R-9, r. 28 - Regulation respecting implementation of the Understanding on Social Security between the Gouvernement du Québec and the Government of Republic of Malta

Schedule Disposition versions

2012-09-01

SCHEDULE I

(a. 1)

UNDERSTANDING ON SOCIAL SECURITY BETWEEN QUÉBEC AND MALTA

The gouvernement du Québec,

and

The Government of Malta,

Resolved to guarantee to their respective nationals the advantages of the co-ordination of the social security legislations of Québec and Malta,

Have agreed as follows:

PART I

GENERAL PROVISIONS

ARTICLE 1

DEFINITIONS

In the Understanding, unless a different meaning is indicated by the context, the following expressions shall mean:

(a) «competent authority»: the minister of Québec or the minister of Malta responsible for the application of the legislation referred to in Article 2;

(b) «competent institution»: the department or agency of Québec or the department or agency of Malta responsible for the administration of the legislation referred to in Article 2;

(c) «period of insurance»: as regards Québec, any year for which contributions have been paid or for which a disability pension has been paid under the Act respecting the Québec Pension Plan or any other year considered as equivalent; and, as regards Malta, a period of contributions whether paid or credited used to acquire the right to a benefit under the legislation of Malta;

(d) «benefit»: a pension, an annuity, an allowance, a lump-sum grant or any other benefit in cash provided under the legislation of each Party, including any extension, supplement or increase thereto;

(e) «national»: a pension of Canadian nationality residing in Québec or a person of Maltese nationality;

(f) «continental shelf»: as regards Malta, every area beyond the territorial seas that, in accordance with international law and the laws of Malta, is an area in respect of which Malta may exercise rights with respect to the seabed and sub-soil and their natural resources,

and any term not defined in the Understanding shall be understood as having the meaning given to it in the applicable legislation.

ARTICLE 2

MATERIAL SCOPE

1. The Understanding shall apply:

(a) to the legislation of Québec concerning the Québec Pension Plan;

(b) to the legislation of Malta concerning the Social Security Act, 1987, and regulations made thereunder, as they provide for, apply to or affect:

i. pensions in respect of retirement,

ii. age pension,

iii. pensions in respect of invalidity,

iv. pensions to widows,

v. orphan’s allowance, and

vi. the payment of contributions.

2. The Understanding shall apply equally to any legislative or regulatory act which modifies, adds to, or replaces the legislation referred to in paragraph 1.

3. The Understanding shall apply also to a legislative or regulatory act of one Party which extends the existing systems to new categories of beneficiaries; however, this Party may, within six (6) months of the date of the official publication of that act, notify the other Party that the Understanding shall not apply.

4. The Understanding shall not apply to a legislative or regulatory act which covers a new branch of social security, unless the Understanding is modified to that effect.

ARTICLE 3

PERSONAL SCOPE

Unless otherwise provided, the Understanding shall apply:

(a) to nationals of each Party;

(b) to other persons

who are or have been subject to the legislation of a Party or who have acquired rights by virtue of that legislation.

ARTICLE 4

EQUALITY OF TREATMENT

Unless otherwise provided in the Understanding, persons designated in Article 3 shall, in the application of the legislation of a Party, receive equal treatment with the nationals of that Party.

ARTICLE 5

EXPORT OF BENEFITS

1. Unless otherwise provided in the Understanding, any benefit payable under the legislation of one Party, as well as benefits payable under the Understanding, may not suffer any reduction, modification, suspension, suppression or confiscation solely as a result of the beneficiary residing or sojourning in the territory of the other Party, and such benefit shall be payable in the territory of the other Party.

2. Any benefit which, under the Understanding, is payable by one Party in the territory of the other Party, shall also be payable outside the territory of either Party under the same conditions that the first Party applies to its nationals under its internal legislation.

PART II

PROVISIONS ON THE APPLICABLE LEGISLATION

ARTICLE 6

GENERAL RULE

Unless otherwise provided in the Understanding and subject to Articles 7, 8, 9, 10 and 11, persons shall be subject only to the legislation of the Party in whose territory they are working.

ARTICLE 7

SELF-EMPLOYED PERSONS

Persons residing in the territory of one Party and working for their own account in the territory of the other Party or in the territory of both Parties shall, with respect to such work, be subject only to the legislation of their place of residence.

ARTICLE 8

DETACHMENT

1. Persons subject to the legislation of one Party and temporarily detached by their employers, for a period not exceeding thirty-six months, to the territory of the other Party shall, with respect to such employment, be subject only to the legislation of the first Party during the term of their detachment.

2. However, if the time required to complete the work comes to exceed thirty-six months, the legislation of the first Party may continue to apply provided that the competent institutions of both Parties give their approval.

3. Paragraph 1 shall apply to persons who are sent to work on an installation situated in the continental shelf area of a Party in connection with the exploration of the seabed and sub-soil of that area or the exploitation of its mineral resources, as though that installation were situated in the territory of that Party.

ARTICLE 9

TRAVELLING PERSONNEL EMPLOYED IN INTERNATIONAL TRANSPORT

1. Persons working in the territory of both Parties as travelling personnel for an international carrier which, on behalf of others or on its own account, transports passengers or goods, by air or by sea, and which has its registered office in the territory of one Party, shall be subject to the legislation of this Party.

2. However, if those persons are 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 registered office, they shall be subject to the legislation of the Party in whose territory the branch or permanent agency is located.

3. Notwithstanding the preceding two paragraphs, if the persons are employed wholly or mainly in the territory of the Party where they are resident, they shall be subject to the legislation of that Party, even if the undertaking which employs them has neither its registered office nor a branch or permanent agency in that territory.

4. Persons who, but for this Understanding, would be subject to the legislation of both Parties in respect of employment as members of the crew of a ship or aircraft shall, in respect of that employment, be subject only to the legislation of Québec if they ordinarily reside in Québec and only to the legislation of Malta in any other case.

ARTICLE 10

PERSONS IN GOVERNMENT SERVICE

1. Persons in Government Service for one of the Parties and assigned to a post in the territory of the other Party shall be subject only to the legislation of the first Party for all matters relative to that post.

2. Persons residing in the territory of one Party and being in that territory in Government Service for the other Party shall, with respect to that service, be subject only to the legislation which applies in that territory. However, if those persons are nationals of the Party by which they are employed, they may, within six months from the beginning of their employment or from the coming into force of the Understanding, choose to be subject only to the legislation of that Party.

3. In the application of this Article, Canadian citizens who do not reside in Québec but who are or have been subject to the legislation of Québec are deemed to be nationals of Québec.

4. No provision of the Understanding may be interpreted as being contrary to the provisions of the Vienna Convention on Diplomatic Relations of April 18, 1961, or to the provisions of the Vienna Convention on Consular Relations of April 24, 1963, relative to the legislation referred to in Article 2.

ARTICLE 11

DEROGATION FROM THE PROVISIONS ON COVERAGE

The competent authorities of both Parties may by common agreement derogate from the provisions of Articles 6, 7, 8, 9 and 10 with respect to any persons or categories of persons.

PART III

PROVISIONS ON BENEFITS

ARTICLE 12

PRINCIPLE OF TOTALIZATION

When persons have completed periods of insurance under the legislation of both Parties and are not eligible for benefits by virtue of the periods of insurance completed solely under the legislation of one Party, the competent institution of that Party shall totalize, to the extent necessary for the entitlement to benefits under the legislation which it applies, the periods of insurance completed under the legislation of each of the Parties, provided that they do not overlap.

ARTICLE 13

BENEFITS UNDER THE LEGISLATION OF QUÉBEC

1. If persons who have been subject to the legislation of both Parties meet the requirements for entitlement to benefits, for themselves or for their dependants, survivors or other rightful claimants, under the legislation of Québec without having recourse to the totalization mentioned in Article 12, the competent institution of Québec shall determine the amount of benefits in accordance with the provisions of the legislation which it applies.

2. If the persons referred to in paragraph 1 do not fulfill the requirements for giving entitlement to benefits without totalization, the competent institution of Québec shall proceed as follows:

(a) it shall recognize a year of contribution when the competent institution of Malta certifies that a period of insurance of at least thirteen (13) weekly contributions has been credited in a calendar year under the legislation of Malta, provided that the year is included in the contributory period as defined in the legislation of Québec;

(b) years recognized under sub-paragraph (a) shall be totalized with periods of insurance completed under the legislation of Québec, in accordance with Article 12.

3. When the totalization prescribed in paragraph 2 entitles persons to benefits, the competent institution of Québec shall determine the amount payable as follows:

(a) that part of the benefit which is related to earnings is calculated according to the provisions of the legislation of Québec;

(b) the flat rate portion of the benefit is adjusted proportionately to the periods for which contributions were paid under the legislation of Québec relative to the contributory period as defined in that legislation.

ARTICLE 14

BENEFITS UNDER THE LEGISLATION OF MALTA

1. If persons who have been subject to the legislation of both Parties meet the requirements for entitlement to benefits, for themselves or for their dependants, survivors or other righful claimants, under the legislation of Malta without having recourse to the totalization mentioned in Article 12, the competent institution of Malta shall determine the amount of benefits in accordance with the provisions of the legislation which it applies.

2. If the persons referred to in paragraph 1 do not fulfill the requirements for giving entitlement to benefits without totalization:

(a) For purposes of determining entitlement to a benefit under the legislation of Malta, other than a pension in respect of invalidity, the competent institution of Malta shall proceed as follows:

i. a calendar year commencing on or after January 1, 1966, which is a period of insurance under the Québec Pension Plan shall be considered as 52 weeks of contributions under the legislation of Malta;

ii. a calendar week after the 7th May, 1956, which is a period of residence under the Old Age Security Act which applies in the territory of Québec and which is not part of a period of insurance under the Québec Pension Plan shall be considered as a week of contributions under the legislation of Malta.

(b) For purposes of determining entitlement to a pension in respect of invalidity under the legislation of Malta, a calendar year which is a period of insurance under the Québec Pension Plan shall be considered as 52 weeks of contributions under the legislation of Malta, and any period of residence under the Old Age Security Act which applies in the territory of Québec shall not be taken into account.

(c) Weeks recognized under sub-paragraph (a) and (b) shall be totalized with periods of insurance completed under the legislation of Malta, in accordance with Article 12.

(d) No totalization of periods of insurance shall be made unless:

i. in the case of a Two-Thirds Pension (Retirement), the person concerned has paid at least 156 weeks of contributions under the legislation of Malta after 22nd January, 1979;

ii. in the case of a Survivor’s Pension (Widowhood), the husband of the widow concerned would have paid at least 156 weeks of contributions under the legislation of Malta after 22nd January, 1979;

iii. in the case of any other pension, the person concerned or the husband (as is the case with a pension in respect of widowhood) has paid at least 52 weeks of contributions after 7th May, 1956; and

iv. in the case of a benefit payable under the legislation of Québec, the person concerned has completed periods of insurance under that legislation which total at least one year.

3. When the totalization prescribed in paragraph 2 entitles persons to benefits, subject to the provisions of paragraphs 4 and 5 of this Article, the competent institution of Malta shall determine the amount of the pension payable as follows:

(A) a Two-Thirds Pension (Retirement) and a Survivors’ Pension (Widowhood) shall be determined in conformity with the provisions of the Social Security Act, 1987, exclusively on the basis of:

(a) the contributions paid or credited in Malta, and

(b) the pensionable income as defined in that Act; sohowever that such pensionable income shall be calculated solely on the basic wage/salary or net income, as the case may be under that Act, which:

i. had been earned or received in Malta during the last 10 calendar years immediately preceding his or her retirement or invalidity, as the case may be, or

ii. if during the last 10 calendar years immediately preceding his or her retirement or invalidity he or she was a resident of Québec or of a third State with which both Parties have a reciprocal instrument on social security or was residing in Malta but exempt from the payment of contributions under the legislation of Malta, had been earned or received in Malta during the last 10 calendar years immediately preceding his or her last day of employment/self-employment in Malta; and

(B) any other pension, excluding an Age Pension, shall be determined in conformity with the Social Security Act, 1987, exclusively on the basis of the contributions paid or credited in Malta.

4. In the application of paragraph 3, the competent institution of Malta shall first compute the amount of the theoretical benefit which would be payable if the periods of insurance under the legislation of Québec and Malta, totalized as provided in paragraph 2 and, where required, taking into account periods in a third State through the application of Article 15, had been periods of insurance under the legislation of Malta alone. The theoretical benefit so computed shall be prorated by the fraction that the total reckonable contributions paid or credited under the legislation of Malta bear to the number of contributions totalized under the provisions of Part III.

5. In the case of an Age Pension as is payable under the Social Security Act, 1987, a national of Québec who is normally residing in Malta shall have the same rights and obligations as a national of Malta who is normally residing in Malta.

6. A benefit payable under the Old Age Security Act which applies in the territory of Québec and/or the Québec Pension Plan shall not be considered as income for the purposes of disqualifying a person from receiving a pension as is referred to under (A) of paragrah 3.

ARTICLE 15

COMMON PROVISIONS

If persons are not entitled to benefits after the totalization prescribed in Article 13 or in Article 14, the periods of insurance completed under the legislation of a third party bound to each Party by a legal instrument on social security containing provisions on the totalization of periods of insurance shall be taken into account for the determination of entitlement to benefits in accordance with the terms and conditions prescribed in this Part.

PART IV

MISCELLANEOUS PROVISIONS

ARTICLE 16

ADMINISTRATIVE ARRANGEMENT

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

2. The liaison agency of each Party shall be designated in the Administrative Arrangement.

ARTICLE 17

CLAIM FOR BENEFITS

1. To be entitled to a benefit under the Understanding, a person shall file a claim in accordance with the terms and conditions provided for in the Administrative Arrangement.

2. A claim for a benefit filed under the legislation of one Party after the date of the coming into force of the Understanding shall be deemed to be a claim for an equivalent benefit under the legislation of the other Party, if the person:

(a) indicates the wish that the claim be considered as a claim under the legislation of the other Party; or

(b) indicates, at the time of the claim, that periods of insurance have been completed under the legislation of the other Party.

The date of receipt of such a claim shall be deemed to be the date on which that claim was received under the legislation of the first Party.

3. The presumption set out in the preceding paragraph shall not impede a person from requesting that a claim for benefits under the legislation of the other Party be deferred.

ARTICLE 18

PAYMENT OF BENEFITS

1. All cash benefits shall be payable directly to the beneficiary without any deduction for administrative costs, or for any other costs incurred in paying the benefits.

2. Benefits under this Understanding shall be paid by the competent institution of Québec and of Malta in a currency freely convertible in the place of residence of the beneficiary.

3. In the application of paragraph 2, the conversion rate shall be the rate of exchange in effect on the day when the payment is made.

ARTICLE 19

PRESCRIBED TIME OF PRESENTATION

1. A request, a declaration or an appeal which, under the legislation of one Party, should have been presented within a prescribed time to the authority or institution of that Party shall be accepted if presented within the same time to the corresponding authority or institution of the other Party. In such a case, the authority or institution of the second Party shall forward, without delay, the request, declaration or appeal to the authority or institution of the first Party.

2. The date on which the request, declaration or appeal is presented to the authority or institution of one Party shall be considered as the date of presentation to the authority or institution of the other Party.

ARTICLE 20

MEDICAL REPORTS

1. At the request of the competent institution of one Party, the competent institution of the other Party shall make the necessary arrangements for providing medical reports required for persons residing or sojourning in the territory of the latter Party.

2. The medical reports referred to in paragraph 1 shall not be considered invalid solely because they have been prepared in the territory of the other Party.

ARTICLE 21

EXEMPTION OF FEES AND AUTHENTICATION

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

2. Any document required for the application of the Understanding shall be exempt from authentication by diplomatic or consular authorities or from any other similar formalities.

ARTICLE 22

PROTECTION OF PERSONAL INFORMATION

1. In this Article, the word «information» shall mean any indication from which the identity of an individual or legal entity 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 Understanding.

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

ARTICLE 23

MUTUAL ASSISTANCE

The competent authorities and institutions shall:

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

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

(c) forward to each other any information on measures adopted for the application of the Understanding or on modifications to their legislation to the extent that such modifications affect the application of the Understanding;

(d) notify each other of the difficulties encountered in the interpretation or in the application of the Understanding.

ARTICLE 24

REIMBURSEMENT BETWEEN INSTITUTIONS

1. The competent institution of one Party shall reimburse to the competent institution of the other Party the costs related to each medical report produced in accordance with Article 20. However, the transmission of medical or other information already in the possession of the competent institutions shall constitute an integral part of administrative assistance and shall be performed without charge.

2. The Administrative Arrangement shall provide for the terms and conditions of the reimbursement of costs referred to in the preceding paragraph.

ARTICLE 25

COMMUNICATION

1. The competent authorities and institutions and the liaison agencies of both Parties may communicate with each other in their official language.

2. A decision of a tribunal or of an institution may be communicated directly to a person residing in the territory of the other Party.

ARTICLE 26

SETTLEMENT OF DISPUTES

1. Any dispute between the two contracting Parties concerning the interpretation or the application of the Understanding shall, as far 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 one Party, to a joint commission.

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

4. The joint commission shall study the dispute and try to conciliate the Parties by submitting recommendations likely to settle the dispute.

PART V

TRANSITIONAL AND FINAL PROVISIONS

ARTICLE 27

TRANSITIONAL PROVISIONS

1. The Understanding shall not confer any right to the payment of benefits for a period before the date of its coming into force.

2. Subject to the provisions of paragraph 1:

(a) a period of insurance completed prior to the date of the coming into force of the Understanding shall be taken into consideration for the purposes of determining entitlement to a benefit under the Understanding;

(b) a benefit, other than a death benefit, is due under the Understanding even if it is related to an event prior to the date of its coming into force;

(c) in the case of a benefit payable by virtue of the application of Article 12 and when the claim for such benefit is made within two years from the date of the coming into force of the Understanding, rights created by virtue of the Understanding shall be acquired from that date or from the date of the retirement, the death or the medical invalidity as confirmed by a medical practitioner creating the right to benefit, whichever is latter, notwithstanding the provisions of the legislation of both Parties relative to the forfeiture of rights;

(d) a benefit which, on account of nationality or residence, has been refused, reduced or suspended shall, at the request of the person concerned, be granted or re-established from the date of the coming into force of the Understanding;

(e) a benefit granted before the date of the coming into force of the Understanding shall be revised, at the request of the person concerned. It may also be revised ex officio. If the revision leads to a benefit lower than that which was paid before the coming into force of the Understanding, the amount of benefit previously paid shall be maintained;

(f) if a claim referred to in sub-paragraphs (d) and (e) is filed within one year of the date of the coming into force of the Understanding, rights created by virtue of the Understanding shall be acquired from that date, notwithstanding the provisions of the legislation of both Parties relative to the forfeiture of rights;

(g) if a claim referred to in sub-paragraphs (d) and (e) is filed after the limit of one year after the coming into force of the Understanding, rights which are not forfeited shall be acquired from the date of the claim, unless there are more favorable provisions in the applicable legislation.

3. For the application of Article 8, a person already detached at the date of the coming into force of the Understanding shall be deemed to have become detached on that date.

ARTICLE 28

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 Understanding have been completed.

2. The Understanding shall be entered into for an indefinite duration beginning with 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 one of the Parties by notifying the other Party. The Understanding shall expire on the 31st day of December which follows the date of notification by at least twelve months.

3. If the Understanding is terminated after denunciation, all rights acquired by a person under the provisions of the Understanding shall remain in effect, and negotiations shall be undertaken in order to settle any rights in the process of being acquired under the Understanding.

Done at Montréal on April 5, 1991, in duplicate, in the French and English languages, both texts being equally authentic.

For the gouvernement du Québec

JOHN CIACCIA

For the Government of Malta

LOUIS CÔTÉ

O.C. 1625-91, Sch. I.