R-9, r. 8 - Regulation respecting the implementation of the Understanding on Social Security between the Government of the Republic of Austria and the Gouvernement du Québec

Schedule Disposition versions

2012-09-01

SCHEDULE I

(s. 1)

UNDERSTANDING ON SOCIAL SECURITY

BETWEEN

THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA

AND

THE GOUVERNEMENT DU QUÉBEC

THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA,

AND

THE GOUVERNEMENT DU QUÉBEC,

Resolved to cooperate in the field of social security,

Have agreed as follows:

PART I

GENERAL PROVISIONS

Article 1

(1) For the purposes of this Understanding,

(a) «legislation» means, in relation to Austria, the laws, regulations and statutory instruments which relate to the branches of social security specified in subparagraph (1) a of Article 2; and, in relation to Québec, the law specified in subparagraph (1) b of Article 2 and the regulations made thereunder;

(b) «national» means, in relation to Austria, an Austrian citizen; and, in relation to Québec, a citizen of Canada ordinarily residing in Québec or, if not ordinarily residing therein, who is subject or has been subject to the legislation specified in subparagraph (1) b of Article 2;

(c) «competent authority» means, in realtion to Austria, the Federal Minister for Labour and Social Affairs; and, in relation to Québec, the Minister responsible for the application of the legislation specified in subparagraph (1) b of Article 2;

(d) «institution» means, in relation to Austria, the institution responsible for the application of the legislation specified in subparagraph (1) a of Article 2; and, in relation to Québec, the department or agency responsible for the administration of the legislation specified in subparagraph (1) b of Article 2;

(e) «competent institution» means, in relation to Austria, the institution competent under the applicable legislation to deal with the matter in question; and, in relation to Québec, the department or agency responsible for the administration of the legislation specified in subparagraph (1) b of Article 2;

(f) «period of insurance» means, in relation to Austria, a period of contributions which is defined or recognized as a period of insurance by the legislation specified in subparagraph 1 a of Article 2 or any similar period insofar as it is considered equivalent to a period of insurance by that legislation; and, in relation to Québec, any year for which contributions have been paid or for which a disability pension has been paid under the legislation specified in subparagraph (1) b of Article 2 and any other year considered as equivalent;

(g) «cash benefit» means a pension or any other cash benefit, including any increases.

(2) Any other expression used in this Understanding shall have the meaning respectively assigned to it in the applicable legislation.

Article 2

(1) This Understanding shall apply:

(a) in relation to Austria,

i. to the legislation concerning pension insurance, with the exception of the insurance for notaries; and

ii. with regard to Part II only, to the legislation concerning health insurance and accident insurance;

(b) in relation to Québec,

to the Act respecting the Québec Pension Plan and the regulations made thereunder.

(2) Except as otherwise provided for in paragraphs (3) and (4) of this Article, this Understanding shall also apply to any legislation which supersedes, replaces, amends, supplements or consolidates the legislation specified in paragraph (1) of this Article.

(3) This Understanding shall not affect any other agreement or understanding on social security which either party has concluded with a third State, except as it contains provisions relating to the apportionment of insurance burdens.

(4) This Understanding shall apply to laws and regulations thereto which extend the existing legislation of either Party to new categories of beneficiaries only if the two Parties sign an Understanding to that effect.

Article 3

This Understanding shall apply to:

(a) persons who are or have been subject to the legislation of one or both of the Parties;

(b) other persons with respect to the rights they derive from the persons described in subparagraph a.

Article 4

(1) Unless otherwise provided for in this Understanding, nationals of one Party shall, in the application of the legislation of the other Party, receive equal treatment with the nationals of the latter Party.

(2) Benefits under the legislation of one Party shall be awarded to nationals of the other Party, ordinarily resident outside the territories of both Parties, under the same conditions and to the same extent as they are awarded to the nationals of the first Party who ordinarily reside outside the territories of the Parties.

(3) Paragraph (1) of this Article shall not apply to the provisions of Austrian legislation concerning:

(a) the participation of insured persons and employers in the administration of institutions and associations as well as adjudication in the field of social security;

(b) the apportionment of insurance burdens resulting from agreements with third States;

(c) the insurance of persons employed at a diplomatic mission or consular post of Austria in a third State or by a member of such a mission or post.

(4) Paragraph (1) shall apply with regard to the Austrian legislation concerning the taking into account of periods of war service and periods considered as such only to nationals as defined in subparagraph (1) b of Article 1 in relation to Québec who were Austrian nationals immediately before March 13, 1938.

(5) As regards the legislation of Québec, paragraphs (1) and (2) of this Article shall apply without regard to nationality.

(6) Paragraphs (1) and (5) of this Article shall not apply to extend the application of paragraph (2) of Article 7 and paragraph (1) of Article 8 to persons who are not nationals of the Party in question.

Article 5

(1) Unless otherwise provided in this Understanding, the legislation of one Party which requires that entitlement to or the payment of cash benefits be dependent on ordinary residence in the territory of that Party shall not be applicable to

(a) nationals of either Party or

(b) other persons to the extent that they derive rights from a national of either Party

who ordinarily reside in the territory of the other Party.

(2) As regards the legislation of Québec, paragraph (1) of this Article shall apply without regard to nationality.

(3) As regards Austrian legislation, paragraph (1) of this Article shall not apply to the compensatory supplement.

PART II

PROVISIONS WHICH DETERMINE THE LEGISLATION APPLICABLE

Article 6

Subject to the provisions of Articles 7 to 9, an employed person who works in the territory of one Party shall, in respect of that work, be subject only to the legislation of that Party. This shall also apply if the employer’s place of business is in the territory of the other Party.

Article 7

(1) An employed person who is subject to the legislation of one Party and who is sent to work in the territory of the other Party for the same employer shall, in respect of that work, remain subject only to the legislation of the first Party for the first twenty-four calendar months as though that work was performed in its territory.

(2) When a national of one Party is sent to work in the territory of the other Party for an air transport organization of the first Party, paragraph (1) of this Article shall be applied without reference to the twenty-four month time limit.

Article 8

(1) A person employed by the government or other public employer or a Party in the territory of the other Party shall, in respect of that employment, be subject to the legislation of the latter Party only if he is a national thereof or if he ordinarily resides in its territory. In the latter case he may, however, within three months of the beginning of the employment, elect to be subject only to the legislation of the first Party if he is a national thereof.

(2) Paragraph (1) of this Article shall apply correspondingly to persons employed by a tourist office of one Party in the territory of the other Party.

(3) In the application of this Article, the employer in question shall respect all the requirements prescribed for employers by the applicable legislation.

Article 9

(1) At the request of an employed person and his employer, the competent authorities of the two Parties may provide, by agreement with one another, exceptions in the application of Articles 6 to 8 of this Understanding, taking into account the nature and circumstances of the employment.

(2) Where, in accordance with paragraph (1) of this Article, a person is subject to Austrian legislation, that legislation shall apply to him as if he were employed in the territory of Austria.

PART III

PROVISIONS CONCERNING BENEFITS

Article 10

If a person has completed periods of insurance under the legislation of both Parties, these periods, insofar as they do not overlap, shall be added together for the purpose of acquiring entitlement to a benefit.

SECTION 1

BENEFITS UNDER THE LEGISLATION OF AUSTRIA

Article 11

(1) If a person who has completed periods of insurance under the legislation of both Parties, or the survivor of such a person, is claiming a benefit, the competent Austrian institution shall determine the amount of the benefit in the following manner:

(a) the institution shall determine, in accordance with Austrian legislation, whether the person concerned has an entitlement to a benefit by adding together the periods of insurance, as provided in Article 10;

(b) if entitlement to a benefit is established, the institution shall first calculate the theoretical amount of the benefit which would be payable if all the periods of insurance completed under the legislation of both Parties had been completed exclusively under Austrian legislation; in cases where the amount of the benefit is independent of the duration of the period of insurance, this amount shall be taken to be the theoretical amount;

(c) the institution shall then calculate the partial benefit payable on the basis of the amount calculated in accordance with the provisions of subparagraph b in proportion to the ratio between the duration of the periods of insurance to be taken into consideration under Austrian legislation and the total duration of the periods of insurance to be taken into consideration under the legislation of both Parties.

(2) Where the periods of insurance to be taken into consideration under Austrian legislation for the purpose of calculating the amount of a benefit are in aggregate less than twelve months, no benefit under that legislation shall be paid. However, the preceding sentence shall not apply if the entitlement to that benefit has been acquired under Austrian legislation exclusively on the basis of periods of insurance completed under that legislation.

Article 12

The competent Austrian institution shall apply Articles 10 and 11 according to the following rules:

1. In determining the institution responsible for paying a benefit, only periods of insurance under Austrian legislation shall be taken into consideration.

2. Articles 10 and 11 shall apply neither to the conditions of entitlement to nor to the payment of the miners’ long service allowance under the miners’ pension insurance.

3. For the application of Article 10 and paragraph (1) of Article 11, a year commencing on or after January 1, 1966, in which a contribution has been made under the legislation of Québec shall be accepted as twelve months of contribution under Austrian legislation.

4. For the application of paragraph (1) of Article 11, the following shall apply:

(a) periods during which the insured person was entitled to a retirement pension under the legislation of Québec shall be treated as if they were neutral periods;

(b) the basis of assessment shall be determined exclusively on periods of insurance under Austrian legislation;

(c) contributions for supplementary insurance, the miners’ supplementary benefit, the helpless person’s allowance and the compensatory supplement shall be disregarded.

5. For the application of subparagraphs (1) b and c of Article 11, overlapping periods of insurance under the legislation of the two Parties shall be taken into consideration as if they did not overlap.

6. If, for the application of subparagraph (1) c of Article 11, the total duration of the periods of insurance to be taken into consideration under the legislation of both Parties exceeds the maximum number of months of insurance specified under Austrian legislation for the calculation of the rate of increments, the partial benefit payable shall be calculated in proportion to the ratio between the duration of the periods of insurance to be taken into consideration under Austrian legislation and the above-mentioned maximum number of months of insurance.

7. For the calculation of the helpless person’s allowance, subparagraphs (1) b and c of Article 11 shall apply; Article 14 shall apply accordingly.

8. The amount calculated according to subparagraph (1) c of Article 11 shall be increased, where applicable, by increments for contributions for supplementary insurance, the miners’ supplementary benefit, the helpless person’s allowance and the compensatory supplement.

9. If the award of benefits under the miners’ pension insurance depends on the completion of essentially mining activities, within the meaning of Austrian legislation, in specific undertakings, then only those periods of insurance under the legislation of Québec which are based on a similar occupation in similar undertakings shall be taken into consideration.

10. The special payments shall be payable in the same amount as the Austrian partial benefit; Article 14 shall apply accordingly.

Article 13

(1) Where entitlement to a benefit exists under Austrian legislation without the application of Article 10, the competent Austrian institution shall pay the benefit which would be payable exclusively on the basis of the periods of insurance to be taken into consideration under that legislation, as long as there is no entitlement to a corresponding benefit under the legislation of Québec.

(2) The benefit determined in accordance with paragraph (1) of this Article shall be recalculated in accordance with the provisions of Article 11 as soon as entitlement arises to a corresponding benefit under the legislation of Québec. This recalculation shall have effect from the date on which the benefit under the legislation of Québec becomes payable. The irrevocability of previous decisions shall not prevent this recalculation.

(3) Where, in applying paragraph (2) of this Article, the institution has overpaid a benefit, the overpayment shall be regarded as an advance payment.

Article 14

If a person is entitled to a benefit under Austrian legislation without the application of Article 10, and if such a benefit would be greater than the total of the Austrian benefit calculated in accordance with subparagraph (1) c of Article 11 and the corresponding benefit of Québec, the competent Austrian institution shall pay, as the partial benefit, its benefit so calculated increased by the difference between such total and the benefit which would be payable if Austrian legislation alone were applied.

SECTION 2

BENEFITS UNDER THE LEGISLATION OF QUÉBEC

Article 15

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 the application of Article 10, 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 the application of Article 10, the competent institution of Québec shall proceed as follows:

(a) a calendar year including at least three months of insurance under Austrian legislation shall be deemed to be a year of insurance under Austrian legislation, provided that the year is included in the contributory period as defined in the legislation of Québec;

(b) years recognized under subparagraph a shall be totalized with periods of insurance completed under the legislation of Québec, in accordance with Article 10.

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 in accordance with 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.

PART IV

MISCELLANEOUS PROVISIONS

Article 16

(1) The competent authorities of the Parties shall, by means of an administrative arrangement, establish the measures necessary for the application of this Understanding.

(2) The competent authorities of the Parties shall inform each other of

(a) all measures taken for the application of this Understanding, and

(b) all changes in legislation which affect the application of this Understanding.

3. The authorities and institutions of the Parties shall assist each other in applying this Understanding as if they were applying their own legislation. This assistance shall be free of charge.

4. The laws of a Party concerning confidentiality shall apply to any information about an individual which is transmitted in accordance with this Understanding to that Party by the other Party. Such information shall be used only for purposes of applying this Understanding.

(5) The institutions and authorities of one Party may not reject claims or other documents submitted to them by reason only of the fact that they are written in the official language of the other Party.

(6) If the competent institution of one Party requires an applicant or beneficiary who resides in the territory of the other Party to undergo a medical examination, such examination shall, at the request of that institution and at its expense, be arranged or carried out by the institution of the latter Party.

Article 17

The competent authorities of the Parties shall, in order to facilitate the application of this Understanding particularly for the creation of a simple and fast liaison between the institutions concerned, establish liaison agencies. Those liaison agencies shall be designated in the administrative arrangement.

Article 18

(1) Any exemption or reduction provided for in the legislation of one Party for taxes, stamp duty, legal costs or registration fees for certificates or documents which have to be submitted for the application of this legislation shall be extended also to the respective certificates or documents which must be submitted for the application of this Understanding or the legislation of the other Party.

(2) Documents and certificates of any kind which must be submitted for the application of this Understanding shall not require authentication.

Article 19

(1) Any claim, declaration or appeal which, for the application of this Understanding or of the legislation of a Party, has been submitted to an authority, institution or other competent body of one Party shall be considered as a claim, declaration or appeal submitted to an authority, institution or other competent body of the other Party.

(2) Any claim for a benefit submitted under the legislation of one Party shall be considered to be a claim for the corresponding benefit under the legislation of the other Party which could be paid in accordance with the provisions of this Understanding; this shall not apply, however, when the claimant expressly requests that the determination of an old age pension under the Austrian legislation or a retirement benefit under the legislation of Québec be deferred.

(3) Any claim, declaration or appeal which, under the legislation of one Party, must be submitted within a specified time to an authority, institution or other competent body of that Party may be submitted within the same time to the corresponding body of the other Party.

(4) In the cases to which paragraphs (1) to (3) of this Article apply, the body to which the submission has been made shall forward the claim, declaration or appeal without delay to the corresponding competent body of the other Party.

Article 20

(1) The benefit-paying institution of a Party shall discharge its obligations under this Understanding in the national currency of that Party.

(2) Benefits shall be paid to beneficiaries free from deductions for administrative expenses that may be incurred in paying the benefits.

Article 21

Any dispute between the Parties relating to the interpretation or application of this Understanding shall be made the subject of direct negotiations between the competent authority of Austria and a designated authority of Québec.

PART V

TRANSITIONAL AND FINAL PROVISIONS

Article 22

(1) This Understanding shall not establish any entitlement to payment of a benefit for a period prior to the date of its coming into force.

(2) In determining entitlement to a benefit under this Understanding, periods of insurance completed under the legislation of a Party prior to the date of coming into force of this Understanding shall also be taken into consideration.

(3) Subject to paragraph (1) of this Article, this Understanding shall also apply, with regard to benefits other than death benefits, to contingencies which occurred prior to the date of its coming into force, insofar as previously determined entitlements have not been settled by lump-sum payments. In such cases, a benefit due only by virtue of this Understanding shall be determined in accordance with the provisions of this Understanding, at the request of the beneficiary. If the claim for determination of a benefit is submitted within two years from the date of coming into force of this Understanding, the benefit shall be paid from that date; otherwise, the benefit shall be paid from the date determined under the legislation of each Party.

(4) For the application of paragraph (1) of Article 7, 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 23

This Understanding shall not affect any existing rights under Austrian legislation of any person who has suffered disadvantages in the field of social security because of political or religious reasons or by reasons of descent.

Article 24

(1) This Understanding shall come into force on the first day of the third month following the month in which each Party shall have received from the other Party written notification that it has complied with all internal requirements for the coming into force of this Understanding.

(2) This Understanding shall remain in force for an indefinite period. It may be terminated by one of the Parties by notification to the other Party. This Understanding ends on the 31st day of December of the year following the date of notification.

(3) In the event of termination of this Understanding, any right acquired under its provisions not later than the effective date of that termination shall be maintained; negotiations shall take place for the settlement of any rights in the course of acquisition by virtue of the provisions of this Understanding.

IN WITNESS WHEREOF the Plenipotentiaries have signed this Understanding.

Done in two copies at Vienna, this 9th day of December, 1993, in German and French, each text being equally authentic.

FOR THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA

JOSEPH SCHUH

FOR THE GOUVERNEMENT DU QUÉBEC

DENIS BÉDARD

O.C. 251-94, Sch. I.