Asset protection and property rights

The question of the protection of the assets of the disabled, the elderly or any person whose condition requires assistance has always been debated. The Constitutional Council has just settled it.

Many cases have been the subject of much ink, such as that of the succession of the composer Maurice Ravel, who died in 1937 without children: his brother Édouard Ravel was the sole heir, and in 1956 (two years after a serious accident that disabled him) made his masseuse, Jeanne Taverne, whose husband was also Édouard's chauffeur, the universal legatee. This is how they became the object of a multiplicity of proceedings brought by the Ravel's grandnephews for theft of inheritance.

In all cases, it happens that the carers who are closest to everyday life are rewarded for their constant attention to the disabled person who, by definition, needs help of all kinds. However, most often the family is opposed - or even opposed - to the rewarding of carers in the generic sense of the term, by the person being cared for. Recently, a priority question of constitutionality was raised before the Constitutional Council, which issued a decision on March 12, 2021.

On the role of the Constitutional Council

The Constitutional Council was introduced into the French legal system by the entry into force of the Constitution promulgated on October 4, 1958. Its creation refers to two fundamental texts: the Declaration of the Rights of Man and of the Citizen of 1789 and the Preamble of the Constitution of October 27, 1946, while the Charter of the Environment of 2004 was added to them more recently. Its role is to ensure compliance with the Constitution and it therefore carries out a constitutionality review of laws and international treaties. Its control is systematically exercised with regard to organic laws before their promulgation as well as for the regulations of the parliamentary assemblies, whereas ordinary laws can be controlled a priori without being mandatory.

However, since the constitutional revision of July 23, 2008, the priority question of constitutionality ("question prioritaire de constitutionnalité" - QPC) has been introduced, under which any citizen may refer a matter to the Court concerning a law that has already come into force. This is the case of the referral that gave rise to the decision of March 12, 2021.

On the facts under discussion

Ms. Fouzia L., who worked as a domestic employee in the home of a woman, was designated by the latter as the legatee by particular title of her flat. The deceased's cousins, designated universal legatees by the deceased, then brought an action for the nullity of the particular legacy in favour of Ms. Fouzia L. It was in these conditions that Ms. Fouzia L. criticised Article L 116-4 of the Code de l'action sociale et des familles (Social Action and Family Code) and Article L 7231-1 of the Code du travail (Labour Code) for prohibiting elderly people from rewarding those who provide them with personal services in their homes in return for payment.

She considered that this prohibition, formulated in a general way, without taking into account the legal capacity or the existence or not of a particular vulnerability of the testators, would infringe their right to dispose freely of their assets. This would result in a disregard for the right to property. Thus, the proportional nature of the infringement and the scope of the infringement in relation to the general interest pursued had to be considered.

On the consequences of the decision of the Constitutional Council of March 12, 2021

On the legal framework: the analysis of the constitutional council concerns the words "or a service subject to approval or declaration mentioned in the second part of article L 7231-1 of the labour code" appearing in the first subparagraph of paragraph 1 of article L 116-4 of the social action and family code and the words "as well as to the employees mentioned in article L 7221-1 of the labour code carrying out services to the person defined in the second part of article L 7231-1 of the same code".

On practical application: specifically, managers, employees or volunteers of companies providing such services, as well as persons indirectly employed by those they assist, are prohibited from receiving donations or legacies from the latter.

However, this prohibition only applies to gifts made during the donor's period of assistance in accordance with the provisions of Article L 116-4 of the Social Action and Family Code. This means that the prohibition does not apply to remunerative gratuities for services rendered, nor in the absence of direct line heirs, to relatives up to the fourth degree.

Nonetheless, the Constitutional Council decided that the legal provisions referred to by the applicant were contrary to the constitution (unconstitutional) and thus declared that there was a breach of the right of ownership. Its decision therefore deleted the words "or a service subject to the approval or declaration mentioned in the second paragraph of Article L.723-1 of the Labour Code" appearing in the first paragraph of Article L 116-4 of the Social Action and Family Code and the words "as well as the employees mentioned in Article L 7221-1 of the same code" appearing in the second paragraph of the same paragraph.

The reasons for this are simple, really. It is not enough that the person is disabled or elderly, or that a person is placed in a situation requiring assistance at home, to infer that his or her capacity to consent is impaired. Similarly, the prohibition also applied in cases where it could be proved that the donor was not vulnerable or dependent on the person assisting him or her.

On the date of application of the decision: like the law, which is only valid for the future and has no retroactive effect pursuant to Article 2 of the Civil Code, which provides for this principle, the decisions of the Constitutional Council are only valid for in the future, unless a later date is set by the decision itself. The principle is that its decisions are valid only as soon as publication in the Official Journal has taken place. This is a matter of legal stability. However, here the Council makes its decision "applicable to all cases not finally decided" on the date of its publication in the Official Journal, effective March 13, 2021.

On the application of the 2021 decision to the Ravel estate case: Ms. Jeanne Taverne, who was a masseuse in the service of Mr. Édouard Ravel, was indeed his employee when he bequeathed to her the copyrights received from his brother Maurice, including those of the Bolero, which, let us remember, was the most performed French creation in the world until the 1990s.

This means that she and all her beneficiaries could have remained untroubled by years of proceedings... but if she had been called upon to benefit from her inheritance after the publication of the decision of March 12, 2021, i.e. almost 67 years later!