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Protocol to the Convention on Social Security between Canada and Spain [1997] CATSer 14 (1 May 1997)

E102210 - CTS 1997 No. 3

PROTOCOL TO THE CONVENTION ON SOCIAL SECURITY BETWEEN CANADA AND SPAIN

CANADA AND THE KINGDOM OF SPAIN,

NOTING the Convention on Social Security between Canada and Spain, signed at Madrid on 10 November 1986, and

DESIRING to strengthen even further the relations between them in the field of social security,

HAVE agreed as follows:

ARTICLE 1

For the purposes of this Protocol:

(a) "Convention" means the Convention on Social Security between Canada and Spain, signed at Madrid on 10 November 1986;

(b) any other term shall have the meaning given to it in the Convention.

ARTICLE 2

1. Spanish non-contributory social security benefits established under Law 26/90 of 20 December 1990 shall be granted to Canadian citizens under the same conditions and subject to the same requirements as that law sets out for Spanish citizens.

2. Article 5 and Article 9, paragraphs 1 and 3 of the Convention shall not apply to the non-contributory benefits referred to in the preceding paragraph.

ARTICLE 3

1. In Article 6, paragraph 2 of the Convention, the word "twenty-four" shall be replaced by the word "sixty".

2. Article 6, paragraph 4 of the Convention shall be replaced by the following text:

"4. A person employed as a member of the crew of a ship who, but for this Convention, would be subject to the legislation of Spain as well as to the Canada Pension Plan in respect of that work shall, in respect thereof, be subject only to the Canada Pension Plan if that person resides and is hired in Canada, and only to the legislation of Spain if that person resides and is hired in Spain. When the circumstances of the previous sentence do not apply, the person shall be subject only to the legislation of Spain if the ship flies the flag of Spain."

ARTICLE 4

Article 12 of the Convention shall be replaced by the following text:

"If a person is entitled to the payment of a benefit under the Canada Pension Plan solely through the application of the totalizing provisions of Chapter 1 of this Part, the competent institution of Canada shall calculate the amount of benefit payable to that person in the following manner:

(a) the earnings-related portion of the benefit shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan; and

(b) the flat-rate portion of the benefit shall be determined by multiplying:

(i) the amount of the flat-rate portion of the benefit determined in conformity with 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 required under that Plan to establish entitlement to that benefit, but in no case shall that fraction exceed the value of one."

ARTICLE 5

1. Article 13, sub-paragraph 1(c) of the Convention shall be replaced by the following text:

"c) for purposes of determining the computation base of the benefit (la base reguladora para el cálculo de la prestación) under the provisions of this Article, when all or part of the contribution period which must be taken into account by the Spanish competent institution corresponds to insured periods completed under the legislation of Canada, that competent institution shall take into account the person's actual contribution bases paid by that person in Spain during the years immediately preceding the date on which the last contribution was due under the Spanish social security system, and the amount of the benefit thus obtained shall be adjusted to take account of the increases and reassessments prescribed for the same category of benefits for each subsequent year until the occurrence of the contingency which gives rise to the benefit."

2. Article 13, sub-paragraph 1(d) and paragraph 2 of the Convention shall be replaced by the following text:

"2. If the legislation of Spain makes award of a benefit conditional on the fact that the person concerned must be subject to that legislation at the time of the occurrence of the contingency which gives rise to the benefit, this condition shall be deemed to be met if, at that time, that person is insured under the legislation of Canada or, if that is not the case, is in receipt of a benefit of the same kind under the legislation of Canada or a benefit of a different kind but one paid on account of the beneficiary him/herself. This same principle shall apply for the awarding of survivors' pensions where, if required, account is taken of the fact that the person in respect of whom a benefit is being claimed was validly insured (situación de alta) or in receipt of a benefit under the legislation of Canada."

3. When, for purposes of award of a benefit, the legislation of Spain requires that insured periods have been completed in a specific time immediately before the occurrence of the contingency giving rise to the benefit, this condition shall be deemed to be met if the person concerned has completed those periods in the time immediately before the award of a benefit under the legislation of Canada, provided that insured periods are not credited in this situation.

ARTICLE 6

1. At the date of the coming into force of this Protocol, benefits which have been requested or awarded, prior to that date, through the application of the Convention may be reviewed or recalculated by the competent institution, on request by the beneficiary, taking into account the provisions of this Protocol. The change in the amount of benefit payable as a result of the recalculation shall start to be due from the first day of the month following the month in which the beneficiary requests the recalculation.

2. In no case shall the beneficiary, as a result of a recalculation made by virtue of the provisions of the previous paragraph, receive a benefit which is lesser in amount than that which he or she had been receiving prior to that time.

ARTICLE 7

1. This Protocol shall enter into force on the first day of the fourth month following the month in which each Party shall have received written notification from the other Party that it has complied with all statutory requirements for the entry into force of this Protocol.

2. Subject to paragraph 3 of this Article, this Protocol shall remain in force without any limitation on its duration.

3. In the event of the denunciation of the Convention through the application of Article 25, paragraph 2 thereof, this Protocol shall also be denounced, with effect on the same date as the termination of the Convention.

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

DONE in two copies at Ottawa, this 19th day of October, 1995, in the English, French and Spanish languages, each text being equally authentic.

Lloyd Axworthy

FOR CANADA

José Luis Pardos

FOR SPAIN