Repetition of old-age benefits obtained by fraud

Court of Cassation, Plenary Assembly, May 17, 2023, n°20-20.559

Meeting in Plenary Assembly on May 17, 2023, the Court of Cassation has just rendered a very useful judgment in a case where an insured beneficiary of a survivor's pension, paid by the National Old Age Insurance Fund (Cnav), had fraudulently omitted to declare certain additional income which should have limited his right to receive a pension.

Nearly six years after the start of payment of his survivor's pension, the said insured was subject to a means test, at the end of which his omission was detected and led the CNAV to request the restitution of the benefits. unduly paid, which he obviously tried to contest.

On appeal, the judges considered that the CNAV's action for recovery had indeed been exercised within the five-year period provided for by article 2224 of the Civil Code [1] , which runs in effect from the day of the discovery of the fraud and not from that of its commission.

With regard to the amount of the sums to be returned by the fraudster, the judges, on the other hand, considered that the CNAV was not entitled to go back more than five years from the discovery of the false declaration, in accordance with the provisions of article 2224 of the civil code.

Dissatisfied with the decision rendered on appeal, the CNAV appealed under the terms of which it argued in particular that the five-year period, prescribed by the aforementioned article 2224, was intended to limit in time the right to act in recovery undue and not to limit the period used to calculate the sums to be returned.

Under the terms of its judgment of May 17, 2023, the High Court recalled that the two-year period running from "the payment [of] benefits in the hands of the beneficiary" applicable to the action for reimbursement of benefits, provided for by the article L355-3 of the social security code [2] , was erased, in the event of fraud, in favor of the period of five years, running from knowledge of the fraud, provided for by article 2224 of the code civilian, a solution which was not seriously discussed.

The Court of Cassation then stated, and this is the main contribution of its decision, that the five-year period of article 2224, applied exclusively to the period for bringing the action for recovery of undue payment, but that it had no "impact on the period of the undue recoverable ".

With regard precisely to the period of the undue recoverable, the Court of Cassation recalls that in the absence of specific provisions, it is the period of common law of twenty years of article 2232 of the civil code [3 ] which must apply, thus allowing the solvens (here the CNAV) to be reimbursed for sums paid up to twenty years ago.

It should be noted that the position defended by the Court of Cassation is only the confirmation of the solution recently reached by the Council of State, through three judgments [ 4] according to which it was judged that : " the five-year prescription […] relates only to the time limit for bringing the action, not to the determination of the claim itself ”.

Part of the doctrine is relatively critical of this decision, on the grounds that it would lead to too severe a sanction for the accipiens , thus exposed to the risk of having to reimburse sums collected for twenty years.

It is however recalled that in 2021, the amount of pension fraud was estimated at 9 billion euros [5] and that in the absence of fraud, the recovery period is limited to three years, the time to act being on its side reduced to two years.

[1] Article 2224 Civil Code : “ Personal or movable actions are time-barred after five years from the day on which the holder of a right knew or should have known the facts allowing him to exercise it. »

[2] Article L355-3 of the Social Security Code : " Any request for reimbursement of overpayment in terms of old-age and invalidity benefits is prescribed by a period of two years from the payment of the said benefits in the hands of of the beneficiary, except in the case of fraud or misrepresentation. »

[3] Article 2232 Civil Code : "The postponement of the starting point, the suspension or the interruption of the prescription cannot have the effect of extending the period of the extinctive prescription beyond twenty years from the day of the birth of the right. The first paragraph is not applicable in the cases mentioned in articles 2226, 2226-1, 2227 , 2233 and 2236, in the first paragraph of article 2241 and in article 2244 . It also does not apply to actions relating to the status of persons. »

[4] EC, September 20, 2019, no. 420406 ; 420489 ; 419659

[5] Source: Retirement insurance https://www.lassuranceretraite.fr/portail-info/hors-menu/actualites-nationales/institutionnel/2021/la-lutte-contre-la-fraude-au-sei.html #:~:text=Ratio%C3%A9es%20to%20volume%20total%20of,of%209%20billion%20euros.