Question 16212 — hospital public service

Summary

Ms. Céline Thiébault-Martinez draws the attention of the Minister of Health, Families, Autonomy and People with Disabilities to the worrying situation of several hospital practitioners and associated practitioners qualified outside the European Union (PADHUE), working in numerous public health establishments throughout the territory. These doctors, recruited by these establishments, have been carrying out essential missions for several years in a context of medical shortage and strong competition from the private sector. In order to guarantee the continuity and quality of care and to ensure their attractiveness, hospitals have implemented additional remuneration (bonuses, hardship allowances, additional working time) often linked to the functions performed and to workloads which can reach 60 to 70 hours per week. But a practice today in full This boom is seriously weakening these caregivers and the public service: many health establishment managements are now demanding reimbursement of allegedly illegal remuneration, although paid for months or even years and expressly validated by themselves or by previous management. These requests take the form of enforceable titles or salary deductions, sometimes cumulative, for amounts that may reach 150,000 euros. They are based on the provisions of article 37-1 of the law of April 12, 2000 and article L. 711-6 of the general civil service code, which authorize the repetition of undue payments over two years, including when they result from decisions creating rights that have become final. Their application thus leads to making public agents in good faith bear the consequences of errors committed. and assumed by their own administration, even though the sums in question remunerate a service actually performed and are based on express and consolidated decisions. These reimbursement requests are particularly pernicious, in that they aim to make the agents concerned work harder, with the latter being encouraged to make up the shortfall resulting from the loss of compensation and the reimbursement request. This The situation in public hospitals constitutes a particularly illuminating illustration of the harmful effects of this regime, which places simple liquidation errors and commitments made by the administration in return for work on the same level. It breaks with previous administrative jurisprudence, which clearly distinguished these hypotheses and protected decisions creating rights beyond a period of four month, as recalled by the Council of State (CE, opinion, May 3, 2004, Fort, n° 262074) in ruling that a decision granting a financial advantage, including revealed by pay slips, could only be withdrawn within this period. This position was subsequently confirmed (CE, July 27, 2005, no. 270487; CE, opinion, May 28, 2014, no. 376501, 376573), recalling that the administration cannot repeat sums paid pursuant to a decision creator of rights only on the condition of having proceeded with its withdrawal within the deadlines. By now allowing the questioning, for two years, of final express decisions, including when they reflect a commitment from the administration in return for a service provided, the legislator has established a regime that is particularly unfavorable to public agents, compromising the continuity of the public service and the trust between the employer and his agent. This seriously undermines the rights and freedoms guaranteed by the Constitution, such as the right to property, equality before the law and public duties or the principle of non-retroactivity. In addition, this system results in placing a burden on agents which is not their responsibility, while relieving the administration which is responsible for controlling expenditure, thus creating a risk of double recovery of “overpayments”. It also allows unjust enrichment of hospitals, which retain the benefit of the work accomplished while retroactively requiring reimbursement. There is also a risk of misuse of power. The social cost is enormous, while these caregivers can no longer trust their public employer, who tries to make them bear the burden of his fault, that their departure from these hospitals would force the closure of several services and that some are on sick leave or have resigned. She asks him what measures the Government intends to take to legally secure the employment conditions of public officials and to prevent them from these reimbursement requests with dramatic and manifestly unconstitutional consequences.

Machine translation from French. The official text remains authoritative.

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