Question 4468 — civil servants and public agents

Summary

Mr. Jean-Didier Berger draws the attention of the Minister of the Economy, Finance and Industrial and Digital Sovereignty to the tax and social regime for severance pay paid to contract workers and public employees, which differs from employees in the private sector. The sums paid upon termination of an employment contract, listed in Article 80 duodecies of the General Tax Code (CGI), are partially or totally exempt from income tax and social security contributions. This article refers in its last paragraph “to the specific compensation for contractual termination paid in application of I of article 72 of law no. 2019-828 of August 6, 2019 on the transformation of the civil service and article L. 552-1 of the general civil service code”. Severance pay paid by a public employer to a civil servant or agent contractual under public law are not explicitly mentioned in the article of the CGI. Consequently, these compensations must be fully subject to income tax, social contributions, CSG, CRDS and unemployment insurance contributions (Cass. civ. 2e, January 25, 2018, no. 17-11.442). Since 2020, the finance and social security financing laws have aligned the tax and social regime of compensation for conventional termination in the public service on that applicable to employees in the private sector. However, to date, no provision has been made to align the system of severance pay paid to public employees, which can be explained by the rarity of this situation. This anomaly seems to be the result of an oversight by the legislator, because public officials do not depend on the labor code, but on a 1986 decree. which governs their working conditions. Thus, a public law contractual agent will see his severance pay reduced by almost 30% compared to that of an employee in the private sector, due to this difference in tax and social treatment. Senator Jérôme Bascher had already raised this question in 2022, but it remained unanswered following the end of his mandate. The Constitutional Council, seized of a question priority of constitutionality, confirmed in early 2023 that this differentiated taxation is not unconstitutional in the absence of specific text. However, this decision cannot justify this anomaly. He therefore asks him what measures he intends to take to restore tax and social equity between public officials and employees in the private sector, by aligning the severance pay regime with that applicable to private sector employees.

Machine translation from French. The official text remains authoritative.

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