The November 17, 2017 national interprofessional agreement (ANI) establishing the AGIRC-ARRCO complementary pension scheme that was intended to harmonize the complementary pension schemes of all employees, resulted in the merger of the AGIRC-ARRCO schemes as of January 1, 2019.

This merger indirectly caused the disappearance of the objective category of beneficiaries of the complementary social protection (death & disability and health insurance) and supplementary pension schemes defined by reference to the persons falling under Articles 4 and 4 bis of the national pension and death & disability agreement applicable to executives of March 14, 1947 (the “March 14, 1947 Agreement”). This category was notably used to include the corporate officers.

A draft decree currently under review should perpetuate the notion of objective categories and thus secure the complementary social protection and supplementary pension schemes.

For the record, to be able to benefit from the exemption from social charges on the contribution paid by the employer to finance the complementary social protection and supplementary pension schemes (within the limit of certain ceilings), the complementary social protection or supplementary pension scheme must be compulsory but also collective, meaning that the guarantees must cover all the employees or, as an exception, one or more objective categories of persons.

Article R.242-1 of the French Social Security Code lists five criteria to define a category of beneficiaries, two of which refer to the provisions of the AGIRC and ARRCO agreement:

1. Belonging to the categories of executives and non-executives within the meaning of Article 4 and 4 bis and Article 36 of Annex I of the ARRCO agreement;
2. A salary threshold determined on the basis of one of the lowers limits of the brackets défined for the calculation of the AGIRC-ARRCO contributions;
3. The place in the professional classifications defined by the industry-wide agreements or the professional or interprofessional agreements mentioned in Part II, Book II of the French Labor Code;
4. The level of responsibility, the type of duties or the degree of autonomy or seniority of the employees corresponding to the sub-categories defined by the agreements mentioned in point 3°;
5. Falling under the scope of a scheme compulsory by virtue of the law or regulations ensuring coverage of the relevant risk, or belonging to certain specific categories of employees defined by the provisions of a collective bargaining agreement, industry-wide agreement or national interprofessional agreement characterizing employment terms or specific activities, as well as belonging to the categories clearly and non-restrictively defined based on constant, general and fixed practices in the profession;

The first two criteria were generally favored by companies insofar as they benefit from a presumption of validity in case of control by the URSSAF and allowed corporate officers to be included.

The administration first decided to keep, as a tolerance, the reference to the objective categories relying on its unchanged wording of Article R.242-1-1 of the French Social Security Code. This position was endorsed by an ACOSS letter dated February 25, 2019, in which it was confirmed that it was still possible to define the objective categories by reference to the former AGIRC and ARRCO agreements.

The administration specified that this principle applied not only for the company schemes already in place, but also for those set up after the entry into force of the unified scheme, as well as for the schemes simply referring to an affiliation or non-affiliation with the AGIRC or ARRCO.

However, the absence of enforceable legal value of an ACOSS letter did not provide sufficient legal certainty for the schemes thus in place.

A draft decree communicated for advice to the players involved in complementary social protection could secure the reference to the objective categories. This draft decree provides for rewriting the first two criteria established by Article R.242-1-1 of the French Social Security Code, replacing the former references to the March 14, 1947 Agreement by a reference to Article 2 of the November 17, 2017 ANI for the definition of the objective categories of employees benefiting from complementary social protection or supplementary pension coverage.

Moreover, the draft decree authorizes the sectors of industry to modify, subject to validation by the APEC, the scope of the executive / non-executive categories as defined in the collective industry-wide agreements, to allow them to assimilate to executives categories of employees that do not correspond to the definition as it results from the November 17, 2017 ANI.

Criterion No. 2 relating to the salary threshold would be replaced by a reference to the annual social security ceiling or to two, three, four or eight times this ceiling without it being possible to constitute a category regrouping only employees whose annual remuneration exceeds eight times this ceiling.

Finally, the draft decree provides for a transition period to allow the complementary social protection and supplementary pension schemes benefiting from the favorable social scheme before the publication of the decree to continue to benefit therefrom until January 31, 2025, even if they do not meet the conditions defined by the new provisions.