non-affiliation.
It is now beyond question that our retired colleagues and future retirees are and will be able to request not to be automatically affiliated to the social security system, to obtain a certificate of non-affiliation to the CPAM and so receive a French pension without having to pay CSG-CRDS charges.
There is also no doubt that, with this judgment, the applicant will be able to request and obtain the reimbursement of the amounts unduly collected for the CSG-CRDS on the CERN pension. We are also currently analysing the possibility for those who would be in the same situation in order to obtain this same reimbursement retroactively over three years. However, we have to remain cautious even if this important or even decisive step has just been taken: the French tax authorities are still very creative.
GAC-EPA has prepared a model letter for retirees and can provide details of the procedure to follow to obtain this certificate and to apply for cancellation or non-affiliation to the CPAM.
Several questions still arise as a result of this ruling, which may also interfere with the situation of the spouses of our retired colleagues, also in the case of survivor’s pension benefits, and have an influence on the social levies on property income in connection with the ruling of the Council of State of September 2020. In particular, this ruling seems relevant for our colleagues with pensions from French sources who have not yet been able to benefit from the ruling of December 7, 2020 of the Council of State on property income, as they can now ask not to be affiliated to the CPAM.
Our legal and tax advisers currently analyse several points and we will not fail to keep you informed of the evolution of the situation in this matter.