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Supplementary Agreement to the Agreement on Social Security between Canada and the Republic of Austria [1996] CATSer 28 (1 December 1996)

E102211 - CTS 1996 No. 25

SUPPLEMENTARY AGREEMENT TO THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF AUSTRIA

CANADA AND THE REPUBLIC OF AUSTRIA,

DESIRING to amend and supplement the Agreement on Social Security between the two States, signed at Vienna on 24 February 1987,

HAVE AGREED as follows:

ARTICLE I

For the purposes of this Supplementary Agreement:

(a) "the Agreement" means the Agreement on Social Security between Canada and the Republic of Austria, signed at Vienna on 24 February 1987;

(b) any other term has the meaning given to it in the Agreement.

ARTICLE II

1. In sub-paragraph (1) (c) of Article 1 of the Agreement, the words “the Federal Minister for Social Affairs” shall be replaced by the words “the Federal Minister responsible for the administration of the legislation of Austria”.

2. In paragraph (2) of Article 1 of the Agreement, the words “Minister of National Health and Welfare” shall be replaced by the words “Minister of Employment and Immigration”.

3. Paragraph (4) of Article 4 of the Agreement shall be deleted and the following paragraph substituted in its place:

“(4) As regards Austrian legislation concerning the crediting of periods of war service and periods considered as equivalent, Canadian nationals who were Austrian nationals immediately before 13 March 1938 shall receive equal treatment with Austrian nationals.”

4. Paragraph (3) of Article 5 of the Agreement shall be deleted and the following paragraph substituted in its place:

“(3) As regards Austrian legislation, paragraph (1) of this Article shall not apply to the compensatory supplement.”

5. Article 6 of the Agreement shall be deleted and the following Article substituted in its place:

“Article 6

Subject to the provisions of Articles 7 to 9, an employed or self-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. In the case of an employed person, this shall also apply if the employer’s place of business is in the territory of the other Party.”

6. (a) In paragraphs (1) and (2) of Article 7 of the Agreement, the word “twenty-four” shall be replaced by the word “sixty”.

(b) The following paragraph (3) shall be inserted immediately after paragraph (2) of Article 7 of the Agreement:

“(3) A person who would otherwise be compulsorily covered under the legislation of both Parties with respect to self-employment and who is a resident of one Party shall be subject only to the legislation of the Party of which that person is a resident.”

7. Paragraph (1) of Article 9 of the Agreement shall be deleted and the following paragraph substituted in its place:

“(1) At the request of an employed person and his employer or of a self-employed person, the competent authorities of the two Parties may provide, by agreement with one another, exceptions in the application of Articles 6 to 8, taking into account the nature and circumstances of the work.

8. Article 12 of the Agreement shall be deleted and the following Article substituted in its place:

“Article 12

When a person who has completed periods of coverage under the legislation of both Parties, or the survivor of such a person, claims a benefit, the competent Austrian institution shall determine, in accordance with Austrian legislation, whether the claimant is entitled to a benefit by adding together the periods of coverage, as provided in Article 11, and taking into account the following provisions:

(a) Where Austrian legislation makes the award of certain benefits conditional upon the completion of periods of coverage in an occupation covered by special schemes or in a specified occupation or employment, only periods of coverage completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same employment under the legislation of Canada shall be taken into account for the award of such benefits.

(b) Where Austrian legislation provides that the period of payment of a pension shall prolong the reference period during which periods of coverage must be completed, periods during which a pension has been awarded under the legislation of Canada shall also prolong the aforesaid reference period.

(c) Periods of coverage completed under the legislation of Canada shall be taken into account as follows:

(i) a calendar year which is a period of coverage under the Canada Pension Plan shall be accepted as twelve months of contributions under Austrian legislation;

(ii) a calendar month which contains at least fifteen days of coverage under the Old Age Security Act of Canada and which is not part of a period of coverage under the Canada Pension Plan shall be accepted as a month of coverage under Austrian legislation.”

9. Article 13 of the Agreement shall be deleted and the following Article substituted in its place:

“Article 13

(1) Where entitlement to a benefit exists under Austrian legislation without the application of Article 11, the competent Austrian institution shall determine the amount of the benefit in accordance with Austrian legislation on the basis of periods of coverage completed exclusively under that legislation.

(2) Where entitlement to a benefit exists under Austrian legislation only with the application of Article 11, the competent Austrian institution shall determine the amount of the benefit in accordance with Austrian legislation on the basis of periods of coverage completed exclusively under that legislation and taking into account the following provisions:

(a) Benefits or parts of benefits, the amount of which does not depend on the duration of periods of coverage completed, shall be calculated in proportion to the ratio between the duration of the periods of coverage to be taken into account for the calculation under Austrian legislation and the period of 30 years, but shall not exceed the full amount.

(b) Where periods after the contingency arises are to be taken into account for the calculation of invalidity or survivors’ benefits, such periods shall be taken into account only in proportion to the ratio between the duration of the periods of coverage to be taken into account for the calculation under Austrian legislation and two-thirds of the number of full calendar months between the date on which the person concerned reached the age of 16 and the date on which the contingency occurred, but shall not exceed the full period.

(c) Sub-paragraph (a) of this paragraph shall not apply to:

(i) benefits resulting from supplementary insurance,

(ii) means-tested benefits designed to ensure a minimum income.

(3) Where the periods of coverage to be taken into account under Austrian legislation for the calculation of the benefit are in aggregate less than twelve months and no entitlement to a benefit has been established under Austrian legislation exclusively on the basis of these periods of coverage, no benefit under that legislation shall be paid.”

10. Articles 14 and 15 of the Agreement shall be deleted.

11. Section 2 of Part III of the Agreement shall be amended by inserting, immediately after the title thereof, the following new Article 15:

“Article 15

(1) If a person is not entitled to the payment of a benefit on the basis of the periods of coverage completed under the legislation of both Parties, added together as provided in Article 11, the entitlement of that person to the payment of that benefit shall be determined by adding together these periods and periods of coverage completed under the legislation of a third State with which Canada is bound by a social security instrument which provides for totalizing periods.

(2) Notwithstanding any other provision of this Agreement, if the total duration of the periods of coverage completed by a person under the legislation of Canada is less than twelve months and if, taking into account only those periods, no right to a benefit exists under that legislation, the competent institution of Canada shall not be required to award benefits to that person in respect of those periods by virtue of this Agreement.”

12. Paragraphs (2) to (4) of Article 16 of the Agreement shall be deleted and the following paragraphs substituted in their place:

“(2) If a person is entitled to the payment of a pension or a spouse’s allowance solely through the application of the provisions of Article 11 or of paragraph (1) of Article 15, the competent institution of Canada shall calculate the amount of the pension or spouse’s allowance payable to that person 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 of residence in Canada which may be considered under that Act.

(3) Paragraph (2) of this Article shall also apply to a person who is entitled to the payment of a pension in Canada but who has not resided in Canada for the minimum period required by the Old Age Security Act for entitlement to the payment of a pension outside Canada.

(4) Notwithstanding any other provision of this Agreement:

(a) an Old Age Security pension shall be paid to a person who is outside Canada only if that person’s periods of coverage, when added together as provided in Article 11 and paragraph (1) of Article 15, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for entitlement to the payment of a pension outside Canada;

(b) a spouse’s allowance and a guaranteed income supplement shall be paid to a person who is outside Canada only to the extent permitted by the Old Age Security Act.”

13. In sub-paragraph (2) (a) of Article 17 of the Agreement the words “a disability pension, disabled contributor’s child’s benefit, survivor’s pension, orphan’s benefit or death benefit” shall be replaced by the words “a benefit”; and, immediately after the words “as provided in Article 11”, the words “and paragraph (1) of Article 15” shall be inserted.

14. Paragraph (2) of Article 21 of the Agreement shall be deleted and the following paragraph substituted in its place:

“(2) Any claim for a benefit under the legislation of one Party submitted after the date of entry into force of this Agreement shall be considered to be a claim for the corresponding benefit under the legislation of the other Party. Provided that the claimant provides information at the time of application indicating that periods of coverage have been completed under the legislation of the other Party; this shall not apply, however, when the claimant expressly requests that the determination of an old age or retirement benefit under the legislation of the other Party be deferred.

ARTICLE III

1. This Supplementary Agreement shall be ratified. The instruments of ratification shall be exchanged at Ottawa as soon as possible.

2. Unless otherwise provided, this Supplementary Agreement shall enter into force on the first day of the fourth month following the month in which the instruments of ratification are exchanged.

3. Paragraph (3) of Article 5 of the Agreement, as amended by this Supplementary Agreement, shall enter into force retroactively as of 1 November 1991.

4. Paragraph (1) of Article 13 of the Agreement, as amended by this Supplementary Agreement, shall enter into force retroactively as of 1 January 1994.

5. If, on the date of entry into force of this Supplementary Agreement, a person is compulsorily covered under the legislation of both Parties with respect to self-employment, paragraph (3) of Article 7 of the Agreement, as amended by this Supplementary Agreement, shall apply to that person only if he or she requests, in writing, that this be the case. If such a request is submitted to the competent institution of either Party within six months of the date of entry into force of this Supplementary Agreement, that provision shall apply as of the date of entry into force. In any other case, it shall apply on the first day of the calendar month following the month in which the request is submitted.

IN WITNESS WHEREOF, the Plenipotentiaries have signed this Supplementary Agreement.

DONE in two copies at Vienna, this 12th day of September 1995, in English, French and German, each text being equally authentic.

FOR CANADA

Peter F. Walker

FOR THE REPUBLIC OF AUSTRIA

Wolfgang Schallenberg