DISCLAIMER AND CAVEATS
The comments that follow are not legal or professional advice from AARO. They are observations, whose sources and texts you may want to verify, that you may wish to consider if you plan to ask questions of Urssaf and/or to contest the bill for a cotisation subsidiaire that you have received. AARO declines responsibility for any consequences should the information provided below prove to be inaccurate or incomplete.
Update 17 January 2018: Please see the bottom of this article for practical guidelines and a letter with suggested legal arguments to contest the obligation to pay.
In December 2015, France passed the budget law for 2016 and included a provision that made people with legal and stable residence in the country eligible for the health care system even if they have no connection with the labor market. This is PUMa (Protection universelle maladie).
In mid-November 2017, based upon information received from the French tax authorities, Urssaf sent a letter to people it believed to be covered under PUMa, notifying them that they would shortly receive a bill for the 2016 premiums (cotisation subsidiaire). The 2016 cotisation was calculated on the basis of revenue received in 2016 and declared to tax authorities in 2017. A little more than a month later, the bill itself was sent, with a due date 30 days later (January 19).
There are three opportunities to react to this assessment:
- During the 30 days prior to the due date, it is possible to contest the amount of the cotisation. Doing so suspends the due date. Urssaf examines the complaint and if a new or revised bill is sent there are again 30 days to pay. No late penalties are incurred.
- There is a normal procedure for contesting. It has to be invoked within two months of the date of the bill. This involves appealing to the Commission de recours amiable (CRA). If satisfaction is not obtained, the next step is the Tribunal des Affaires de Sécurité Sociale (TASS). Late penalty fees may run during these appeals, unlike the second option.
The formal implementation of the cotisation subsidiaire of the PUMa is described in an interministerial circular, N° DSS/5B/2017/322, from the director of the French Social Security and dated November 15, 2017. It is recommended that you download this document. The provision for contesting during the 30 days prior to the due date is on page 9. That's where you will find that this action suspends the due date, and that condition should be cited in your appeal.
Whatever position you may take on the legitimacy of the cotisation subsidiaire, you should be sure to verify the accuracy of the bill. This may require professional help. The circular mentioned above describes what is included in the calculation. On page 5 are the expected treatments if you are a couple (marriage, PACS and, according to certain texts, concubinage). If you were not susceptible to the cotisation for all of 2016, correct account should be taken for pro-rating the amount billed.
The conditions and the calculation of the cotisation should respect international agreements, including the US-France tax treaty.
If you want to challenge the legitimacy of the application of PUMa, per se, this is new territory; there is no precedent. While France has not previously opened access to medical insurance on the basis of residence alone, the goal of universal coverage is anchored in the constitution, along with the concept of solidarity, which implies both obligation and contribution according to means. It has been necessary to concoct a new form of payment, not related to either work or taxation.
These factors should be kept in mind when analyzing the behavior of the French administration. AARO cannot offer professional advice, but some elements of the history of PUMa and of its implementation to date can be presented. From these you may decide to develop your own arguments and present them to Urssaf, using the mechanisms and timing described above, or to other parts of the French administration.
Did URSSAF bill precociously?
PUMA (Protection universelle maladie) permits people resident in France on a regular (legal) and stable basis (résidence régulière et stable), but not in the workforce, to affiliate with the general regime of Social security and to have their medical expenses reimbursed (prise en charge des frais). Residence cannot be established until three months of uninterrupted presence. People in this situation may be subject to a premium (cotisation subsidiaire).
The PUMa law was passed on December 21, 2015, was promulgated on December 31, 2015 and took effect on January 1, 2016. Urssaf appears to be billing as of that date for people already resident in France.
A decree to define régulière was not issued until February 24, 2017. (Décret n° 2017-240 du 24 février 2017)
Note that PUMa applies to other than foreigners, but the status of legality for foreigners depends upon their residence permit (titre de séjour). It was therefore necessary to know which titres de séjour conferred the quality of résidence régulière for PUMa applicants who were foreigners. The decree containing the list of qualifying titres was not published until May 10, 2017. (JORF n°0110 du 11 mai 2017 texte n° 138 Arrêté du 10 mai 2017 fixant la liste des titres de séjour prévu au I de l'article R. 111-3 du code de la sécurité sociale )
This suggests an argument with respect to Urssaf that no foreigner was in a position to request affiliation with the Sécu so as to benefit from PUMa until May 10, 2017. Until that date, no CPAM could know which titres de séjour confirmed résidence régulière and thereby conferred eligibility for PUMa.
The circular N° DSS/5B/2017/322 specifies clearly (page 3) that liability for the cotisation subsidiaire begins as of the date of affiliation with the régime général. Urssaf billed inappropriately on the assumption that affiliation occurred as early as the first day of the law. This assumption was implied in the transmission from fiscal authorities to Urssaf of financial data that contained no information about affiliation. Yet the decree of February 24, 2017 states, “II.-La condition de régularité du séjour des personnes est appréciée au jour de la demande présentée pour bénéficier des dispositions . . .’ Not assumptions made by the fisc or Urssaf or other administrative organs. Not before the person goes to the CPAM and applies.
No information or guidance by authorities was ever given to the eventual redevables, but even the most conscientious among them, who happened to read the Journal Officiel on December 31, 2015, could not have known until May 10, 2017 what constituted proof of résidence régulière for foreigners and have affiliated in consequence.
Is PUMa obligatory?
Since the passage of the law creating PUMa, this access to medical insurance based upon residence alone has been presented as a right (droit) that could be exercised by affiliating with the Sécu. Since the announcement of the billing for the cotisation subsidiaire, callers to Urssaf have been told that PUMa is obligatory, while many people who phoned Ameli/Sécu or visited CPAM offices have been told it is optional.
It is certain that access to the Sécu via work is obligatory and automatic. This was stated in Article L311-2 of the Social security code in 1985 but that article has not been updated to include obligatory affiliation based upon residence.
PUMa is the completion of the CMU, to finally make the right to medical insurance universal, but the CMU required an application and annual renewals. With the advent of PUMa, some legal language was “softened.’ For example, in a decree published in the JO of May 5, 2017: "L’article R. 243-43-2 est ainsi modifié: a) Au premier alinéa du I, les mots: « auprès duquel le cotisant est tenu de souscrire ses déclarations ou est tenu de s’affilier » sont remplacés par les mots: « dont il relève". . .»"
"Tenu de" has been removed. "Relever de" translates as “the jurisdiction of.’ Thus this can be read to mean a new regime will not be created for those who opt to affiliate on the basis of residence, but they will be assigned to one of the existing obligatory regimes; namely, the general one.
This same spirit is found in the Article R111-3, the rule created by the February 24, 2017 decree: “Peuvent bénéficier . . . ou être affiliées à un régime obligatoire de sécurité sociale. . . les personnes qui . . . sont en situation régulière au regard de la législation sur le séjour des étrangers en France.’
“May’ is not the same as “must.’
We can also refer again to page 3 of the circular N° DSS/5B/2017/322, which controls the application of the cotisation subsidiaire: “La cotisation est due à compter de la date d’affiliation au régime général . . .’
It does not say the date of enactment of the law or the date when three months of residence have been accomplished, but the date of affiliation. Affiliation is a deliberate action that involves going to a CPAM and depositing a demande d'affiliation along with necessary documents. The affiliation is only valid once approved. There is no provision that Urssaf or any other agency can affiliate a person by fiat or that they claim to have done so.
Obligations are accompanied by enforcement, but there seem no signs anybody has been advised to affiliate, ordered to affiliate or sanctioned for not doing so. They have just been sent bills as if they had. But affiliation has a quid pro quo: medical expenses are reimbursed in exchange for premiums. Yet the people “affiliated’ had no proof of that status, no way during the last two years to claim reimbursement.
There is another side. People have not refused to insure; they have not exposed the public to assuming their health costs, but have subscribed to private insurance. It is fundamental in France that private insurance can complement mandatory insurance, but cannot substitute for it. The answer is for the authorities to explicitly make PUMa obligatory.
Fairness and hardship
The law creating PUMa was passed on December 21, 2015. it was promulgated on Saturday, December 31, 2015, entering into force the following day, a Sunday.
Urssaf is billing as of that date for people already resident. Most of those people, and others who arrived in France after January 1, 2016, took out comprehensive medical insurance in the private sector.
Under French law, such policies are subject to tacit renewal unless notice to cancel is given two months before their annual expiration date.
If people were made subject to the cotisation subsidiaire as of January 1, they would presumably be condemned to pay a duplicative premium for their private insurance policy for an entire year.
According to their age, this could amount to many thousands of euros.
A similar problem would occur for a person arriving in France beginning January 1, 2016 who wanted comprehensive insurance prior to eligibility for PUMa (as opposed to, say, the minimal travel coverage required to obtain a long stay visa). It would be difficult or impossible to find such a policy for just three months.
Almost nobody has even heard of PUMa in the two years since its enactment. The first news for most was a bill, and this came after a second year of “coverage’ was ending, with that bill to come.
Along with a total information blackout and contradictory information, there hasn't been a single element of transition to permit planning or compliance and to avoid double-billing for health coverage.
The pension question
In various texts of the law, rules and decrees, it is stated that people with retirement pensions are exonerated from the cotisation subsidiaire. The best place to quote is Urssaf's own words: “Personnes exonérées de la cotisation subsidiaire maladie ont exonérées de cette cotisation :
- les personnes ayant perçu une pension de retraite
What may have been intended was a French pension, because contributions for health coverage are already associated with such pensions, but neither here nor elsewhere do the texts say that.
It isn't that the lawmakers forgot about foreign pensions. Article 160-6 of the Social security code excludes from PUMa eligibility people whose foreign pensions include payment for health coverage (France doesn't want to pick up what other countries already cover based upon years of contributions.) US Social Security retirement benefits do not cover health care; Medicare is separate and does not reimburse expenses incurred abroad anyway. If you are on US Social Security, you might claim the law is what it says until it is changed and that you are thus exonerated.
In any case, PUMA is subservient to international accords and US retirement benefits, not taxable, should not be included in the cotisation calculation. Social charges on US pensions are also non-taxable and the cotisation is simply a substitute for social charges.
Instruction for AARO members who have received an "Appel de Cotisation" from URSSAF on PUMa and who wish to contest to payment due on 19 January.
- A letter should be sent to URSSAF containing your name, address and the account and social security numbers stated on the Appel de Cotisation.
- You should sign the letter and send it Recommendée avec Avis de Réception no later than the payment due date, normally19 January.
- You must decide whether to make the payment and request a refund or not make the payment.
- If you contest the payment before the due date as set forth above, you should not be penalized.
- This letter (click to view) presents legal arguments that can be used to contest the obligation to pay.
From John C. Fredenberger, Avocat a la cour