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Convention on Social Security between Canada and Luxembourg [1990] CATSer 7 (1 April 1990)

E102199 - CTS 1990 No. 10

CONVENTION ON SOCIAL SECURITY BETWEEN CANADA AND LUXEMBOURG

CANADA AND THE GRAND DUCHY OF LUXEMBOURG,

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

HAVE decided to conclude a convention, and

HAVE designated, to that effect, as their plenipotentiaries:

for Canada,

the Minister of National Health and Welfare,

and

for the Grand Duchy of Luxembourg,

the Minister for Social Security,

WHO, after exchanging their full powers, found in good and due form,

HAVE agreed as follows:

PART I - GENERAL PROVISIONS

ARTICLE 1

1. For the purposes of this Convention,

(a) “legislation” means the laws and regulations specified in Article II;

(b) “competent authority” means, as regards Canada, the Minister of Ministers responsible for the administration of the legislation of Canada; and, as regards Luxembourg, the Minister or Ministers who have in their area of responsibility the legislation specified in Article II;

(c) “competent institution” means, as regards Canada, the competent authority; and, as regards Luxembourg, the institution to which the person in question is affiliated at the time of applying for a benefit or from which the person in question is entitled to receive a benefit;

(d) “period of insurance” means a period of contributions, professional activity or residence defined or considered as such by the legislation under which these periods have been completed for purposes of establishing entitlement to benefits;

(e) “benefit” means any cash benefit, pension or allowance for which provision is made in the legislation of either Party and includes any increases, readjustment allowances or supplementary allowances, unless otherwise provided in this Convention.

2. For purposes of the Title, Preamble and Final Clause of this Convention, the term “Canada” means Her Majesty the Queen in right of Canada, represented by the Minister of National Health and Welfare.

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

ARTICLE II

1. This Convention shall apply:

(a) with respect to Canada:

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

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

(b) with respect to Luxembourg:

to the legislation concerning pension insurance, including the supplementary insurance for miners, steelworkers and professional drivers,

2. This Convention shall apply to all legislative or regulatory acts which shall amend or complement the legislation specified in paragraph 1 of this Article.

3. This Convention shall also apply to any legislative or regulatory act which extends the existing schemes to new categories of beneficiaries if no objection on the part of the Party which has amended its legislation has been communicated to the other Party within three months of the publication or the proclamation of such an act.

ARTICLE III

1. Unless otherwise provided in this Convention, it shall apply to:

(a) citizens of the Parties;

(b) refugees, within the meaning of the Convention on the Status of Refugees of July 28, 1951 and of the Protocol thereto of January 31, 1967;

(c) stateless persons, within the meaning of the Convention on the Status of Stateless Persons of September 28, 1954;

(d) other persons to the extent that they derive rights from a citizen of a Party, a refugee or a stateless person within the meaning of this Article.

2. With respect to Canada, this Convention shall also apply to any other person, without regard to nationality.

ARTICLE IV

Persons described in Article III who reside in the territory of either Party shall be subject to the obligations of the legislation of a Party and shall be eligible for its benefits under the same conditions as citizens of that Party.

ARTICLE V

1. Unless otherwise provided in this Convention, benefits acquired by persons described in Article III under the legislation of one Party 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. Benefits under the legislation of a Party shall be payable to persons described in Article III who ordinarily reside outside the territories of both Parties on the same conditions as to the citizens of the first Party who ordinarily reside outside the territories of the Parties.

PART II - APPLICABLE LEGISLATION

ARTICLE VI

1. Subject to the following provisions of this Article, an employed person who works in the territory of a Party shall, in respect of that work, be subject only to the legislation of that Party.

2. A self-employed person who works as such in the territory of Luxembourg but who ordinarily resides in the territory of Canada shall, in respect of that work, be subject only to the legislation of Canada.

3. An employed person who is covered under the legislation of one of the Parties and who performs services in the territory of the other Party for the same employer shall, in respect of those services, be subject only to the legislation of the former Party as though those services were performed in its territory and provided that such assignment does not exceed 24 months. If the assignment exceeds 24 months, the application of the legislation of the first Party may be continued for a further term as determined by common agreement between the competent authorities of the two Parties.

4. A person who, but for this Convention, would be subject to the legislation of both Parties in respect of employment as a member of the crew of a ship shall, in respect of that employment, be subject only to the legislation of Canada if he ordinarily resides in Canada and only to the legislation of Luxembourg in any other case.

5. A person employed in the territory of one of the Parties 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 is a citizen thereof or if he ordinarily resides in its territory. In the latter case, he may, however, elect to he subject only to the legislation of the second Party if he is a citizen thereof. Article IV shall not apply to extend this right to elect to a person who is not a citizen of the second Party.

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

7. The provisions of this Article, except those of paragraph 5, shall be applicable without distinction by reason of nationality.

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 Luxembourg, that period of residence 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 of her and who are not subject to the legislation of Luxembourg by reason of a professional activity during that period;

(b) if a person is subject to the legislation of Luxembourg by reason of a professional activity during any period of residence in the territory of Canada, that period of residence 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 during that period.

PART III - PROVISIONS CONCERNING BENEFITS

CHAPTER 1 - TOTALIZING OF PERIODS

ARTICLE VIII

1. If a person is not entitled to a benefit solely on the basis of the periods of insurance under the legislation of one Party, eligibility for that benefit shall be determined by totalizing these periods and those specified in paragraphs 2 and 3 of this Article, provided that the periods do not overlap.

2. (a) For purposes of determining eligibility for a benefit under the Old Age Security Act of Canada, a period of residence in the territory of Luxembourg, after the age at which periods of residence in Canada are creditable for purposes of that Act, shall be considered as a period of residence in the territory of Canada.

(b) For purposes of determining eligibility for a benefit under the Canada Pension Plan, a calendar year including at least 67.5 days or three months of insurance under the legislation of Luxembourg shall he considered as a year for which contributions have been made under the Canada Pension Plan.

3. For purposes of determining eligibility for a benefit under the legislation of Luxembourg,

(a) periods creditable under the Old Age Security Act of Canada, expressed in months, which were completed before January 1, 1966 shall be considered as periods during which valid contributions have been made under the legislation of Luxembourg;

(b) periods creditable under the Canada Pension Plan, expressed in years, and periods creditable under the Old Age Security Act of Canada, expressed in months, which are not part of periods creditable under the Canada Pension Plan and which have been completed after December 31, 1965 shall be considered as periods during which valid contributions have been made under the legislation of Luxembourg.

For the computation of the aforementioned Canadian periods, one year shall correspond under the legislation of Luxembourg to, respectively, 12 months and 270 days, the month being taken as equivalent to 22.5 days.

ARTICLE IX

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

CHAPTER 2 - BENEFITS UNDER THE LEGISLATION OF CANADA

ARTICLE X

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 Convention, 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 payable to that person outside the territory of Canada if the periods of residence, when totalized as provided in this Convention, are at least equal to the minimum period of residence 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 a pension or to a spouse’s allowance solely on the basis of periods of residence in Canada, a partial pension or a spouse’s allowance shall be payable to that person if the periods of residence, when totalized as provided in this Convention, are at least equal to the minimum period of residence required by the Old Age Security Act for the payment of a pension or a spouse’s allowance.

(b) The amount of the pension or 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 Convention, the competent institution of Canada shall not be liable to pay an Old Age Security pension outside the territory of Canada unless the periods of residence, when totalized as provided in this Convention, are at least equal to the minimum period of residence required by the Old Age Security Act for the 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

1. (a) 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 of insurance under the Canada Pension Plan, but is entitled to that benefit through the totalizing of periods of insurance as provided in this Convention, 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 credited under that Plan.

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

(i) the amount of the flat-rate portion of the benefit payable 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 period of contributions required under the Canada Pension Plan for entitlement to that benefit.

2. No benefit shall be paid under this Article unless the contributor has reached an age at which his or her contributory period, as defined in the Canada Pension Plan, is at least equal to the minimum period required under that Plan for entitlement to that benefit.

CHAPTER 3 - BENEFITS UNDER THE LEGISLATION OF LUXEMBOURG

ARTICLE XII

Pensions shall be calculated and paid in conformity with the provisions of the legislation of Luxembourg, taking into account the following:

(a) the child supplement, the complement which may be required to reach the minimum pension and the special increases in cases of disability or death at an early age shall be granted in the same proportion as the flat-rate portion;

(b) periods of insurance completed under the legislation of Luxembourg by Canadian citizens not residing in the territory of Luxembourg shall be treated as periods of residence in Luxembourg for the award of the flat-rate portion of a pension under the legislation of Luxembourg.

PART IV - ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS

ARTICLE XIII

1. The competent authorities shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Convention and about changes in their respective legislation insofar as these changes affect the application of this Convention.

2. The institutions responsible for the application of this Convention:

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

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

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

4. Unless disclosure is required under the laws of a Party, any information about an individual which is transmitted in accordance with this Convention to one Party by the other Party is confidential and shall be used only for purposes of implementing this Convention and the legislation to which this Convention applies and for no other purpose.

ARTICLE XIV

1. An administrative arrangement, agreed to by the competent authorities of the two Parties, shall set out, as required, the conditions under which this Convention shall be implemented.

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

ARTICLE XV

1. Any exemption from or reduction of taxes, legal dues, registration charges or administrative fees 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 Convention shall be exempt from any authentication by diplomatic or consular authorities and similar formality.

ARTICLE XVI

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

ARTICLE XVII

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 or institution or to a tribunal of that Party, but which is presented within the same period to a competent authority or institution or to a tribunal of the other Party, shall be deemed to have been presented to the authority, institution or tribunal of the first Party.

2. A claim for a benefit 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 as an application under the legislation of the other Party, or

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

Notwithstanding the preceding provisions, the applicant may request that the claim for the benefit under the legislation of the other Party be deferred.

3. In any case to which the provisions of the preceding paragraphs of this Article apply, the authority, institution or tribunal which receives the claim, notice or appeal shall transmit it without delay to the authority, institution or tribunal of the other Party.

ARTICLE XVIII

1. The benefit paying institutions or authorities shall discharge their obligations under this Convention in their national currency.

2. Benefits shall be paid to beneficiaries free from any deduction for administrative expenses.

ARTICLE XIX

The competent authorities of the two Parties shall resolve, to the extent possible, any difficulties which arise in interpreting or applying this Convention according to its spirit and fundamental principles.

ARTICLE XX

The Government of the Grand Duchy of Luxembourg 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 Convention.

PART V - TRANSITIONAL AND FINAL PROVISIONS

ARTICLE XXI

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

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

3. Subject to the other provisions of this Article, a benefit, other than a lump sum payment, shall be paid under this Convention in respect of events which happened before the date of entry into force of the Convention.

ARTICLE XXII

1. Subject to the provisions of Articles X and XXI of this Convention, any benefit that was not paid or that was suspended by reason of the nationality of a person or by reason of a person’s residence in the territory of a Party other than that in which the institution responsible for payment is located shall, on application by that person, be paid or reinstated with effect from the entry into force of this Convention. For purposes of paragraph 2 of Article V, this provision shall apply by analogy.

2. In an instance where a person became entitled to payment of a pension or annuity prior to the entry into force of this Convention, the amount of his or her entitlement shall be recalculated, on application by that person, in accordance with the provisions of this Convention. In no case shall such a recalculation result in a reduction of the prior entitlement.

3. If the application referred to in paragraph 1 or paragraph 2 of this Article is made within two years of the date of the entry into force of this Convention, any entitlement arising from this Convention shall be effective from that date, and the provisions of the legislation of either Party concerning the forfeiture or the prescription of rights shall not be applicable to the person concerned.

4. If the application referred to in paragraph 1 or paragraph 2 of this Article is made after the expiration of the two-year period following the entry into force of this Convention, the rights which are not subject to forfeiture or which are not prescribed shall be acquired from the date of application, unless more favourable provisions are applicable under the legislation of the Party in question.

ARTICLE XXIII

1. This Convention shall be ratified and the instruments of ratification shall be exchanged as soon as possible. It shall enter into force on the first day of the third month following the month in which the instruments of ratification are exchanged.

2. This Convention 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 Convention, any right acquired by a person in accordance with its provisions shall he maintained and negotiations shall take place for the settlement of any rights then in course of acquisition by virtue of those provisions.

IN WITNESS WHEREOF, the undersigned, duly authorized to that effect by their representative Governments, have signed this Convention.

DONE in duplicate at Ottawa, this 22nd day of May, 1986, in the English and French languages, each version being equally authentic.

FOR THE GOVERNMENT OF CANADA

Jake Epp

FOR THE GOVERNMENT OF LUXEMBOURG

Benny Berg

PROTOCOL TO THE CONVENTION ON SOCIAL SECURITY BETWEEN CANADA AND LUXEMBOURG

At the time of signing the Convention on Social Security between Canada and Luxembourg, the plenipotentiaries of both Parties agreed upon the following points which form an integral part of the Convention:

PARAGRAPH I

Unless specifically provided in an understanding between the Government of the Grand Duchy of Luxembourg and a province of Canada entered into pursuant to Article XX of the Convention, an employed person described in paragraph 3 of Article VI of the Convention who is detached from Luxembourg to Canada shall also remain subject to the legislation of Luxembourg with respect to sickness and maternity insurance, industrial injuries and occupational diseases insurance, family allowances and unemployment benefits.

PARAGRAPH II

The provisions of the legislation of Luxembourg which provide for the suspension or cancellation of a pension when it coincides with income from earnings or the fact of performing a professional activity shall be applied to a beneficiary even if the income is earned, or the professional activity is performed, in the territory of Canada.

PARAGRAPH III

Notwithstanding paragraph 1 of Article XXI of the Convention, periods of insurance completed before January 1, 1946, under the pension insurance legislation of Luxembourg shall be taken into account only to the extent that rights in course of acquisition have been maintained or recovered exclusively under the provisions of that legislation.

IN WITNESS WHEREOF, the undersigned, duly authorized to that effect by their representative Governments, have signed this Protocol.

DONE in duplicate at Ottawa, this 22nd day of May, 1986, in the English and French languages, each version being equally authentic.

FOR THE GOVERNMENT OF CANADA

Jake Epp

FOR THE GOVERNMENT OF LUXEMBOURG

Benny Berg