It is appropriate to take an interest in this social security agreement that was concluded between France and the United States of America on March 2, 1987, aimed at determining the administrative arrangements related to this social security agreement and retirement rights for nationals, sometimes French, sometimes American, between France and the United States.
Article:
It is appropriate to take an interest in this social security agreement that was concluded between France and the United States of America on March 2, 1987, aimed at determining the administrative arrangements related to this social security agreement for nationals, sometimes French, sometimes American, between France and the United States.
Indeed, this one comes to consecrate a social security agreement and this, whether it is for the nationals of the United States on one side, as for the nationals of France on the other.
It makes it possible to determine the conditions under which the different administrations will regulate this social security agreement and in particular being interested in the insurance periods which designate a period of payment of contributions or a period of income from a salaried employment or a non-salaried activity defined or recognized as an insurance period by the legislator under which this period was completed or any other similar period to the extent that it is recognized by this legislation as equivalent to an insurance period.
Of course, these come to coordinate the legislations applicable in the two countries.
1/ Social security insurance and old-age insurance
Indeed, for the United States, the legislation governing the federal old-age insurance program for survivors’ benefits and bedridden insurance is already well in place and, on the French side, there is of course the legislation establishing the implementation of social security and establishing the social insurance system applicable to salaried workers or the legislation establishing the social insurance system, also providing for the prevention of compensation for work accidents or occupational diseases and also addressing all the systems, the legislation relating to family benefits and the legislation relating to special systems.
Thus, this Franco-American agreement applies to persons who are or have been subject to the legislation of one or the other of the contracting states and who are nationals of one or the other of the contracting states, refugees or stateless persons, as well as their beneficiaries within the French and American states.
Thus, a national is a contractor, French or American state, residing in the territory of the other state and to whom the provisions of this agreement apply, benefits, as do his beneficiaries, from treatment equal to that which is granted to the national of the other Country in application of the legislation of this other state relating to the Rights, benefits and payments thereof.
2/ Equal treatment of nationals in France and the USA:
Thus in this France / United States relationship a person employed in the territory of one of the contracting states and with regard to this employment subject only to the legislation of this contracting state even if this person resides in the territory of the other state or if the headquarters of the employer of this person is located in the territory of the other state in question.
Similarly, when a person insured under the contracting legislation for work carried out for an employer in the other territory of this contracting state is posted in order to carry out work in the territory of the other state, this person is then subject only to the legislation of the first contracting state as if he or she were employed in its territory on the condition that the foreseeable duration of the work in the territory of the other state does not exceed five years.
Except in the case where an employee who had been posted by his employer in a Contracting State to the territory of a third State is then posted by this employer from the territory of this third State to the territory of the other Contracting State on the sole condition that this employee is a national of one of the two Contracting States.
3/ The Fate of the provisions relating to social security insurance:
Similarly, a person employed by a public or private air transport company of one of the Contracting States as a member of staff and who would otherwise be subject to the legislation of both Contracting States is subject only to the legislation of the Contracting State where the company has its headquarters.
Concerning persons exercising a non-salaried activity in the territory of a Contracting State, they are subject only to the legislation of that Contracting State even if these persons reside in the territory of the other Contracting State.
The same applies to a person who usually carries out a non-salaried activity in the territory of a contracting state and temporarily carries out a non-salaried activity in the territory of another contracting state.
In such a case, this person is subject only to the legislation of the first contracting state on the condition that the foreseeable duration of the non-salaried activity in the territory of the other contracting state does not exceed twenty-four months.
4/ Non-salaried activity analyzed in France and the USA:
Similarly, a person who usually carries out a non-salaried activity in the territory of one and the other of the contracting states is subject only to the legislation of the contracting state in the territory of which this person carries out his main activity.
A specific article is provided for nationals of one of the contracting states employed by the government of that contracting state in the territory of another contracting state but who are not excluded from the legislation of the other contracting state by virtue of the conventions referred to in the agreement and are subject only to the legislation of the first contracting state.
5/ The question of old-age benefits between France and the USA:
Concerning the provisions relating to old-age, survivors’ and disability benefits, here again, the agreement provides important clarifications.
As a preliminary, it should be recalled that as this agreement stands, the provisions of United States legislation that limit, suspend or cancel rights to benefits or cash benefit payments solely on the grounds that the person resides abroad or is not in the territory of the United States are not applicable to persons residing in French territory.
Conversely, similarly, as a preliminary matter, the agreement specifies that benefits granted under French law may not be subject to any legal restriction or reduction, modification, suspension, cancellation or foreclosure for the sole reason that the person resides in the territory of the United States.
The agreement breaks down the issue of provisions relating to old-age, survivors’ and disability benefits and separates the provisions applicable in the United States on the one hand and the provisions applicable in France on the other.
Thus, concerning the provisions applicable in the United States, in the case of persons with at least six quarters of insurance under United States law but not having a sufficient number of quarters of insurance to be entitled to benefits under said law, the United States institution will take into account, for the purposes of establishing entitlement to benefits, the insurance periods completed under French law and not overlapping with insurance periods already validated under United States law.
6/ The assessment of pension benefit rights and insurance quarters on the US side:
Similarly, in the assessment of benefit rights, the US institution validates one insurance quarter for each insurance quarter completed under French law, provided that it does not overlap with quarters already validated under US law.
The total number of insurance quarters that can be validated for a year cannot therefore exceed four.
When the right to benefits under the legislation is established, the US institution must first calculate a theoretical basic insurance amount in accordance with US law, including the provisions relating to indexation legislation, as if the worker had completed a full insurance period as set in accordance with US law at the level of the earnings validated in his favor during the insurance periods, actually completed under said law.
The United States institution then calculates a proportional basic insurance amount by applying to the theoretical basic insurance amount the quotient formed by the duration of the worker’s insurance periods validated under United States legislation divided by the duration of full insurance, the benefits due under United States legislation on the basis of a statement of earnings when a proportional basic insurance amount has been established are paid on the basis of this proportional amount.
The agreement further specifies that the right to benefits payable by the United States expires with the acquisition of sufficient insurance periods under American legislation to open rights to equal or higher benefits.
7/ The assessment of rights to retirement benefits and insurance quarters on the French side:
Concerning the provisions applicable to France, here again clarifications are required.
On the French side, nationals of each of the contracting states who have taken refuge in the homelands of members successively or alternately of one or more social insurance schemes of each of the contracting states receive benefits under French legislation.
However, reservations are made concerning persons who have completed sufficient insurance periods to open rights under French legislation to an old-age, survivors’ or disability pension without having to claim the insurance periods completed under US legislation, the French institution establishes the amount of the pension in accordance with the provisions of French legislation by taking into account only the insurance periods completed under French legislation.
With the exception of this reservation, the fact remains that when a person entitled to a disability pension under French legislation is also entitled to a disability pension under US legislation, the French institution sets the amount of the disability pension that it pays.
If the amount of the disability pension calculated exclusively in accordance with French legislation without relying on this Franco-American agreement is higher than the total amount of benefits due by the institutions of the two contracting states, the French institution pays the calculated amount increased by the difference between the amount of the disability pension calculated exclusively in accordance with French legislation and said total amount.
In addition, if a person does not have a sufficient insurance period to be entitled to a French old-age, survivor’s or disability pension, the benefit to which he or she is entitled from the French institution is granted in accordance with the following rules.
8/ Totalization of insurance periods:
The French institution takes into account the insurance periods validated under United States legislation to the extent that they do not overlap with insurance periods validated under French legislation, both in order to determine the opening of the right to benefit, and in order to maintain or recover this right.
9/ Liquidation of benefits:
In this case, three important pieces of information.
Firstly, taking into account the totalization of the periods, the French institution determines according to its own legislation whether the person concerned meets the conditions required to be entitled to an old-age, survivor’s or disability pension under this legislation.
Secondly, if the person concerned is entitled to a pension, the French institution determines the benefit to which the insured person will be entitled, if all the insurance periods or similar had been completed exclusively under its own legislation, when the amount of the pension is based on the average salary during all or part of the insurance period, the average salary is determined on the basis of the insurance period completed under French legislation.
Thirdly, and finally, the benefit due to the person concerned is determined by reducing the amount of the benefit in proportion to the periods of insurance or similar completed under French legislation in relation to all the periods completed under the legislation of the two contracting states.
The total is then limited to the number of quarters of insurance required to be eligible for a full old-age pension under French legislation.
10/ The fate of the French disability pension:
If a person is no longer entitled to a French disability pension because they are no longer covered by the French system, the French institution will proceed to liquidate a disability pension provided that the person concerned has completed at least six quarters of insurance under United States legislation or that they are entitled to social security benefits under American legislation.
It is reserved that if the sum of the insurance periods completed under French legislation does not exceed one year, the French institution is not required to grant benefits on the basis of said periods unless, by virtue of these periods alone, a right to benefit is acquired under this legislation.
In this case, and in this case only, the benefit will be paid on the basis of these periods alone.
The Franco-American agreement further specifies that nationals of each of the contracting states have the right to join the voluntary insurance of the French social security system when they reside on French territory, taking into account, as necessary, the insurance periods or similar periods completed under the legislation of the United States.
The Franco-American agreement further specifies that when, in application of French legislation, the granting of certain benefits has been subject to the condition that the insurance periods have been completed in a profession subject to a special regime or in a specific profession or job, the periods completed under United States legislation are only taken into account to determine the opening of the right to benefits if they have been completed in the same profession and the same job.
Thus, if, taking into account the periods completed, the person concerned does not meet the conditions required to be entitled to said benefits, these periods are taken into account for the granting of benefits under the general regime, taking into account their specificities.
11/ Direct exchanges of information between the French and American administrations:
In terms of administrative provisions, it is important to specify that the competent authorities and institutions of the two contracting states, France and the United States, may correspond directly with each other and with any person regardless of their place of residence as necessary for the application of this agreement.
Correspondence may then be in the sender’s official language.
Requests for documents may be rejected on the grounds that they are written in the official language of the other contracting state.
It is also important to specify that documents and certificates produced in application of this Franco-American agreement, a social security agreement between France and the United States, are exempt from authentication of legalization by diplomatic or consular authorities.
Copies of documents certified as true copies by an institution of one of the contracting states, France or the United States, will be recognized as true copies by an institution of the other contracting state without further certification.
The institution of each Contracting State shall be the final judge of the value of the evidence presented to it, regardless of its origin.
Similarly, any application for benefits submitted in writing to an institution of one of the Contracting States shall safeguard the rights of the person concerned under the legislation of the other Contracting State if the person concerned requests that it be considered as an application submitted under the legislation of the other Contracting State.
Thus, if the person concerned has submitted an application for benefits in writing to the institution of one of the two Contracting States and has not expressly limited his application to the benefits provided for by the legislation of that State, his application shall also safeguard his rights under the legislation of the other Contracting State if he provides, at the time of filing the application, information indicating that the person entitled to benefits will have completed periods of insurance under the legislation of the other Contracting State.
12/ Important information on procedures and appeals in France and the USA
Applications, appeals or other documents that should have been filed with an institution of said state within a specific period under the legislation of one of the said contracting states are admissible if they are filed within the same period with an institution of the other contracting state.
In such a case, the institution with which the applications, appeals or documents were filed must indicate the date of receipt of the document and forward it without delay to the liaison agency of the other contracting state.
Finally, payments under this Franco-American agreement may be made in the currency of the debtor contracting state.
In order to facilitate the implementation of this social security agreement concluded between France and the United States, an administrative arrangement was also established on October 21, 1987.
This administrative arrangement in connection with this social security agreement between France and the United States linked, for the United States, the social security directorate known as the Social Security Administration and, for France, both the social security center for migrant workers and the National Autonomous Social Security Fund.
Said administrative arrangement consisted of allowing these two competent authorities to establish the procedures and forms necessary for the application of the agreement.
Thus, concerning the provisions relating to insurance, when the legislation of a contracting state is applicable, the body of this state issues, at the request of the employer of the self-employed worker, a certificate for the duration of the mission attesting that the employee or self-employed worker, with regard to the professional activity in question, remains subject to this legislation.
In all other cases where the legislation of a Contracting State is applicable, the body of that Contracting State shall issue, at the request of the employer of the self-employed worker, a certificate attesting that the employed or self-employed worker is subject to the said legislation of that Contracting State.
However, let us specify that the aforementioned certificates exempt the person concerned from compulsory subjection to the legislation of the other Contracting State.
13/ Formalities related to the establishment of certificates attesting that the employee or self-employed worker is subject to the legislation of France or the USA:
Thus and for example, in the case of a person seconded from the United States to France, the United States institution must issue a certificate only if the employer of the self-employed worker has certified that the employee in the first case or himself in the second case is insured under a health care cost protection plan as well as the members of his family who accompany him.
If the employee or self-employed person is not insured in accordance with such a plan, the person concerned will be subject to French legislation and exempt from subjection to the legislation of the United States.
Similarly, if an agency of one of the two Contracting States has issued this certificate for a worker who has completed a period of activity in the territory of the other Contracting State to which the worker had been returned and that, subsequently, the worker begins a new period of activity in the territory of the other Contracting State, this worker may not be issued a certificate for the new period unless:
– A minimum period of one year elapses between the end of the initial period of activity and the beginning of the new period of activity,
Or that:
– The end of the new period of activity is not more than five years from the date of the beginning of the initial period of activity.
If an agency of one of the two Contracting States has issued the certificate for a worker who has temporarily exercised a self-employed activity in the territory of the other Contracting State and, subsequently, the worker begins a new period of self-employed activity in the territory of the other Contracting State, this worker may not be issued a certificate for the new period unless:
– A minimum period of one year elapses between the end of the initial period of self-employed activity and the beginning of the new period of self-employed activity,
Or that:
– The end of the new period of self-employed activity is not more than twenty-four months from the date of the beginning of the initial period of self-employed activity.
For the sake of clarity, the agreement specifies that a self-employed worker should be considered to carry out his or her principal activity in the territory of the contracting state where he or she maintains a fixed place of business for more than one hundred and eighty-three days during the current tax year.
If the worker maintains a fixed place of business in the territory of each of the two contracting states for more than one hundred and eighty-three days during the same year or if he or she does not maintain a fixed place of business in the territory of either of the two contracting states for more than one hundred and eighty-three days during the same year, it should be considered, upon reading this agreement, that he or she carries out his or her principal activity in the territory of the contracting state where he or she is present for the greatest number of days during the same year.
It is of course up to the organizations, in the event of difficulty, to communicate to each other all the information necessary to determine the principal activity of the person concerned.
14/ Administrative arrangements relating to benefits:
Concerning the administrative arrangement relating to benefits, here again, some clarifications are necessary.
Thus, an institution of one of the two Contracting States to which a claim for benefits was first submitted must inform the competent institution of the other Contracting State without delay, either directly or through the liaison body, and provide any supporting documents and any other available information that may be necessary to complete the processing of this claim.
Similarly, the body of one of the two Contracting States receiving a claim that was first submitted to a body of the other Contracting State must provide the competent institution of the other Contracting State without delay, either directly or through the liaison body, with any supporting documents and any other available information that may be necessary to complete the processing of this claim.
It should be noted that the body of the contracting state to which a claim for benefits has been submitted verifies the accuracy of the information relating to the applicant and his or her family members.
The competent authorities or, with their authorization, the liaison bodies agree on the nature of the information to be verified.
Therefore, when necessary, the body of a contracting state is required to send a statement of the insurance period completed by the person concerned under the legislation of that contracting state to the liaison body of the other contracting state.
15/ An important clarification in the event of a claim for benefits in France or the USA:
In the event of a claim for benefits, the applicant is required to provide the French body with any justification allowing that body to determine whether it can take into account the periods certified by the United States body.
In addition, periods of work completed in the United States are deemed to have been carried out underground to the extent that, in accordance with French social security legislation in mines, they would have been considered as such if they had been carried out in France.
In the event that the insurance periods completed under the legislation of the two contracting states, France and the United States, overlap, the body of each of the contracting states takes into account only the insurance periods completed under the legislation that applies it.
For all purposes, a quarter of insurance certified by the United States body is of course equivalent to a quarter of insurance validated under French legislation.
And, in the event that the benefits that are granted by the body of one of the two contracting states are, in accordance with the agreement, revalued, the same provisions apply as the benefits granted under the legislation of that contracting state.
Benefits provided by an institution of one of the two contracting states are paid directly to the beneficiary in accordance with the legislation of that contracting state.
Finally, concerning the provisions concerning old-age and survivors’ insurance in particular, the administrative arrangement specifies that when an old-age or survivors’ pension is filed with the institution of the country of residence, that institution shall forward the application under cover of a liaison form to the competent institution of the other country, if necessary through the liaison body, and shall certify the information relating to civil status, indicate the date of filing of the application and attach a statement of the insurance period in accordance with its legislation.
On receipt of this document, the competent institution of the other state shall contact the applicant directly to obtain information essential to the processing of the application, using, if necessary, the forms provided for the application of its own legislation.
It shall thus forward to the institution of the country of residence the information that it may need.
16/ The list of available forms:
It is important to specify finally that forms are established in a very specific way since there is a form:
– SE 404-01 consisting of the certificate of subjection to French legislation,
– The SE 404-02 form corresponding to the certificate concerning the applicable legislation, in particular with regard to the maintenance of affiliation,
– The SE 404-03 liaison form,
– The SE 404-03a annex to the SE 404-3 form relating to the application for disability pension,
– The SE 404-04 form, medical report.
These are the main points to remember concerning this social security agreement which was concluded between France and the United States of America on March 2, 1987, aiming to determine the administrative arrangements linked to this social security agreement and retirement rights for nationals, sometimes French, sometimes American, between France and the United States.
Article rédigé par Maître Laurent LATAPIE,
Avocat à Fréjus-Saint-Raphaël,
Docteur en Droit, Chargé d’enseignement,