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7 SEPTEMBER 2012. - Act enacting the Agreement between the Government of the Kingdom of Belgium and the Government of the French Republic for the Development of Cooperation and Administrative Assistance in Social Security, done in Paris on November 17, 2008 (1) (2) (3)
ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Agreement between the Government of the Kingdom of Belgium and the Government of the French Republic for the Development of Cooperation and Administrative Assistance in Social Security, made in Paris on November 17, 2008, will come out its full and full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 7 September 2012.
By the King:
The Prime Minister,
E. DI RUPO
Deputy Prime Minister and Minister for Foreign Affairs,
Deputy Prime Minister and Minister of Social Affairs,
Ms. L. ONKELINX
Minister of Independents,
Mrs. S. LARUELLE
Secretary of State to Combat Social and Tax Fraud,
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
(1) Session 2011-2012.
Bill tabled on 18 April 2012, No. 5-1577/1.
Report on behalf of Commission No. 5-1577/2.
Discussion, meeting of 7 June 2012.
Voting, meeting of 7 June 2012.
Project transmitted by the Senate, No. 53-2250/1.
Report made on behalf of Commission No. 53-2250/2.
Text adopted in plenary and submitted to Royal Assent No. 53-2250/3.
Discussion, meeting of 5 July 2012.
Vote, meeting of 5 July 2012.
(2) See Decree of the Flemish Community of 29/11/2013 (Moniteur belge du 17/01/2014), Decree of the French Community of 13/12/2012 (Moniteur belge du 01/02/2013), Decree of the German-speaking Community of 06/05/2014) (Moniteur belge du 18/07/2014), Decree of the Walloon Region of 17/01/2013 (Moniteur belge du 05/02/2013), Ordonnance de la Commission communautaire commune du 02/07/2015
(3) Effective date: 01/12/2015 (art. 27).
Agreement between the Government of the Kingdom of Belgium and the Government of the French Republic for the Development of Cooperation and Administrative Assistance in Social Security.
THE GOVERNMENT OF THE BELGIUM ROYAUME
THE GOVERNMENT OF THE FRENCH REPUBLIC,
The following is referred to as the Contracting Parties;
DESIREUX to develop between their competent authorities, institutions and bodies in the field of social security, in-depth cooperation in order to ensure, inter alia, better implementation of the Community rules, in particular the provisions of Council Regulation (EEC) No. 1408/71 of 14 June 1971 concerning the application of social security schemes to employed workers, non-workers and members of their families who move within the Community, below the Regulation
IN The OPTIQUE to guarantee the free movement and the right of social insurance, to safeguard the viability of social security systems;
Aware of the desire to strengthen and update functional cooperation, given the development of technologies and databases in social security management;
WHERE TO prevent fraud and error, and ensure that people receive the benefits to which they are actually entitled;
CONFORMING the provisions of Article 8 of Regulation (EEC) No. 1408/71, which provides that two Member States of the European Union may conclude between them, if necessary, conventions based on the principles and spirit of the said Regulation;
Further, in their regard, the Council ' s resolution (1999/C125/01) and the representatives of the Governments of the Member States, convened in the Council of 22 April 1999, on a code of conduct for better cooperation between the authorities of the Member States in the fight against transnational fraud in social security benefits and contributions and undeclared work, and on the transnational provision of workers,
AGAINST WHO ITS:
. - GENERAL PROVISIONS
. For the purposes of this Agreement:
a. the term "regulation" refers to Council Regulation (EEC) No. 1408/71 of 14 June 1971 on the application of social security schemes to employed workers, non-earmarked workers and members of their families moving within the Community, and at the time of its application, Regulation (EC) No. 883/2004 of 29 April 2004 on the coordination of social security systems;
b. the term "regulation of application" means Regulation (EEC) No. 574/72 of the Council, of 21 March 1972, setting out the terms and conditions for the application of Regulation (EEC) No. 1408/71 relating to the application of social security schemes to employees, non-workers and members of their families who move within the Community, as well as at the time of its application, the Regulation setting out the terms and conditions for the regulation of the Regulation (EC)
c. the term "linking agency" means the organization(s) referred to in paragraph 4 of Article 4 of Council Regulation (EEC) No 574/72 of 21 March 1972, setting out the terms and conditions for the application of Regulation (EEC) No 1408/71 relating to the application of social security schemes to employees, non-workers and members of their families who move within the Community, as well as at the time of its regulation
§ 2. For the purposes of this Agreement, the terms "competent authority", "institution" and "competent institution" shall, in addition to the authorities and institutions defined as such by regulation:
a. as a competent authority, the department responsible for the application of the regulations relating to benefits referred to in Article 3;
b. as competent institutions or institutions, bodies responsible for the collection of social security contributions and contributions, as well as bodies responsible for the payment and recovery of benefits referred to in Article 3.
§ 3. The other terms and expressions used in this Agreement shall have the meaning assigned to them, respectively, in the regulations, by-laws or in national legislation, as the case may be.
Field of personal application
This Agreement applies to persons within the personal scope of the regulations and to persons eligible for a benefit referred to in Article 3, § 2, of this Agreement.
Field of material application
. This Agreement applies to benefits under the material scope of the Regulations.
§ 2. It also applies to legal, non-contributory benefits subject to resource requirements, which are allocated to persons in need and not covered by subsection 1er
of this article.
§ 3. The benefits referred to in paragraph 2 of this section are named in the administrative arrangement. This list is updated as much as necessary, by simple exchange of letters between competent authorities.
Field of territorial application
The territories covered by the provisions of this Agreement shall:
- in respect of the French Republic, the territory of the metropolitan and overseas departments of the French Republic, as well as the territorial sea, and beyond, the spaces on which under international law the French Republic exercises sovereign rights or a jurisdiction;
- with regard to the Kingdom of Belgium, the territory of Belgium.
PART II. - GENERAL PRINCIPLES OF COOPERATION
Operation of mutual administrative assistance
. Any competent institution of one of the Contracting Parties may apply to an institution of the other Contracting Party, either directly or through the liaison agency, to an information or information request for the processing and settlement of a file to which it is responsible.
§ 2. The institution seized by an institution of the other Contracting Party with a request for information shall respond as soon as possible and, in any event, no later than three months.
§ 3. In the event that the first institution requests an urgent response to specific issues and factual data, indicating the reasons for the emergency, the institution in question endeavours to respond within the specified time limits.
Responses to duly justified urgent requests must be forwarded within the time specified in the conventions provided for in Article 22.
File transmission and reconciliations
. The competent institution of a Contracting Party may request a competent institution of the other Contracting Party or any other body designated by the Contracting Party to transmit to it files for the purpose of exploring, bringing them together, exploiting them, extracting data and using them by any automated or semi-automated process.
§ 2. The request of the competent institution referred to in paragraph 1er
of this section, shall be in effect for the purposes of finding fraud, abuse and error in respect of benefits, contributions and subjugation, including the control and verification of civil status, residence, appreciation of resources, the exercise or not of a professional activity or the composition of the family, the existence of an indu IV benefit, as provided for the prevention of its cumulative performance.
§ 3. Any operation carried out under this Article shall comply with the principles of purpose, proportionality and the provisions of Article 7.
§ 4. The institution seized of the application referred to in paragraph 1er
transmits the requested files at the date or time agreed between the two institutions.
Communication of personal data
. For the purposes of this Agreement, the institutions of the two Contracting Parties are authorized to disclose personal data, including data relating to the income of persons whose knowledge is necessary, under their legislation, to the recovery of amounts due to the institution of one of the Contracting Parties, to the determination of the amount of dues or contributions, and to the eligibility for the award of benefits referred to in Article 3.
§ 2. The disclosure of personal data by the institution of a Contracting Party shall be subject to compliance with the data protection legislation of that Contracting Party and, where appropriate, to compliance with the prior authorization system.
§ 3. The retention, processing or dissemination of personal data by the institution of the other Contracting Party, to which such data are communicated, shall be subject to the data protection legislation of that Contracting Party.
§ 4. The data referred to in this Article shall be used exclusively for the purposes of the application of the respective laws of the Contracting Parties, including for the rules relating to the determination of the applicable legislation and the rules relating to the verification, as appropriate, of the eligibility of the persons concerned for the benefit of the benefits referred to in Article 3.
§ 5. The information and documents transmitted are subject to the personal data protection regime in force on the territory of each Contracting Party, under national, international and community standards (and more specifically Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of natural persons with regard to the processing of personal data and the free movement of such data).
Information on legislative and regulatory developments
The competent authorities shall, in a direct and regular manner, form the essential amendments of the legislative and regulatory provisions in the area of application of this cooperation agreement.
PART III. - COOPERATION IN FIRST
Conditions of residence affiliation and eligibility
. The institution of a Contracting Party that is required to examine the conditions under which a person may benefit, because of his or her residence in the territory of that person, either from affiliation to a social protection regime or from the granting of a benefit, may, if he or she considers it necessary, interrogate the institution of the other Contracting Party in order to ascertain the reality of the residence of that person in the territory of the Contracting Party or
§ 2. The interrogated institution is required to provide the relevant information available to it, which is likely to permit the removal of uncertainty as to the resident quality of the person concerned.
. The competent institution of a Contracting Party whose legislation is applicable may, if it considers it necessary, interrogate an institution of the other Contracting Party on the resources and income of any kind, of which a person, subject to that legislation and liable for such contributions or contributions, is likely to benefit in the territory of that Contracting Party.
§ 2. The provisions of paragraph 1er
apply in the same manner when the competent institution examines the right of a person to a benefit subject to a condition of resources.
Cumulsion of benefits
. Any institution that examines the conditions of eligibility of a person to a benefit or ensures the payment of a benefit may, if it considers it necessary, interrogate an institution of the other Contracting Party in order to ensure that the person likely to benefit or benefit from that benefit does not, pursuant to the legislation of that Contracting Party, receive a benefit that accumulates with the first benefit or is prohibited.
§ 2. The institution interviewed is required to provide information to confirm or invalidate the right to the first benefit.
Determination of the right to payment of social security benefits
Institutions of a Contracting Party may interrogate the institutions of the other Contracting Party on any other useful information other than those provided for in the preceding Articles, provided that such information is of a nature to enable them to ensure that social security benefits are actually due.
Audit at a benefit request and payment
. ÷ the request of the competent institution of a Contracting Party that examines a request for a benefit or must make its payment, an institution of the other Contracting Party shall conduct any investigation necessary to verify the applicant's right to the benefit referred to. The seized institution shall verify the information concerning the applicant or members of his or her family and shall transmit them and any other documents thereof to the competent institution.
§ 2. The seized institution shall collect and verify the data in the same manner as it does for the examination of a claim for benefit under the legislation it applies.
§ 3. The information referred to in paragraph 1er
include information on the civil status, resources and residence to which benefits are subject.
§ 4. Where it is determined with certainty that benefits have been improperly received by persons whose domicile is or is expected to be in the territory of the other Contracting Party, this fact will be reported to the competent institution of the other Contracting Party. In case of doubt, this will be reported to the institution designated by the other Contracting Party.
§ 5. Notwithstanding the provisions of paragraph 1er
the institution of a Contracting Party may inform, without prior request, a competent institution of the other Contracting Party of any change in the data transmitted in accordance with this Article.
Refusal of payments, suspension or cancellation of benefits
Based on the information requested and the controls mentioned in this Agreement, a competent institution of a Contracting Party may refuse, suspend or delete a benefit.
PART IV. - COOPERATION IN ASSESSMENT MATTER
Verification of conditions of detachment
. The Contracting Parties shall verify compliance with all conditions of the detachment, including all elements determining the legal nature of the working relationship.
§ 2. The Contracting Parties shall establish in a convention the rules of referral of the competent institutions and bodies for the purpose of verification of the elements on which forms E 101 are issued and, where applicable, on the basis of which such forms are withdrawn.
These rules include the points on which verifications should be carried, the maximum deadlines for responses from the institutions and bodies seized, and the appointment by each of the Contracting Parties of a conciliator responsible for instructing contentious situations before bringing the facts before the Administrative Committee for the Social Security of Migrant Workers.
Determination of the right to recovery of social security contributions and contributions
The competent inspection and inspection institutions and services of a Contracting Party may interrogate the institutions of the other Contracting Party or the body designated by the other Contracting Party on any information allowing them to establish with certainty that contributions and/or social security contributions are actually due to the institution of that Contracting Party.
Statistical data exchanges
The liaison agencies shall annually transmit the statistical data available to them regarding the detachments of workers in the territory of the other Contracting Party. These transmissions are carried out electronically.
TITRE V. - RECOVERY OF COTISATIONS AND CONTRIBUTIONS REPETITION OF THE INDU
. The collection of dues due to an institution of one of the Contracting Parties and the repetition of unduly served benefits by the institution of one of the Contracting Parties may be carried out in the other Contracting Party in accordance with the procedures and with the guarantees and privileges applicable to the recovery of dues due to the corresponding institution of the latter Contracting Party and to the repetition of unduly served benefits.
§ 2. The enforceable decisions of the judicial authorities and administrative authorities concerning the collection of dues, interest and any other costs or the repetition of unduly served benefits under the legislation of a Contracting Party shall be recognized and enforced at the request of the competent institution in the other Contracting Party, within the limits and in accordance with the procedures provided by the legislation and any other procedures that are applicable to similar decisions of the Contracting Party. These decisions shall be declared enforceable in that Contracting Party to the extent that the legislation and other procedures of that Contracting Party require it.
§ 3. In the event of forced execution, bankruptcy or concordat, the receivables of the institution of a Contracting Party shall, in the other Contracting Party, enjoy privileges identical to those accorded by the law of the latter to the claims of the same nature.
§ 4. The terms and conditions for the application of this section are set out in an administrative arrangement.
PART VI. - COOPERATION IN CONTROL
General principles of control cooperation
The competent institutions of a Contracting Party shall provide support to the control actions carried out by the competent institutions of the other Party. In this context, they may exchange agents for the purpose of gathering information useful to the exercise of their monitoring mission. They provide assistance, in accordance with applicable legislation in the territory of each Contracting Party, to determine the validity of documents and certificates, and to provide any other form of mutual assistance and cooperation.
Modalities of controls
. Within the framework of a control carried out by agents in the territory of one of the Contracting Parties, the officers of the other Contracting Party may be present at the time of this inspection for the correct establishment of social security contributions and/or contributions, for the examination of the conditions of detachment, for the verification of the cumulative benefits as provided for in Articles III and IV of this Agreement, in accordance with the legislation in force in the territory where the control is effect.
§ 2. The officers of one of the Contracting Parties shall participate in the controls carried out in the territory of the other Contracting Party only as an observer and shall always be able to justify their quality.
§ 3. The periodicity of these controls, the staffing required for their effective implementation and the modalities for the evaluation of these controls are reflected in the conventions referred to in Article 22 of Part VII of this Agreement.
PART VII. - IMPLEMENTATION
. The modalities for the implementation of this Agreement shall be settled by administrative arrangement between the competent authorities.
§ 2. The terms and conditions for the implementation of electronic transfers and the related procedures referred to in Article 6 are regulated in an administrative arrangement between the competent authorities.
Cooperation between competent institutions
The competent institutions of the Contracting Parties may conclude cooperation agreements. These co-operation agreements deal with the substances referred to in Parts III and IV and VI of this Agreement, excluding the matters regulated by the administrative arrangements concluded under Article 21.
Joint Commission and Settlement of Disputes
. A Joint Commission is established to follow up on this Agreement. The Joint Commission will consist of the following members:
- for the government of the Kingdom of Belgium,
on behalf of the Minister of Social Affairs, the chair of the SPF Management Committee Social Security or Employees;
on behalf of the Public Social Security Institutions, the College of General Directors will appoint representatives;
- for the Government of the French Republic,
the representative of the competent authorities.
§ 2. The Joint Commission shall meet at the request of the competent authorities of one of the Contracting Parties.
§ 3. An administrative arrangement regulates the organization and operation of the Joint Commission.
§ 4. In the event that the dispute arising from the interpretation or implementation of this Agreement could not be resolved by the joint commission, the competent authorities of the two Contracting Parties shall endeavour to resolve it in amicable manner.
PART VIII. - TRANSITIONAL AND FINAL PROVISIONS
The terms of this Agreement shall remain applicable to the extent that they do not affect the provisions of the regulations defined in Article 1er
(a) in the event of a change of the latter.
This Agreement shall be concluded for an indefinite period. It may be denounced by one of the Contracting Parties.
Denunciation must be notified through diplomatic channels; in this case, the Agreement ceases to produce its effects on the expiration of twelve months from the date of the denunciation.
The Agreement between the Kingdom of Belgium and the French Republic entered into pursuant to Article 92 of Council Regulation No. 1408/71 of 14 June 1971 concerning the social security of migrant workers, and Annex, signed in Paris on 3 October 1977, is repealed.
Entry into force
Both Contracting Parties shall, through diplomatic channels, notify themselves of the fulfilment of their respective constitutional and legal procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the first day of the third month following the date of the last notification.
IN WITNESS WHEREOF, the undersigned, duly authorized, have signed this Agreement.
DONE in Paris on 17 November 2008, in double copy, in French and Dutch, both texts being equally authentic.