M-19.2, r. 5 - Regulation respecting the implementation of the Supplementary Agreement on social security between the Gouvernement du Québec and the Government of Portugal

Schedule Disposition versions

2012-09-01

SCHEDULE I

(s. 1)

SUPPLEMENTARY AGREEMENT ON SOCIAL SECURITY BETWEEN QUÉBEC AND PORTUGAL

The Gouvernement du Québec

and

the Government of Portugal,

Considering the Entente en matière de sécurité sociale entered into by the Parties on the twentieth (20th) day of March 1981 and in particular article 24 therein,

Desiring to facilitate the movement of persons between Portugal and Québec,

Resolved to guarantee to their respective nationals the advantages of the coordination of the social security legislation of Québec and Portugal,

Have agreed as follows:

TITLE I

GENERAL

ARTICLE 1

INTERPRETATION

In the Agreement, unless a different meaning is indicated by the context:

(a) «competent authority» means, for Québec, the minister responsible for the application of the legislation referred to in article 2; for Portugal, the corresponding ministers or authorities responsible for the application of the legislation referred to in article 2;

(b) «competent institution» means, for Québec, the department or agency responsible for the administration of the legislation referred to in article 2; for Portugal, either the institution with which the person is affiliated at the time of the application for benefits or from which he is or would be entitled to receive benefits if he resided in the territory of Portugal, or the institution designated by the competent Portuguese authority;

(c) «benefit, pension, annuity or allowance» means any extension, supplement or increase provided under the legislation of either Party, and any lump-sum payment in lieu of a pension or annuity;

(d) «national» means, for Québec, a Canadian citizen residing in Québec; for Portugal, any person of Portuguese nationality;

(e) «territory» means, for Québec, the territory of Québec; for Portugal, the territory of Portugal on the European continent and the archipelagoes of the Azores and Madeira;

and any term not defined in the Agreement has the meaning assigned to it in the applicable legislation.

ARTICLE 2

MATERIAL SCOPE

The agreement shall apply to the legislation mentioned hereinafter:

(a) for Québec, the legislation concerning occupational accidents and diseases, family allowances, health insurance, hospital insurance and other health services;

(b) for Portugal, the social security legislation concerning family benefits and sickness and maternity benefits, and the legislation concerning occupational accidents and diseases.

ARTICLE 3

AMENDMENTS TO LEGISLATION

1. The Agreement shall also apply to any statutory or regulatory instrument amending, supplementing or replacing the legislation referred to in article 2.

2. The Agreement shall also apply to any statutory or regulatory instrument of a Party extending existing plans to new categories of recipients; however, that Party shall be allowed three months from the official publication of the statutory or regulatory instrument to notify the other Party that the Agreement does not apply.

3. The Agreement shall not apply to a statutory or regulatory instrument covering a new branch of social security unless the Agreement is amended to that effect.

ARTICLE 4

PERSONAL SCOPE

Unless otherwise provided, the Agreement shall apply:

(a) to nationals of each Party;

(b) to refugees, within the meaning of article 1 of the Convention Relating to the Status of Refugees of 28 July 1951 and of the Protocol of 31 January 1967 to that Convention;

(c) to stateless persons, within the meaning of article 1 of the Convention Relating to the Status of Stateless Persons of 28 September 1954;

(d) to other persons who are or have been subject to the legislation of a Party or who have acquired rights under that legislation.

ARTICLE 5

EQUALITY OF TREATMENT

1. Unless otherwise provided in the Agreement, the persons designated in article 4 shall, in the application of the legislation of a Party, receive the same treatment as the nationals of that Party.

2. Unless otherwise provided in the Agreement, no benefit acquired under the legislation of one Party or under the Agreement may suffer any reduction, modification, suspension, cancellation, or confiscation solely as a result of the beneficiary’s residing or sojourning in the territory of the other Party, and such benefit shall be payable in the territory of the other Party.

3. Any benefit which, under the Agreement, is payable by one Party in the territory of the other Party, shall also be payable outside the territory of both Parties under the same conditions that the first Party applies to its nationals under its legislation.

TITLE II

PROVISIONS RESPECTING THE APPLICABLE LEGISLATION

ARTICLE 6

GENERAL RULE

Unless otherwise provided in the Agreement and subject to articles 7, 8, 9, 10 and 11, a person shall be subject only to the legislation of the Party in whose territory he works.

ARTICLE 7

SELF-EMPLOYED PERSONS

1. A person residing in the territory of one Party who is self-employed in the territory of both Parties shall, with respect to such employment, be subject only to the legislation of the first Party.

2. A person residing in the territory of one Party who is self-employed in the territory of the other Party shall, with respect to such employment, be subject to the legislation of each Party, insofar as provided in the legislation in question.

ARTICLE 8

DETACHED PERSONS

1. A person employed in the territory of one Party and temporarily detached by his employer to the territory of the other Party to work for that employer shall, with respect to such work, be subject only to the legislation of the first Party, provided that the duration of that work not exceed two years.

2. Where the duration of the work is extended beyond two years, the legislation of the first Party shall remain applicable until the completion of that work, provided that both Parties give their approval.

ARTICLE 9

PERSONS EMPLOYED BY AN INTERNATIONAL TRANSPORTER

1. A person employed by an international transporter and working in the territory of both Parties as travelling personnel for an undertaking having its head office in the territory of one Party and transporting passengers or goods on its own behalf or on behalf of others, by air or by sea, shall be subject to the legislation of that Party.

2. Notwithstanding the foregoing, where that person is employed by a branch or permanent agency which the undertaking has in the territory of one Party other than the Party in whose territory it has its head office, he shall be subject to the legislation of the Party in whose territory that branch or permanent agency is located.

3. Notwithstanding the two preceding paragraphs, where the person works mainly in the territory of the Party in which he resides, he shall be subject to the legislation of that Party, even if the undertaking that employs him has no head office, branch or permanment agency in that territory.

ARTICLE 10

PERSONS IN GOVERNMENT SERVICE

1. Any person employed by one Party and assigned to a post in the territory of the other Party shall, with respect to that post, be subject only to the laws of the first Party.

2. A person recruited by one Party in the territory of the other Party to occupy a post in government service shall, with respect to that post, be subject only to the legislation applying in that territory.

3. Notwithstanding the foregoing, a national of one Party recruited by that Party in the territory of the other Party to occupy a post in government service therein shall, with respect to that post, have the option of being subject to the legislation of either Party.

4. This Agreement shall be interpreted as respecting the provisions of the Vienna Convention on Diplomatic Relations and the provisions of the Vienna Convention on Consular Relations relative to the legislation referred to in article 2.

5. For the purposes of this Article, a Canadian citizen not residing in Québec but who is or has been subject to the legislation of Québec shall have the same rights and advantages as a Québec national.

ARTICLE 11

DEROGATION FROM THE PROVISIONS ON COVERAGE

The competent authorities of both Parties may agree to a derogation from articles 6, 7, 8, 9 and 10 with respect to any person or category of persons.

TITLE III

PROVISIONS RESPECTING BENEFITS

CHAPTER 1

OCCUPATIONAL ACCIDENTS AND DISEASES

ARTICLE 12

APPLICABLE BENEFITS

1. For Québec, this Chapter shall apply to all benefits under the legislation respecting occupational accidents and diseases.

2. For Portugal, this Chapter shall apply to all benefits under the legislation respecting occupational accidents and diseases.

ARTICLE 13

SOJOURN OR RESIDENCE IN THE TERRITORY OF THE OTHER PARTY

1. A person who is or becomes eligible for benefits under the legislation of one Party and who sojourns or resides in the territory of the other Party shall be entitled to:

(a) benefits in kind provided, on behalf of the comptetent institution, by the institution of the place of sojourn or residence according to the provisions of the legislation which it applies;

the duration of the provision of benefits shall nevertheless be governed by the legislation applicable by the competent institution;

(b) cash benefits provided by the competent institution according to the provisions of the legislation which it applies.

2. The granting of prostheses, major apparatus and other benefits in kind of major importance or of an unusual nature shall be subject, except in the case of an emergency, to the authorization of the competent institution.

ARTICLE 14

OCCUPATIONAL DISEASE CONTRACTED IN THE TERRITORY OF EITHER PARTY

1. Where the victim of an occupational disease has carried out, under the legislation of both Parties, an activity likely to have caused such disease, the benefits which the beneficiary may claim shall be granted exclusively under the legislation of the Party in whose territory the activity in question was last carried out, taking into account the provisions of the following paragraphs.

2. If the granting of occupational disease benefits under the legislation of one Party is subject to the condition that the disease in question first have been diagnosed within its territory, that condition shall be deemed to have been fulfilled if such disease was first diagnosed within the territory of the other Party.

3. If the granting of occupational disease benefits under the legislation of one Party is subject to the condition that the disease in question have been diagnosed within a fixed time period after the cessation of the last activity likely to have caused such disease, the competent institution of that Party, in determining when that last activity was carried out, shall take into consideration, insofar as necessary, the activities of a similar nature carried out under the legislation of the other Party, as if they had been carried out under the legislation of the first Party.

4. If the granting of occupational disease benefits under the legislation of one Party is subject to the condition that an activity likely to have caused the disease in question have been carried out for a certain period of time, the competent institution of that Party shall take into consideration, insofar as necessary, the periods during which such activity was carried out under the legislation of the other Party, as if it had been carried out under the legislation of the first Party.

5. The cost of such benefits shall be divided between the institutions of the two Parties. That division shall be made on the pro rata basis of the duration of the periods of activities related to the disease in question, completed under the legislation of each of the Parties, compared to the total duration of such periods completed under the legislation of both Parties, on the date at which such benefits commenced.

ARTICLE 15

AGGRAVATION OF AN OCCUPATIONAL DISEASE UNDER COMPENSATION

1. In the event of the aggravation of an occupational disease for which a person has received or is receiving compensation under the legislation of one Party, the following provisions shall apply:

(a) if, since receiving benefits, the person has not worked at an occupation under the legislation of the other Party which was likely to cause or aggravate the disease in question, the competent institution of the first Party shall provide the benefits relative to the aggravation and assume their cost, in accordance with the provisions of the legislation which it applies;

(b) if, since receiving benefits, the person has worked at such an occupation under the legislation of the other Party, the institution of the first Party shall continue to pay the benefits relative to the occupational disease without taking into account the aggravation, and the competent institution of the second Party shall grant the person a supplement equal to the difference between the amount of benefits due after the aggravation and the amount of benefits which would have been due before the aggravation, under the legislation which the institution of the second Party applies.

2. In the event of the aggravation of an occupational disease which has given rise to the application of the provisions of article 14, the following provisions shall apply:

(a) the cost of the benefits shall continue to be divided between the institutions of the two Parties in accordance with paragraph 5 of article 14;

(b) if the person has once again carried out an activity likely to aggravate the occupational disease in question under the legislation of one Party, the competent institution of that Party shall determine and bear the cost of the difference between the amount of benefits due owing to the aggravation and the amount of benefits which were due before the aggravation.

3. The provisions of article 13 shall apply also in the case of an aggravation of an occupational disease under compensation in the territory of sojourn or new residence.

ARTICLE 16

DETERMINATION OF THE DEGREE OF DISABILITY

If the legislation of one Party explicitly of implicitly provides that occupational accidents or diseases previously contracted or diagnosed are taken into consideration to evaluate the degree of disability, the competent institution of that Party shall also take into consideration the occupational accidents or diseases previously contracted or diagnosed under the legislation of the other Party, as if they had been contracted or diagnosed under the legislation which it applies.

ARTICLE 17

CALCULATION OF CASH BENEFITS

1. The competent institution of a Party whose legislation provides that the calculation of cash benefits is based on an average salary shall determine such average salary exclusively on the basis of salaries earned during periods completed under that legislation.

2. The competent institution of a Party whose legislation provides that the calculation of cash benefits is based on a fixed salary shall take only the fixed salary into account or, where applicable, the average of the fixed salaries corresponding to the periods completed under that legislation.

3. The competent institution of one Party whose legislation provides that the amount of the cash benefits varies according to the number of family members shall also take into account the family members of the person in question who reside in the territory of the other Party, as if they resided in the territory of the first Party.

ARTICLE 18

MAXIMUM DURATION OF BENEFITS

If the legislation of one Party fixes a maximum duration for the granting of benefits, the institution which applies that legislation may take into account the period during which benefits have already been provided by the institution of the other Party.

CHAPTER 2

HEALTH SERVICES

ARTICLE 19

APPLICABLE BENEFITS

1. For Québec, this Chapter shall apply to all benefits in kind under the legislation respecting health insurance, hospital insurance and other health services.

2. For Portugal, this Chapter shall apply to all benefits in kind under the legislation respecting official health services.

ARTICLE 20

INSURED PERSONS

For the purposes of this Chapter, an «insured person» is a person who, before his departure for the territory of one Party, was eligible for the benefits provided by the legislation of the other Party. Notwithstanding the foregoing, this Chapter does not apply to a person referred to in article 10, nor to a dependant of that person.

ARTICLE 21

BENEFITS IN THE TERRITORY OF NEW RESIDENCE

An insured person residing in the territory of one Party and leaving that territory to reside in the territory of the other Party shall be entitled from the day of his arrival, as shall his dependants accompanying him, to the benefits provided under the legislation of the latter Party.

ARTICLE 22

BENEFITS IN THE TERRITORY OF SOJOURN

An insured person, other than a person referred to in article 9, residing in the territory of one Party and sojourning temporarily in the territory of the other Party in order to work there shall be entitled from the day of his arrival in that territory, as shall his dependants accompanying him, to the benefits provided under the legislation of the latter Party.

ARTICLE 23

BENEFITS TO PERSONS SUBJECT TO THE LEGISLATION OF ONE PARTY AND WORKING IN THE TERRITORY OF THE OTHER PARTY

Where a person is subject to the legislation of one Party and works in the territory of the other Party, he shall be entitled from the day of his arrival in that territory, as shall his dependants accompanying him, to the benefits provided under the legislation of the latter Party.

ARTICLE 24

BENEFITS TO PENSION HOLDERS

The holder of an old-age, retirement, survivor’s or disability pension or of occupational accident or disease benefits under the legislation of one Party who resides in the territory of that Party and leaves that territory to reside in the territory of the other Party shall be entitled, as shall his dependants accompanying him, to the benefits provided under the legislation of the latter Party as if he were a pension holder under the legislation of that Party.

ARTICLE 25

BENEFITS TO DEPENDANTS NOT RESIDING WITH THE INSURED PERSON

1. A dependant of a person eligible for benefits provided under the legislation of one Party shall be entitled to the benefits provided under the legislation of the place of residence of the dependant.

2. In all the cases provided for in paragraph 1, the status of the dependant and the extent, duration and procedures of the provision of benefits shall be determined by the provisions of the legislation of the place of residence of the dependant.

ARTICLE 26

BENEFITS TO STUDENTS

Where a person is registered as a full-time student in an accredited educational institution in the territory of one Party, he shall be entitled from the day of his arrival in the territory of that Party, as shall his dependants accompanying him, to the benefits provided under the legislation of that Party, provided that the institution of the other Party issue an attestation certifying that he is entitled to benefits.

ARTICLE 27

FINANCIAL RESPONSIBILITY OF INSTITUTIONS

1. The institution providing the benefits referred to in articles 21, 24 and 25 shall bear the cost thereof.

2. The institution providing the benefits referred to in articles 22, 23 and 26 may apply to the competent institution of the other Party for reimbursement of the costs of those benefits, in accordance with the procedures provided for in the Administrative Arrangement.

CHAPTER 3

FAMILY BENEFITS

ARTICLE 28

APPLICABLE BENEFITS

1. For Québec, this Chapter shall apply to all benefits under the Family Allowances Act.

2. For Portugal, this Chapter shall apply to all benefits under the legislation respecting family benefits.

ARTICLE 29

ENTITLEMENT TO BENEFITS

A person residing in the teritory of a Party shall, with respect to the dependant children also residing there, be entitled to family benefits under the conditions provided by the legislation of that Party.

ARTICLE 30

BENEFITS TO DETACHED PERSONS

1. The dependant children accompanying a detached person referred to in article 8 in Québec enable entitlement to family benefits provided under Portuguese legislation to be maintained or established.

2. The dependant children accompanying a detached person referred to in article 8 in Portugal enable entitlement to family benefits provided under Québec legislation to be maintained or established.

TITLE IV

MISCELLANEOUS

ARTICLE 31

ADMINISTRATIVE ARRANGEMENT

1. The terms and conditions for the application of the Agreement shall be set out in an Administrative Arrangement to be agreed to by both Parties.

2. The liaison agencies of both Parties shall be designated in the Administrative Arrangement.

3. The Administrative Arrangement shall further designate, for both Parties, the competent institutions of the place of residence of sojourn for the purposes of Chapter I of Title III.

ARTICLE 32

MUTUAL ASSISTANCE

The competent authorities and institutions shall:

(a) communicate to each other any information required for the application of the Agreement;

(b) assist each other free of charge in any matter concerning the application of the Agreement;

(c) forward to each other any information on measures adopted for purposes of the application of the Agreement or on amendments to their respective legislation insofar as such amendments concern the application of the Agreement;

(d) inform each other of the difficulties encountered in the interpretation and the application of the Agreement.

ARTICLE 33

SETTLEMENT OF DISPUTES

1. Any dispute between the two contracting Parties concerning the interpretation or the application of the Agreement shall, insofar as possible, be settled by the competent authorities.

2. If a dispute cannot be settled as prescribed in paragraph 1, it shall be referred, at the request of a Party, to a joint commission.

3. The joint commission shall be formed on an ad hoc basis.

4. The commission shall study the dispute and try to reconcile the Parties by submitting recommendations conducive to a settlement of the dispute.

ARTICLE 34

USE OF INFORMATION

1. For the purposes of this article, the word «information» means any indication on the basis of which the identity of a natural or legal person can be easily established.

2. Unless disclosure is required under the legislation of a Party, any information communicated by an institution of one Party to an institution of the other party shall be confidential and shall be used exclusively for the application of the Agreement and the legislation to which is applies.

3. Access to files containing information shall be subject to the legislation of the Party in whose territory the file is located.

ARTICLE 35

TERMS AND CONDITIONS OF PAYMENT

All benefits are payable directly to the beneficiary in the currency of the Party making the payment, without any deduction for administrative costs, transportation costs or any other costs that may be incurred for the purposes of paying the benefits.

ARTICLE 36

EXEMPTION FROM FEES AND AUTHENTICATION

1. Any exemption from or reduction of fees provided for under the legislation of one Party with respect to the issuing of a certificate or document required for the purposes of that legislation shall be extended to the certificates and documents required for the purposes of the legislation of the other Party.

2. Any document required for the purposes of the Agreement shall be exempted from authentication by diplomatic or consular authorities or any other similar formality.

ARTICLE 37

PRESENTATION OF AN APPLICATION, A NOTICE OR AN APPEAL

1. An application for benefits submitted under the legislation of one Party shall be deemed to be an application for the same benefits under the legislation of the other Party, unless the applicant indicates otherwise.

2. An application, a notice or an appeal which, under the legislation of one Party, should have been submitted within a prescribed time to that Party, but which was submitted within the same time to the competent authority or institution of the other Party, shall be deemed to have been submitted to the authority or institution of the first Party. In such a case, the authority or institution of the second Party shall forward, without delay, the application, notice or appeal to the authority or institution of the first Party.

3. An appeal from a decision shall be considered according to the normal appeal procedure provided for under the legislation of the Party whose decision is being appealed, and the competent institution of that Party shall notify the competent institution of the other Party of the decision delivered on appeal.

ARTICLE 38

EXPERT APPRAISEMENT

1. Expert appraisement provided for under the legislation of one Party may, upon application by the competent institution, be produced in the territory of the other Party by the institution of the place of sojourn or residence of the beneficiary.

2. Expert appraisement produced under the conditions provided for in paragraph 1 shall not be held to be invalid by the sole fact that it was produced in the territory of the other Party.

ARTICLE 39

REIMBURSEMENT BETWEEN INSTITUTIONS

1. An institution shall reimburse the cost of benefits provided on its behalf by the other institution, as well as the cost of benefits chargeable to it and provided by the other institution.

2. An institution shall reimburse the cost of professional fees related to each expert appraisement produced at its request by the other institution.

3. The Administrative Arrangement shall fix the terms and conditions of the reimbursement of costs referred to in the two preceding paragraphs.

4. Where applicable, the contracting Parties shall determine in the Administrative Arrangement whether they waive, in whole or in part, reimbursement of those costs.

TITLE V

TRANSITIONAL AND FINAL

ARTICLE 40

TRANSITIONAL

1. The Agreement does not confer entitlement to payment of benefits for a period before the date of its coming into force.

2. For the purposes of Chapter 1 of Title III of the Agreement, events occuring and any period of employment or residence completed under the legislation of one Party before the date of the coming into force of the Agreement shall be taken into account in determining the amount of the benefits and the sharing of their cost between the competent institutions.

ARTICLE 41

COMMUNICATIONS

1. The competent authorities and institutions of each Party may communicate with each other in their official language.

2. A decision by a tribunal or a notice by a competent institution may be addressed directly to a person residing in the territory of the other Party.

ARTICLE 42

COMING INTO FORCE AND DURATION

1. Each contracting Party shall notify the other when the internal procedures required for the coming into force of the Agreement have been completed.

2. The Parties enter into this Arrangement for an idefinite duration from the date of its coming into force, which shall be set by an exchange of letters between the contracting Parties. It may be denounced by either of the Parties by notifying the other Party.

The Agreement expires on the 31st day of December which follows the date of such notification by at least 12 months.

3. If the Agreement is denounced, any entitlement enjoyed by a person under its provisions shall remain in effect, and negotiations shall be undertaken to decide any entitlements in the process of being created under the Agreement.

Done at Québec on the 28th day of March 1990, in duplicate, in the French and Portuguese languages, both texts being equally authentic.

For the Gouvernement du Québec

..............

For the Government of Portugal

..............

O.C. 1182-92, Sch. I.