Social right. My retirement, my heritage! According to a case law of June 6, 2022 of the second civil chamber of the Court of Cassation, “the individual right to a pension of a person subject on a mandatory basis to an essentially contributory pension scheme constitutes a substantial patrimonial interest”.
The judgment specifies that this proprietary interest between “within the scope of the provisions [de l’article 1 du protocole additionnel nº 1 à la Convention de sauvegarde des droits de l’homme et des libertés fondamentales (CEDH)] which involve a reasonable relationship of proportionality, expressing a fair balance between this individual right [à pension de retraite] and the funding requirements of the relevant pension plan”.
The Court of Cassation thus admits that the payment of compulsory contributions to a pension fund can create a right to property protected by European human law. And this even before the contributor fulfills all the conditions for actually receiving the pension, since there is a direct link between the level of contributions and the benefits allocated. As a result of this case law, the pension fund must take into account the contributions, even paid with a (long) delay and revise the amount of the pension due. Which is currently not the case.
Similarly, the “Diop decision” of 30 November 2001 by the Conseil d’Etat recognized the discriminatory nature of « gel » pensions paid to civil and military civil servants of nationals of the former French colonies, because the said civil pensions “constitute claims which must be regarded as property within the meaning of Article 1is of the first Additional Protocol to the ECHR” due to their nature “pecuniary, personal and life allowances to which the services performed by public officials give entitlement (…) until the regular termination of their functions”.
fuzzy formula
This approach based on human rights is not that of the Constitutional Council, which limits itself to ritually recalling that the Constitution “implies the implementation of a national solidarity policy in favor of retired workers”, then let the legislator “choose the concrete methods that seem appropriate”.
No obligation of non-regression of pensions weighs indeed, according to the Sages of the rue de Montpensier, on the French legislator if it is not, vague formula never yet made effective, that “the exercise of this power cannot lead to the deprivation of legal guarantees of requirements of a constitutional nature”. The Constitutional Council never does reference to any protected property right.
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