FIFTH SECTION

CASE OF HÔPITAL LOCAL SAINT-PIERRE D ’ OLÉRON AND OTHERS v. FRANCE

( Application no. 18096/12 and 23 others – see appended list )

JUDGMENT

STRASBOURG

8 November 2018

FINAL

08/02/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Hôpital local Saint-Pierre d ’ Oléron and Others v. France ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Angelika Nußberger, President, Yonko Grozev, André Potocki, Síofra O ’ Leary, Gabriele Kucsko-Stadlmayer, Lәtif Hüseynov, Lado Chanturia, judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 8 November 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in twenty-four application s (no s . 18096/12 , 53601/12, 23542/13, 32194/13, 39165/13, 39173/13, 39180/13, 39184/13, 49923/13, 57424/13, 58995/13, 59003/13, 68908/13, 68916/13, 68918/13, 76512/13, 76519/13, 76527/13, 76530/13, 5485/14, 23544/14, 30287/14, 46819/14, 46862/14 ) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-four legal persons in France (“the applicant s ”), on various dates between 20 March 2012 and 19 June 2014 .

2 . The applicant s w ere represented by Mr S. Pappas, a lawyer practising in Brussels . The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs .

3 . The applicant alleged a violation of Article 6 § 1 of the Convention and of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 on the grounds of the enactment of a new law during their judicial proceedings. In applications nos. 18096/12 and 53601/12 the applicants also complained that no reasons had been given in the Court of C assation ’ s judgments .

4 . On 11 September 2015 the Government were given notice of the application .

THE FACTS

A. Origin of the cases

5 . The applicant s are institutions which accommodate depende nt elderly persons (EHPAD - Etablissements d ’ Hébergement pour Personnes Agées Dépendantes ), hospitals incorporating EHPAD s, and an association operat ing reception centre for persons with disabiliti es. The Unions de recouvrement des cotisations de security social et d ’ allocations familiales (URSSAF – “ Social Security and Family Allowance Contribution Collection Offices” ) constitute a network of priv ate bodies to which a public service has been delegated and which help maintain the social welfare system by collecting and distributing national insurance contributions, which serve to fund the general social security system . The URSSAF network operates under the dual umbrella of the Ministry responsible for Social Security and the Ministry of the B udget.

6 . All the applic ants appli ed t o the URSSAF for reimburse ment of the employers ’ share of the social contributions in respect o f their employees, arguing that they had been providing residents in their institutions with home-help services as exempted under A rticle L. 241-10 III of the Social Security Code (CSS). Paragraph I of that provision exempts from employers ’ contributions the remuneration of specific types of home help provided to elderly or disabled persons , where the personnel in question are genuinely employed “ for their personal service, at their home or at th e home of members of their families ” by six categories of persons . A rticle L. 241-10 III provided for the same ex emp tion in respect of the remuneration of home-help providers employed by : ( 1 ) associations and enterprises authorised under A rticle L. 129-1 of the Labour C ode ( see paragraph 44 below ) to exerc ise activities relating to childcare or assistance for elderly or disabled persons ; ( 2 ) municipal or i nter-mu nicipal social welfare centres; ( 3 ) agencies which are officially authorised to provide social assistanc e or have concluded an agreement with a social security body , f or the part paid in return for the performance of work in the homes of (“ chez ”) the persons mentioned in section I ( see paragraph 43 below ).

7 . The applic ants ’ requests for reimbursement were rejected. They applied to the Social Security Court . Most of the first-instance and appellate courts applied to took the view that the ex emp tion provided for in A rticle L. 241-10 III only appli ed to the remuneration o f employees working in the elderly person ’ s private home, and no t to those working in a n EHPAD, a collective accommodation centre which is not considered as the elderly person ’ s home for the purposes of A rticle L. 241-10 CSS. The applic ants argued that the word “ domicile ” ( “private home” ) was not used in paragraph III of A rticle L. 241-10 CSS but rather the preposition chez ( “ at the home of ” ) , which, in their view, referred to the place where the elderly person resided, w ith the accommodation occupied by the residents of EHPAD s constituting their “ private homes ” .

8 . While the first appeal on points of law was pending before the Court of C assation ( application n o. 18096/12, see paragraphs 9 et s eq. b elow ), the legislature enacted a law, section 14 of which provided that “[i) n the first indent of paragraph III of A rticle L 241-10 of the C ode of Social Security , the words “ chez les ” [“ at the home of the ” ] s hall be replaced with the word s “ au domicile à usage privatif des ” [“ at the private home of the ” ] .

B. The applications

1. Application no. 18096/12

9 . The applicant is a public health care institution comprising an accommodation centre for depende nt elderly persons (EHPAD). This former old age home acquired EHPAD status by conclu ding an agreement with the Prefect and the President of the Department Council under A rticle L. 313-12 of the Social Action and Family Code . By letter of 20 May 2008, considering that the EHPAD was the private home of the elderly persons residing in it , the applic ant, relying on A rticle L. 241-10 III CSS, requested ex emp tion from employers ’ contributions to the Charente ‑ Maritime URSSAF . I t requested the reimbursement of 242, 419 . 56 euros (EUR) in respect of social security contributions which it contended had been unduly paid out of the salaries of members of its staff who were employed to perform home -help work for elderly residents between May 2005 and April 2008.

10 . On 2 June 2008 the URSSAF, and then on 18 December 2008 the Friendly Settlements Board , rejected the applic ant ’ s request on the grounds that “ an old people ’ s home is a collective accommodation centre which is not considered as the elderly person ’ s private home for the purposes of A rticle L. 241-10 CSS ” .

11 . Th e applic ant app ea led to the L a Rochelle social-security appeal tribunal (TASS) . I t submitted that the accommodation occupied by EHPAD residents constituted their homes for the purposes of A rticle 102 of the C ivil Code (CC) , which provide s that “ t he domicile [private home] of a French person, as to the exercise of his civil rights, is at the place where he has his main establishment . ... ” , given that it was their actual and real place of residence , that they were visited by their families there , that they furnished it as they pleased, that it was their residence for tax and electoral purposes and that they received their housing benefits there .

12 . By judgment of 1 December 2009 TASS dismissed the applic ant ’ s appeal on the grounds that the private home ( domicile ) concept did not extend to collective accommodation structures :

“ [ Article L. 241-10 III] provides for cas es of ex emp tion [from contributions ] in con form ity with the municipal poli cy of helping elderly persons to remain in their own homes, “home” meaning the ordinary residence before hospitalisation.

The Tribunal notes from this very lengthy article that the exemption applies to home - helps employed under fixed-term contracts, and ordinary acts relating to everyday life . M oreover, exemptions are granted at the request of the (elderly) persons concerned, which was not the case in the present case, since it was the institution that requested exemption.

Exemption is allowed only where the ordinary act ion s relating to everyday life are carried out in the home, which cannot be the healthcare institution .

Furthermore, whenever legislation mentions a collective structure accommodating elderly persons, the Social Action and Family Code is only referring to institutions which provide accommodation for elderly persons, and n ot private homes.

The legislature prioritises helping elderly persons to remain in their private homes because that is a better solution for elderly persons , and the ex emp tion in question is, precisely , aimed at encouraging them to remain in their homes, which offsets the dearth of place s in institutions .

In short, [the applicant] is not eligible for exemption.”

13 . Th e applic ant appealed against that judgment . I t complained of the Tribunal ’ s erroneous interpretation of A rticle L. 241-10 CSS , arguing that the “private home ( domicile )” concept should be analyse d in the light of Article 102 CC, relying on a judgment delivered by the Social Affairs Division of the Pau Court of A ppe a l on 18 December 2008 to this effect, which judgment had become final in the absence of an appeal on points of law from the URSSAF ( see paragraph 46 below ). It also referred to judgments delivered by several TASS ’ s which had relied on A rticle 102 CC to treat EHPAD s as being equivalent to the elderly persons ’ private homes , including the Bobigny TASS ’ s judgment of 16 March 2010 ( see paragraph 34 above ). The applicant also mentioned the Law of 21 July 2009 reforming the hospital system and concerning patients, health and the regional and local authoriti es, which provided that “ private home ” ( domicile ) could mean the place of residence or an institution providing accommodation under the Social Action and Family Code. Finally , t he applicant complained of the discrimination exercised by the URSSAF , which accepted that residential homes, which were collective accommodation structures like the EHPAD s , were eligible for the ex emp tion even though there was no difference between those two types of institution in terms of the healthcare provided . This, it submitted, created flagrant inequality among elderly persons living in collective accommodation structures .

14 . By judgment of 8 June 2010, the Poitiers Court of Appeal upheld th e judgment :

“ ... contrary to the appellant ’ s submissions , the provisions whose implement ation he sought cannot apply to the actual staff of the retirement home, whose purpose is, precisely , to accommodate dependent elderly persons while providing them with all the services necessary for their survival , whereas the provisions clearly concern outside employees working in elderly persons ’ homes with a view to enabling them to remain autonom ous in their own o r their relatives ’ homes or in a residential home, which provides a limited set of collective services, by supply ing them with person al service s which do not exist in their homes for everyday actions which they cannot carry out on their own. It should be added that [ the applic ant] is not empowered to provide social assistance under the aforementioned provisions because, given that the fact that the residents are in re ceipt of welfare assistance in defraying their accommodation expenses in the retirement home does not confer on i t the status of ‘ home-help employer ’ . ”

15 . The applic ant lodged an appeal on points of law. In a single four-pronged ground of appeal it alleged a violation of Article L. 241 ‑ 10 III CSS and Article 102 CC, criticising the trial judges for having concluded that :

- i t was a body empowered to accommodate persons benefiting from social assistance and not a body empowered to provide social assistance even though those two design ations were synonymous ;

- elderly person s could not have their “private home ” ( domicile ) at the hospital ;

- the ex emp tion did not apply to the retirement home staff ;

- only the elderly persons in question could apply for the exemption, and not the institutions as such .

16 . On 21 December 2010, when the appeal on points of law was still pending , Law n o. 2010-1594 of 20 December 2010 on social security funding f or 2011 ( hereafter “ the 20 December 2010 Law ” ) was published in the Official Gazette of the French Republic ( Official Gazette no. 295 of 21 December 2010 ). Section 14 of that Law provided : “ in A rticle L. 241-10 III (1) of the C ode of Social Security , the words “ at the home of ” s hall be replaced with “ a t the private home of ” .

17 . In the meantime that Law had been referred to the Constitutional Council by Deputies who considered that by ruling out the impugned exemption of persons residing in institutions , section 14 of the 20 December 2010 Law was in breach of the equality principle . Conducting a preliminary review , by decision of 16 December 2010 a s reasoned below , the Constitutional Council declared section 14 cited above in conformity with the Constitution :

18 . In its defence pleadings lodged on 29 December 2010 before the Court of C assation, the URSSAF emphasised that the aim of the ex emp tion provision was to enable elderly persons to continue to live at home . It relied on the interpretative nature of section 14 of the 20 December 2010 Law, which was aimed solely at confirming that the exemption from contributions did not apply to persons employed by institutions providing collective accommodation for dependent persons and preventing the latter from misusing the provisions of Article L. 241-10 III CSS. The URSSAF pointed out that the 20 December 2010 Law was an interpretative law and that section 14 was directly applicable to the ongoing proceedings, including those before the Court of C assation.

19 . In his report entitled “ In view of the non-admission of the appeal on points of law in the absence of any arguable grounds of appeal ” , the reporting judge argued, first of all, that the interpretation of the initial text by the trial judges had been consistent with the legislature ’ s intentions, and, secondly, that by providing a definition of “ private home ” ( domicile ) for the purposes of the impugned text , the legislature had clearly wished to conf er an interpretative nature on section 14 of the 20 December 2010 Law, rend ering that decision applicable before the Court of C assation. The reporting judge concluded his report as follows : “[c] onsequently, the decision taken by the Court of A ppe a l cannot be validly challenged by an argument which has become ineffective, such that the appeal on points of law cannot be allowed ” . The Advocate General ’ s opinion concluded that the appeal on points of law should be dismissed:

“ Th e dispute is based on the interpretation of the provisions of A rticle L. 241-10 III of the Social Security Code concerning ex emp tion from the employer ’ s social security contributions relating to home help, in the version in force at the material time . Are those provisions applicable to persons in a retirement home, the aim of which is, precisely, to accommodate dependent elderly persons who have not remained in their personal , private homes, while providing them with all the services necessary for their survival?

The question is based on the interpretation of the text : the parliamentary debates on the occasion of the discussion of the [20 December 2010] Law ... clearly establish the grounds on which the legislature intended to amend the text . I t should be remembered that from the outset, the l aw had been designed to enable elderly dependent persons to continue living in their private homes and that some individuals, by applying for the assistance in question ‘ blatantly distort the spirit of the la w ... ’ . Since the amendment effected by the words ‘ at the private home of the ’ replacing the words ‘ at the home of ’ are interpretative , it perfectly reflects the meaning of the version of the text in force at the material time in the present case. We are dealing, precisely, with a law which ‘ confines itself to recognising , without innov ating, an existing law which had been rend ered potentially controversial because of an imperfect definition ’ (Civ., 9 December 2008, n o. 08-10.061). ”

20 . In its reply , the applic ant submitted that that law was not interpretative but had effected an amendment, to the extent that it had changed the origina l wording of the impugned provision to confer a different meaning on it . I t pointed out that in the version prior to the enactment of the 2010 Law, A rticle L. 241-10 III had never prompted any controversy and that the Court of C assation had never rul ed on the EHPAD s ’ eligibility for the ex emp tion in question . Therefore, intervention by the legislature to influence ongoing d isputes had been unjustified . Relying on A rticle 6 § 1 of the Convention, the applicant stated that section 14 of the 20 December 2010 Law had clearly and explicit ly pointed to interference by the legislature with the course of justice in order to influence the judicial processing of a case by depriving of its legal basis the action which had been brought before that Law had entered into force, in breach of the principle of the separation of powers and the right to a fair trial. It took the view that there was no public- interest imperative to justify that interference in the administration of justice , given that the purpose of section 14 was to ensure that the S tat e, through the intermediary of the URSSAF , could eliminate any risk of a finding against i t. The applic ant ’ s reply did not comprise any arguments under Article 14 of the Convention and Article 1 of Protocol No. 1.

21 . By judgment of 22 September 2011 the Court of C assation dismissed the appeal on points of law in the following terms :

“ However, whereas the judgment notes that A rticle L. 241-10 III ... provides that the remuneration of home-helps who are employed under the conditions set out in that text are ex empted from employers ’ contributions in respect of the part paid for work performed at the homes of the persons mentioned in paragraph I of the same A rticle;

Whereas the Court of A ppe a l rightly deduced from that fact that the ex emp tion could only apply to remuneration for employees working in the elderly person ’ s private home and its decision was justified in law on those sole grounds ...”

2. Application n o. 53601/12

22 . Th e applic ant, a public institution , run s the “Le Bon Accueil” retirement home . The latter acquired EHPAD status by conclu ding an agreement with the Prefect and the President of the Département Council . By decision of 31 October 2008 the applicant ’ s claim for the reimbursement of the sum of EUR 120, 655 in respect of the impugned employers ’ contributions was rejected by the URSSAF. The latter relied on two ministerial letters of 26 August 1987 and 22 June 1993 stating that no collective accommodation structures were eligible for the ex emp tion in question apart from residential homes, on the grounds that the “ private home ( domicile ) ” criterion had not been met .

23 . By judgment of 12 April 2010 the Ain Département TASS dismissed the applic ant ’ s appeal against that decision . By judgment of 23 December 2010 the Lyon Court of A ppe a l upheld that judgment :

“ ... The parties disagree solely on the question whether a retirement home can be considered as a private home ( domicile ) .

A rticle 102 of the C ivil Code defines the home ( domicile ) as the principal place of residence .

Elderly person s permanently accommodated, on a non-temporary basis, in a retirement home do ind e ed have their home ( domicile ) in that institution within the meaning of the C ivil Code .

However , th e legislation on ex emp tion from national insurance contributions clearly refers to an interpreta tion of ‘ home ( domicile ) ’ which is completely different from the legal concept as defined in the C ivil Code .

Indeed , A rticle L. 241-10 III of the Social Security Code explicitly refers to A rticle L. 7231-1 of the Labour C ode as regards the type of activity entitling legal or natural persons to ex emption ; however , that provision governs assistance for elderly persons who require personal help at home or mobility assistance in their local area to help them continue to live in their private homes .

The persons accommodated in the ‘ Le Bon Accueil ’ retirement home, a public institution, sign a residence contract which is subject to the provisions of the Social Action and F amil y Code ; A rticle L. 231-4 of that code provides that ‘ any elderly person who cannot be properly assisted at home may be placed ... either in a healthcare institution or in a public medical institution or retirement home, or failing that, in a private institution . ’

Therefore , where elderly persons are concerned, the ‘ remaining at home ’ concept is c omplet ely different from with the ‘ institutional placement ’ conc ept .

[ Th e applic ant] does not help elderly persons to remain in their private homes, it accommodates them ; i t is therefore ineligible for ex emption from national insurance contributions ... ”

24 . Th e applicant lodged an appeal on points of law. In its single ground of appeal it submitted that only the version as it stood after the 19 December 2007 Law was applicable to the dispute (see paragraph 43 below), and not the 20 December 2010 Law (mistakenly designated in submissions as Law no. 2010 ‑ 1657 of 29 December 2010 on the 2011 budget). I t added that the new law could not have been interpretative in nature, justifying its retroactive application to ongoing proceedings, because it replaced the conditions for exemption set out in the previous law with more restrictive ones , which previous law had not required the existence of an exclusively private home ( domicile ) a s a condition for granting ex emp tion from contributions . The applicant thus emphasised that “ even supposing that the Court of Appeal had implicitly intended to hide behind the interpretative nature of the 29 December 2010 Law [ sic ] in order to apply to the present case the provisions of Article L. 241-10 III CSS in the version as amended by that Law, the impugned decision would be in breach of Article 2 of the Civil Code read in conjunction with Article 6 (1) of the Convention and Article 1 of Protocol No. 1 ” .

25 . In his report , the reporting judge set out the following observations:

“ A s stated in the supplementary memorial, it is incumbent on the Court of C assation to determine the question of principle concerning the scope of the provisions of A rticle L. 241-10 III of the C ode of Social Security as it stood prior to the amendments effected under the 20 December 2010 Law ( also erroneously referred to as Law no. 2010-1657 of 29 December 2010 on the 2011 budget ). The question was whether the ex emp tion from employers ’ contributions vis-à-vis the remuneration of persons providing home-help services to dependent elderly persons was applicable to the wages of EHPAD employees .

The Second Civil -Law Division , being called upon to determine that question in a dispute between the Saint-Pierre d ’ Oléron local hospital , which compr ises an EHPAD, and the Charente-Maritime URSSAF , gave its decision in a judgment of 22 September 2011 (n o. 10-19.954) , which is currently being publi shed .

In that judgment dismissing the institution ’ s appeal on points of law, the Court of Cassation approved the Court of Appeal ’ s deduction from Article L. 241-10 III, in the version applicable to the present case, to the effect that the exemption only applied to the remuneration of employees working in elderly persons ’ private homes.

Having regard to that determination , the present appeal on po ints of law cannot be admitted , in the absence of any arguable grounds of appeal . ”

26 . By judgment of 16 February 2012 the Court of C assation declared the appeal on points of law in admis sible .

3. Applications nos. 23542/13, 32194/13, 39165/13, 39173/13, 39180/13, 39184/13, 49923/13, 57424/13, 76512/13, 76527/13, 76519/13, 76530/13, 46862/14 and 46819/14

27 . All the applicants ’ requests for exemption from employers ’ contributions under Article L. 241 ‑ 10 III CC were dismissed by judgments which were subsequently upheld by the appellate courts. They lodge d no appeals on points of law in view of the decision of the Court of Cassation in application no. 53601/12 declaring the appeal in admissi ble ( see paragraph 26 above ).

4. Applications nos. 58995/13 and 30287/14

28 . In application no. 58995/13 the applicant ’ s request for exemption from employers ’ contributions was dismissed. In i t s ground of appeal it had argued that the legislature ’ s interference in the administration of justice was incompatible with Article 6 § 1 of the Convention and with Article 1 of Protocol No. 1. I t did not rely on A rticle 14 of the Convention. By judgment of 14 March 2013 the Court of C assation dismissed i ts appeal on points of law as follows :

“W hereas , h owever, A rticle L. 241-10 III of the version of the C ode of Social Security applicable to the dispute ... only appli es to the remuneration of employee s working in such persons ’ private homes , to the exclusion of non- privat e or collective premises occupied in an institution ...;

And whereas the Court of A ppe a l noted , in reply to the ground of appeal without going into detail on the parties ’ argument s , and using a literal interpretation of the word ‘ chez ’ (at the home of) , and leaving aside part l y in effective but obiter grounds, on the one hand, that the institution managed by the hospital was a collective accommodation structure , implying that the service provided was not aimed at enabling persons to remain in their private homes , and that the official residence of the persons accommodated in the EHPAD corresponded to a collective ‘ domicile ’ rather than an individual home as in the case of a private dwelling which had been purchased or rented ; that it had thus legally justified its decision under Article L. 241-10 III of the Social Security Code , devoid of any failure to respect A rticle 6 of the Convention ..., any infringement of the legitimate expectation protected by A rticle 1 of the additional protocol to the same Convention, or any retroactive application of section 14 of Law n o. 2010-1594 of 20 December 2010 on the social security budget f or 2011 in breach of A rticle 2 of the C ivil Code ...; ”

29 . The applicant in application n o. 30287/14 is a n association managing a nursing home for adults with disabilities . By judgment of 20 May 2011 the Ille-et-Vilaine Département TASS rejected its claim for the reimbursement of the impugned contribution on the grounds that it was a collective structure which did not provide assistance to ensure that the persons in question could continue to live in their homes. The tribunal argued in that regard that the situation of a resident in the nursing home was very different from that of a person residing in a residential h ome, which type of accommodation pursu ed the aim of enabling persons to remain at home , which the ex emp tion from the employers ’ contribution was, precisely , gear ed t o encouraging. By judg ment of 19 June 2012 the Rennes Court of A ppe a l upheld the judgment , emphasising the specific features of the different types of home help : “ ... the fact that this ex emp tion appli es to home-helps working in residential homes ... does not amount to discrimination inasmuch as the conditions of accommodation in residential homes differ from those in such an accommodation structure as a nursing home ... in that, although it is indeed a type of collective residence , it comprises both private premises and shared areas earmarked for community living, whereby the occupants hold tenancy agreements ” . The applicant lodged an appeal on points of law relying on grounds of appeal concerning the violation of Article 6 § 1 and Article 14 of the Convention and Article 1 of Protocol No. 1. By judgment of 10 October 2013, the Court of Cassation dismissed the appeal on points of law as follows :

“ Whereas, however, by considering, for the application of Article L. 242-10-III, that eligibility for the exemption in respect of the remuneration of a home-help, the latter term refers to work in a private home ( domicile ) , on the one hand, that those provisions, which are aimed at exempting employers from contributions, must be seen solely in the framework of the legislature ’ s desire to encourage persons with disabilities to remain in their homes by affording them the necessary assistance to retain their personal autonomy and prevent their accommodation in a collective structure, and on the other hand, that the word ‘ chez ’ ( ‘ at the home of ’ ) and the requirement on stating the address implies home-help work in a private home, whereas, when the person must be provided for in a collective accommodation structure, even if he or she has an individual bedroom, the work performed by the employees of the accommodation structure amount s to services provided to the person and not at the home of the person, the Court of Appeal quite rightly decided that the association was not eligible for the exemption requested; ... ” .

5. Applications nos. 59003/13, 68916/13 and 5485/14

30 . The applicants in applications nos. 59003/13 and 68916/13 lodged appeals on points of law without relying on a violation of their right to a fair trial within the meaning of A rticle 6 § 1 or of the rights under Article 1 of Protocol No. 1 and Article 14 of the Convention. By judgment of 14 March 2013 (n o. 12-12.280) the Court of C assation dismissed the appeal on points of law lodged by the applic ant in case n o. 59003/13. By judgment of 25 April 2013 (n o. 12-19.614) the Court of C assation declared the appeal lodged by the applic ant in case no. 68916/13 i nadmis sible .

31 . The applicant in application n o. 5485/14 lodged an appeal on points of law, failing to submit any ground of appeal concerning a violation of the Convention , apart from complaining of a misinterpretation by the court of appe a l of the CSS provision applicable at the material time. By judgment of 11 July 2013 (n o. 12-20.583) the Court of C assation dismissed his appeal on points of law .

6. Applications n os. 68908/13 and 68918/13

32 . As regards application n o. 68908/13, the applic ant lodged an appeal on points of law against a judgment del ivered by the Grenoble Court of A ppe a l. I t relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. By judgment of 25 April 2013 the Court of C assation declared the appeal on points of law i nadmis sible .

33 . The applicant in application n o. 68918/13 lodged an appeal on points of law alleging a violation of A rticle 6 § 1 of the Convention. By judgment of 25 April 2013 the Court of C assation declared the appeal in admis sible .

7. Application n o. 23544/14

34 . By judgment of 16 March 2010 the Bobigny TASS allowed the applicant ’ s request for ex emp tion from employers ’ contributions as follows :

“ ... the preposition ‘ chez ’ ( ‘ at the home of ’ ) re fers to the concept of the person ’ s private home ( domicile ) . Therefore, the ‘ private home ’ concept is ‘ a condition for the ex emp tion provided for in A rticle L. 241-10 III of the Social Security Code . Consideration should accordingly be given to whether the ‘ private home ’ condition has been met in the present case.

In the present case [ the applicant ] ... acc ommodates elderly residents requiring the help of third person s, offering them a healthcare programme aimed at preventing and treating impairments, and a ‘ life project ’ geared to limiting the social disadvantages of the loss of autonomy .

Having regard to their age and level of dependency , the residents of [ the applicant ] can no longer re main in their original private homes .

The residents have all signed an indefinite residence agreement with the retirement home , and take their meals in the institution, where they also sleep, are visited by their relatives and conduct most of their everyday activities .

Furthermore, th e elderly persons residing in the retirement home ... are resident for tax purpose s in the rooms which they occup y there . Similarly, they receive and send their mail at/from their address at the retirement home ... and the address on their polling cards is that of the institution. The fact of their residing in the EHPAD entitles them to h ou sing allo wance payable for dwellings occupied as their habitual place of residence.

That being the case, there can be no doubt ing the residents ’ intention to live there or the fact that the EHPAD is their permanent place of abode .

Moreover , Article 2 of the Charte r of the Rights and Freedoms of Dependent Persons provides that any elderly person who has a disability or is dependent must be able to choose a living environment – a n individu al or collective home – a ppropriate to his needs and expectations. The Charter also lays down that where an elderly dependent person lives in an institution, the latter becomes his new private home ( domicile ).

Thus [ the applicant ] has produced evidence to show that the beneficiaries of the impugned services have established their private home ( domicile ) in its institution for the accommodation of elderly depend e nt person s in order to make it their principal place of abode .

The URSSAF refuted the concept of a domicile as defined in Article 102 of the Civil Code on the basis of the ministerial letter of 26 March 1993 distributed via ACOSS [ Agence Centrale des Organismes de Sécurité Sociale ] circular of 22 June 1993, of a ministerial letter of 26 August 1987 and of a collective letter of 16 December 2008. Those circulars have no statutory force. Furthermore, the 1993 circular rules out the application of the provisions of A rticle L. 241-10 III of the S ocial Security Code to retirement homes, thus adding to the legal provisions .

A rticle L. 241-10 III ..., which is clear and brooks no interpretation , provides for no exclusion from its scope in respect of services provided to elderly depende nt person s in collective accommodation .

Consequently , since [ the applicant ] constitu tes its residents ’ private home ( domicile ) , the ex emp tions from contributions laid down in A rticle L. 241-10 III of the Social Security Code are applicable to it . ... ”

35 . By judgment of 28 June 2012 the Paris Court of A ppe a l set aside the judgment . The applicant lodged an appeal on points of law alleging a violation of A rticle 6 § 1 of the Convention and Article 1 of Protocol No. 1. By judgment of 19 September 2013 the Court of C assation declared the appeal on points of law i nadmis sible .

A. Background to the mechanism for helping elderly and disabled persons to continue to live at home, as described by the Government

36 . According to the Government, the system for helping elderly and disabled persons to remain at home by exempting employers from their insurance contributions in respect of the salaries of home-helps was introduced under section 38 of Law no. 87-39 of 27 January 1987 concerning various emergency measures . Initially , the ex emp tion only appli ed to home-helps recruited direct ly by the persons benefiting from their services .

37 . La w n o. 93-121 of 27 January 1993 part ly extended the ex emp tion mechanism to home-helps employed by associations a pproved under A rticle L. 129-1 of the Labour C ode , associations exclusive ly responsible for providing services to private individuals at home and approved agencies providing social assistance or having concluded an agreement with a social security organisation . The ex emp tion was limi ted to 30 % of the employers ’ social security contributions .

38 . La w n o. 98-1194 of 23 December 1998 on the social security budget f or 1999 revised A rticle L. 241-10 of the S ocial Security Code , which had been amended several times since 1987, in order to clarify it, and in particular to harmonise the exemption mechanism without dis criminating between home-helps employed under privat e agreements by the beneficiaries of the service and those employed by agencies placing them at the elderly persons ’ disposal . That law was also designed to extend access to the exemption to municipal and i nter-mu nicipal social welfar e centres .

39 . The law was nevertheless revised with the initial aim of the mechanism in mind, that is to say to en sure that elderly persons could c o ntinue to live in their home s . The ministerial letters of 26 July 1987 and 26 March 1993 reiterated that in order to qualify for the ex emp tion from social security contributions , the persons concerned had to remain in their homes, which ruled out collective accommodation in nursing homes .

40 . Both before and after the 23 December 1998 Law , therefore, ex emp tion from contributions exclusive ly concerned the remuneration of home-helps working in elderly persons ’ private homes .

41 . A fter the modification of A rticle L. 241-10 III under the 26 July 2005 Law , which was essentially aimed at standardising home-help and personal assistanc e services , the meaning of the provision was once again further clarified .

42 . Thus , Letter 2008-262 of 16 December 2008 from the “ D irection de la réglementation du recouvrement et du service ” (DIRRES – Department regulating recovery and service ) pointed out that the legal provisions on ex emp tion from contributions f or the employment of home-helps did not apply to any collective structures apart from residential homes, and that the legislature ’ s aim had been to enable the person to remain in his or her personal home in order to offset the shortage of available and affordable places in the collective accommodation sector .

B. Article L. 241-10 CSS

43 . The version of Article L. 241-10 of the Social Security Code as amended by the 19 December 2007 Law , which the applicants consider applicable to the facts of the present cas es , reads as follows :

Article L. 241-10

“ I.- The r emuneration of a home - help shall be ex empted from employers ’ social insurance and family allowance contribution s, where such person is actually employed in their personal service , at their private home or at the homes of members of their famil y , by :

( a) Persons having reached a specific age , observing , for each individual home and for all the remunerations paid , an upper limit on remuneration fixed by decree ;

( b) Persons with a dependent child entitling them to the additional allo wance for children with disabilities as set out in A rticle L. 541-1 or to the compensatory benefit under the conditions set out in A rticle L. 245-1 III 1 of the S ocial Action and F amil y Code .

( c) Beneficiaries :

- either of the compensatory benefit mentioned in A rticle L. 245-3 (1) of the Social Action and Family Code ;

- or of an increased allowance for depend e nt person s payable under disability in surance, pursuant to legislation on occupational accidents , under a special social security scheme or under A rticle L. 18 of the Code of Military Invalidity and War Victims ’ Pensions;

( d) persons who find themselves, under the conditions defined by decree , forced to have recour se to the assistance of a third person in performing everyday actions , provided that they have reached the official age established by decree ;

( e) persons satisfying the loss-of- autonomy condition set out in A rticle L. 232-2 of the Social Action and Family Code under the conditions defined by decree . ...

With the exception of the cas e mentioned in indent ( a) above , ex emp tion is granted at the person ’ s request by the body responsible for the recovery of contributions under the conditions established by ministerial decree .

Entitlement under those provisions cannot be combined, in the case of the s ame home- help, with the free-choice-of-childcare complement to early childhood benefit paid in respect of home childcare allowance .

II.- Natural and legal persons who have concluded an agreement in conformity with A rticles L. 442-1 and L. 444-3 of the Social Action and Family Code on homecare by individuals, for valuable consideration, of the persons mentioned in indent s I ( a ) , ( c ) , ( d ) and (e) of the present article shall be ex empted , under the conditions set out in the penultimate indent of paragraph I, from the employers ’ contributions to social security and family allowances payable from the remuneration which they pay to those kinship carers.

III.- Remuneration of home - helps employed on an indefinite or fixed -term contract to replace employee s who are absent or whose contract of employment has been suspended under the conditions set out in A rticle L. 122 ‑ 1-1 of the Labour C ode by associations and enterprises which are authorised , pursuant to A rticle L. 129-1 of the Labour C ode , to perform activities relating to childcare or assistance to elderly or disabled persons , municipal and i nter-mu nicipal social welfare centres and agencies which are officially authorised to provide social assistance or have concluded an agreement with a social security body, for the part paid in return for the performance of work in the homes of the persons mentioned in paragraph I or beneficiaries of domestic assistance services for elderly or disabled persons in respect of legal social assistance or in the framework of an agreement concluded between those associations or agencies and a social security body ... ” .

44 . Article 129-1 of the Labour C ode as mentioned in Article L. 241-10 III , replaced in July 2010 by a different Labour Code provision , concerns associations and enterprises whose activities include providing assistance to elderly persons, to persons with disabilities and to other persons “who require personal help at home or mobility assistance in their local area to help them to remain in their private homes” .

C. A rticle 14 of the 20 December 2010 Law

45 . A rticle 14 of the 20 December 2010 Law is the result of an amendment tabled in the National Assembly by M r Bur, the S ocial Affairs Committee Rapporteur on receipts and overall financial balance . The purpose of the amendment was exp lained during the Parliamentary debates . M r Bur stated :

“ Some institutions accommodating elderly or disabled persons are demanding entitlement to ex emp tions relati ng to person al services . They are being approached by retail pharmacies telling them that those institutions are places of residence providing the type of home-help services that are covered by ex emp tions from insurance contributions. For a long time those insinuations did not seem particularly noteworthy. But there are apparently a number of legal risks here. That is why I would propose that we clarify our legislation . ...

I seem to recall that the system of ex emp tion s from social security contributions is intended to promote home help rather than employment in the said institutions. Clarifying this matter would help ward off possible legal disputes. By specifying the scope of the ex emp tions relati ng to person al services , the amendment is in fact aimed at preventing collective structures involved in accommodating elderly or disable d persons from claiming, in particular through the courts , entitlement to the exemption mechanism in respect of home-help activities in the person al services sector . It is a case of ensuring that the mechanism is not subverted, diverted from its aim, which is to help elderly and disabled persons to remain at home .

... The aim is to exclude institutions accommodating dependent elderly persons (EHPADs) and those accommodating persons with disabilities from entitlement to exemption. ...

The wording proposed is clear : we must exclude all institutions charging daily rates under an agreement with a social security bod y. ...

M r G.M.: what about retirement homes other than nursing home s , in which elderly persons are tenants ?

M r Yves Bur, R apporteur for receipts and overall financial balance: They are not cov ered .

M r C.L. : I would agree that the vagueness of this amendment might make it detrimental to such structures as rural nursing hom es for the elderly (MARPA s – M aisons d ’ A ccueil pour P ersonnes gées ), which look after elderly persons . If the amendment is not further clarified we will just be going from one ex treme to the other in legal terms.

M s B.P.: I consider that the addition of the expression ‘ l ’ usage privatif ’ ( ‘ for private use ’ ) is pointless, since an EHPAD can easily be regarded as a private home ( domicile ) , since the persons living there are in receipt of housing allocation.

M r Yves Bur : I shall see to it that the wording of the amendment guarantees that only EHPAD s are excluded. It goes without saying that those institutions should not be eligible for both a daily rate and ex emp tion from contributions for home-help services. ”

Tha t amendment was approved by the Government , the then Minister for the Budget speaking on their behalf :

“ M r R apporteur, thank you for this highly relevant amendment . I feel it is important to remember that the legislature ’ s intention in bringing in the mechanism for ex empting home-help work in the personal services sector from employers ’ social security contributions was very much the concern to allow elderly depend e nt person s to remain in their private homes . We should remain as close as possible to the legislature ’ s mind set when introducing mechanisms which will have budgetary consequences .

When s ome institutions request ex emp tions in respect of their employees , they are blatantly ignoring the sp i rit of the la w, even though they are well known to already be in receipt of other type s of public funding .

The ex emp tion mechanism is fundamentally based on the concept of the home, which must be strict ly understood in the sense of the elderly depend e nt person ’ s private ( à usage privatif ) home ( domicile ) . It goes without saying – but I shall say it all the same – that, inasmuch as residential homes constitute a private home for autonomous elderly persons, they were already include d within the scope of the exemption mechanism and are s till eligible for the mechanism notwithstanding the adoption of this amendment.

What worries me is that the reference to the a rticle of the Social Action and Family Code relating to collective accommodation structures , which therefore only indirectly refers to residential homes, might not clarify matters in the way you wish. I am therefore in favour of this amendment, and one of the reasons I have presented such detailed arguments on the Government ’ s position is that I wanted the Constitutional Council to fully grasp the legislature ’ s intention and the manner and means of applying the provision in question.”

D. Case-law cited by the parties

46 . By judgments of 22 November 2010, 13 December 2010 and 14 June 2011, the Vosges, Saint-Étienne and Dordogne TASS ’ s allowed the requests for the reimbursement of the impugned employers ’ contributions . By judgment of 18 December 2008 the Pau Court of A ppe a l held that “ the text of A rticle L. 241-10 CSS is clear and brooks no interpretation : it does n ot exclude persons living in retirement homes from eligibility for the ex emption ” .

47 . By judgments of 11 January , 19 May and 19 July 2010 the Côtes d ’ Armor, Amiens and Gers TASS ’ s excluded from entitlement to the ex emp tion in issue the persons employed by the institutions providing collective accommodation . Furthermore , by decision n o. 2010-620 DC of 16 December 2010, the Constitutional Council ruled that section 14 of the la w referred by the Deputies was not in breach of the principle of equality before the la w ( see paragraph 17 above ).

THE LAW

I. THE JOINDER OF THE APPLICATIONS

48 . The Court considers that in the interests of the proper administration of justice, the applications should be joined pursuant to Ru le 42 § 1 of the Rules of Court, having regard to their simil arity in terms of the facts and the legal issues which they raise .

II. ADMISSIBILITY OF APPLICATIONS N os . 59003/13, 68916/13 and 5485/14 ( see paragraphs 30 and 31 above )

49 . As regards those applications, the Government submitted that the applic ants had not raised before the Court of C assation a ny of the complaints put forward in their application form ( A rticle 6 § 1 of the Convention and A rticle 14 read in co njunction with A rticle 1 of Protocol No. 1), substance or otherwise . They requested their rejection f or non- exhaustion of domestic remedies.

50 . The applic ants conteste d that assertion .

51 . The Court notes , with the Government , that the submissions lodged by the applic ants with the Court of C assation do not contain any pleading s under the Convention corresponding to the complaints which they have raised before the Court . Therefore , it holds that the application are i nadmissible f o r non- exhaustion of domestic remedies and that they must be rejected pursuant to A rticle 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE INTERVENTION BY THE LEGISLATURE

52 . The applic ants alleged that in introducing the new section 14 of the 20 December 2010 Law the legislature had intervened in order to alter the outcome of the proceedings to which the S tat e had been a party , thus upse tting the equality of arms . They relied on A rticle 6 § 1 of the Convention, which provides :

“ In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing ... by a ... tribunal ”

A. Admissibility

53 . As regards applications nos. 23542/13, 32194/13, 39165/13, 39173/13, 39180/13, 39184/13, 49923/13 and 57424/13, 76512/13, 76527/13, 76519/13, 76530/13, 46862/14 and 46819/14 (see paragraph 27 above), the Government left it to the Court ’ s discretion to decide whether the applicants , in failing to lodge appeals on points of law, had exhausted the domestic remedies.

54 . The applic ants invite d the Court to declare the aforementioned applications admissi ble on the ground s that any appeal on points of law to the Court of C assation would have been unsuccessful in the light of the judgments delivered by that court on 22 September 2011 ( see paragraph 21 above ) and 16 February 2012 ( see paragraph 26 above ).

55 . Having regard to the authority held by the Court of C assation in the French judicial system and to the nature of the above-mentioned judgments , the Court considers that in such a legal context the applic ants might legitimately have deduced from the previous decisions that in their cases an appeal on points of law to that court would have been doomed to failure .

56 . Consequently , noting that the complaint is not manifest ly ill- founded within the meaning of A rticle 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds , the Court declares it admissi ble in respect of the applications mentioned in paragraph 53 above , a s well as in respect of all the others, apart from those mentioned in paragraphs 30 and 31 above ( see paragraphs 49 to 51 above ).

B. Merits

1. The parties ’ submissions

(a) The applicants

57 . The applic ants submitted that the impugned la w had been enacted at a crucial stage in the proceedings , just before the beginning of the first cassation proceedings . That situation had enabled the URSSAF to rely, in its defence pleadings, on the decision of the Constitutional Council, as well as on section 14 of the 20 December 2010 Law to shore up its position and allege the interpretative nature of that l aw, and had allowed the reporting judge to propose non ‑ admissi bility on that basis . The applicants emphasised, nevertheless, that the terms of the debate had not been fixed: although the first-instance judgment and the judgment of the court of appeal had gone against them in the first proceedings, a number of judgments and one court of appeal judgment had stated that a room in an EHPAD could also be the private home ( domicile ) of an elderly depend e nt person (see paragraph 46 above). They complained that the Court of C assation, which had had to determin e the question of principle , had dismissed the first appeal on points of law using the wording of the 20 December 2010 Law , which had also led to the reversal of a judgment in favour of one of them ( see paragraphs 34 and 35 above ) a fter the judgment delivered on 22 September 2011.

58 . The applic ants stated that the Court condemns such a procedure : the enactment of a law designed to legalise existing practices ( loi de validation ) just when a set of proceedings is about to conclude infringes the right to a fair trial and an independent court and the equality of arms principle ( see Stran Greek Refineries and Stratis Andreadis v . Greece , 9 December 1994, Series A n o. 301 ‑ B , and Papageorgiou v . Greece , 22 October 1997, Re ports of Judgments and Decisions 1997 ‑ VI).

59 . The applic ants deduced from the foregoing considerations tha t the Law had pure ly and simpl y ratified the S tat e ’ s position in the framework of the proceedings against the URSSAF , which were still pending before the courts.

60 . They also considered that the impugned law had not been intended to interpret the previous versions of A rticle L. 241-10 CSS or to confirm any initial intention on the part of the legislature , but had been enacted solely on the basis of financial considerations , which did not amount to compelling grounds of the general interest . The applic ants took the view that the 2009 Law reforming the hospital system ( see paragraph 13 above ), the Charter of the Rights and Freedoms of Dependent Persons ( see paragraph 34 above ), the judgment of the Pau Court of A ppe a l of 18 December 2008 ( see paragraph 46 above ) and the parliamentary debates ( see paragraph 45 above ) recognised that the EHPAD was the private home ( domicile ) of the elderly and/ or dependent persons in question . They argued that they had legitimately requested entitlement to the impugned ex emp tion , and that the intervention by the legislature had therefore been intended solely to put an end to the ongoing court proceedings .

61 . The applic ants further submitted that the request for ex emp tion from employers ’ contributions was vital for the proper functioning of their institutions . They pointed out that as public EHPAD s authorised to provide social assistanc e, they were paid rates which were fixed by the public authorities and which were lower than those enjoyed by private structures. A rticle L. 241-10 III did not specify that the absence of public funding w as a condition for eligibility for the ex emp tion , and the structures covered by that provision were also in receipt of public subsidies .

(b) The Government

62 . Th e Government first of all submitted that the sta g e of the proceedings at which the legislative change had been effected, that is to say following the court of appe a l judgment d ismissing the first applic ant ’ s request for reimbursement ( see paragraph 14 above ) did not raise any problem vis-à-vis the equality of arms principle . The present situation was different from that in the case of Stran Greek Refineries and Stratis Andreadis , cited above, in which the interference by the legislature had occurred at a time when the S tate and the applic ants had been involved in a dispute for nine years and the latter had obtained a final enforceable decision against the form er.

63 . The Government took the view that the background to the tax ex emption mechanism in question ( see paragraphs 36 to 42 above ) and the preparatory work on the impugned la w ( see paragraph 45 above ) demonstrated that section 14 was interpretative in nature and was aimed at confirming the interpretation which had emerged from the previous versions of the provision, that is to say enabling elderly persons to remain in their personal homes . That mechanism was intended , precisely, to offset the lack of available and affordable places in collective accommodation structures .

64 . The Government referred in particular to the Constitutional Council ’ s decision . They emphasised that the latter had reiterated that the sole purpose of section 14 of the 20 December 2010 Law was to confirm the interpretation of the previous version laying down that the impugned exemption only applied to the remuneration of home-helps working in the private homes ( domiciles ) of elderly and disabled persons.

65 . Th e Government added that the decisions cited by the applic ants as supporting their position did not reflect the current stat e of case-law on the issue raised. They presented decisions given prior to the 20 December 2010 Law to the effect that the “ private home ( domicile ) ” concept mentioned in A rticle L. 241-10 III should be interpreted as the individual ’ s personnel home ( see paragraph 47 above ).

66 . Th e Government concluded that the legislature ’ s intention had been to allow elderly depend e nt person s to remain in their private homes, thus pursuing a public-interest aim within the meaning of the Court ’ s case-law .

2. The Court ’ s assessment

67 . The Court r eiterated that although , in principle , the legislature is not precluded from regulating, in civil -law matters, by new retroactive provisions rights arising under laws already in force , the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute ( see judgments in Stran Greek Refineries and Stratis Andreadis cited above , § 49, and Zielinski and Pradal & Gonzalez and Others , cited above , § 57). The Court further reiterated that the requirement of equality of arms entails an obligation to afford each party a reasonable opportunity to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent ( see, among other authorities Dombo Beheer B.V. v . the Netherlands , 27 October 1993, § 33, Series A n o. 274, and Stran Greek Refineries and Stratis Andreadis , cited above , § 46).

68 . The Court i s invited to determine the question whether the intervention of the 20 December 2010 Law breached the fairness of the proceedings , and the equality of arms by changing the outcome of the latter while they were still ongoing .

69 . The Court note s that the 20 December 2010 Law was published before the Court of C assation had given a decision , but that at the time several sets of proceedings were still pending before the social-security appeal tribunals and the courts of a ppe a l. Section 14 of that law replaced the words “ chez les ” [“at the home of the”] shall be replaced with the words “ au domicile à usage privatif des ” [“at the private home of the”], which was liable to reduce the chances of the applic ants, as collective structures , obtaining satisfaction in their actions against the URSSAF. The State authorities pointed out that the introduction of section 14 of the 20 December 2010 Law had been intended to clarify A rticle L. 241-10 III CSS, in order to “ prevent any dispute ” ( see paragraph 45 above ).

70 . That being the case, the Court notes that at the time when the impugned legislative provision was introduced , only one of the applicants ( see paragraph 34 above ), had obtained a judgment recognising their right to reimbursement of the impugned contribution . Moreover , only a few isol ated first- instance decisions and one single court of appe a l judgment ( see paragraph 46 above ) had acknowledged that a structure providing collective accommodation for elderly persons constituted its residents ’ private home ( domicile ) within the meaning of A rticle L. 241-10 III CSS , thus entitling them to ex emp tion in respect of the remuneration of employees working in those structures. F in ally , the Court observe s that section 14 of the 20 December 2010 Law had pursued the officially acknowledged aim of specifying that the ex emp tion mechanism was designed to promote home-help for elderly persons continuing to live in their own homes. The Court therefore holds that the question arises whether, prior to the new law, the applic ants could have cogently claimed that the employees of structures providing collective accommodation for elderly or dependent persons fell within the scope of the ex emp tion , and have obtained the reimbursement of the contributions in issue .

71 . It emphasises, in that regard , that the background to the mechanism for helping elderly persons to remain at home and the parliamentary debates which preceded the enactment of the 20 December 2010 Law demonstrate that section 14 thereof was not aimed at coming down in favour of the URSSAF or at correcting an interpretation of the Law which might have been favourable to the applic ants. The reasons given by the public authorities during the parliamentary proceedings very clearly stressed the need to remedy a technical shortcoming in the law highlighted by the litigation, in order to reaffirm the legislature ’ s initial intention concerning the mechanism of exemption from social security contributions in the personal services sector . I t thus transpires from those debates that the applic ants could not have expected to benefit from the said mechanism , which had from the outset been designed to ensure that elderly persons did not leave their private homes . One clear result is that unlike residential homes, the EHPAD s were never intended to be eligible for the ex emp tion provided for in A rticle L. 241-10 III CSS ( see paragraph 45 above; see also paragraphs 22 and 42 above ). Lastly , the Constitutional Council considered that the purpose of the impugned ex emp tion was to enable depend e nt person s to remain in their private homes, and that section 14 of the 20 December 2010 Law , in pointing out that it was only applicable to the remuneration of work performed in the private homes of such persons , merely reiterated that purpose .

72 . H aving regard to the foregoing considerations, the Court considers that the aim of the intervention by the legislature was to clarify , by fleshing out the text, the meaning of A rticle L. 241-10 III CSS and to reinstate and reaffirm the legislature ’ s initial wish to ex empt from employers ’ contributions the remuneration of home-helps working in the depend e nt person s ’ private homes with a view to preserving their autonomy there. The Court therefore holds that the applicants cannot validly invoke the possibility, in the framework of a set of proceedings, of relying on a technically imperfect right without the legislature being able to intervene in order to specify the conditions and limits of that right, with a view to ensuring the fairness of the proceedings (see, mutatis mutandis , OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France , nos. 42219/98 and 54563/00, § 69, 27 May 2004). In that connection the Court note s that the parliamentary proceedings underlined the fact that the applic ants had attempted to circumvent the sp i rit of the la w ( see paragraph 45 above ) , deducing that they could not have ruled out the possibility of the legislature intervening to clarify the conditions for reimbursement of the impugned contributions ( see, mutatis mutandis , National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v . the Uni ted Kingdom , 23 October 1997, § 109, Re ports of Judgments and Decisions 1997 ‑ VII).

73 . In conclusion, the Court agrees with the Government that the intervention by the legislature had been foreseea ble and had corresponded to compelling public-interest grounds. It therefore concludes that the applic ants could not have complained of any infringement of their right to a fair trial .

74 . There has accordingly been no violation of Article 6 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE REASONING OF THE JUDGMENTS OF THE COURT OF CASSATION ( APPLICATIONS n OS. 18096/12 AND 53601/12)

75 . The applic ants complained of a violation of A rticle 6 § 1 of the Convention on the grounds of the lack of reasoning of the judgments given by the Court of C assation on 22 September 2011 and 16 February 2012.

76 . The Court put the following question to the parties :

“ Did the applicants in applications nos. 18096/12 and 53601/12 have a fair hearing before the Court of Cassation in the determination of their civil rights, in accordance with A rticle 6 § 1 of the Convention ? In particular , was the right of those applic ants to an effective assessment of their submission s and to a reasoned reply to their main arguments respected ? ”

A. Admissibility

77 . N oting that this complaint is not manifest ly ill- founded within the meaning of A rticle 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds , the Court declares it admissi ble.

B. Merits

1. The parties ’ submissions

(a) The applicants

78 . The applicant in application no. 18096/12 complained of the deficient reasoning of the judgment of 22 September 2011. It stated that the said reasoning created confusion because the Court of C assation relied on the version of A rticle L. 241-10 CSS prior to the entr y into force of the 2010 Law, while using the wording of the new law without referencing it . It regretted the failure to reply to i t s argument concerning the incompatibility of the legislature ’ s intervention with A rticle 6 of the Convention, whereas the Court of C assation had been invited to determine the impugned issue for the first time , with hundreds of cases pending . The applicant pointed out that it had alleged a violation of the Convention before the Court of C assation in i t s memorial in reply, since the impugned la w had been introduced after it had lodged i t s supplementary pleadings and before the URSSAF and the reporting judge had submitted their memorial and report, respectively .

79 . The applic ant in application n o. 53601/12 explained that it was not complaining about the conformity with Article 6 § 1 of the Convention of the procedure for non- admission of appeals on points of law. Its complaint concerned the lack of reasoning that had stemmed from the implementation of that procedure in his particular case : the Court of C assation had hidden behind its landmark judgment of 22 September 2011 , even though the latter did not set out any reasoning on the compatibility of the retroactive application of section 14 of the 20 December 2010 Law with the Convention.

(b) The Government

80 . Th e Government did not reply to the question concerning application n o. 18096/12.

81 . As regards the in admissi bility decision given by the Court in application n o. 53601/12, they r eiterated the Court ’ s case-law to the effect that the Court of C assation was not failing in its obligation to provide reasoning where it applied a speci fic legal provision to dismiss an appeal as having no prospects of success ( see Burg and Others v. France (d e c.), n o. 34763/02, E CH R 2003 ‑ II). Th e Government stated that the applic ant must , in any event, have understood the grounds of non-admission of its appeal on points of law since the reporting judge ’ s report referred to the reasoning of the landmark judgment delivered on 22 September 2011 in application n o. 18096/12. Moreover , that report demonstrated that the applic ant ’ s pleadings had been effectively examined by the Court of C assation.

2. The Court ’ s assessment

( a) A pplicable principles

82 . The Court has already held on many occasions that the preliminary admissibility procedure for appeals on points of law is, per se ¸ in conformity with the provisions of A rticle 6 of the Convention and that it does not breach , in particular, the duty to give reasons which derives from that article ( see , fo r example , Viard v . France , n o. 71658/10 , § 31, 9 January 2014). The Court r eiterates that pursuant to inadmissibility procedure before the Court of C assation, the parties receive , before the hearing, a copy of the in admissi bility recommendati on established by the reporting judge, which document states the grounds on which the pleadings in support of the appeal on points of law are not such as to lead to the quashing of the impugned judgment . That transmission of the i nadmissi bility recommendati on helps mee t the requirement of reasoning ( see Magnin v . France (d e c.), n o. 26219/08, 10 May 2012).

83 . The Court also r eiterates that the right to a fair hearing c a n only be deemed effective if the parties ’ requests and observations are actually “ heard ” , that is to say duly assessed by the “ tribunal ” in question . In other words, the effect of Article 6 is to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision ( see Van de Hurk v . the Netherlands , 19 April 1994, § 59, Series A n o. 288, and Tourisme d ’ affaires v . France , n o. 17814/10, § 25, 16 February 2012 ).

84 . In that regard, A rticle 6 § 1 requires courts or tribuna ls to give reasons for their decisions, but cannot be understood as requiring a detailed reply to each argument. The extent of that duty may vary according to the nature of the decision . Furthermore, i t is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments . It is for that reason that the question whether a court or tribunal has failed in its obligation to give reasons flowing from A rticle 6 of the Convention can only be analyse d in the light of the circumstances of the particular case ( see Tourisme d ’ affaires , cited above , § 26).

85 . Lastly , the Court r eiterates that the courts must examine pleas concerning the “rights and freedoms” guaranteed by the Convention with particular rigour and care . That is a corollary of the subsidiarity principle ( see Fabris v . France [GC], n o. 16574/08 , § 72, E CH R 2013 ( extracts ) ; Wagner and J.M.W.L. v . Luxembourg , n o. 76240/01, § 96, 28 June 2007 ; and Magnin, cited above ).

( b) Application in the present case

86 . As regards application no. 18096/12, the Court observes that the appeal on points of law against the judgment given by the court of appeal on 8 June 2010, as formulated in the arguments set forth in the applicant ’ s supplementary memorial, concerned the interpretation of the version of the law prior to the 20 December 2010 Law, which had not yet been published. The Court of C assation had therefore not been invited to consider that law , even though the URSSAF and the applic ant discussed it in their subsequent written submissions. That led that court to refuse to follow its reporting judg e, who had observed that section 14 of the 20 December 2010 Law settled the problem of interpretation raised by the applic ant and consequently proposed dismissing his ground of appeal as “ in effective ” , in order to declare the appeal on points of law i nadmis sible . In doing so the Court of C assation very clearly stated that it was not adjudicating on the basis of the new la w . The Court does not consider that that analysis was altered by the fact that the judgment of 22 September 2011 u sed the word “private” ( privatif ) as set out in section 14 of the 20 December 2010 Law , as that word is particularly apposite for expressing the fact , in accordance with that decision , that collective accommodation would not be taken into account . The Court therefore concludes that the judgment of 22 September 2011 ruled that the interpretation of A rticle L. 241-10 III, in the version applicable to the facts of the present case, did not make institutions accommodating elderly depende nt persons eligible for the reimbursement of contributions which they had been seeking.

87 . As regards application n o. 53601/12, the Court notes that the appeal on points of law against the court of appe a l ’ s judgment of 23 December 2010 also contended that A rticle L. 241-10 III CSS should be interpreted in its version as it had stood prior to the 20 December 2010 Law . That is precisely what the Court of C assation had done in its judgment of 20 September 2011 in the framework of the first appeal on points of law . And t hat i s why, unlike in the first appeal on points of law, the Court of Cassation followed the line taken by its reporting judge, who, emphasising that the subject matter of the appeal on points of law had been dealt with in that judgment, had proposed declaring the second appeal on points of law inadmissible.

88 . I t transpires from the foregoing that the two applic ants, which submitted that A rticle L. 241-10-III of the Social Security Code as interpreted in its version prior to the 20 December 2010 Law entitled them to reimbursement of specific contributions , received an unambiguous negative reply from the Court of C assation.

89 . Having regard to the foregoing considerations, since it is not contested that the members of the Conseil d ’ Etat and Court of Cassation Bar ( “ avocats aux Conseils ” ) who represented the applic ants before the Court of C assation duly received the writs of non-admissi bility of their appeals on points of law for lack of arguable claims , the Court concludes that that court did not fail in its obligation to give reasons under A rticle 6 § 1 of the Convention. T here has accordingly been no violation of that provision .

V. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1

90 . The applic ants complained of a difference in treatment between institutions employing home-helps based on the “ private home ” ( domicile ) concept . In particular, they submitted that the difference in treatment as compared with residential homes, which were eligible for the exemption despite also being collective accommodation structures, had no objective or reasonable justification. They relied on A rticle 14 of the Convention read in co njunction with A rticle 1 of Protocol No. 1 , which provide :

Article 14

“ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status . ”

Article 1 of Protocol No. 1

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

A. The parties ’ submissions

1. Admissibility

(a) The Government

91 . As regards the applications mentioned in paragraph 27 above , the Government left it to the Court to decide on the exhaustion of domestic remedies in respect of the complaint under A rticle 14 of the Convention read in conjunction with A rticle 1 of Protocol No. 1. Furthermore , for the other applications, apart from application n o. 30287/14 ( see paragraph 29 above ) and the applications declared i nadmissible in paragraph 51 above , the Government submitted that the applicants had not rais ed the complaint before the Court of C assation. Consequently , they requested that it be rejected for non- exhaustion of domestic remedies .

92 . Th e Government also submitted that A rticle 14 of the Convention was not applicable , given that the facts of the case did not fall within the ambit of A rticle 1 of Protocol No. 1 as the applic ants did not have a “ possession ” within the meaning of that provision . They pointed out that the applic ants had not been eligible for the impugned ex emp tion , nor had they had any “ legitimate expectation ” of being so eligible . On the one hand, the provisions in force when the cases had come before the courts had been sufficiently clear as regards the beneficiaries of the ex emp tion mechanism, and on the other, most of the applic ants had had their requests dismissed by the trial courts .

(b) The applicants

93 . The applic ants submitted that it would have pointless to raise the complaint before the Court of C assation given that the Constitutional Council had already determined the principle of equality of treatment as regards the ex emp tion from the contributions in question . The applicant in application n o. 18096/12 emphasised that the la w had been enacted during the proceedings before the Court of C assation, that it had relied on A rticle 6 of the Convention, although it had been given no reasoning on that point, and that it had not had time to think of submitting a different legal argument .

94 . The applic ants considered that they had had a claim which was sufficiently established in domestic law to be considered as an “ asset ” for the purposes of A rticle 1 of Protocol No. 1. They referred to their previous line of reasoning ( see paragraph 60 above ) and to the judgment delivered by the Pau Court of A ppe a l on 18 December 2008 ( see paragraph 46 above ).

2. The merits

95 . The applic ants argued that they were in a situation relevantly similar to that of residential homes. The services provided in terms of home help were identical , whether they were aimed at persons acc ommodated in residential, nursing or old-age homes . By the same token, EHPAD s comprised private area s where have their own bedrooms, as well as shared areas. Moreover, the occupants of residential homes signe d residential contracts which, like those in the other structures, were “ sui generis ” contracts . Furthermore , as in residential homes, accommodation in an EHPAD entitled residents to receive personalised home help. As regards application n o. 30287/14, the applicant argued that the association constituted the disabled persons ’ new home and that “ the address on their polling cards was that of the EHPAD ” .

96 . The applic ants considered that the difference of treatment based on considerations relating to the concept of the elderly person ’ s private home ( domicile ) had no objective or reasonable justification . In particular , they emphasised that the ex emp tion had been intended to promote recourse to person al services and lighten the financial burden on elderly persons . The refusal to allow EHPADs to benefit from the ex emp tion was discriminatory and increased the financial burden on those persons .

97 . T h e Government highlighted the difference between EHPAD s and residential homes, which were not in comparable situations , thus justifying differential treatment :

- residential homes were private dwellings with optional collective services, while EHPAD s were collective accommodation structures;

- residential homes, as social structures, were subject to the Social Action and Family Code , whereas EHPADs were subject to the Social Security C ode;

- residential homes received outside employees with a view to maintaining their residents ’ autonomy , whereas EHPAD s accommodated elderly persons and provided them with all the services necessary for their survival ;

- home - help and/ or home care services were provided in residential homes by outside workers remunerated either by the elderly persons themselves or through the intermediary of a home-help agency. In EHPAD s , residents benefited from catering services and we re also provided with equipment and furniture to cope with their situation of dependency. They were attended to by qualified staff ;

- persons accommodated in EHPAD s sign a residential contract , while persons in residential homes rent their accommodation .

98 . As regards application n o. 30287/14, the Government noted that the applicant advanced no argument s specifically relating to nursing homes for disabled persons and that it essentially reprised the pleas set out by the EHPAD s . At any event, they pointed out that residential and nursing homes were in very different situation s . The latter were collective accommodation structures taking in persons with serious disabilities who needed permanent accommodation in order to perform most of their essential everyday activities and to receive constant medical surveillance and treatment. They were socia l or medico -socia l institutions officially recognised under the Social Action and Family Code .

99 . The Government considered that the distinction drawn between the beneficiaries of the ex emp tion pursued the legitimate aim of helping elderly persons to remain in their homes and was justifie d by the fact that the social contributions for EHPAD and nursing home personnel were already finance d from public fund s. To grant them the ex emp tion would involve providing two different types of public funding to defray expenditure on personnel.

B. The Court ’ s assessment

100 . The Court notes that the applic ant ’ s supplementary pleadings in application n o. 53601/12 did not include any submissions based on A rticle 1 of Protocol No. 1 and Article 14 of the Convention. In those circumstances, the Court of C assation not having assessed this complaint since it had not bee n submitted to it, the Court considers that the applic ants mentioned in paragraph 27 above cannot rely on the in admissi bility judgment delivered by the Court of C assation in this case to justify their failure to lodge an appeal on points of law with the court . The Court also observe s, in line with the Government , that none of the applicants, apart from th at in application no. 30287/14, raised explicit ly or in substance before the Court of C assation the violation of A rticle 14 read in co njunction with A rticle 1 of Protocol No. 1 which they are now invoking before the Court . This finding has already been made in respect of three of the applications ( see paragraph 51 above ). Consequently , for all the other applic ants, apart from application n o. 30287/14, this complaint is i nadmissi ble and must be rejected f or non -exhaustion of domestic remedies pursuant to A rticle 35 §§ 1 and 4 of the Convention.

101 . A s regards application n o. 30287/14, the Court r eiterates that under its established case-law, A rticle 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter ( see , among many other aut ho r iti es, Fabris , cited above , § 47).

102 . In cases such as the present one concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular asset on a discriminatory ground covered by Article 14, the relevant test is whether, but for that discrimination , he or she would have had a right, enforceable under domestic law, to receive the asse t in question ( see , mutatis mutandis , Stec and Others v . the Uni ted Kingdom (d e c.) [GC], n os. 65731/01 and 65900/01 , § 55, E CH R 2005 ‑ X , and Fabris , cited above , § 52).

103 . The Court r eiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context ( see Fábián v . Hungary [GC] , n o. 78117/13, § 121, 5 September 2017, and D.H. and Others v . the Czech Republic [GC], n o. 57325/00 , § 175, E CH R 2007-IV). The elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question ( see Fabian , cited above , § 121). A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ; a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy ( see Stec and Others v . the Uni ted Kingdom [GC], n os. 65731/01 and 65900/01, §§ 51-52, E CH R 2006 ‑ VI).

104 . Even supposing that the applic ant can claim to have an “ asset ” , thus rend ering A rticle 14 of the Convention applicable to the instant case, and that the discriminatory ground on which it relies constitutes “ other status ” within the meaning of that provision , the Court considers , at any event, that the complaint must be rejected as manifest ly ill-founded for the following reason . The Court notes that the TASS and the court of appe a l established the difference between a nursing home and a residential home by pointing out that the residence contract signed by persons accommodated in the former exclu des home help in the strict sense ( see paragraph 29 above ). It observes that the Government has confirme d that nursing homes are not private accommodation structures on the same basis as residential homes. Under those circumstances, and having regard to the scant evidence produced by the applicant to show that it is in an analogous or relevantly similar situation to that of structures eligible for the exemption, the Court considers that that is not the case. Accordingly, the complaint is i nadmissi ble and must be rejected pursuant to A rticle 35 §§ 3 ( a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in French , and notified in writing on 8 November 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger Registrar President

APPENDIX

Application no.

Lodged on

Applicant

Place of residence

18096/12

20/03/2012

HÔPITAL LOCAL SAINT-PIERRE D ’ OLERON

17310 Saint-Pierre-d ’ Oléron

53601/12

14/08/2012

MAISON DE RETRAITE LE BON ACCUEIL

01150 Lagnieu

23542/13

25/03/2013

HÔPITAL LOCAL DES MEES

04190 Les Mees

32194/13

15/03/2013

MAISON DE RETRAITE CHAMPDIEU

42600 Champdieu

39165/13

15/04/2013

MAISON DE RETRAITE RENÉ ANDRIEU

47150 Monflanquin

39173/13

15/04/2013

MAISON DE RETRAITE CORDELIERS

03130 Le Donjon

39180/13

15/04/2013

MAISON DE RETRAITE RÉSIDENCE D ’ EAWY SAINT SAENS

76680 Saint Saens

39184/13

15/04/2013

MAISON DE RETRAITE DE L ’ HORTHUS

34270 Claret

49923/13

31/07/2013

MAISON DE RETRAITE LES OLIVIERS

34360 Saint Chinian

57424/13

31/07/2013

MAISON DE RETRAITE DE STEENBECQUE

59189 Steenbecque

58995/13

12/09/2013

HÔPITAL LOCAL DE SAINT-FELICIEN

07410 Saint-Félicien

59003/13

13/09/2013

HÔPITAL LOCAL DE VIC-FEZENSAC

32190 Vic-Fezensac

68908/13

29/10/2013

HÔPITAL LOCAL DIEULEFIT

26220 Dieulefit

68916/13

24/10/2013

CENTRE COMMUNAL D ’ ACTION SOCIALE DE PLESSALA (CCAS)

22330 Plessala

68918/13

29/10/2013

FONDATION LES VILLAGES DE SANTÉ ET D ’ HOSPITALISATION EN ALTITUDE (VSHA)

74730 Passy

76512/13

27/11/2013

CENTRE COMMUNAL DE L ’ ACTION SOCIALE NEZIGNAN L ’ EVEQUE

34120 Nézignan L ’ Evêque

76519/13

27/11/2013

HÔPITAL LOCAL DE MURAT

15300 Murat

76527/13

27/11/2013

CENTRE COMMUNAL D ’ ACTION SOCIALE D ’ UGINE

73400 Ugine

76530/13

27/11/2013

MAISON DE RETRAITE LIEVIN PETITPREZ

59190 Morbecque

5485/14

11/01/2014

EHPAD DE LALOUVESC

07520 Lalouvesc

23544/14

19/03/2014

MAISON DE RETRAITE LA MERIDIENNE

92390 Villeneuve- la-Garenne

30287/14

10/04/2014

ADAPEI 35

35044 Rennes

46819/14

19/06/2014

CENTRE HOSPITALIER LOUIS JAILLON DE SAINT CLAUDE

39200 Saint-Claude

46862/14

19/06/2014

CENTRE HOSPITALIER INTERCOMMUNAL PIERRE FUTIN D ’ ORGELET

39270 Orgelet