R-9, r. 7.1 - Regulation respecting the implementation of the Agreement on Social Security between the Gouvernement du Québec and the Government of the Federal Republic of Germany

Schedule Disposition versions

2014-04-01

SCHEDULE 2

(s. 2)

FINAL PROTOCOL TO THE AGREEMENT OF 20 APRIL 2010 ON SOCIAL SECURITY

BETWEEN

THE GOUVERNEMENT DU QUÉBEC

AND

THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY

At the signing of the Agreement on Social Security between the Gouvernement du Québec and the Government of the Federal Republic of Germany, the plenipotentiaries of both Contracting Parties have agreed to the following provisions:

(1) With reference to Article 2 of the Agreement:

(a) Chapter 2 of Part II of the Agreement shall not apply to the Steelworkers’ Supplementary Pension Insurance or to the Farmers’ Old Age Security of the Federal Republic of Germany.

(b) If, under the legislation of the Federal Republic of Germany, both the conditions for applying the Agreement and the conditions for applying any other convention or supranational regulation are met, the German institution shall not take that other convention or supranational regulation into account in administering the Agreement.

(c) Notwithstanding Paragraph 2 of Article 2 of the Agreement or Subparagraph (b) above, for the purposes of the Agreement, the German institutions shall consider the insurance periods completed under the Canada Pension Plan as equivalent to insurance periods completed under the Québec Pension Plan.

(d) Paragraph 2 of Article 2 of the Agreement as well as Subparagraph (b) above do not apply if the social security legislation resulting for the Federal Republic of Germany from international treaties or supranational statutes or used in their implementation contains provisions respecting the apportionment of insurance burdens.

(e) The Agreement shall apply to Québec acts and regulations extending existing legislation to new categories of beneficiaries or to new benefits only if there is not, in that respect, opposition from Québec notified to the Federal Republic of Germany within 3 months from the official publication of those instruments.

(2) With reference to Article 3 of the Agreement:

For the purposes of the administration of the German legislation, the nationals of a State within whose jurisdiction the regulation (EEC) No. 1408/71 or the regulation (EC) No. 883/2004 is applicable must be included within the scope of Paragraph 1 of Article 3 of the Agreement.

(3) With reference to Article 4 and Article 5 of the Agreement, and Subparagraph (c) of Paragraph 4 of the Final Protocol:

For the purposes of the administration of the legislation of the Federal Republic of Germany, the persons referred to in Paragraphs 1 to 4 of Article 3 of the Agreement, who reside outside Québec in Canada shall be considered as Québec nationals.

(4) With reference to Article 4 of the Agreement:

(a) The provisions respecting the apportionment of insurance burdens included in international treaties are not affected.

(b) The legislation of the Federal Republic of Germany that guarantees the participation of insured persons and employers in self-governing agencies of institutions and their associations as well as judicial decisions regarding social security shall not affected.

(c) The persons referred to in Paragraphs 1 to 3 of Article 3 of the Agreement, except for German nationals, who reside in the territory of Québec shall be eligible for voluntary insurance under the German Pension Insurance only if they have paid valid contributions to that plan for at least 60 calendar months, or if they were eligible for voluntary insurance under the transitional legislation in force before 19 October 1972. Such persons, except for those referred to in Paragraph 3 of Article 3 of the Agreement, shall also be eligible for voluntary insurance under the German Pension Insurance if they have paid a voluntary contribution to the German Pension Insurance not later than the day preceding the entry into force of the Agreement.

(d) The persons residing in Québec and nationals of a State within whose jurisdiction the regulation (EEC) No. 1408/71 or the regulation (EC) No. 883/2004 is applicable shall be eligible for voluntary insurance under the German Pension Insurance only to the extent of the application of those regulations.

(5) With reference to Article 5 of the Agreement:

(a) The legislation of the Federal Republic of Germany respecting cash benefits based on insurance periods completed under laws other than the federal law shall not be affected.

(b) The legislation of the Federal Republic of Germany respecting participation benefits (Leistungen zur Teilhabe) paid by the institutions of the Pension Insurance and the Farmers’ Old Age Security shall not be affected.

(c) Article 5 of the Agreement shall not apply to a person residing in Québec in respect of a pension under the legislation of the Federal Republic of Germany that governs a reduction in the paid work capacity if that reduction is not caused solely by the state of health of that person.

(6) With reference to Articles 6 to 10 of the Agreement:

(a) If the legislation of the Federal Republic of Germany applies to a person under the provisions of the Agreement, the provisions of the Federal Republic of Germany respecting compulsory coverage resulting from employment promotion legislation shall also apply in the same manner to that person and the person’s employer with regard to that professional activity.

(b) The employers of salaried workers employed temporarily in the territory of the other Contracting Party shall be bound to cooperate in the protection against industrial accidents and occupational diseases and in accident prevention, with the competent institutions and organizations of that Contracting Party. Internal regulations with a broader scope shall not be affected.

(7) With reference to Articles 6 to 8 of the Agreement:

Articles 6 to 8 of the Agreement shall be applicable by analogy to persons who, without being salaried workers, are however subject to the legislation referred to in Paragraph 1 of Article 2 of the Agreement.

(8) With reference to Articles 6 to 8 and 10 of the Agreement:

The legislation of the Federal Republic of Germany regarding the insurance coverage for assistance benefits and other independent activities of employment on foreign soil shall not be affected.

(9) With reference to Article 7 of the Agreement:

(a) There shall not be secondment in the territory of the other Contracting Party when, in particular,

— the activity of the seconded salaried person does not fall within the field of activities of the employer in the territory of the original Contracting Party;

— the employer of the seconded salaried person does not carry on notable professional activities on a regular basis in the territory of the original Contracting Party;

— the person recruited for the secondment was not residing, on that date, in the territory of the original Contracting Party;

— the leasing of temporary workers constitutes an offence against the legislation of a Contracting Party or both Contracting Parties; or

— the salaried person was employed for less than 6 months in the territory of the original Contracting Party since the end of the preceding period of secondment.

(b) The period of 60 calendar months provided for in Article 7 begins from the date of entry into force of the Agreement on Social Security of 14 May 1987 between the Gouvernement du Québec and the Government of the Federal Republic of Germany for a person who was already seconded on that date.

(c) For a person seconded on the date of entry into force of this Agreement, the secondment period completed before that date is taken into account in computing the period of 60 calendar months.

(10) With reference to Articles 7 to 10 of the Agreement:

For Québec, Articles 7 to 10 of the Agreement shall not be applicable to persons usually residing outside the territory of Québec.

(11) With reference to Article 9 of the Agreement:

(a) For the Federal Republic of Germany, any person who does not work in its territory shall be deemed to work at the location of his or her preceding employment. If the person was not previously working in the territory of the Federal Republic of Germany, the person shall be deemed to work in the location where the seat of the competent German authority is located.

(b) For a person referred to in Paragraph 2 of Article 9 of the Agreement who was already in office on the date of entry into force of the Agreement on Social Security of 14 May 1987 between the Gouvernement du Québec and the Federal Republic of Germany, the 6-month period shall begin on that date.

(12) With reference to Article 10 of the Agreement:

(a) For the Federal Republic of Germany, any person not working in its territory shall be deemed to work in the location of the person’s previous employment. If the person was not previously working in the territory of the Federal Republic of Germany, the person shall be deemed to work in the location where the seat of the competent German authority is located.

(b) Article 10 of the Agreement shall apply in particular to any salaried person of an enterprise having its head office in the territory of one Contracting Party who is called upon to be employed provisionally by a joint venture company of the said enterprise in the territory of the other Contracting Party and to receive a salary from the joint venture company in the territory of the other Contracting Party during that period.

(13) With reference to Article 15 of the Agreement:

(a) To the extent that the establishment of entitlement to benefits under the legislation of a Contracting Party requires that insurance periods have been completed within a certain period preceding the event establishing entitlement to benefits, the competent institution shall take into consideration only admissible insurance periods completed during that period; it shall also take into consideration admissible insurance periods completed solely under the legislation of the other Contracting Party.

(b) For the establishment of entitlement to benefits under the legislation of Québec, the competent institution of Québec shall consider as an insurance period any period during which a person received benefits consequent upon a reduction in the person’s earning capacity under the legislation of the Federal Republic of Germany.

(c) Where it is impossible to determine exactly which calendar year corresponds to an admissible insurance period completed under the legislation of one Contracting Party, that period shall be presumed not to overlap with an admissible insurance period completed under the legislation of the other Contracting Party.

(d) Article 15 of the Agreement shall apply by analogy to benefits granted at the discretion of an institution under the legislation of the Federal Republic of Germany.

(e) Compulsory contributions to the Québec Pension Plan in regard to employment or self-employment shall be equivalent to compulsory contributions in regard to employment or self-employment, required under the legislation of the Federal Republic of Germany in order to be entitled to an old age pension before the prescribed legal age or to a pension consequent upon a reduction in earning capacity.

(14) With reference to Article 17 of the Agreement:

Mining enterprises within the meaning of Paragraph 1 of Article 17 of the Agreement shall be enterprises that mine minerals or similar substances according to miners’ rules or rock and earth mainly in underground operations.

(15) With reference to Articles 19 and 24 of the Agreement:

The amounts disbursed as cash by virtue of Paragraph 1 of Article 19 of the Agreement and the expenses provided in Paragraph 1 of Article 24 of the Agreement shall not include minor communication expenses or the cost of regular staff or customary administrative expenses.

(16) With reference to Article 20 of the Agreement:

(a) For Québec, “legitimate interests" means the rights and freedoms guaranteed by the Québec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.

(b) For Québec, “legislation” also includes the statutes and regulations respecting the protection of personal information.

(17) For the purposes of the Agreement, the legislation of the Federal Republic of Germany shall not be affected in so far as it includes more beneficial provisions for persons who have suffered by reason of their political opinions or for racial, religious or ideological reasons.

Done at Québec on 20 April 2010, in duplicate, in French and in German, both texts being equally authentic.

For the Gouvernement For the Government of the

du Québec Federal Republic of Germany

PIERRE ARCAND GEORG WITSCHEL.

O.C. 62-2014, Sch. 2.