When a self-employed worker or individual employer stops paying their contributions, URSSAF has a direct and effective administrative collection tool at its disposal: the constraint. Far from being a simple reminder, this unilateral act has the effect of a court judgement and opens the way to compulsory enforcement measures, such as the seizure of bank accounts or property. For an individual who is already in a precarious financial situation, receiving a writ of execution can seem like the final blow. However, there are protective mechanisms in place, in particular the personal over-indebtedness procedure, which is designed to deal with debts and offer a way out to people acting in good faith. Understanding the relationship between these two procedures is essential if you are to defend your rights.
The URSSAF constraint: an administrative enforcement order specific to social security bodies
The enforcement order issued by URSSAF or other social security bodies is an administrative act that enables the enforced recovery of unpaid social security contributions. What makes them special is that these bodies enjoy the privilege of prior authorisation: they can themselves create their own enforcement order, a powerful administrative act, without first having to refer the matter to a judge.
Definition and legal nature of the URSSAF constraint
Legally, the constraint is an enforceable title in the same way as a court order. It establishes a liquid and payable debt, in accordance with the codification of civil enforcement procedures, enabling the creditor organisation to implement forced recovery measures. Understanding the legal nature of the constraint is essential, as it constitutes a writ of execution enabling social security bodies to proceed with the forced recovery of their debts without first going before a judge. Once the constraint has been served, and if no objection is lodged within the time limit, it gives URSSAF the right to appoint a judicial commissioner (formerly a bailiff) to seize the debtor's assets.
Conditions of validity and formalities of the constraint: compulsory information and notification
The validity of a constraint is subject to compliance with strict formalities designed to guarantee the rights of the contributor. First and foremost, URSSAF must have sent a formal notice by registered letter with acknowledgement of receipt, which has remained without effect. The summons itself, served by a court commissioner or by registered letter, must mention, on pain of nullity, the reference number of the summons, the reference number and date of the formal notice, the nature and amount of the contributions claimed, the period concerned, as well as the time limit for lodging an objection (fifteen days) and the contact details of the competent court, in particular its address and the court secretariat where the appeal can be lodged. The omission of any of these details may justify an action for annulment of the document.
Coordination with the amicable appeals commission (CRA) and the social section of the judicial court
It is important not to confuse the different stages of the dispute. If you wish to challenge the validity of the sums claimed in the formal notice, you must first refer the matter to the amicable appeals commission (CRA), often following an URSSAF audit, i.e. before the summons is issued. Once the summons has been served, this amicable route is closed. The only possible recourse is to lodge an objection to the constraint, which must be lodged directly with the dedicated section of the social division of the competent judicial court. This court has sole jurisdiction to rule on the validity of the document and the amount of the social security debt.
Opposition procedure to the URSSAF constraint: deadlines and grounds for challenge
You have the right to contest an URSSAF debt, but there are specific time limits and grounds for doing so. An objection made after the deadline or without serious arguments will be rejected, making the debt definitively payable. The involvement of a lawyer is often crucial in structuring the challenge and raising the relevant arguments.
Time limits for lodging an objection to the constraint
The time limit for lodging an objection to a constraint is extremely short: fifteen days from the date on which it is served by a court commissioner or notified by registered letter. This time limit is mandatory. Objections must be substantiated and sent in writing to the secretariat of the court (social division) of the competent judicial court. Failure to comply with this time limit has radical consequences: the constraint becomes final and can no longer be contested. URSSAF can then immediately take steps to enforce the constraint.
Grounds for challenge: procedural defects, statute of limitations and validity of the social security debt
The grounds for contesting a constraint can be varied, ranging from the limitation period for the debt to the merits of the amounts claimed, not to mention the fact that the debt has been incurred for a long time. procedural defects in its notification. The main arguments raised are :
- Defects in the form of the summons or prior formal notice (absence of compulsory information, error as to the addressee, insufficient statement of reasons).
- The limitation period for the claim, which is in principle three years for social security contributions, as specified in Article L. 244-3 of the Social Security Code.
- The validity of the debt: calculation error, incorrect application of a contribution rate, lack of affiliation to the scheme concerned.
The role of the welfare judge and the social division of the judicial court
The division of jurisdiction is clear. The social division of the judicial court has exclusive jurisdiction within its jurisdiction to rule on the opposition to the enforcement order, i.e. to rule on its validity and on the existence of the debt. On the other hand, if the constraint becomes final, any disputes relating to the enforcement measures themselves (for example, the seizure of a property that cannot be seized) will fall within the jurisdiction of the enforcement judge, which is one of the powers of the social welfare court.
Impact of the URSSAF constraint on the over-indebtedness of individuals
When an individual is faced with an URSSAF constraint and is unable to pay their debts, the over-indebtedness procedure is an essential means of legal protection to suspend debt collection and reorganise your financial situation. If a case is accepted by the over-indebtedness commission, the debtor is automatically entitled to suspension of enforcement proceedings by creditors, including those initiated by URSSAF on the basis of a constraint. In the most critical situations, a URSSAF constraint that is not honoured can result in a foreclosure However, the opening of over-indebtedness proceedings may freeze this enforcement measure.
The URSSAF constraint as a debt eligible for the over-indebtedness procedure
A debt for social security contributions, even if recorded by a constraint, is a debt eligible for the personal over-indebtedness procedure. For self-employed workers who have ceased their activity, these debts are considered to be non-professional and can therefore be included in the liabilities to be dealt with by the over-indebtedness commission. This is an essential point and is covered by both social security law and the principles of private law. Filing a case for over-indebtedness is therefore an appropriate step for a debtor faced with a constraint that he or she cannot honour.
Suspension of enforcement proceedings and ban on payments following acceptance of overindebtedness application
One of the most important and immediate effects of the decision to accept overindebtedness is the automatic suspension of all enforcement measures. As soon as the creditors are notified of this decision, URSSAF can no longer initiate new seizures, which puts an end to the enforcement of the constraint, or pursue those already in progress. This suspension, which can last up to a maximum of two years, gives the debtor some much-needed breathing space. In addition, the debtor is formally prohibited from settling debts incurred prior to the admissibility decision, including the URSSAF debt, in order to preserve equality between creditors.
Specific cases: seizure of property and eviction in the context of overindebtedness and URSSAF constraints
While the suspension of proceedings also applies to the seizure of property, there is a difference. If the forced sale of the property has already been ordered by the enforcement judge when the overindebtedness case is declared admissible, the suspension is not automatic. In this case, the over-indebtedness commission must itself refer the matter to the seizure judge to request a postponement of the auction date, citing serious and duly justified reasons. Measures to evict the debtor from his or her home are not suspended automatically either, but may be suspended on application to the protection litigation judge.
Treatment of social security debts as part of an over-indebtedness plan
Once the case has been deemed admissible, the over-indebtedness commission will seek to implement measures to clear the debtor's debts. Social debts may be the subject of different solutions, ranging from a simple reorganisation to total cancellation. The aim of an over-indebtedness plan is to enable all debts to be dealt with, including social security debts, by suspending the following recovery procedures such as the attachment of bank accounts.
Rescheduling and remission of social debts by the over-indebtedness commission
The commission may propose a conventional recovery plan or impose measures to reschedule social security debts over a period of up to seven years. The aim of these measures is to adapt the pace of repayments to the debtor's actual financial capacity. In some cases, the commission may go further and impose or recommend partial debt remission, particularly of late-payment surcharges, or even of part of the principal, if the debtor's situation justifies it.
Partial or total cancellation of social security debts and its limits
When the debtor's situation is deemed to be "irremediably compromised", i.e. when no recovery plan is clearly possible, a personal recovery procedure may be opened. This can be done without a judicial liquidation if the debtor has no assets of value. In this case, the judge orders all non-business debts to be written off, including debts owed to a general scheme fund such as URSSAF or CAF. If the debtor has assets, a liquidation of his assets is organised to repay the creditors, and the remaining debts are then written off.
Exceptions to waiver: maintenance debts, criminal reparation and fraud
Debt forgiveness is not absolute. Certain debts are excluded from the scope of the personal recovery procedure and will have to be paid. These are mainly maintenance debts (alimony), pecuniary compensation awarded to victims as part of a criminal conviction, and debts arising from the collection of undue payments as a result of fraud committed against social security bodies. An URSSAF debt arising from proven fraud could therefore escape erasure.
Assessing the debtor's good faith when faced with an URSSAF constraint and overindebtedness
Good faith is the cornerstone of the overindebtedness procedure. The absence of good faith can lead to the case being rejected outright, leaving the debtor to face his creditors and enforcement measures alone. Assessing this notion is therefore a major issue, particularly in the case of social debts.
Good faith, an essential condition for the admissibility and initiation of overindebtedness proceedings
The law requires the debtor to be in good faith in order to benefit from the protection offered by the over-indebtedness procedure. This condition is checked by the commission when examining the admissibility of the application, and then by the judge if necessary. Good faith is presumed, and it is up to the creditor who disputes it to provide proof of the debtor's bad faith.
Criteria for assessing good faith and the specific impact of URSSAF debts
Good faith is assessed globally, on the day the judge rules. Judges examine the general behaviour of the debtor that led to the over-indebtedness. Did he deliberately organise his insolvency? Did they make false declarations or conceal assets? In the case of URSSAF debts, the mere accumulation of late payments due to economic difficulties is generally not sufficient to establish bad faith. On the other hand, manoeuvres designed to knowingly evade social security obligations linked to self-employed status or the concealment of assets could be interpreted as signs of bad faith.
Consequences of bad faith: inadmissibility of the application and forfeiture of the benefit of the procedure
If bad faith is established, the commission or judge will declare the application for debt relief inadmissible. The debtor then loses all protection, and the suspended enforcement procedures can resume immediately. If the bad faith is discovered during the course of the procedure (for example, the debtor has taken on new debts without authorisation), the judge may declare that the debtor has forfeited the benefit of the procedure, with identical consequences.
Recent case law and particularities of URSSAF constraints in the context of overindebtedness
Litigation relating to URSSAF constraints and over-indebtedness is constantly evolving. Court rulings regularly clarify the rights and obligations of each party, particularly on issues of procedure and deadlines, which are often decisive.
Developments in case law concerning the validity of and challenges to URSSAF constraints
The Court of Cassation has recently reiterated the importance of formalism when it comes to coercion. For example, in a ruling handed down on 12 February 2020 (Cass. soc. 12 February 2020, no. 18-24.455, published in the Journal officiel), the Social Division of the Court of Cassation reaffirmed that the summons must state the precise grounds on which it is based, enabling the debtor to know the nature, cause and extent of his obligation. An insufficient statement of reasons or a simple reference to unattached supporting documents may render the document null and void, providing the debtor with a strong avenue for challenge.
Specific deadlines for declaring URSSAF claims in overindebtedness proceedings
Once the overindebtedness file has been declared admissible, creditors have a period of time in which to declare the exact amount of their claims. For URSSAF, as for other creditors, failure to meet this deadline can have serious consequences. This provision, which stems from the legislation on over-indebtedness, is designed to speed up the procedure. If the claim is not declared in time, it may be considered extinguished and will not be taken into account in the recovery plan or personal recovery procedure, thus freeing the debtor from this debt.
Linking URSSAF collection procedures with over-indebtedness plans
Judicial case law ensures good coordination between procedures. This standard of coordination is also encouraged by European Union law on the relationship between administrative and judicial procedures. Once an over-indebtedness plan has been put in place and complied with by the debtor, URSSAF can no longer take individual legal action. The organisation is obliged to comply with the repayment terms set out in the plan. Any collection attempt outside this framework would be illegal and could be challenged before the enforcement judge.
Managing an URSSAF constraint in the context of over-indebtedness is a complex matter where deadlines are short and the financial and personal stakes are high. When dealing with these procedures, the assistance of a lawyer specialising in enforcement procedures is crucial in analysing the validity of the constraint, lodging an opposition in accordance with the rules and ensuring that the protections offered by over-indebtedness law are fully mobilised. As Maître Eric Rocheblave, a recognised specialist in this field, points out, the key is to act quickly. For an in-depth analysis of your situation and tailored advice, contact our team of lawyers.
Sources
- Consumer Code
- Social Security Code
- Code of civil enforcement procedures
- Commercial code
- Official Journal of the French Republic
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