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Agreement on Social Security between Canada and the Kingdom of the Netherlands [1990] CATSer 26 (1 October 1990)

E102196 - CTS 1990 No. 14

AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE KINGDOM OF THE NETHERLANDS

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS,

RESOLVED to co-operate in the field of social security,

HAVE DECIDED to conclude an agreement for this purpose, and

HAVE AGREED as follows:

PART I - GENERAL PROVISIONS

ARTICLE I

Definitions

1. For the purposes of this Agreement,

(a) “Government of Canada” means the Government in its capacity as representative of Her Majesty the Queen in right of Canada and represented by the Minister of National Health and Welfare;

(b) “national” means, as regards Canada, a Canadian citizen; and, as regards the Netherlands, a person of Netherlands nationality;

(c) “territory” means, as regards Canada, the territory of Canada; and, as regards the Netherlands, the territory of the Kingdom in Europe;

(d) “legislation” means the legislation specified in Article II;

(e) “competent authority” means the Minister or Ministers responsible for the administration of the legislation specified in Article II;

(f) “competent institution” means, as regards Canada, the competent authority; and, as regards the Netherlands, the institution charged with the implementation of the legislation specified in Article II, which is competent under the applicable legislation;

(g) “creditable period” means a period of contributions, insurance, employment or residence used to acquire the right to a benefit under the legislation of either Party;

(h) “benefit” means any cash benefit, pension or allowance for which provision is made in the legislation of either Party and includes any supplements or increases applicable to such a cash benefit, pension or allowance;

(i) “employed person” means a person who is employed by an employer as well as any person who is deemed equivalent to an employed person by the applicable legislation;

(j) “self-employed person” means a person who is gainfully occupied for his or her own account.

2. Any term not defined in this Article has the meaning assigned to it in the applicable legislation.

ARTICLE II

Legislation to Which the Agreement Applies

1. This Agreement shall apply

(a) with respect to Canada, to:

(i) the Old Age Security Act and the regulations made thereunder, and

(ii) the Canada Pension Plan and the regulations made thereunder;

(b) with respect to the Netherlands, to the national legislation on:

(i) invalidity insurance,

(ii) old age insurance,

(iii) widow’s and orphan’s insurance,

(iv) sickness insurance (cash benefits and benefits in kind),

(v) unemployment insurance, and

(vi) children’s allowances.

2. Except as otherwise provided in paragraph 3, this Agreement shall apply also to any legislation which amends, supplements, consolidates or supersedes the legislation specified in paragraph 1.

3. This Agreement shall not apply to laws or regulations which extend the existing legislation of a Party to a new category of beneficiaries if the competent authority of that Party notifies the competent authority of the other Party within three months from the date of the official publication or proclamation of such laws or regulations that no such extension of the Agreement is intended.

4. This Agreement shall not apply to social and medical assistance schemes, to special schemes for civil servants or persons treated as such, or to benefit schemes for victims of war or its consequences.

ARTICLE III

Persons Covered

Unless otherwise provided in this Agreement, it shall apply to nationals of the Parties, to persons who are or who have been subject to the legislation of either Party and to other persons with respect to the rights they derive from the aforementioned persons.

ARTICLE IV

Equality of Treatment

1. As regards the legislation of Canada, all persons described in Article III shall be subject to the obligations of that legislation and shall be eligible for its benefits without regard to nationality.

2. As regards the legislation of the Netherlands, unless otherwise provided in this Agreement,

(a) nationals of Canada,

(b) refugees, within the meaning of the Convention of July 28, 1951 Relating to the Status of Refugees and of the Protocol of January31, 1967 to that Convention,

(c) stateless persons, within the meaning of the Convention of September 28, 1954 Relating to the Status of Stateless Persons, and

(d) other persons to the extent that they derive rights from a person described in sub-paragraph (a), (b) or (c) shall be subject to the obligations of that legislation and shall be eligible for its benefits under the same conditions as nationals of the Netherlands.

3. Paragraph 2 shall not apply to the Netherlands’ old age and survivors voluntary insurance insofar as the payment of contributions at reduced rates is concerned.

ARTICLE V

Export of Benefits

1. Unless otherwise provided in this Agreement, invalidity, old age or survivors benefits acquired by a person described in Article III under the legislation of one Party, including such benefits acquired by virtue of this Agreement, shall not be subject to any reduction, modification, suspension, cancellation or confiscation by reason only of the fact that the beneficiary resides in the territory of the other Party, and they shall be payable in the territory of the other Party.

2. Unless otherwise provided in this Agreement, benefits payable under this Agreement by one Party in the territory of the other Party shall also be payable in the territory of a third State, under the same conditions and to the same extent as to nationals of the first Party residing in that third State.

PART II - PROVISIONS CONCERNING THE APPLICABLE LEGISLATION

ARTICLE VI

1. Subject to the provisions of the following paragraphs of this Article,

(a) an employed person who works in the territory of one Party shall, in respect of that work, be subject only to the legislation of that Party; and

(b) a self-employed person who ordinarily resides in the territory of one Party and who works as such in the territory of the other Party or in the territories of both Parties shall, in respect of that work, be subject only to the legislation of the former Party.

2. An employed person who is covered under the legislation of one Party and who performs work in the territory of the other Party for his or her employer shall, in respect of that work, be subject only to the legislation of the former Party as though that work was performed in its territory and provided that such assignment does not exceed twenty-four months and the person concerned is not also employed in the territory of the other Party by a different employer located in that territory.

3. (a) Paragraph 2 shall apply to a person who is sent to work on an installation situated in the continental shelf area of a Party in connection with the exploration of the seabed and sub-soil of that area or the exploitation of its mineral resources, as though that installation were situated in the territory of that Party.

(b) For the purposes of this Article, the continental shelf area of a Party includes every area beyond the territorial seas of that Party that, in accordance with international law and the laws of that Party, is an area in respect of which that Party may exercise rights with respect to the seabed and sub-soil and their natural resources.

4. A person who is employed as a member of the crew of a ship or aircraft shall, in respect of that employment, be subject only to the legislation of the Party in the territory of which the employer’s principal place of business is located.

5. (a) A person employed in the territory of one Party in a government service of the other Party shall, in respect of that employment, be subject to the legislation of the first Party only if he or she is a national thereof or ordinarily resides in its territory. In the latter case the person may, however, within six months after taking up the duties of the employment or within six months from the date of the entry into force of this Agreement, elect to be subject only to the legislation of the second Party in respect of the employment if he or she is a national of that Party. Article IV shall not apply to extend this right to elect to a person who is not a national of the second Party.

(b) Nationals of the Netherlands employed by the government of the Netherlands who are sent to the territory of Canada shall be subject to the legislation of the Netherlands.

(c) Where the person referred to in sub-paragraph (a) is subject to the legislation of the first Party, the employer in question shall observe the obligations which that legislation imposes on employers.

6. The competent authorities of the two Parties may, by common agreement, modify the application of the provisions of this Article with respect to any persons or categories of persons.

ARTICLE VII

For the purpose of calculating benefits under the Old Age Security Act of Canada,

(a) if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of residence in the territory of the Netherlands, that period shall be considered as a period of residence in Canada for that person as well as for that person’s spouse and dependants who reside with him or her and who are not subject to the legislation of the Netherlands by reason of employment;

(b) if a person is obligatorily subject to the legislation of the Netherlands during any period of residence in the territory of Canada, that period shall not be considered as a period of residence in Canada for that person and for that person’s spouse and dependants who reside with him or her and who are not subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada by reason of employment.

ARTICLE VIII

1. For the purposes of the legislation of the Netherlands, a person who is subject to the Netherlands legislation in accordance with the provisions of this Part shall be considered as residing in the Netherlands.

2. The provision of paragraph 1 shall apply by analogy to the spouse and children accompanying a person described in paragraph 2 or 5(b) of Article VI from the territory of one Party to the territory of the, other Party, unless they themselves take up a gainful occupation or are receiving a pension or a cash benefit under the legislation of the latter Party.

PART III - PROVISIONS CONCERNING BENEFITS

CHAPTER I - BENEFITS UNDER THE LEGISLATION OF CANADA

ARTICLE IX

Totalizing of Creditable Periods

1. If a person is not entitled to a benefit on the basis of the periods creditable under the legislation of Canada, eligibility for that benefit shall be determined by totalizing these periods and periods creditable under the legislation of the Netherlands, provided that the periods do not overlap.

2. If a person is not entitled to a benefit under the legislation of Canada on the basis of the periods creditable under the legislation of the Parties, totalized as provided in this Agreement, eligibility for that benefit shall be determined by totalizing these periods and periods creditable under the laws of a third State with which both Parties are bound by an international social security instrument which provides for totalizing of periods.

ARTICLE X

Benefits under the Old Age Security Act

1. (a) If a person is entitled to payment of a pension in Canada under the Old Age Security Act without recourse to the provisions of this Agreement, but has not accumulated sufficient periods of residence in Canada to qualify for payment of the pension abroad under that Act, a partial pension shall be paid to that person outside the territory of Canada if the creditable periods, when totalized as provided in this Agreement, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for payment of a pension abroad.

(b) The amount of the pension payable shall, in this case, be calculated in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension, exclusively on the basis of the periods creditable under that Act.

2. (a) If a person is not entitled to an Old Age Security pension or a spouse’s allowance solely on the basis of periods of residence in Canada, a partial pension or a spouse’s allowance shall be paid to that person if the creditable periods, when totalized as provided in this Agreement, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for payment of a pension or a spouse’s allowance.

(b) The amount of the pension or the spouse’s allowance payable shall, in this case, be calculated in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or a spouse’s allowance, exclusively on the basis of the periods creditable under that Act.

3. (a) Notwithstanding any other provision of this Agreement, the competent institution of Canada shall not be liable to pay an Old Age Security pension outside the territory of Canada unless the creditable periods, when totalized as provided in this Agreement, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for payment of a pension abroad.

(b) The spouse’s allowance and the guaranteed income supplement shall be paid outside the territory of Canada only to the extent permitted by the Old Age Security Act.

ARTICLE XI

Benefits under the Canada Pension Plan

1. If a person is not entitled to a disability pension, disabled contributor’s child’s benefit, survivor’s pension, orphan’s benefit or death benefit solely on the basis of the periods creditable under the Canada Pension Plan, but is entitled to that benefit through the totalizing of periods as provided in this Agreement, the competent institution of Canada shall calculate the amount of the earnings-related portion of such benefit in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan.

2. (a) The amount of the flat-rate portion of the benefit payable under the provisions of this Agreement shall, in this case, be determined by multiplying:

(i) the amount of the flat-rate portion of the benefit determined under the provisions of the Canada Pension Plan by

(ii) the fraction which represents the ratio of the periods of contributions to the Canada Pension Plan in relation to the minimum qualifying period under the Canada Pension Plan for entitlement to that benefit.

(b) In no case, however, shall the fraction referred to in subparagraph (a) (ii) exceed the value of one.

CHAPTER 2

BENEFITS UNDER THE LEGISLATION OF THE NETHERLANDS

ARTICLE XII

Benefits under the Invalidity Acts

When a national of one Party or a person described in paragraph 2(b) or (c) of Article IV, at the time when incapacity for work followed by invalidity occurred, was subject to the legislation specified in paragraph l(a)(ii) of Article II and had previously completed a total creditable period of at least twelve months under the Netherlands legislation on invalidity insurance, that person shall be entitled to a benefit determined in accordance with the latter legislation and calculated according to the provisions of Article XIII.

ARTICLE XIII

1. If entitlement to a benefit is established through the application of Article XII, the amount of the benefit payable shall be calculated in proportion to the ratio of the total length of the creditable periods completed by the person concerned under the Netherlands legislation after reaching the age of eighteen to the period between the date on which the person reached the age of eighteen and the date of incapacity for work followed by invalidity.

2. If, at the time when incapacity for work followed by invalidity occurred, the person concerned was an employed person, the benefit payable shall be determined according to the provisions of the Incapacity Insurance Act of February 18, 1966 (WAO). In any other case, the benefit payable shall be determined according to the provisions of the General Incapacity Insurance Act of December 11, 1975 (AAW).

3. The following creditable periods completed under the Netherlands legislation shall be taken into consideration:

(a) creditable periods during employment completed under the Incapacity Insurance Act of February 18, 1966 (WAO);

(b) creditable periods during self-employment completed under the General Incapacity Insurance Act of December 11, 1975 (AAW); and

(c) periods of employment, and periods treated as such, completed in the Netherlands before July 1, 1967.

4. In the application of the first sentence of paragraph 2, when a creditable period completed under the WAO coincides with a creditable period completed under the AAW, only the period completed under the WAO shall be taken into account.

5. In the application of the second sentence of paragraph 2, when a creditable period completed under the AAW coincides with a creditable period completed under the WAO, only the period completed under the AAW shall be taken into account.

ARTICLE XIV

Benefits under the General Old Age Pensions Act

1. The Netherlands competent institution shall determine the old age pension directly and exclusively on the basis of the creditable periods completed under the Netherlands General Old Age Pensions Act.

2. Subject to paragraph 3, periods before January 1, 1957 during which a national of one Party or a person described in paragraph 2(b) or (c) of Article IV resided in the territory of the Netherlands after reaching the age of fifteen or during which, while residing in another country, the person was gainfully employed in the Netherlands shall be considered as creditable periods if the person does not satisfy the conditions of the Netherlands legislation permitting such periods to be treated for that person as creditable periods.

3. The periods referred to in paragraph 2 shall be taken into consideration in the calculation of the old age pension only if the person concerned has resided for at least six years in the territory of one or both Parties after reaching the age of fifty-nine and only while the person is residing in the territory of either Party. However, these periods shall not be taken into consideration if they coincide with periods taken into consideration for the calculation of an old age pension under the legislation of a country other than the Netherlands.

ARTICLE XV

Benefits under the General Windows' and Orphans’ Act

When a national of one Party or a person described in paragraph 2(b) or (c) of Article IV was, at the time of death, subject to the legislation specified in paragraph 1(a)(ii) of Article II and had previously completed a total creditable period of at least twelve months under the Netherlands legislation on widows’ and orphans’ insurance, the widow or the orphans shall be entitled to a benefit determined in accordance with the latter legislation and calculated according to the provisions of Article XVI.

ARTICLE XVI

If entitlement to a benefit is established through the application of Article XV, the amount of the benefit payable shall be calculated in proportion to the ratio of the total length of the creditable periods completed by the deceased under the Netherlands legislation before reaching the age of sixty-five to the period between the date on which the deceased reached the age of fifteen and the date of death, but at the latest the date on which the deceased reached the age of sixty-five.

PART IV - ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS

ARTICLE XVII

1. The competent authorities and institutions responsible for the application of this Agreement:

(a) shall, to the extent permitted by the legislation which they administer, communicate to each other any information necessary for the application of this Agreement;

(b) shall lend their good offices and furnish assistance to one another with regard to the determination or payment of any benefit under this Agreement or the legislation to which this Agreement applies as if the matter involved the application of their own legislation;

(c) shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation insofar as these changes affect the application of this Agreement.

2. The assistance referred to in subparagraph 1(b) shall be provided free of charge, subject to any agreement reached between the competent authorities of the Parties for the reimbursement of certain types of expenses.

3. Unless disclosure is required under the laws of a Party, any information about an individual which is transmitted in accordance with this Agreement to an authority or an institution of that Party by an authority or an institution of the other Party is confidential and shall be used only for purposes of implementing this Agreement and the legislation to which this Agreement applies.

Article XVIII

1. The competent authorities of the Parties shall establish, by means of an administrative arrangement, the measures necessary for the application of this Agreement.

2. The liaison agencies of the Parties shall be designated in that arrangement.

ARTICLE XIX

1. Any exemption from or reduction of taxes, legal dues, consular fees or administrative charges for which provision is made in the legislation of one Party in connection with the issuing of any certificate or document required to be produced for the application of that legislation shall be extended to certificates or documents required to be produced for the application of the legislation of the other Party.

2. Any acts or documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities or similar formality.

ARTICLE XX

1. For the application of this Agreement, the competent authorities and institutions of the Parties may communicate directly with one another in any of the official languages of either Party.

2. The authorities, institutions and tribunals of a Party may not reject claims or other documents submitted to them by reason of the fact that they are written in a foreign language, provided they are in an official language of the other Party.

ARTICLE XXI

1. Any claim, notice or appeal concerning the determination or payment of a benefit under the legislation of one Party which should, for the purposes of that legislation, have been presented within a prescribed period to a competent authority, institution or tribunal of that Party, but which is presented within the same period to a competent authority, institution or tribunal of the other Party, shall be treated as if it had been presented to the authority, institution or tribunal of the first Party. The date on which such a claim, notice or appeal was submitted to the authority, institution or tribunal of the first Party shall be considered as the date of its submission to the authority, institution or tribunal of the other Party.

2. A claim for a benefit payable under the legislation of one Party shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant:

(a) requests that it be considered an application under the legislation of the other Party, or

(b) provides information at the time of application indicating that creditable periods have been completed under the legislation of the other Party.

3. In any case to which paragraph 1 or 2 applies, the authority, institution or tribunal to which the claim, notice or appeal has, been submitted shall transmit it without delay to the authority, institution or tribunal of the other Party.

ARTICLE XXII

1. The institution or authority of a Party shall discharge its obligations under this Agreement in the currency of that Party.

2. Benefits shall be paid to beneficiaries free from deductions for administrative expenses that maybe incurred in paying the benefits.

ARTICLE XXIII

1. The competent authorities of the Parties shall resolve, to the extent possible, any dispute which arises in interpreting or applying this Agreement according to its spirit and fundamental principles.

2. If the dispute has not been settled within six months, it shall be submitted to an arbitration tribunal whose composition and procedure shall be agreed upon by the Parties. The arbitration tribunal shall settle the dispute in accordance with the spirit and fundamental principles of this Agreement. The arbitration shall be final and binding for the Parties.

ARTICLE XXIV

The relevant authority of the Netherlands and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada insofar as those understandings are not inconsistent with the provisions of this Agreement.

PART V - TRANSITIONAL AND FINAL PROVISIONS

ARTICLE XXV

1. Any creditable period completed before the date of entry into force of this Agreement shall be taken into account for the purpose of determining the right to a benefit under this Agreement.

2. No provision of this Agreement shall confer any right to receive payment of a benefit for a period before the date of entry into force of the Agreement.

3. Subject to paragraph 2, a benefit, other than a lump sum payment, shall, on application, be payable under this Agreement in respect of events which happened before the date of entry into force of this Agreement.

ARTICLE XXVI

1. The Parties shall notify each other in writing of the completion of their respective constitutional or legal procedures required for the entry into force of this Agreement. This Agreement shall enter into force, after the conclusion of the administrative arrangement referred to in Article XVIII, on the first day of the third month after the date of the last notification,

2. This Agreement shall remain in force without any limitation on its duration. It may be denounced at any time by either Party giving twelve months’ notice in writing to the other Party.

3. In the event of the termination of this Agreement, any right acquired by a person in accordance with its provisions shall be maintained and negotiations shall take place for the settlement of any rights then in course of acquisition by virtue of its provisions.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

DONE in two copies at the Hague this 26th day of February 1987, in English, French and Dutch, each text being equally authentic.

FOR THE GOVERNMENT OF CANADA

Jake Epp

FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS

Hans Van Den Broek