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Supplementary Agreement to the Agreement on Social Security of 14 November 1985 between Canada and the Federal Republic of Germany [2003] CATSer 23 (1 December 2003)

E104909

SUPPLEMENTARY AGREEMENT TO THE AGREEMENT ON SOCIAL SECURITY OF 14 NOVEMBER 1985 BETWEEN CANADA AND THE FEDERAL REPUBLIC OF GERMANY

CANADA AND THE FEDERAL REPUBLIC OF GERMANY,

DESIRING to adjust the Agreement on Social Security between Canada and the Federal Republic of Germany signed at Bonn on 14 November 1985, hereinafter referred to as "the Agreement", to the present circumstances,

HAVE AGREED as follows:

ARTICLE 1

(1) Article 1 of the Agreement is amended as follows:

(a) In subparagraph (1)(a), the words "the territory in which the legislation specified in Article 2(1)(a) applies" are replaced by the words "the territory of the Federal Republic of Germany".

(b) In subparagraph (1)(d), the words "the Federal Minister of Labour and Social Affairs" are replaced by the words "the Federal Ministry of Labour and Social Affairs"; in the English and French texts, the words "Bundesminister fur Arbeit und Sozialordnung" are replaced by the words "Bundesministerium fur Arbeit und Sozialordnung".

(2) Article 2 of the Agreement is amended as follows:

(a) The text of subparagraph (1)(a) is deleted and replaced by the following:

''as regards the Federal Republic of Germany, to the legislation concerning:

(i) Pension Insurance (Rentenversicherung),

(ii) Steelworkers' Supplementary Insurance (Huttenknappschaftliche Zusatzversicherung),

(iii) Farmers' Old Age Security (Alterssicherung der Landwirte);"

(b) After paragraph (2) the following paragraph (3) is added:

"(3) Subject to point 2(d) of the Final Protocol to the Agreement, this Agreement shall also apply to the laws and regulations which amend, supplement, consolidate or supersede the legislation specified in subparagraphs (l)(a) and (b) of this Article."

(3) In Article 11(a) and (b) of the Agreement, the term "spouse" is replaced by the phrase "spouse or common-law partner", and the phrase "during any period of residence" is replaced by the phrase "during any period of presence or residence".

(4) In Article 13 of the Agreement, subparagraphs (c) to (g) are deleted and replaced by the following:

"(c) For the calculation of pensions, earnings points shall be determined solely on the basis of the periods of coverage completed under German legislation.

(d) Where under German legislation entitlement to a benefit is conditional upon the fact that a given number of mandatory contributions has been paid within a specified period (reference period) and where that legislation provides that this period is extended by periods of receipt of benefits or periods of child raising, this reference period shall also be extended by periods of receipt of invalidity or old-age pensions under the legislation of Canada or benefits on account of sickness, unemployment or industrial injury (except pensions) under the laws of Canada or the laws of a province of Canada and by periods of child raising in Canada.

(e) When the right of a self-employed craftsman to be exempted from the liability for mandatory coverage is conditional upon payment of a minimum number of contributions, periods of coverage completed under the Canada Pension Plan shall be taken into account for this purpose."

(5) In Article 14 of the Agreement, subparagraphs (a) to (d) are deleted and replaced by the following:

"(a) (i) For purposes of determining eligibility for an Old Age Security pension or an allowance under the Old Age Security Act through the application of Article 12, a period of coverage under the legislation of the Federal Republic of Germany, or a period of residence in the territory of the Federal Republic of Germany, 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.

(ii) In the application of subparagraph (a)(i), a period of residence prior to 3 October 1990 in the territory specified in Article 3 of the Treaty on the establishment of German Unity of 31 August 1990 shall be considered as a period of residence in the territory of Canada.

(b) If a person is entitled to the payment of an Old Age Security pension or an allowance under the Old Age Security Act solely through the application of Article 12, the competent institution of Canada shall calculate the amount of the pension or allowance payable to that person in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or allowance, exclusively on the basis of periods of residence in Canada which may be considered under that Act.

(c) Subparagraph (b) 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.

(d) Notwithstanding any other provision of this Agreement:

(i) 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 12, 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;

(ii) an 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."

(6) Article 15 of the Agreement is amended as follows:

(a) In subparagraph (b)(i), the words "a disability pension, disabled contributor's child's benefit, survivor's pension, orphan's benefit or death benefit" are replaced by the words "a benefit".

(b) In subparagraph (b)(ii), the period at the end thereof is deleted and replaced by the following:

", but in no case shall that ratio exceed the value of one."

(c) Subparagraph (c) is deleted.

(7) In Article 18 of the Agreement, the following sentence is added after the second sentence thereof:

"The second sentence shall also apply to decisions of courts and notifications issued in connection with the implementation of the German Law Governing War Victims' Assistance (Gesetz fuber die Versorgung der Opfer des Krieges) and those laws which declare the first-mentioned law to be applied accordingly."

(8) In Article 19(3) of the Agreement, the first sentence is deleted and replaced by the following:

"An application for a benefit payable under the legislation of one Contracting State shall be deemed to be an application for the corresponding benefit payable under the legislation of the other Contracting State, provided that the applicant at the time of application:

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

(b) provides information indicating that periods of coverage have been completed under the legislation of the other Contracting State."

(9) The text of Article 20 of the Agreement is deleted and replaced by the following:

"(1) The agencies of a Contracting State referred to in Article 16(1) shall, in accordance with:

(a) the legislation of that Contracting State, and

(b) this Agreement or any arrangement concluded pursuant to Article 21 for the implementation of this Agreement,

transmit to the competent agencies of the other Contracting State any information in their possession about an individual required for the application of this Agreement or of the legislation to which this Agreement applies.

(2) Any information about an individual transmitted under paragraph (1) by an agency of one Contracting State to an agency of the other Contracting State shall be protected in each Contracting State in accordance with its legislation and the following provisions:

(a) The agency of a Contracting State to which the information is transmitted shall treat that information as confidential and shall effectively protect it against unauthorized access, unauthorized alterations and unauthorized disclosure in accordance with the legislation of that Contracting State.

(b) The agency of a Contracting State to which the information is transmitted may use that information, and may disclose it to other agencies in that Contracting State, for the purposes of implementing this Agreement or the legislation of that Contracting State. The information may be put to other uses and may be disclosed to other bodies only to the extent specifically permitted under the legislation of that Contracting State. The competent authorities of the Contracting States shall inform each other about all amendments to their legislation regarding the protection of personal information and, in particular, additional purposes for which such information may be used or disclosed to other bodies. The Contracting State whose legislation has been amended shall, at the request of the other Contracting State, enter into negotiations to amend or supplement this Agreement, as may be required.

(c) In individual cases, the agency to which the information is transmitted shall, at the request of the agency which has transmitted that information, inform the latter of the use to which that information has been put and the outcome thereof.

(d) The individual concerned shall, on request to the agency of either Contracting State, have the right to be informed of the information which has been transmitted, and the purpose for which that information has been requested or transmitted, as the case may be.

(e) The agency which transmits the information shall take all necessary steps to ensure that the information is accurate and is strictly limited to that absolutely necessary for the purpose of the transmission.

(i) If it becomes evident that incorrect information was transmitted, the agency which has received the information must be immediately notified of this fact, and it shall immediately correct the incorrect information.

(ii) If it becomes evident that the transmission of the information is prohibited under the legislation of the transmitting Contracting State, the agency which has received the information must be immediately notified of this fact, and that agency shall delete that information unless the information is required

- to combat abuse
or
- to prosecute criminal offences

in the context of the legislation which that agency administers or any other laws or provisions concerning social benefits.

(f) The agency of a Contracting State to which the information is transmitted shall delete that information in accordance with the legislation of that Contracting State.

(3) Paragraphs (1) and (2) shall apply to industrial and business secrets accordingly."

(10) In point 2(a) of the Final Protocol to the Agreement, the words "Farmers' Old Age Assistance" are replaced by the words "Farmers' Old Age Security".

(11) The following point 4A is added after point 4 of the Final Protocol to the Agreement:

"4A. With reference to Articles 6 to 10 of the Agreement:

Where, under the provisions of the Agreement regarding mandatory coverage, a person is subject to German legislation, German provisions relating to mandatory coverage for unemployment insurance shall also apply in the same manner to that person and his or her employer."

(12) In point 8 of the Final Protocol to the Agreement, immediately after the words "With reference to Article 10 of the Agreement" the following words are added:

"and with reference to point 7(a) and (c) of this Final Protocol".

(13) The following point 8A is added after point 8 of the Final Protocol to the Agreement:

"8A. With reference to Article 11 of the Agreement:

(a) A person shall be considered to be subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during a period of presence or residence in the territory of the Federal Republic of Germany only if that person makes contributions pursuant to the plan concerned during that period by reason of employment or self-employment.

(b) A person shall be considered to be subject to the legislation of the Federal Republic of Germany during a period of presence or residence in the territory of Canada only if that person makes mandatory contributions pursuant to that legislation during that period by reason of employment or self-employment."

(14) Point 9(b) of the Final Protocol to the Agreement is deleted. The existing point 9(c) becomes 9(b) and reads as follows:

"(b) Mandatory contributions to the Canada Pension Plan in respect of employment or self-employment shall be equivalent to mandatory contributions in respect of employment or self-employment required under German legislation for a claim to an old age pension before the age of 65 or to a pension on account of reduced earning capacity."

(15) Points 10(a) and (c) of the Final Protocol to the Agreement are deleted. Point 10 (b) is redesignated as point 10.

(16) The following point 12A shall be added after point 12 of the Final Protocol to the Agreement:

"12A. (a) Persons specified in subparagraphs (a) to (c) of Article 3 of the Agreement who, prior to the date on which the National Socialist sphere of influence extended to what was then their homeland,

- belonged to the German language and cultural group,
- had already attained age 16, and
- had not acknowledged themselves to be ethnically German because they were Jewish,

and who left the areas of expulsion within the meaning of Article 1, paragraph 2, number 3, of the German Federal Law on Displaced Persons, may, upon application, pay retroactive voluntary contributions to the German pensions insurance system, provided that periods of contributions or periods of employment under the Foreign Pensions Law become creditable for these persons for the first time as a result of Article 17A of the Foreign Pensions Law. The retroactive voluntary contributions may only be paid for periods after attainment of age 16 and before attainment of age 65 and starting with the time the National Socialist sphere of influence was extended to what was then their homeland. Contributions shall only be permitted for periods that have not already been credited as periods of contributions according to German laws. An event giving rise to eligibility for benefits which occurs prior to the expiration of the time limit for the payment of retroactive contributions shall not preclude the payment of these retroactive contributions.

(b) Retroactive voluntary contributions according to subparagraph (a) may not exceed the amount necessary to permit payment of benefits based on periods creditable under Article 17A of the Foreign Pensions Law in accordance with the statutory pension provisions on payment of benefits to eligible persons abroad that were applicable in the territory of the Federal Republic of Germany - without the Acceding Territory (Beitrittsgebiet)-on 1 July 1990.

(c) Notwithstanding the second sentence of subparagraph (a), persons who attained age 65 on or before 31 October 1991, and who, on 1 July 1990, do not meet the requirements for payment of benefits abroad through retroactive voluntary contributions pursuant to this Agreement, may pay voluntary contributions for the period from 1 July 1990, to 30 November 1991, but in an amount no greater than that which is necessary for the payment of the benefit abroad; for this purpose, the date of eligibility may be deferred to a point in time after attainment of age 65.

(d) Contributions shall be paid in an amount of 43.19 Euro (84.48 Deutsche Mark) for each calendar month; for this purpose, the amount of retroactive voluntary contributions to be paid may be set off against the amount of any resulting benefits that are payable retroactively. For the computation of the insured person's relevant German pension computation base, the values for the year 1994 shall be applied to the retroactively paid contributions.

(e) For purposes of computing the benefit amount, the statutory pension provisions applicable within the territory of the Federal Republic of Germany - without the Acceding Territory - on 1 July 1990, including the provisions on benefit payments to eligible persons abroad, shall be applied, together with this Agreement. The provisions on revaluation of pensions based on Personal Remuneration Points (Article 307 of Volume VI of the Social Law Code) shall be applied accordingly. The monthly amount of the benefit that is to be paid abroad shall be derived from the Pension Category Factor, as well as

(i) the Personal Remuneration Points for contribution periods under Article 17A of the Foreign Pensions Law that are to be considered in accordance with the first sentence of this subparagraph (e); provided, however, that these shall be multiplied by the Present Pension Value (East) - but not more than 0.7 times the Present Pension Value - and a Pension Value of 8.16 Euro (15.96 Deutsche Mark) shall apply for the period from 1 July 1990, to 31 December 1990, a Pension Value of 9.39 Euro (18.36 Deutsche Mark) shall apply for the period from 1 January 1991, to 30 June 1991, and a Pension Value of 10.79 Euro (21.11 Deutsche Mark) shall apply for the period from 1 July 1991, to 31 December 1991;

(ii) the Personal Remuneration Points for contribution periods to be considered according to subparagraphs (b) and (c) multiplied by the Present Pension Value that is applicable in the year for which the pension is to be paid, with the amount of 23.52 Euro (46.00 Deutsche Mark) being used for periods prior to 1 July 1995; and

(iii) the remaining Personal Remuneration Points multiplied by the Present Pension Value that is applicable in the year for which the pension is to be paid, with the amount of 20.24 Euro (39.58 Deutsche Mark) being used for periods prior to 1 July 1991.

(f) Subparagraphs (a) through (e) shall only apply with respect to eligible persons who established ordinary residence in Canada before 1 July 1990.

(g) For purposes of payment of survivors benefits, subparagraphs (a) through (f) shall apply accordingly to survivors of persons described in subparagraph (a), even if the insured person dies prior to the expiration of the time limit for retroactive voluntary contributions. This shall also apply in the case of benefits for former spouses with pension rights and in the case of reinstated survivors pensions.

(h) An application to pay retroactive voluntary contributions according to this point must be filed within 24 calendar months following the entry into force of this point. The application must be filed with the social insurance institution to which the last German contribution was paid or deemed to have been paid, and which is competent for adjudicating the benefit claim. If the last German contribution was paid to an institution of the miners pensions insurance system, retroactive voluntary contributions may only be paid to the wage earners or salaried employees insurance system. The contributions shall be paid to the social insurance institution that is competent to accept and process the application.

(i) Applications under subparagraph (h) shall be considered timely filed applications for benefits. Benefits resulting from this point shall be paid beginning 1 July 1990, if the event giving rise to eligibility occurs prior to this date and the benefit eligibility requirements applicable on 1 July 1990, are met. If the event giving rise to eligibility occurs after 30 June 1990, benefits resulting from this point shall be paid beginning with the calendar month following the month in which the event giving rise to eligibility occurs and the benefit eligibility requirements applicable on 1 July 1990, are met; a survivors benefit shall be paid from the date of death if a benefit was not payable to the insured person for the month of death.

(j) Subparagraphs (h) and (i) shall also apply with respect to persons whose pensions were awarded prior to the entry into force of this point. In this case, the amount of Personal Remuneration Points shall at least equal the amount previously considered."

(17) Point 14 of the Final Protocol to the Agreement is deleted.

ARTICLE 2

(1) This Supplementary Agreement shall be subject to ratification. The instruments of ratification shall be exchanged in Berlin as soon as possible.

(2) This Supplementary Agreement shall enter into force on the first day of the fourth month following the final day of the month in which the instruments of ratification are exchanged.

(3) Article 14(a)(ii) of the Agreement as amended by Article 1(5) of this Supplementary Agreement shall be applied retroactively as from 3 October 1990.

(4) Article 1(16) of this Supplementary Agreement shall be applied retroactively as from 1 July 1990.

IN WITNESS WHEREOF the undersigned, being duly authorized, have signed this Supplementary Agreement.

DONE at Toronto on the 27^th day of August 2002, in two copies, in the English, French and German languages, each text being equally authentic.

Jane Stewart

FOR CANADA

Christian Pauls

FOR THE FEDERAL REPUBLIC OF GERMANY