Appeals Against Refusal of Health Cover
Thursday 04 October 2012
What is the legal basis for an early retiree to appeal against refusal of health cover in France?
Many early retirees are still being refused health cover in France, despite an assurance from the EU Commission earlier last year that France had changed their rules.
Such an assurance was never received from France, and internal documents we have seen show they are continuing to maintain the 5 year residence rule.
The Commission are fully aware of this fact, and discussions are continuing between them and the French authorities. The complaints you have made to the EU have unquestionably assisted the EU in their task.
If you have been refused access to the French health system due to the fact you have not been resident for a minimum of five years you have a right of appeal against this decision.
It is clear from the information we are receiving from both yourselves and the EU Commission that some of these appeals are yielding a positive result.
Grounds of Appeal
With the assistance of information supplied by the European Commission, here in outline is the argument you need to make at such an appeal:
1. You are an EU national and are habitually resident as a matter of fact in France. You should refer to Article 1(j) of Regulation (EC) No 883/2004 that defines ‘residence' as a place where a person habitually resides.
Give arguments of fact to support your case that France is your centre of interests. You could include utility bills, tax bills, statement from the local mayor or whatever other evidence you deem appropriate.
The relevant case is Case C-90/97 Swaddling. The case was significant in making it clear that the definition of 'habitually resident' did not depend overwhelmingly on the duration of residence, but on a range of factors. See in particular paras 28.30.
2. You benefit from the guarantee of equal treatment in Article 4 of Regulation (EU) No 88312004, which means you should be admitted to the CMU on the same terms as French nationals.
The relevant case is Case C-l24/99 Borawitz, a landmark judgement of the ECJ on equal social security treatment. See in particular paras 23-25.
3. It is discrimination to require you to be resident in France for 5 years before you can access the CMU, or to require you to have private health insurance. These obligations are not applied to French nationals and are therefore discriminatory.
The appeal process against health cover refusals has been set out in earlier articles and our Guide to French Health System.
Broadly speaking, however, you need to have made an application to affiliate to the CMU via your local health authority, the CPAM, using the application form that is available for this purpose.
If you are refused cover by the CPAM, you need to obtain their decision in writing, to which you are legally entitled.
You then have two months to make an appeal to the Commission de Recours Amiable (CRA), and to do so within two months of the written decision.
You are not required to attend a hearing. The absence of a response from the CRA within one month implies a rejection of your appeal.
If the CRA do reject your appeal, then within two months you can take the matter to the social security and health tribunal - the Tribunal des affaires de sécurité sociale (TASS).
You can also make a complaint to the French Ombudsman, the Defendeur des Droits.
If you also wish to make a complaint to the EU Commission you can do so at EU Citizens Complaints. You can also e mail to SG-PLAINTES@ec.europa.eu.
Good luck in your appeal and do continue to keep us posted about your challenges to the existing rules at firstname.lastname@example.org.