Having regard to the observations of the Prime Minister, registered on May 31 st 2010;

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1 Decision n QPC of June 18th 2010 (Mr and Mrs L.) On May 10 th 2010 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality transmitted by the Cour de cassation (decision n of May 7 th 2010), an application lodged by Mrs Christiane A., married name L. and Mr Roger L. raising the issue of the conformity with constitutionally guaranteed rights and freedoms of Article L and L to L of the Social Security Code THE CONSTITUTIONAL COUNCIL Having regard to the Constitution; Having regard to Ordinance n of November 7 th 1958 as amended (Institutional Act on the Constitutional Council); Having regard to Act n of October 30 th 1946 pertaining to the Prevention of and Compensation for Occupational Injuries and Diseases; Having regard to the Social Security Code; Having regard to the Regulation of February 4 th 2010 as to the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality; Having regard to the observations on behalf of Mr and Mrs L. made by the SCP Ghestin, Attorney at the Conseil d'etat and the Cour de cassation, registered on May 31 st 2010; Having regard to the observations on behalf of the Société d'amènagement touristique de l'alpe d'huez (SATA) by Me Odent, Attorney at the Conseil d'etat and the Cour de cassation, registered on May 31 st 2010; Having regard to the observations of the Prime Minister, registered on May 31 st 2010; Having regard to the observations on behalf of the Company AXA France IARD made by the SCP Célice-Blainpain-Soltner, Attorneys at the Conseil d'etat and the Cour de cassation, registered on June 7 th Having regard to the other documents produced and appended to the case file; Attorneys Jean-Pierre GHESTIN for the applicants, Bruno ODENT for the SATA, Benoît Soltner for AXA France IARD and Thierry-Xavier Girardot, representing the Prime Minister, were heard by the Council in open court on June 15 th 2010; Having heard the Rapporteur; ON THE FOLLOWING GROUNDS 1. Under Article L of the Social Security Code : " Subject to the provisions of Articles L to L 452-5, L 454-1, L.455-1, L and L 455-2, no claim for compensation for the occupational injuries and diseases mentioned herein may be brought by the injured party or the beneficiaries thereof under ordinary legal proceedings before courts of law" 1

2 2. Under Article L of said Code " When the accident has been caused by an inexcusable fault on the part of the employer or those appointed to replace him in matters of administration, the injured party or the beneficiaries thereof shall be entitled to additional compensation in the conditions set out in the following Articles " 3. Under Article L : " In the case mentioned in the foregoing Article, the injured party or the beneficiaries thereof shall receive an increase in the compensation due hereunder. When compensation in the form of a lump sum has been awarded to the injured party, the amount of said increase shall not exceed the amount of said lump sum. When an annuity has been awarded to the injured party, the amount of such increase shall not exceed either the fraction of the yearly wage corresponding to the diminished capacity or the amount of said wage in the event of total incapacity. In the event of an occupational injury causing the death of the person involved, the amount of said increase shall be fixed without the total of annuities or increases paid to all beneficiaries of the deceased exceeding the amount of the annual wage. When the annuity paid to one beneficiary ceases to be payable the amount of the increase corresponding to the final annuity or annuities paid shall be adjusted in such a manner as to maintain the overall amount of the increased annuities as initially determined. In the event of the surviving spouse being entitled to payment of said annuity pursuant to paragraph 3 of Article 434-9, the increase in compensation paid to the deceased spouse shall be restored to the benefit of the said surviving spouse. The annual wage and the increase referred to in paragraphs 3 and 4 hereof shall be readjusted as provided for as regards annuities by Article L The increase shall be paid by the Fund, which shall recover the same by the imposing of a supplementary contribution of which the rate and duration shall be fixed by the Health at Work and Retirement Fund on the recommendation of the Main Fund, in agreement with the employer, unless proceedings are instituted before the Social Security Tribunal with jurisdiction in such matters. The additional contribution thus provided for shall not be paid for longer than a specified time and the rate thereof shall not exceed either a fraction of the normal employer contribution or the fraction of wages used to calculate such contribution. In the event of the sale or ceasing to trade of the business entity involved, the lump sum corresponding to outstanding payments shall become immediately due and payable". 4. Article L452-3 of the same Code provides : "Independently of the increased annuity paid to the injured party pursuant to the foregoing Article, said party shall be entitled to claim from his employer before the relevant Social Security Tribunal compensation for the injury caused by the physical and moral suffering endured, for loss of amenities and esthetic injury together with the diminution of the possibilities of promotion in his professional capacity. If the injured party is deemed to be 100% permanently incapable of working, said injured party shall also receive a flat rate compensation equal to the statutory minimum wage in effect on the date of consolidation. In similar fashion, in the event of an occupational injury leading to the death of the injured party, the beneficiaries of said injured party mentioned in Article L and following, together with relatives in the ascending and descending line who are not entitled to compensation hereunder, may claim compensation from the employer for pain and suffering before the abovementioned Tribunal. 2

3 Compensation for said injury shall be paid directly to the beneficiaries by the Fund which shall then recover said amount from the employer". 5. Under Article L : "In the event of failure to reach an amicable settlement between the Fund and the injured party or the beneficiaries thereof on the one hand, and the employer on the other hand, with respect to the existence of an inexcusable fault on the part of the latter, together with the amount of the increase and the compensation mentioned in Article L 452-3, it shall be incumbent upon the Social Security Tribunal with jurisdiction in such matters, duly petitioned by the injured party or the beneficiaries thereof or by the Health Insurance Fund to rule on the matter. The injured party or the beneficiaries thereof may join the Fund to its petition for a common judgment and vice versa. The person at the origin of the inexcusable fault shall be liable to the extent of his own property for the consequences thereof. The employer make take out insurance against the financial consequences of his own inexcusable fault or that of those persons he has appointed to replace him in the administration of the business concern or firm. Appropriate preventive measures shall be organized in the conditions laid down by Decree, after consultation with organizations representing employees and employers. When the accident has been caused by the inexcusable fault of an employer who has taken out relevant insurance to this end, the Health at Work and Retirement Fund may require the employer to pay the additional contribution mentioned in Article L The proceeds thereof shall be allocated to the National Fund for the Prevention of Occupational Injuries and Diseases. The payment of additional contributions as provided for un Article L and, in the event of the sale or ceasing to trade of the business involved, the payment of the lump sum mentioned in the same Article shall be secured by a charge in the conditions and of the rank fixed by Articles L and L 243-5". 6. Under Article L : "If the occupational injury has been caused by the intentional fault of the employer or one of the employees of the same, the injured party or the beneficiaries thereof shall retain the right to claim compensation for the injury caused from the person responsible for the occupational injury in ordinary legal proceedings before a court of law in the event of the provisions hereof failing to compensate for such injury. The Health Insurance Funds shall be required to pay the injured party or the beneficiaries thereof the compensation and other benefits mentioned herein. Said Funds shall be automatically entitled to bring proceedings against the person responsible for the occupational injury for the reimbursement of monies paid by them in connection with said occupational injury. If additional compensation to be paid by the person responsible for the occupational injury, under the provisions hereof, is granted by way of an annuity, the latter shall be constituted by the party under the duty to pay the same within two months of the final decision or the agreement of the parties with the Caisse nationale de prévoyance on the basis of the rate fixed by the present Code. In the case provided for herein, the Health at Work and Retirement Fund may require the employer to pay the additional contribution referred to in Article L hereof." 7. The parties making the application claim that these statutory provisions run counter to the principle of equality before the law and public burden sharing as set forth in Articles 1, 6 and 13 of the Declaration of the Rights of Man and the Citizen of 1789, together with 3

4 the principle of liability which derives from Article 4 thereof. They argue that the system of compensation for occupational injuries precludes the injured party from obtaining full compensation for his injury from his employer even in the event of the latter committing a fault which was at the origin of the accident leading to the injury. The mechanism of an increase in compensation applicable when the employer has committed an inexcusable fault does not enable the injured party to obtain full relief for all the injury sustained. In particular there is no provision for compensation for those types of injury which are not mentioned in Article L of the Social Security Code. Except in those cases where the fault committed by the employer is of an intentional nature, these provisions deprive the injured party of the right to claim relief for the injury sustained in ordinary legal proceedings before a court of law. 8. Under Article 34 of the Constitution, statutes "shall determine the basic principles..of employment law.. and social security". Parliament is at all times at liberty, when acting within the limits of the powers vested in it by the Constitution, to pass new provisions as and when it sees fit and to modify previous statutes by replacing them, if need be, by other provisions, so long as when exercising this power it does not deprive requirements of a constitutional nature of statutory guarantees. 9. Article 6 of the Declaration of 1789 proclaims that the law "shall be the same for all, whether it protects or punishes". The principle of equality does not preclude Parliament from treating different situations in different ways, nor from departing from the principle of equality for reasons of general interest provided that, in each case, the resulting different treatment is directly connected with the purpose sought to be achieved by the statute which introduces said different treatment. 10. Article 4 of the Declaration of 1789 proclaims : " Liberty consists in the freedom to do anything which does not injure others". The consequence of these provisions is that whosoever shall cause injury to another shall be required to compensate for the same. The possibility of bringing an action in tort implements this constitutional requirement. However, nothing precludes Parliament, for reasons in the public interest, from accompanying this principle by exclusions and limitations so long as this does not result in introducing any disproportionate infringement of the rights of those who have sustained injury due to the faults of another nor of the right to effective redress which derives from Article 16 of the Declaration of Firstly, when introducing a system of social insurance for occupational injuries and diseases, the Act of October 30 th 1946 referred to above implemented the requirements deriving from paragraph 11 of the Preamble to the Constitution of October 27 th 1946 whereby the Nation "shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure. Whosoever, by reason of his age, physical or mental condition or economic situation, is incapable of working, shall be entitled to receive from the community suitable means of existence". 12. Under Article L of the Social Security Code, the prevention of and compensation for occupational injuries and diseases are missions coming under the scope of social security in the conditions set out in Book IV of said Code. These provisions aim at preventing occupational injuries and diseases, at ensuring compensation for damage sustained by reason thereof, together with therapy, re-adaptation and redeployment of workers affected by such injuries and diseases. As regards compensation, the Health Insurance Fund handles benefits in kind, compensation for temporary and permanent incapacity for work of such workers, together with certain expenses. Article L of the Social Security Code has set up an organization for dealing with general social security litigation and settling disputes arising from the application of statutes and regulations governing social security and agricultural mutual insurance systems which, by their very nature, are not such as to come under the scope of other types of litigation. 4

5 13. Under Article L of the Social Security Code dealing with the revenue of social security, contributions due for occupational injuries and diseases are paid solely by employers. Article L provides that the amount paid by the employer in contributions may vary depending either on the preventive measures or care taken by the employer or on the exceptional risks presented by the work undertaken or resulting from failure to take preventive measures. Having received such financing, it is the task of the Health Insurance Fund to provide the relevant benefits and compensation, subject to the obligations for which the employer is personally liable in the event of inexcusable or intentional fault. 14. The challenged provisions confer upon the injured party or the beneficiaries thereof entitlement to compensation for the damage sustained due to an occupational injury or disease and, in the event of litigation, redress before the Social Security Tribunals without suppressing the right of said injured party to bring proceedings against the employer in the event of an inexcusable or intentional fault. In order to reconcile the right of parties who have sustained injury by reason of a fault with the implementation of the requirement deriving from paragraph 11 of the Preamble of 1946, Parliament was at liberty to introduce by Article L and following of the Social Security Code a specific system of compensation replacing in part the liability of the employer. 15. Secondly, in view of the particular situation of the salaried employee acting in the course of his professional employment, the departure from the normal legal principle of tortuous liability as a result of the rules concerning benefits and compensation paid by social security under the provisions of the Social security Code referred to above is directly connected with the objective of compensating for occupational injuries and diseases as set out in Book IV of said Code. 16. Thirdly, under the provisions of Title II of Book IV of the Social Security Code, the benefits in kind needed by persons suffering from occupational injuries or diseases are completely covered and paid for by the Health Insurance Fund. During the period of temporary incapacity the injured party receives daily allowances which compensate for the loss of his wages. When such a person has sustained a permanent incapacity for work, this person receives a flat rate indemnity calculated in particular taking into account the amount of his wage and the rate of his incapacity. In spite of his fault, albeit inexcusable, this entitlement to compensation vests in the employee when the occupational injury is caused by his work or during his working hours, during the journey to and from his place of work, or in the event of an illness caused by his work. Whatever the situation of the employer, the indemnities are paid by the Health Insurance Fund to the employee or, in the event of the death of the latter, to his beneficiaries. The latter are thus spared the need to bring proceedings in tort against the employer and prove the fault of the latter. These provisions guarantee the automaticity, rapidity and security of compensation for occupational injuries and diseases. They also take into account the burden represented by all the benefits allocated. Thus, in the absence of any inexcusable fault on the part of the employer, the flat rate compensation for the loss of wages or incapacity, the exclusion of certain types of injury and the impossibility for the injured party or the beneficiaries thereof to institute proceedings against the employer do not constitute disproportionate restrictions as regards the objectives of general interest which it is sought to achieve. 17. When the occupational injury or disease is due to the inexcusable fault of the employer, the injured party or, in the event of the death of the latter, the beneficiaries thereof shall receive an increase in the indemnities due. Under Article L of the Social Security Code, the increase in the lump sum or the annuity awarded on the basis of the reduced capacity of the injured party cannot exceed the amount of the lump sum or the amount of wages. As regards the objectives of general interest referred to above, the capping of this indemnity designed to compensate for the loss of wages resulting from the incapacity does not constitute a disproportionate restriction of the rights of persons suffering from occupational injuries or diseases. 5

6 18. Furthermore, independently of this increase, the injured party or in the event of the death of the latter, the beneficiaries thereof may, claim compensation from the employer before the Social Security Tribunal for certain heads of claim listed in Article L of the Social Security Code. In the presence of an inexcusable fault on the part of the employer, these provisions cannot, without constituting a disproportionate infringement of the rights of those who have sustained injury due to the faults of another, preclude these same persons from claiming before the same Tribunals compensation from the employer for all types of injury not covered by Book IV of the Social Security Code. 19. As is shown by the foregoing, with the qualification set out in paragraph 18, the challenged provisions do not run counter to the principle of liability, nor the principle of equality nor any other constitutionally guaranteed right or freedom. HELD Article 1 : With the qualification set out in paragraph 18 hereinabove, the provisions of Articles L and L to L of the Social Security Code are constitutional. Article 2 : This decision shall be published in the Journal officiel of the French Republic and notified in the conditions provided for in Section of the Ordinance of November 7 th 1958 referred to hereinabove. Deliberated by the Constitutional Council sitting on June 17 th 2010 and composed of Messrs Jean- Louis DEBRE, President, Messrs Jacques BARROT, Guy CANIVET, Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Messrs Hubert HAENEL, Jean-Louis PEZANT and Mr Pierre STEINMETZ. Announced on June 18 th