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Protocol amending the Agreement on Social Security between Canada and the Republic of Finland [1997] CATSer 2 (1 January 1997)

E102206 - CTS 1997 No. 2

PROTOCOL AMENDING THE AGREEMENT ON SOCIAL SECURITY BETWEEN CANADA AND THE REPUBLIC OF FINLAND

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF FINLAND,

NOTING the Agreement on Social Security between Canada and the Republic of Finland, signed at Ottawa on 28 October 1986,

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

TAKING into account changes in legislation since the signing of the Agreement,

HAVE decided to conclude a Protocol to amend the Agreement, and, to this end,

HAVE agreed as follows:

ARTICLE I

For the purposes of this Protocol:

(a) “Agreement” means the Agreement on Social Security between Canada and the Republic of Finland, signed at Ottawa on 28 October 1986;

(b) “Final Protocol” means the Final Protocol to the Agreement;

(c) “provisions previously applied” means the provisions of the Agreement before the entry into force of this Protocol;

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

ARTICLE II

Sub-paragraph 1(a) of Article I of the Agreement is amended by deleting the words “Minister of National Health and Welfare” and substituting the words “Minister of Employment and Immigration” in their place.

ARTICLE III

Sub-paragraph 1(b) of Article II of the Agreement is deleted and the following sub-paragraph substituted in its place:

“(b) with respect to Finland:

(i) the laws and regulations governing the National Pensions Scheme;

(ii) the laws and regulations governing the Employment Pensions Scheme; and

(iii) the Employers’ Social Security Contributions Act, to the extent that that Act concerns employers’ contributions in respect of the National Pensions Scheme.”

ARTICLE IV

Article IV of the Agreement is amended by:

(a) designating the existing text of Article IV as paragraph 1; and

(b) adding, immediately after paragraph 1, the following paragraphs:

“2. In a case in which a benefit under the Employment Pensions Scheme of Finland would be payable by virtue of this Agreement to a citizen of Canada residing in the territory of Canada, that benefit shall be paid to a citizen of Canada residing in the territory of a third State on the same conditions and to the same extent as that benefit is payable to a citizen of Finland residing in the territory of that third State, provided that the third State is one with which Finland has concluded a social security agreement or a comparable instrument.

3. Benefits under the legislation of Canada payable by virtue of this Agreement to a person who is or who has been subject to that legislation, or to the dependants or survivors of such a person, shall be paid in the territory of a third State.”

ARTICLE V

1. Paragraph 2 of Article V of the Agreement is deleted and the following paragraph substituted in its place:

“2. A person who:

(a) is employed by an employer who has a place of business in the territory of one Party,

(b) is covered under the legislation of that Party in respect of that employment, and

(c) is sent to perform services in the territory of the other Party in the course of that employment for the same or a related employer

shall, in respect of those services, be subject only to the legislation of the first Party as though those services were performed in its territory. In the case of an assignment in the territory of the other Party, this coverage may not be maintained for more than 36 months without the prior consent of the competent authorities of both Parties.”

2. Article V of the Agreement is further amended by adding, immediately after paragraph 5, the following paragraph:

“6. The consent referred to in paragraph 2, and the agreement referred to in paragraph 5, may be given by an institution of a Party which has been authorized so to do by the competent authority of that Party.”

ARTICLE VI

Article VI of the Agreement is amended by:

(a) deleting the title thereof and substituting the following title in its place:

“Definition of Certain Periods of Residence with Respect to the Legislation of Canada and Finland”;

(b) designating the existing text of Article VI as paragraph 1;

(c) adding in paragraph 1, immediately after the words “For the purpose of calculating benefits under the Old Age Security Act”, the words “of Canada”; and

(d) adding, immediately after paragraph 1, the following paragraph:

“2. For the purposes of the National Pensions Scheme of Finland:

(a) if a person is subject to the legislation of Finland during any period of residence in the territory of Canada, that period shall be accepted as a period of residence in Finland for that person as well as for that person’s accompanying 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;

(b) if a person is subject to the legislation of Canada during any period of residence in the territory of Finland, that period shall not be accepted as a period of residence in Finland for that person and for that person’s accompanying spouse and dependants who reside with him or her and who are not subject to the Employment Pensions Scheme of Finland by reason of employment.”

ARTICLE VII

Sub-paragraph 2(a) of Article VII of the Agreement is amended by adding, immediately after the words “For purposes of determining eligibility for a benefit under the Old Age Security Act,” the words “ a creditable period under the legislation of Finland, or”.

ARTICLE VIII

Sub-paragraph 3(a) of Article VIII of the Agreement is amended by deleting the word “five” and substituting the word “three” in its place.

ARTICLE IX

Article IX of the Agreement is deleted and the following Article substituted in its place:

“ARTICLE IX

Benefits under the Canada Pension Plan

If a person is entitled to the payment of a benefit solely through the application of the totalizing provisions of Article VII, 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 X

Chapter 2 of Part III of the Agreement is deleted and the following Chapter substituted in its place:

“CHAPTER 2 - BENEFITS UNDER THE LEGISLATION OF FINLAND

ARTICLE X

Benefits under the National Pensions Scheme

1. Entitlement to and payment of a pension under the National Pensions Act and the Survivors’ Pensions Act shall, in respect of a citizen of a Party residing in the territory of a Party, be determined according to the provisions of this Article.

2. A person referred to in paragraph 1 of this Article shall be entitled to an old age pension if he or she has resided in Finland for an unbroken period of at least three years after having reached the age of 16.

3. A person referred to in paragraph 1 of this Article shall be entitled to a widow’s or widower’s pension if he or she and the deceased spouse have resided in Finland for an unbroken period of at least three years after having reached the age of 16, and the deceased spouse was a citizen of a Party and resided in the territory of a Party at the time of death.

4. A person referred to in paragraph 1 of this Article shall be entitled to an orphan’s pension if the deceased parent had resided in Finland for an unbroken period of at least three years after having reached the age of 16, and was a citizen of a Party and resided in the territory of a Party at the time of death.

5. If an old age, disability or survivor’s pension is granted to a citizen of a Party while residing in Finland and he or she subsequently takes up residence in Canada, that person shall be entitled to receive that pension in Canada if he or she had resided in Finland for an unbroken period of at least three years after having reached the age of 16.

ARTICLE X.A

Benefits under the Employment Pensions Scheme

1. Unless otherwise provided in this Article, the competent institution of Finland shall apply the legislation of Finland for the purpose of determining entitlement to a benefit under the Employment Pensions Scheme and the amount of that benefit.

2. If a person who becomes disabled or dies does not fulfill the condition relating to residence under the Finnish legislation concerning the Employment Pensions Scheme for the purpose of meeting the requirement regarding the future period, creditable periods under the Canada Pension Plan shall be taken into account for that purpose as though they were periods completed in Finland, provided that they do not overlap.

3. If employment or self-employment in Finland has terminated and the pension according to the Finnish legislation concerning the Employment Pensions Scheme no longer includes the future period, and if the contingency giving rise to a benefit occurs during employment or self-employment subject to the Canada Pension Plan, creditable periods under the Canada Pension Plan shall be taken into account by the competent institution of Finland for the purpose of meeting the requirement regarding the future period.

4. In any case in which paragraph 2 or 3 of this Article applies, the competent institution of Finland shall calculate the amount of the benefit as follows:

(a) The amount of the benefit based on the actual creditable periods under the legislation of Finland shall be calculated according to the provisions of the Finnish legislation concerning the Employment Pensions Scheme.

(b) The amount of the benefit based on the period between the occurrence of the contingency and the pensionable age shall be prorated based on the ratio between the actual creditable periods under the Finnish legislation concerning the Employment Pensions Scheme and 480 months.”

ARTICLE XI

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

2. This Protocol shall not confer any right to receive payment of a benefit, or of part of a benefit, for a period before the date of entry into force of this Protocol.

3. Benefits under the Agreement as amended by this Protocol shall also be granted in respect of contingencies that occurred before the date of entry into force of this Protocol.

4. A benefit granted under the provisions previously applied shall not be subject to reduction or cancellation as a result of any provision of this Protocol.

5. A benefit granted under the provisions previously applied shall, at the request of the beneficiary, be converted to a benefit determined in conformity with the provisions of the Agreement as amended by this Protocol.

6. If, upon the entry into force of this Protocol, an application for a benefit under the legislation of a Party is pending, and if the competent institution of that Party subsequently determines that the applicant is entitled to that benefit both for a period before the date of entry into force of this Protocol and for a period after that date, that competent institution shall calculate the amount of benefit payable as follows:

(a) for any period before the date of entry into force of this Protocol, the amount of benefit payable shall be determined in conformity with the provisions previously applied; and

(b) for any period after the date of entry into force of this Protocol, the amount of benefit payable shall be re-determined in conformity with the provisions of the Agreement as amended by this Protocol, provided that the benefit, when so calculated, is more advantageous to the beneficiary than the benefit calculated under the provisions previously applied.

ARTICLE XII

The Final Protocol is amended by:

(a) deleting, in sub-paragraph 1(b), the words "paragraph 2 of";

(b) deleting sub-paragraph 3(c) and substituting the following sub­paragraph in its place:

“where an employed person is sent from the territory of one Party to perform services in the territory of the other Party as referred to in paragraph 2 of Article V of this Agreement, no contributions shall be payable under the legislation of the other Party in respect of earnings from that employment.”;

and

(c) deleting, in paragraph 4, the words "Article IV and paragraph 1 of".

ARTICLE XIII

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. On the entry into force of this Protocol, any reference in the Agreement, the Final Protocol or this Protocol to “this Agreement” shall be taken to mean the Agreement as amended by this Protocol.

3. Subject to paragraph 4 of this Article, this Protocol shall remain in force without any limitation on its duration.

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

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

DONE in two copies at Ottawa this 2nd day of November, 1994, in the English, French and Finnish languages, each text being equally authentic.

Lloyd Axworthy

FOR THE OVERNMENT OF CANADA

Jorma Huuhtanen

FOR THE GOVERNMENT OF THE REPUBLIC OF FINLAND