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19 JANVIER 2014. - Act to approve the Convention on Social Security between the Kingdom of Belgium and the Federal Republic of Brazil, signed in Brussels on 4 October 2009 (1) (2)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Convention on Social Security between the Kingdom of Belgium and the Federal Republic of Brazil, signed in Brussels on 4 October 2009, will come out with its full effect.
Art. 3. The amendments to the provisions of Articles 7 to 9 of the Convention, as provided for in Article 10 of the Convention, shall be effective and effective.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 19 January 2014.
PHILIPPE
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
Deputy Prime Minister and Minister of Pensions,
A. DE CROO
Deputy Prime Minister and Minister of Social Affairs,
Ms. L. ONKELINX
Minister of Independents,
Mrs. S. LARUELLE
Seen and sealed the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) Parliamentary references
Senate (www.senate.be):
Documents: 5-1785 - Annales du Sénat : 08/11/2012.
House of Representatives (www.lachambre.be):
Documents : 53-2490 - Full report : 19/12/2012, 20/12/2012.
(2) Entry into force : 01/12/2014
Convention on Social Security between the Kingdom of Belgium
and the Federal Republic of Brazil
The Kingdom of Belgium
and
The Federal Republic of Brazil,
Animated by the desire to settle the mutual relations between the two States in the field of social security,
The following agreed:
PART I^er. - General provisions
Article 1^er
Definitions
1. For the purposes of this Convention:
(a) the term "contracting States" means the Kingdom of Belgium and the Federal Republic of Brazil;
(b) the term "Belgium" means the Kingdom of Belgium,
the term "Brazil" means the Federal Republic of Brazil;
(c) the term "national" means:
i. with regard to Belgium, a person of Belgian nationality,
ii. with regard to Brazil, a Brazilian according to the Constitution and the laws of the Federal Republic of Brazil;
(d) the term "laws" means the laws and regulations referred to in Article 2 of this Convention;
(e) the term "competent authority" means:
i. with regard to Belgium, the Ministers responsible, each with respect to it, for the application of the legislation referred to in article 2, paragraph (b) of this Convention,
ii. with regard to Brazil, the Minister of Social Welfare;
(f) the term "competent institution" means the body or authority responsible for applying, in whole or in part, the legislation referred to in Article 2;
(g) the term "coordinating agency" means the coordinating and information body between the competent institutions of the two Contracting States involved in the application of this Convention and in the information of interested persons on the rights and obligations arising therefrom;
(h) the term "insurance period" means any period recognized as such by the legislation under which that period was completed, and any period recognized by that legislation as equivalent to an insurance period;
(i) the term "benefit" means any pension, annuity or other cash benefit under the legislation referred to in Article 2 of this Convention, including any supplements, increases or indexations that are applicable under the legislation referred to in Article 2 of this Convention;
(j) the term "survivor" means any person defined or admitted as such by the legislation under which benefits are served.
2. Any term not defined in paragraph 1^er of this section has the meaning assigned to it by the legislation that applies.
Article 2
Field of material application
1. This Convention applies:
(a) with regard to Brazil, the legislation relating to the General Plan of Social Welfare and the Clean Plans of Social Welfare, with regard to pension benefits for disability, old-age pensions and survival pensions;
(b) with regard to Belgium, the relevant legislation:
i. old-age and survival pensions for workers and self-employed persons,
ii. the disability insurance of employees, merchant navy sailors and self-employed persons;
and, with respect to Part II only, the relevant legislation:
iii. social security of employed workers,
iv. social status of independent workers.
2. This Convention will also apply to all legislative or regulatory acts that will amend or supplement the legislation listed in this article.
3. This Convention shall apply to legislative or regulatory acts that will extend existing regimes to new categories of beneficiaries if there is not, in this regard, opposition from the Contracting State that amends its legislation, notified to the other Contracting State within six months from the official publication of such acts.
4. This Convention shall not apply to legislative or regulatory acts establishing a new social security branch, unless an agreement is reached between the competent authorities of the two Contracting States.
Article 3
Field of personal application
Unless otherwise provided by this Convention, the Convention shall apply to persons, irrespective of their nationality, who are subject to or have acquired rights under the laws referred to in Article 2 and to persons entitled to rights, family members and survivors of such persons mentioned.
Article 4
Equal treatment
Unless otherwise provided in this Convention, the persons referred to in Article 3 shall be subject to the obligations and shall be entitled to the law of each Contracting State in the same conditions as the nationals of that State.
Article 5
Export of benefits
1. Unless otherwise provided in this Convention, benefits acquired under the legislation of one of the Contracting States may not be suspended or subject to any reduction or modification as the beneficiary resides or resides in the territory of the other Contracting State.
2. Old age and survival benefits due under Belgian law are paid to Brazilian nationals who reside in the territory of a third State under the same conditions as if they were Belgian nationals residing in the territory of that third State.
3. Disability, old age and survival benefits due under Brazilian legislation are paid to Belgian nationals who reside in the territory of a third State under the same conditions as if they were Brazilian nationals residing in the territory of that third State.
Article 6
Reduction or suspension clauses
1. The reduction or suspension clauses provided for in the legislation of a Contracting State, in the event of a cumulative benefit with other social security benefits or with income derived from the exercise of a professional activity, shall be enforceable to the beneficiaries, even if the benefit is acquired under a scheme of the other State or if it is income obtained from a professional activity carried on the territory of the other State.
2. However, for the purposes of paragraph 1 of this article, such benefits shall not be taken into account that are liquidated by the competent bodies of the two Contracting States in accordance with the provisions of Articles 12, 14 and 19 of this Convention.
PART II. - Provisions determining the applicable legislation
Article 7
General rules
1. Subject to articles 8 to 10 of this Convention, the applicable legislation shall be determined in accordance with the following provisions:
(a) the person performing a professional activity in the territory of a Contracting State shall be subject to the law of that State;
(b) a person carrying on an employee activity on board a ship flying the flag of a Contracting State shall be subject to the law of the State in which he has his residence;
(c) the person who is a member of the personnel navigating an undertaking performing, on behalf of or on behalf of others, international air transport of passengers or goods and having its seat in the territory of a Contracting State shall be subject to the law of the latter State. However, where the undertaking has, in the territory of the other Contracting State, a branch or permanent representation, the person occupied by it is subject to the legislation of the Contracting State in the territory of which it is located.
2. In the event of a simultaneous exercise of an independent professional activity in Belgium and employee in Brazil, the activity carried out in Brazil is assimilated to an employee activity carried out in Belgium, with a view to fixing the obligations arising from Belgian legislation relating to the social status of independent workers.
Article 8
Special rules
1. The employee who, being in the service of a company having in the territory of one of the Contracting States his or her principal seat or branch, of which he or she normally reports, is temporarily detached by that undertaking in the territory of the other Contracting State to carry out work on behalf of the other Contracting State, is subject only to the legislation of the first Contracting State as if he or she continues to be occupied on the territory provided that the foreseeable duration of the work which he or he or she shall perform These provisions are also applicable to family members who accompany this employee in the territory of the other Contracting State, unless they carry on an employee or independent activity in the territory of that Contracting State.
2. In the case of the detachment referred to in paragraph 1^er of this Article shall continue beyond 24 months, the competent authorities of the two Contracting States or the competent institutions designated by these competent authorities may agree that the employee shall remain subject only to the legislation of the first Contracting State. However, this agreement can only be given for an additional period not exceeding thirty-six months. It must be requested before the end of the initial period of twenty-four months.
3. Paragraph 1^er this Article shall apply where a person sent by his employer from the territory of a Contracting State in the territory of a third country is then sent by that employer of the territory of the third country to the territory of the other Contracting State.
4. Article 7, paragraph 1^er, litera b), is not an application for the person who is not usually occupied on the sea is occupied in territorial waters or in a port of one of the Contracting States on a ship flying flag of the other State. As the case may be, section 7, paragraph 1^er, literate (a), or^er littéra a) of this article is of application.
5. Where a person subject to the legislation of a Contracting State who usually carries on an independent activity in the territory of that Contracting State temporarily carries on a similar independent activity, only in the territory of the other Contracting State, that person shall remain subject only to the legislation of the first Contracting State as if it continued to work in the territory of the first Contracting State, provided that the foreseeable duration of the independent activity in the territory of the other Contracting State does not exceed twenty months.
6. In the event that the independent activity in the territory of the other Contracting State referred to in paragraph 5 of this Article shall continue beyond 24 months, the competent authorities of the two Contracting States or the competent institutions designated by these competent authorities may agree that the independent worker shall remain subject only to the legislation of the first Contracting State. However, this agreement can only be given for an additional period not exceeding thirty-six months. It must be requested before the end of the initial period of twenty-four months.
Article 9
Officials, members of diplomatic missions and consular posts
1. Members of diplomatic missions and consular posts are subject to the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961 and to those of the Vienna Convention on Consular Relations of 24 April 1963.
2. Persons engaged by a diplomatic mission or by a consular post of one of the Contracting States in the territory of the other Contracting State shall be subject to the legislation of the latter Contracting State.
3. Where the diplomatic mission or consular post of one of the Contracting States occupies persons who, in accordance with paragraph 2 of this article, are subject to the law of the other Contracting State, the mission or post shall take into account the obligations imposed on employers by the law of the latter Contracting State.
4. The provisions of paragraphs 2 and 3 of this section shall apply by analogy to persons occupied in the private service of a person referred to in paragraph 1 of this section.
5. The provisions of paragraphs 1 to 4 of this article shall not apply to the honorary members of a consular post or to persons occupied in the private service of such persons.
6. Civil servants and assimilated personnel are subject to the legislation of the Contracting State under which the administration which occupies them is responsible. These persons are, for this purpose, considered to be resident in the territory of that Contracting State, even if they are in the territory of the other Contracting State.
7. The provisions of this Article shall also apply to members of the family who accompany persons referred to in paragraphs 1 and 6 unless they themselves engage in professional activity.
Article 10
Derogations
The competent authorities or the competent institution designated by them may, by mutual agreement, provide, in the interest of certain insured persons or certain categories of insured persons, exemptions to the provisions of Articles 7 to 9 provided that the persons concerned are subject to the law of one of the Contracting States.
PART III. - Provisions concerning benefits
CHAPTER 1^er. - Provisions concerning Belgian benefits
Section A. - Old age and survival benefits
Article 11
Total
1. Subject to paragraph 2 of this article, in order to acquire the right to Belgian services of old age or survival by a person whose periods of insurance have been fulfilled in accordance with Belgian law, the periods of insurance carried out in accordance with Brazilian legislation in respect of benefits are totaled, as necessary, by the competent Belgian institution with the periods of insurance carried out in accordance with Belgian law, provided that they do not have insurance
2. When the Belgian law subordinates the acquisition of the right to certain Belgian benefits of old age or survival provided that the insurance periods have been completed in a specified profession, are not totaled for this purpose by the Belgian competent institution only the insurance periods carried out in accordance with Brazilian law and considered by the competent Belgian institution as having been completed in the same profession.
3. Where the Belgian law subordinates the acquisition of the right to certain Belgian benefits of old age or survival provided that the insurance periods have been completed in a specified profession, and when the insurance periods totaled in accordance with paragraph 2 of this article have not been able to give the benefits concerned, these totalised insurance periods are considered by the Belgian competent institution as valid for the determination of the benefits provided by the Belgian general scheme of workers.
Article 12
Calculation of the amount of benefits
1. When a person is entitled to a Belgian service of old age or survival without the need to complete it, the competent Belgian institution calculates the amount of this benefit on the basis of the insurance periods carried out in accordance with Belgian legislation alone. The competent Belgian institution shall also calculate the amount of this benefit that would be obtained by applying the rules set out in paragraph 2 of this article. The highest amount of these two amounts is retained alone.
2. When a person is entitled to a Belgian service of old age or survival only by the totalization of insurance periods carried out in accordance with section 11, the following rules apply:
(a) the competent Belgian institution shall calculate the theoretical amount of the benefit that would be payable if all insurance periods under the laws of the two Contracting States had been fulfilled only under the legislation it applies;
(b) the competent Belgian institution shall then calculate the amount due, on the basis of the amount referred to in littera (a), prorated to the duration of the insurance periods under its sole legislation in relation to the duration of all insurance periods referred to in littera (a).
Section B. - Disability benefits
Article 13
Total
For the acquisition of the right to a Belgian disability benefit by a person whose insurance periods have been fulfilled in accordance with Belgian legislation, article 11 is applicable by analogy.
Article 14
Calculation of the amount of the disability benefit
1. Where a person is entitled to a Belgian disability benefit only by totalisation of insurance periods under Belgian law and periods of insurance under Brazilian law in accordance with Article 11, Article 12, paragraph 2, shall apply by analogy to the calculation of the amount of the benefit due.
2. Where a person is entitled to a Belgian disability benefit without the need to appeal to section 11, and the amount resulting from the addition of the Brazilian disability benefit and the Belgian disability benefit calculated under paragraph 1^er this article is less than the amount of the benefit due on the basis of the only Belgian legislation, the competent Belgian institution allocates an equal complement to the difference between the sum of these two benefits and the amount due under the only Belgian law.
Article 15
Minimum insurance period
In the cases referred to in Article 14, paragraph 1^erno Belgian disability benefit is due by the Belgian competent institution when the total duration of the insurance periods carried out in accordance with Belgian legislation before the occurrence is less than one year.
Article 16
Special provisions for disability benefits
The holder of a Belgian disability benefit retains the benefit of this benefit during a temporary stay in the territory of Brazil, when this temporary stay has been previously authorized by the competent Belgian institution. However, this authorization may only be refused by the competent Belgian institution when the temporary stay is in the period during which, under Belgian law, the competent Belgian institution must conduct the assessment or revision of the condition of disability.
Section C. - Common provisions for Belgian benefits
Article 17
New calculation of the amount of benefits
1. If, due to the increase in the cost of living, the change in the level of wages or other reasons of accommodation, the amounts of the Brazilian old age, survival or disability benefits are modified by a percentage or amount determined, the Belgian competent institution is not obliged to make a new calculation of the amounts of the Belgian pension, survival or disability benefits.
2. However, in the event of a change in the method of establishing rights or rules for calculating Brazilian old age, survival or disability benefits, a new calculation is made by the competent Belgian institution in accordance with Article 12 or 14.
CHAPTER 2. - Provisions concerning Brazilian benefits
Article 18
Survival benefit
If Brazilian legislation provides for the right to a survival benefit provided that the death of the insured person took place during an insurance period, the condition of the establishment of the right to benefit is considered fulfilled if the death occurred at a time when the person was subject to Belgian legislation.
Article 19
Total
1. If, in accordance with Brazilian legislation, no entitlement to benefits exists on the sole basis of insurance periods under Brazilian legislation, these periods are totaled with insurance periods under Belgian law, provided that they do not overlap.
2. If the right to a benefit is open only by totalization of insurance periods, the following rules apply for the calculation of the amount of the benefit:
(a) the competent Brazilian institution initially calculates the amount of the benefit by assuming that all periods completed in accordance with the laws of the two Contracting States have been completed under the Brazilian legislation. For the calculation of the amount of the benefit, the Brazilian institution only takes into account the salaries and remuneration that served as the basis for payment of the contributions during the insurance periods carried out under Brazilian legislation (theoretical amount);
(b) if the theoretical amount is less than the minimum benefit limit, the theoretical amount is higher than the minimum benefit limit;
(c) Finally, the competent Brazilian institution calculates the proportional benefit, to be paid in accordance with Brazilian legislation, on the basis of the theoretical amount of the benefit, in proportion to the duration of the insurance periods in accordance with Brazilian legislation regarding the total duration of the insurance periods carried out under the laws of the two contracting States (pro-rata benefit).
3. As far as Brazil is concerned, no benefit will be payable by the Brazilian Competent Institution when the total duration of the insurance periods under Brazilian law is less than one year, unless the procedures provided for in Brazilian legislation have been completed.
PART IV. - Miscellaneous provisions
Rule 20
Missions of competent authorities
The competent authorities:
(a) Take, by administrative arrangement, the necessary measures for the application of this Convention and designate the liaison agencies and the competent institutions;
(b) define the administrative mutual assistance procedures, including the apportionment of expenditures related to obtaining medical, administrative and other expertise necessary for the purposes of this Convention;
(c) communicate, directly with each other, any information concerning the measures taken to implement this Convention;
(d) communicate, directly with each other and as soon as possible, any changes to their legislation that may affect the application of this Convention.
Article 21
Administrative collaboration
1. For the purposes of this Convention, the competent authorities and the competent institutions of each of the Contracting States shall lend their good offices, as if it were the application of their own legislation. This assistance is in principle free of charge; However, the competent authorities may agree on the reimbursement of certain costs.
2. All acts and documents to be produced under this Convention shall be exempted from the legalization visa of diplomatic or consular authorities.
3. For the purposes of this Convention, the competent authorities and the liaison bodies of the Contracting States are empowered to correspond directly with each other. Correspondence may be made in one of the official languages of the Contracting States.
Article 22
Communication of personal data
1. The institutions of the two Contracting States are authorized to communicate, for the purposes of this Agreement, personal data, including data relating to the income of persons whose knowledge is necessary for the institution of a Contracting State, for the application of social security or social assistance legislation.
2. The communication by the institution of a Contracting State of personal data is subject to the data protection legislation of that Contracting State.
3. The preservation, processing or dissemination of personal data by the institution of the Contracting State to which they are communicated shall be subject to the data protection legislation of that Contracting State.
4. The data referred to in this Article shall not be used for any purpose other than the implementation of social security or social assistance laws.
Article 23
Requests, declarations and remedies
Requests, declarations or appeals that should have been brought under the law of a Contracting State, within a specified period of time, to an authority, body or jurisdiction of that Contracting State, shall be admissible if they are brought within the same time limit to an authority, body or jurisdiction of the other Contracting State. In this case, the authority, body or jurisdiction so seized shall forthwith transmit such requests, declarations or recourse to the authority, body or jurisdiction of the first Contracting State either directly or through the competent authorities of the Contracting States. The date on which such requests, declarations or appeals have been filed with an authority, body or jurisdiction of the other Contracting State shall be deemed to be the date on which the competent authority, body or jurisdiction may be brought before the competent authority. An application or document may not be rejected because it is written in an official language of the other Contracting State.
Article 24
Payment of benefits
1. The debtors of benefits under this Convention shall be validly released in the currency of their State.
2. The transfers resulting from the application of this Convention shall take place in accordance with the relevant agreements between the two Contracting States.
3. In the event of monetary limitations being established in one of the two Contracting States, the competent authorities shall, immediately and in mutual agreement, take the necessary measures for the purposes of the application of this Convention with a view to ensuring the transfer of benefits.
Rule 25
Recovery of undue payments
Where the institution of one of the Contracting States has paid to a beneficiary of benefits an amount that exceeds that to which it is entitled, that institution may, under the conditions and limits provided for in the legislation it applies, request the institution of the other debtor State of benefits in favour of that beneficiary, to retain the amount paid in excess of the amounts paid by the institution to the recipient. The latter institution operates the deduction under the conditions and limits provided for such compensation by the legislation it applies as if it were amounts paid in excess by itself and transfers the amount retained to the financial institution.
Rule 26
Cooperation in combating fraud
In addition to the implementation of the general principles of administrative cooperation, Contracting States will agree, in an administrative arrangement, on the terms and conditions under which they lend their assistance to combat cross-border fraud in the area of social security contributions and benefits, in particular with regard to the effective residence of persons, the appreciation of resources, the calculation of contributions and the accumulated benefits.
PART V. - Transitional and final provisions
Rule 27
Eventualities prior to the entry into force of the Convention
1. This Convention also applies to any event that has occurred prior to its entry into force.
2. This Convention does not open a right to pay benefits for a period prior to its entry into force.
3. Any period of insurance under the law of one of the Contracting States before the date of entry into force of this Convention shall be taken into consideration for the determination of the right to a benefit granted in accordance with the provisions of that Convention.
4. This Convention does not apply to rights that have been liquidated on a final basis by the granting of a lump sum allowance or the reimbursement of contributions.
Rule 28
Revision, prescription, termination
1. Any benefit that has not been liquidated or has been suspended because of the nationality of the person concerned or because of his residence in the territory of the Contracting State other than the territory of which the debtor body is located, at the request of the person concerned, liquidated or restored from the entry into force of this Convention.
2. The rights of persons who have obtained, prior to the entry into force of the Convention, the liquidation of a benefit shall be revised upon request, taking into account the provisions of the Convention. In no case shall such a review have the effect of reducing the prior rights of the persons concerned.
3. If the request referred to in paragraphs 1^er or 2 of this article shall be submitted within two years from the date of entry into force of this Convention, the rights opened in accordance with the provisions of this Convention shall be acquired from that date, without the provisions of the legislation of either Contracting State, relating to the determination or limitation of the rights, being enforceable against the persons concerned.
4. If the request referred to in paragraphs 1^er or 2 of this article shall be submitted after the expiration of a period of two years following the entry into force of this Convention, the rights which are not subject to a termination or are not prescribed shall be acquired from the date of the application, subject to more favourable provisions of the law of the Contracting State concerned.
Rule 29
Settlement of disputes
Disputes relating to the interpretation and enforcement of this Convention shall be settled, to the extent possible, by the competent authorities.
Rule 30
Duration
This Convention shall be concluded for an indefinite period. It may be denounced by one of the Contracting States by diplomatic notification to the other Contracting State, with a notice of twelve months.
Rule 31
Guarantee of acquired or acquired rights
In the event of denunciation of this Convention, the rights and payments of benefits acquired under this Convention shall be maintained. Contracting States shall make arrangements with respect to acquisition rights.
Rule 32
Entry into force
This Convention shall be ratified in accordance with the domestic legislation of each Contracting State. It shall enter into force on the first day of the third month following the date on which the two contracting States have exchanged instruments of ratification by diplomatic means.
In faith, the undersigned, duly authorized, have signed this Convention.
Done in Brussels, Kingdom of Belgium, on 4 October 2009, in double copy, in French, Dutch and Portuguese, the three texts being equally authentic.