“PUMA” subsidiary health contribution
To date, Bornhauser has represented more than a hundred people in the PUMA (Protection Universel Maladie - Universal Protection against Illness) litigation. In 2017, then again in 2018, our clients received notices from URSSAF (Unions de recouvrement des cotisations de sécurité sociale et d'allocations familiales - Unions for the recovery of social security and family allowance contributions) to pay the Subsidiary Health Contribution (Cotisation Subsidiaire Maladie - CSM), otherwise known as the "PUMA contribution".
PUMA covers healthcare costs incurred on a personal basis for everyone who works or resides in France on a stable and regular basis.
The CSM was created by Article 32 of the Social Security Financing Law for 2016 dated 21 December 2015. It was designed to replace the basic universal health coverage under Article L.380-2 of the Social Security Code, and was presented in parliamentary discussions as a “marginal adjustment” that would “simplify” people’s lives.
The Information Report of the National Assembly’s Social Affairs Committee calls it "an adjustment of the conditions of liability for health insurance contributions in addition to the ordinary contributions based on earned income and replacement income". The intent of the designers of both PUMA and the CSM was thus to “simplify the lives of people with public health insurance”, as the Senate Report highlighted.
The contribution is aimed at those with low earned income. Those liable under the pre-2019 regime must pay 8% of their unearned income in respect of the years 2016 or 2017, plus taxes and contributions already paid, without any cap.
We have pointed out the irrationality of this measure, which primarily affects people in need. All it takes is a bad harvest, cancelled orders, bankruptcy or health problems to become liable for the CSM. The lack of a cap results in people contributing amounts that bear no relation to the services they may receive.
We have therefore developed a multi-pronged strategy to defend our clients.
For example, we argue that the CSM is illegal, particularly due to the time barring of the demand for contributions, URSSAF’s lack of territorial jurisdiction owing to the breach of an opinion of the National Commission for Information Technology and Freedoms (Commission Nationale de l’Informatique et des Libertés - CNIL) and a violation of the Law on Information Technology and Freedoms (la Loi Informatique et Libertés), the European Convention on Human Rights and Articles 13 and 16 of the 1789 Declaration.
We have also filed several preliminary constitutional questions (QPCs) with various courts. The Social Security Court (Tribunal des Affaires de la Sécurité Sociale - TASS) of Lille was the quickest to react: on July 24, 2018, it accepted our case and the State Council gave a similar ruling, so we were able to bring our clients’ challenge before the Constitutional Council.
On 27 September 2018, the Constitutional Council issued a “limited interpretation” asking the regulatory authority to put in place appropriate arrangements to avoid a breach in respect of charges levied by the state. The government was obliged to reduce the contribution rate and introduce a cap.
However, it has procrastinated and will apply the Constitutional Council’s decision only for the future. In the text presenting the PLFSS 2019, it admitted there were “certain inconsistencies” and even, echoing the indignation of the people concerned, “flaws in the design of the contribution that sometimes mean some of the people who must pay do not understand it.”
The PLFSS amended Article L. 380-2 of the Social Security Code in the desired direction. From now on the contribution will be based on, but not proportional to, non-professional earned income. It will be degressive, however, as well as capped.
Nonetheless, although these corrections better meet constitutional requirements, they do not apply to the 2016 and 2017 contributions. While the Senate has criticised this inconsistency, the National Assembly has chosen not to abide fully by the decision of the Constitutional Council. And in December 2018 URSAFF sent new calls for contributions based on the old provisions, which had been held to violate the Constitution.
We therefore instigated a second campaign challenging the CSM in December 2018.