- with respect to Canada, to:
- the Old Age Security Act and the regulations made thereunder, and
- the Canada Pension Plan and the regulations made thereunder;
- invalidity insurance for employed persons,
- invalidity insurance for self-employed persons,
- old age insurance,
- survivors’ insurance,
- children’s allowances, for the application of Article VI(2), (3) and (4):
- sickness insurance (cash benefits and benefits in kind) inclusive of the obligation for the employer to pay salary during the first fifty-two weeks of sickness of the employed person, as laid down in the Civil Code, and
- unemployment insurance.
Article III
Persons to Whom the Agreement Applies
Unless otherwise provided in this Agreement, it shall apply to nationals of the Parties, to persons who are or who have been subject to the legislation of either Party, and to other persons with respect to the rights they derive from the aforementioned persons.
Article IV
Equality of Treatment
- As regards the legislation of Canada, all persons described in Article III shall be subject to the obligations of that legislation and shall be eligible for its benefits without regard to nationality.
- As regards the legislation of the Netherlands, unless otherwise provided in this Agreement,
- nationals of Canada,
- refugees, within the meaning of the Convention of 28 July 1951 Relating to the Status of Refugees and of the Protocol of 31 January 1967 to that Convention,
- stateless persons, within the meaning of the Convention of 28 September 1954 Relating to the Status of Stateless Persons, and
- other persons to the extent that they derive rights from a person described in sub-paragraph (a), (b) or (c)
Article V
Export of Benefit
- Unless otherwise provided in this Agreement, invalidity, old age or survivors benefits acquired by a person described in Article III under the legislation of one Party, including such benefits acquired by virtue of this Agreement, shall not be subject to any reduction, modification, suspension, cancellation or confiscation by reason only of the fact that the person resides in the territory of the other Party, and they shall be paid in the territory of the other Party.
- Unless otherwise provided in this Agreement, benefits payable under this Agreement by one Party to a person who is in the territory of the other Party shall also be paid to a person who is in the territory of a third State, under the same conditions and to the same extent as to nationals of the first Party residing in that third State.
Part II - Provisions Concerning the Applicable Legislation
Article VI
Rules Regarding Coverage
- Subject to the provisions of the following paragraphs of this Article:
- 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; and
- a self-employed person who ordinarily resides in the territory of one Party and who works as such in the territory of the other Party or in the territories of both Parties shall, in respect of that work, be subject only to the legislation of the former Party.
- An employed person who is covered under the legislation of one Party and who is assigned to perform work in the territory of the other Party for his or her employer shall, in respect of that work, be subject only to the legislation of the former Party as though that work was performed in its territory and provided that such assignment does not exceed sixty months and the person concerned is not also employed in the territory of the other Party by a different employer located in that territory.
- In the application of this paragraph in regard to a person who, on the date of entry into force of this Agreement, is already on assignment in the territory of the other Party and subject to the legislation of the former Party by virtue of Article VI(2) of the previous Agreement, the reference to sixty months in sub-paragraph (a) shall be read to refer to the total period during which that person may remain subject only to the legislation of the former Party while in the territory of the other Party, inclusive of the period already completed before the entry into force of this Agreement by virtue of Article VI(2) of the previous Agreement.
- A person employed in the territory of one Party in a government service of the other Party shall, in respect of that employment, be subject to the legislation of the first Party only if he or she is a national thereof or ordinarily resides in its territory.
- Nationals of a Party employed in a government service of that Party who are sent to the territory of the other Party shall, in respect of that employment, be subject only to the legislation of the first Party.
- Where the person referred to in sub-paragraph (a) is subject to the legislation of the first Party, the employer in question shall observe the obligations which that legislation imposes on employers.
Article VII
Definition of Certain Periods of Residence with Respect to the Legislation of Canada
- For the purpose of calculating the amount of benefits under the Old Age Security Act:
- if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of presence or residence in the territory of the Netherlands, that period shall be considered as a period of residence in Canada for that person as well as for that person’s spouse or common-law partner and dependants who reside with him or her and who are not subject to the legislation of the Netherlands by reason of employment or self-employment;
- if a person is obligatorily subject to the legislation of the Netherlands during any period of presence or residence in the territory of Canada, that period shall not be considered as a period of residence in Canada for that person and for that person’s spouse or common-law partner and dependants who reside with him or her and who are not subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada by reason of employment or self-employment.
- 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 Netherlands only if that person makes contributions pursuant to the plan concerned during that period by reason of employment or self-employment; and
- a person shall be considered to be obligatorily subject to the legislation of the Netherlands during a period of presence or residence in the territory of Canada only if that person makes compulsory contributions pursuant to that legislation during that period by reason of employment or self-employment.
Article VIII
Definition of Certain Periods of Residence with Respect to the Legislation of the Netherlands
- For the purposes of the legislation of the Netherlands, a person who is subject to the Netherlands legislation in accordance with the provisions of this Part shall be considered as residing in the Netherlands.
- The provision of paragraph 1 shall apply by analogy to the spouse and children accompanying a person described in paragraph 2 or 4(b) of Article VI from the territory of one Party to the territory of the other Party, unless they themselves take up a gainful occupation or are receiving a pension or a cash benefit under the legislation of the latter Party.
Part III - Provisions Concerning Benefits
Chapter 1 - Benefits Under the Legislation of Canada
Article IX
Totalizing of Creditable Periods
- If a person is not eligible for a benefit on the basis of the periods creditable under the legislation of Canada, the eligibility of that person for that benefit shall be determined by totalizing these periods and those specified in sub-paragraph (b), provided that the periods do not overlap.
- In the application of this paragraph:
- for the purposes of determining eligibility for a benefit under the Old Age Security Act, a creditable period under the Netherlands legislation on old age insurance shall be considered as a period of residence in the territory of Canada;
- for the purposes of determining eligibility for a benefit under the Canada Pension Plan, a calendar year including at least thirteen weeks which are creditable under the Netherlands legislation regarding invalidity or survivors’ insurance shall be considered as a year which is creditable under the Canada Pension Plan.
Article X
Benefits under the Old Age Security Act
- If a person is eligible for an Old Age Security pension or an allowance solely through the application of the totalizing provisions of Article IX, 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 the periods of residence in Canada which may be considered under that Act.
- Paragraph 1 shall also apply to a person outside Canada who would be entitled to the payment of a full 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.
- Notwithstanding any other provision of this Agreement:
- an Old Age Security pension shall be paid, through the application of the totalizing provisions of Article IX, to a person who is outside Canada only if
- that person has resided in Canada within the meaning of the Old Age Security Act for a period of at least one year after 31 December 1956, and
- that person’s creditable periods, when totalized as provided in Article IX, 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;
Article XI
Benefits under the Canada Pension Plan
If a person is eligible for a benefit solely through the application of the totalizing provisions of Article IX, the competent institution of Canada shall calculate the amount of benefit payable to that person in the following manner:
- the earnings-related portion of the benefit shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan; and
- the flat-rate portion of the benefit shall be determined by multiplying:
- the amount of the flat-rate portion of the benefit determined in conformity with the provisions of the Canada Pension Plan by
- the fraction which represents the ratio of the periods of contributions under the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish entitlement to that benefit, but in no case shall that fraction exceed the value of one.
Chapter 2 - Benefits Under the Legislation of the Netherlands
Article XII
Benefits under the Invalidity Acts
- When a national of one Party or a person described in paragraph 2(b) or (c) of Article IV, at the time when incapacity for work followed by invalidity occurred, had previously completed a total creditable period of at least twelve months under the Netherlands legislation on invalidity insurance, that person shall, subject to the provisions of paragraph 2, be entitled to a benefit determined in accordance with the latter legislation and calculated according to the provisions of Article XIII.
- The preceding paragraph shall apply provided there is entitlement to a disability pension under the Canada Pension Plan, where appropriate through the application of Article IX, or provided there is entitlement to a benefit due to disability under the workers’ compensation plan of a province or territory of Canada.
Article XIII
Amount of Benefits
- If entitlement to a benefit is established through the application of Article XII, the amount of the benefit payable shall be calculated in proportion to the ratio of the total length of the creditable periods completed by the person concerned under the Netherlands legislation after reaching the age of fifteen to the period between the date on which the person reached the age of fifteen and the date of incapacity for work followed by invalidity.
- If, at the time when incapacity for work followed by invalidity occurred, the person concerned was an employed person, the benefit payable shall be determined according to the provisions of the Incapacity Insurance Act of 18 February 1966 (WAO). In any other case, the benefit payable shall be determined according to the provisions of the Self-Employed Persons Disablement Benefits Act of 24 April 1997 (WAZ).
- The following creditable periods completed under the Netherlands legislation shall be taken into consideration:
- creditable periods during employment completed under the Incapacity Insurance Act of 18 February 1966 (WAO);
- creditable periods completed under the General Incapacity Insurance Act of 11 December 1975 (AAW);
- creditable periods completed under the Self-Employed Persons Disablement Benefits Act of 24 April 1997 (WAZ); and
- periods of employment, and periods treated as such, completed in the Netherlands before 1 July 1967.
Article XIV
Benefits under the General Old Age Pensions Act
- The Netherlands competent institution shall determine the old age pension directly and exclusively on the basis of the creditable periods completed under the Netherlands General Old Age Pensions Act.
- Subject to paragraph 3, periods before 1 January 1957 during which a national of one Party or a person described in paragraph 2(b) or (c) of Article IV resided in the territory of the Netherlands after reaching the age of fifteen or during which, while residing in another country, the person was gainfully employed in the Netherlands shall also be considered as creditable periods if the person does not satisfy the conditions of the Netherlands legislation permitting such periods to be treated for that person as creditable periods.
- The periods referred to in paragraph 2 shall be taken into consideration in the calculation of the old age pension only if the person has been insured within the meaning of Article 6 of the Netherlands General Old Age Pensions Act and the person has resided for at least six years in the territory of one or both Parties after reaching the age of fifty-nine and only while the person is residing in the territory of either Party. However, these periods shall not be taken into consideration if they coincide with periods taken into consideration in the calculation of an old age pension under the legislation of a country other than the Netherlands.
Article XV
Benefits under the General Survivors’ Benefits Act
- When a national of one Party or a person described in paragraph 2(b) or (c) of Article IV was, at the time of death, subject to the Canada Pension Plan or in receipt of a benefit under that Plan and had previously completed a total creditable period of at least twelve months under the Netherlands legislation on survivors’ insurance, the survivors shall be entitled to a benefit determined in accordance with the latter legislation and calculated according to the provisions of Article XVI.
- In the application of paragraph 1, a person shall be considered to have been subject to the Canada Pension Plan at the time of death if the death occurs during a calendar year which is a creditable period under that Plan in regard to the person concerned or if the calendar year immediately prior to the calendar year in which the death occurs was a creditable period under that Plan in regard to the person concerned.
- A person, or a child, receiving or qualified to receive benefits under the General Survivors Benefit Act shall be entitled to receive the payment of that benefit while he or she, or the child, resides in the territory of Canada.
Article XVI
Amount of Benefits
If entitlement to a benefit is established through the application of Article XV, the amount of the benefit payable shall be calculated in proportion to the ratio of the total length of the creditable periods completed by the deceased under the Netherlands legislation before reaching the age of sixty-five to the period between the date on which the deceased reached the age of fifteen and the date of death, but at the latest the date on which the deceased reached the age of sixty-five.
Article XVII
Benefits under the General Child Benefits Act
The Netherlands competent institution shall determine the children’s allowances directly and exclusively on the basis of the Netherlands General Child Benefits Act. A person receiving or qualified to receive Netherlands children’s allowances shall be entitled to receive the payment of that allowance while he or she, or the child, resides in the territory of Canada.
Chapter 3 - Income-related Benefits for Spouses and Partners
Article XVIII
Amount of Benefits
- For the purposes of this Chapter: “income-related benefits” means, as regards Canada, a guaranteed income supplement and an allowance under the Old Age Security Act; and, as regards the Netherlands, a supplementary allowance; “partner” means a person defined as such under the General Old Age Pensions Act of the Netherlands; “pensioner” means, as regards Canada, a person entitled to the payment of a pension under the Old Age Security Act; and, as regards the Netherlands, a person entitled to the payment of a pension under the General Old Age Pensions Act; “spouse/common-law partner” means a person entitled to the payment of an allowance under the Old Age Security Act of Canada by virtue of the fact that he or she is the spouse or common-law partner of a pensioner.
- Subject to paragraph 4, if a person is both a spouse/common-law partner and a partner of a pensioner, the competent institutions of Canada and the Netherlands shall determine the amount of income-related benefits payable to that person and the pensioner as follows:
- The competent institution of Canada shall:
- calculate the combined income of the pensioner and spouse/common-law partner in conformity with the provisions of the Old Age Security Act, disregarding in the calculation the amount of any supplementary allowance payable under the legislation of the Netherlands to the pensioner in respect of the partner;
- determine, on the basis of the income so calculated, the amount of guaranteed income supplement and allowance payable under the Old Age Security Act to the pensioner and spouse/common-law partner respectively;
- communicate to the competent institution of the Netherlands the amount of the allowance payable to the spouse/common-law partner.
- calculate the theoretical amount of the supplementary allowance which, but for the following sub-paragraph, would be payable to the pensioner in respect of the partner under the General Old Age Pensions Act, disregarding in the calculation the amount of the allowance payable under the legislation of Canada to the spouse/common-law partner;
- determine the actual amount of supplementary allowance payable to the pensioner in respect of the partner by reducing the theoretical amount by the full amount of the allowance payable by the competent institution of Canada to the spouse/common-law partner.
- in regard to the first twelve-month period following the date on which the most recent of the two income-related benefits becomes payable, the exchange rate in effect on that date; and
- in regard to any subsequent twelve-month period, the exchange rate in effect on the anniversary of the date on which the most recent of the two income-related benefits became payable.
Part IV - Administrative and Miscellaneous Provisions
Article XIX
Exchange of Information and Mutual Assistance
- The competent authorities and institutions responsible for the application of this Agreement:
- shall, to the extent permitted by the legislation which they administer, communicate to each other any information necessary for the application of this Agreement;
- shall lend their good offices and furnish assistance to one another with regard to the determination of entitlement to, or payment of, any benefit under this Agreement, or the legislation to which this Agreement applies, as if the matter involved the application of their own legislation;
- shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation insofar as these changes affect the application of this Agreement.
Article XX
Administrative Arrangement
- The competent authorities of the Parties shall establish, by means of an administrative arrangement, the measures necessary for the application of this Agreement.
- The liaison agencies of the Parties shall be designated in that arrangement.
Article XXI
Exemption or Reduction of Taxes, Dues, Fees or Charges
- Any exemption from or reduction of taxes, legal dues, consular fees or administrative charges for which provision is made in the legislation of one Party in connection with the issuing of any certificate or document required to be produced for the application of that legislation shall be extended to certificates or documents required to be produced for the application of the legislation of the other Party.
- Any acts or documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities or similar formality.
Article XXII
Language of Communication
- For the application of this Agreement, the competent authorities and institutions of the Parties may communicate directly with one another in any of the official languages of either Party.
- The authorities, institutions and tribunals of a Party may not reject claims or other documents submitted to them by reason of the fact that they are written in a foreign language, provided they are in an official language of the other Party.
Article XXIII
Submitting Claims, Notices or Appeals
- Any claim, notice or appeal concerning the determination of eligibility for, or payment of, a benefit under the legislation of one Party which should, for the purposes of that legislation, have been presented within a prescribed period to a competent authority, institution or tribunal of that Party, but which is presented within the same period to a competent authority, institution or tribunal of the other Party, shall be treated as if it had been presented to the authority, institution or tribunal of the first Party. The date on which such a claim, notice or appeal was submitted to the authority, institution or tribunal of the first Party shall be considered as the date of its submission to the authority, institution or tribunal of the other Party.
- A claim for a benefit payable under the legislation of one Party made after the date of entry into force of the previous Agreement shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant at the time of application:
- requests that it be considered an application under the legislation of the other Party, or
- provides information indicating that creditable periods have been completed under the legislation of the other Party.
Article XXIV
Payment of Benefits
- The institution or authority of a Party shall discharge its obligations under this Agreement in the currency of that Party.
- Benefits shall be paid to beneficiaries free from deductions for administrative expense that may be incurred in paying the benefits.
Article XXV
Resolution of Difficulties
- The competent authorities of the Parties shall resolve, to the extent possible, any dispute which arises in interpreting or applying this Agreement according to its spirit and fundamental principles.
- If the dispute has not been settled within six months, it shall be submitted to an arbitration tribunal whose composition and procedure shall be agreed upon by the Parties. The arbitration tribunal shall settle the dispute in accordance with the spirit and fundamental principles of this Agreement. The arbitration shall be final and binding for the Parties.
Article XXVI
Understandings with a Province of Canada
The relevant authority of the Netherlands and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada insofar as those understandings are not inconsistent with the provisions of this Agreement.
Part V - Transitional and Final Provisions
Article XXVII
Transitional Provisions
- Any creditable period completed before the date of entry into force of this Agreement shall be taken into account for the purpose of determining the right to a benefit under this Agreement.
- No provision of this Agreement shall confer any right to receive payment of a benefit for a period before the date of entry into force of the previous Agreement.
- Subject to paragraph 2, a benefit, other than a lump sum payment, shall, on application, be payable under this Agreement in respect of events which happened before the date of entry into force of this Agreement.
Article XXVIII
Cessation of the Previous Agreement
- Subject to paragraph 2, on the entry into force of this Agreement, it shall supersede the previous Agreement.
- If, after the date of entry into force of the previous Agreement but before the date of entry into force of this Agreement, a person submits an application for a benefit under the legislation of a Party, and if, on the date of entry into force of this Agreement, the competent institution of that Party has not yet reached a decision on that application, that competent institution shall apply the provisions of the previous Agreement when determining that person’s entitlement to that benefit.
- Benefits awarded through the application of the previous Agreement may be recalculated by the competent institutions, either directly or on request by the beneficiary, taking into account the provisions of this Agreement. In no case, however, shall the amount of a benefit be reduced as a result of such a recalculation.
Article XXIX
Duration and Termination
- This Agreement shall remain in force without any limitation on its duration. It may be terminated at any time by either Party giving twelve months’ notice in writing to the other Party.
- In the event of the termination of this Agreement, any right acquired by a person in accordance with its provisions or the provisions of the previous Agreement shall be maintained and negotiations shall take place for the settlement of any rights then in course of acquisition by virtue of those provisions.
Article XXX
Entry into Force
- The Parties shall notify each other in writing of the completion of their respective requirements for the entry into force of this Agreement. Subject to paragraph (2), this Agreement shall enter into force on the first day of the fourth month after the date of the last notification.
- Article XVII shall enter into force retroactively as of 1 January 2000.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
DONE in two copies at Brantford, this 27th day of June 2001, in the English, French and Dutch languages, each text being equally authentic.
Jane Stewart
FOR THE GOVERNMENT OF CANADAM. D. Rosenberg Polak
FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDSProtocol on Mutual Assistance Pursuant to the Agreement on Social Security Between the Government of Canada and the Government of the Kingdom of the Netherlands
THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS,
WITH THE PURPOSE of improving the administrative efficiency, cost effectiveness and integrity of their social security systems as they apply to benefits payable under the legislation specified in Article II of the Agreement on Social Security between the Government of Canada and the Government of the Kingdom of the Netherlands, signed at Brantford on 27 June 2001 (hereinafter referred to as “the Agreement”),
TAKING INTO ACCOUNT the provisions regarding mutual assistance found in Article XIX of the Agreement,
HAVE AGREED AS FOLLOWS:
Article 1
Definitions
Terms used in this Protocol have the same meaning as in the Agreement.
Article 2
Mutual Assistance
- In accordance with the procedures to be outlined in one or more Administrative Understandings, the competent institutions and liaison agencies of the two Parties shall assist each other in administering the legislation specified in Article II of the Agreement.
- In no case shall a competent institution or liaison agency of a Party be expected to:
- carry out administrative measures at variance with the statutes or the administrative practice of that Party;
- furnish information which is not obtainable under the legislation of that Party.
Article 3
Management
- The program of mutual assistance shall be under the general direction of a Management Committee, whose function shall be to undertake an ongoing review of policy and procedures relating to the program. The Committee shall consist of four members, of which the competent institution and liaison agency of each Party shall designate two.
- The Management Committee shall:
- be responsible for the co-ordination, and any modification, of the program of mutual assistance to be set out later in one or more Administrative Understandings. The Committee shall review the various timeframes for the performance of functions set out in the Understandings in order to ensure that these standards are met to the extent possible or to modify the timeframes where appropriate;
- be responsible for exchanging statistics and other information regarding workloads and other administrative matters associated with the program of mutual assistance. The content and form of the statistics and information to be exchanged shall be agreed upon by the Management Committee;
- meet, as required, to review progress and establish program guidance and priorities.
Article 4
Expenses
The competent institution and liaison agency of each Party shall furnish mutual assistance in accordance with Article II of this Protocol without charge. The Management Committee shall periodically review the expenses involved in furnishing assistance under this Protocol with a view toward balancing the costs incurred.
Article 5
Interpretation and Application
Notwithstanding Article XXV of the Agreement, any disagreement regarding the interpretation or application of this Protocol or its Administrative Understandings shall be resolved by the Management Committee.
Article 6
Duration and Termination of the Protocol
This Protocol shall remain in force for an indefinite period. Either Party may terminate it at any time by giving six months’ notice in writing to the other Party.
Article 7
Entry into Force
This Protocol shall enter into force on the same date as the Agreement and shall form an integral part of the Agreement.
IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their respective Governments, have signed this Protocol.
DONE in two copies at Brantford this 27th day of June 2001, in the English, French and Dutch languages, each text being equally authentic.Jane Stewart
FOR THE GOVERNMENT OF CANADAM. D. Rosenberg Polak
FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS
- The competent institution of Canada shall:
- an Old Age Security pension shall be paid, through the application of the totalizing provisions of Article IX, to a person who is outside Canada only if