Law Approving The Convention On Social Security Between The Kingdom Of Belgium And The Federal Republic Of The Brazil, Signed In Brussels On October 4, 2009, (1) (2)

Original Language Title: Loi portant assentiment à la Convention sur la sécurité sociale entre le Royaume de Belgique et la République fédérative du Brésil, signée à Bruxelles le 4 octobre 2009 (1) (2)

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Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2014015178&caller=list&article_lang=F&row_id=400&numero=484&pub_date=2014-11-21&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2014-11-21 Numac: 2014015178 FEDERAL Foreign Affairs, external trade and development COOPERATION PUBLIC SERVICE January 19, 2014. -Law approving the Convention on social security between the Kingdom of Belgium and the Federal Republic of the Brazil, signed in Brussels on October 4, 2009, (1) (2) PHILIPPE, King of the Belgians, has all, present and future, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
S. 2. the Convention on social security between the Kingdom of Belgium and the Federal Republic of the Brazil, signed in Brussels on October 4, 2009, will release its full and complete effect.
S. 3. the amendments to the provisions of articles 7 to 9 of the Convention, article 10 of the Convention, will release their full and complete effect.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given in Brussels, January 19, 2014.
PHILIPPE by the King: the Deputy Prime Minister and Minister of Foreign Affairs, D. REYNDERS the Deputy Prime Minister and Minister of Pensions, A. DE CROO the Deputy Prime Minister and Minister of Social Affairs, Ms. L. ONKELINX the Minister of independent, Ms. S. LARUELLE seen and sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Notes (1) References parliamentarians Senate (www.senate.be) : Documents: 5-1785 - annals of the Senate: 11/08/2012.
House of representatives (www.lachambre.be): Documents: 53-2490 - full report: 12-19-2012, 2012-12-20.
(2) effective date: 01/12/2014 Convention on social security between the Kingdom of Belgium and the federative 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, have agreed as follows: title I:. -Provisions General Article 1 Definitions 1. For the purposes of this Convention: a) the term "Contracting States" means the Kingdom of Belgium and the Federal Republic of the Brazil.
(b) the term "Belgium" means the Kingdom of Belgium, "Brazil" refers to the Federal Republic of the 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 the Brazil.
(d) the term "legislation" means the laws and regulations referred to in article 2 of this Convention;
((e) the term "competent authority" means: i. as regards Belgium, the Ministers, each in relation to the application of the legislation referred to in article 2, paragraph b) of the present Convention, ii. with respect to Brazil, the Minister of social security;
(f) the term "competent institution" means the body or authority responsible for administering, in whole or in part, the laws referred to in article 2;
(g) the term "liaison body" means the body coordination and information between the competent institutions of both Contracting States involved in the application of this Convention and in the information of the persons concerned on the rights and obligations arising therefrom;
(h) the term "period of insurance" means a period recognized as such by the legislation under which this period has been completed, as well as any period recognized by this legislation as equivalent to periods of insurance;
(i) "benefit" means any pension, annuity, or other cash benefit under the laws referred to in article 2 of this Convention, including all supplements, increases or indexing which are applicable under the laws referred to in article 2 of this Convention;
(j) 'Survivor' means any person defined or recognized as such by legislation in respect of which benefits are paid.
2. any term not defined in paragraph 1 of the present article has the meaning assigned to it by legislation which applies.
Article 2 scope 1. This Convention applies: has) with regard to Brazil, to the legislation relating to the general social security scheme and the plans own de prévoyance social, with regard to the benefits of pension for invalidity, old-age pensions and survivor's pensions;
(b) as regards Belgium, the laws on: i. pensions old age and survival of employees and independent workers ii. to employed persons disablement insurance, sailors of the Merchant Navy and the self-employed;
and, with regard to part II only, the laws on: iii. social security of workers employees, iv. the social status of self-employed persons.
2. the present Convention will also apply to all legislative or regulatory acts which amend or supplement the laws listed in this article.
3. this Convention shall apply to the legislative or regulatory acts which will extend the existing to new categories of beneficiaries plans if there is not, in this regard, opposition of the Contracting State which amends its legislation notified to the other Contracting State within a period of six months from the publication official said acts.
4. the Convention is not applicable to legislative or regulatory acts establishing a new branch of social security, except if an agreement to that effect between the competent authorities of the two Contracting States.
Article 3 personal scope unless this Convention otherwise, it applies to persons, whatever their nationality, who are or who have acquired rights under the laws referred to in article 2 and to the rights holders, members of the family and survivors of these persons mentioned.
Article 4 equality of treatment unless it is otherwise specified in this Convention, the persons referred to in article 3 shall be subject to the obligations and are admitted to the benefit of the legislation of each Contracting State under the same conditions as nationals of that State.
Article 5 export of benefits 1. Unless this agreement provides otherwise, the benefits acquired under the legislation of one of the Contracting States may not be suspended, or undergo any reduction or change the beneficiary resides or resides in the territory of the other Contracting State.
2. the 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 he were Belgian nationals residing in the territory of that third State.
3. the invalidity, 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 he were Brazilian nationals residing in the territory of that third State.
Article 6 provisions for reduction or suspension 1.
Reduction or suspension clauses provided for by the legislation of a Contracting State, in the case of overlapping of a benefit with other social security benefits or income from the exercise of a professional activity, are opposable to the beneficiaries, even if it benefits acquired under a regime of the other State or if it is income from a professional activity in the territory of the other State.
2. However, for the purposes of paragraph 1 of this article, it need not account for benefits of the same nature which are awarded by the competent bodies of the two Contracting States, in accordance with the provisions of articles 12, 14 and 19 of the Convention.
TITLE II. -Provisions determining the applicable law Article 7 General rules 1. Subject to articles 8 to 10 of the present Convention, the applicable law is determined in accordance with the following provisions: a) person exercising a professional activity in the territory of a Contracting State is subject to the legislation of that State;
(b) a person who performs a self-employed activity on board a vessel flying flag of a Contracting State is subject to the legislation of the State in which he has his residence;
(c) a person who is part of the aircrew of a business conducting international air transport of passengers or goods for hire or reward or for its own account, and having its seat in the territory of a Contracting State is subject to the legislation of the latter State. However, when the undertaking has in the territory of the other Contracting State, a branch or permanent representation, the person it occupies is subject to the legislation of the Contracting State on whose territory it is located.
2. in the case of exercise simultaneous independent professional activity in Belgium and employee in Brazil, the activity carried on at the Brazil is considered a salaried activity in Belgium, for the fixation of the obligations resulting from the Belgian legislation on the social status of self-employed persons.
Article 8 specific rules 1.
The employee who, at the service of an undertaking in the territory of one of the States

contractors headquarters or a branch, which it normally is posted temporarily by this company on the territory of the other Contracting State to undertake work for the account of, is subject only to the legislation of the first Contracting State as if he continued to be employed in its territory provided that the anticipated duration of the work it must perform exceeds not twenty-four months and that he is not sent to replace another worker reached at the end of the period of secondment. These provisions are also applicable to the members of the family accompanying the worker employed in the territory of the other Contracting State, unless they perform a salaried or self-employed activity in the territory of that Contracting State.
2. where the secondment referred to in paragraph 1 of the present article continues beyond 24 months, the competent authorities of both Contracting States or the institutions designated by those competent authorities may agree that the employee remains subject only to the legislation of the first Contracting State. However, this agreement may be given only for a further period not exceeding 36 months. It must be requested before the end of the initial period of 24 months.
3. paragraph 1 of the present article applies when 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 from the territory of the third country to the territory of the other Contracting State.
(4. article 7, paragraph 1, littera b), is not applicable for the person who is not usually occupied on sea is occupied in the territorial waters or in a port of one of the Contracting States on a ship flying the flag of another State. (As appropriate, article 7, paragraph 1, littera a) or paragraph 1 littera a) of the present article shall apply.
(5) where a person subject to the legislation of a Contracting State who ordinarily performs an independent activity on the territory of that Contracting State shall temporarily exercise a similar independent activity, only the territory of the other Contracting State, that person remains subject only to the legislation of the first Contracting State as if she continued to work in the territory of the first Contracting State , provided that the anticipated duration of self-employment in the territory of the other Contracting State does not exceed 24 months.
6. where independent activity on the territory of the other Contracting State referred to in paragraph 5 of this article continues beyond twenty-four months, the competent authorities of both Contracting States or competent institutions designated by the competent authorities may agree that the self-employed person remains subject only to the legislation of the first Contracting State. However, this agreement may be given only for a further period not exceeding 36 months. It must be requested before the end of the initial period of 24 months.
Article 9 civil servants, members of diplomatic missions and consular posts 1. Members of the staff of diplomatic missions and consular posts are subject to the provisions of the Vienna Convention on diplomatic relations of 18 April 1961 as well as those of the Vienna Convention on consular relations of 24 April 1963.
2. persons engaged by a diplomatic mission or a consular post of one of the Contracting States on the territory of the other Contracting State are subject to the legislation of that Contracting State.
3. where the diplomatic mission or consular office of one of the Contracting States responsible for persons who, in accordance with paragraph 2 of this article, shall be subject to the legislation of the other Contracting State, the mission or post shall take account of the obligations imposed on employers by the legislation of that Contracting State.
4. the provisions of paragraphs 2 and 3 of this article shall apply by analogy to persons employed in the private service of a person referred to in paragraph 1 of this article.
5. the provisions of paragraphs 1 to 4 of this article shall not apply to members of a consular post or private persons service employed.
6. officials and clerks are subject to the legislation of the Contracting State of which the administration employing them.
These people are, therefor, considered as residing in the territory of that State, even if they are on the territory of the other Contracting State.
7. the provisions of this article are also applicable to the members of the family accompanying the persons referred to in paragraphs 1 and 6 unless they exert themselves a professional activity.
Article 10 exceptions the competent authorities or the competent institution designated by them may provide, by mutual agreement, in the interests of certain insured persons or certain categories of insured persons, derogations from the provisions of articles 7 to 9 provided that the persons concerned are subject to the law of one of the Contracting States.
TITLE III. -Provisions concerning benefits Chapter 1. -Provisions concerning Belgian benefits Section A. - benefits of old age and survival section 11 totaling 1. Subject to paragraph 2 of this article, for the acquisition of the right to benefits Belgian old-age or survivor by a person whose periods of insurance have been completed in accordance with Belgian legislation, the periods of insurance completed in accordance with the Brazilian field benefits legislation are involved, as appropriate, by the competent Belgian institution with the periods of insurance completed under the Belgian legislation on the condition that they do not overlap with periods of insurance completed under the Belgian legislation.
2. when the Belgian legislation conditional acquisition of entitlement to certain benefits Belgian old age or survivor on the condition that the periods of insurance have been completed in a given profession, are aggregated for this purpose by the competent Belgian institution that periods of insurance completed in accordance with Brazilian legislation and considered by the Belgian as competent institution having been completed in the same profession.
3 when the Belgian legislation makes acquisition of entitlement to certain benefits Belgian old age or survivor on the condition that the periods of insurance have been completed in a given profession, and when periods of insurance accumulated in accordance with paragraph 2 of this article could not give right to target benefits, the totalised insurance periods are considered by the competent Belgian institution as valid for the determination of the benefits provided by the statutory Belgian employees.
Article 12 calculation of the amount of benefits 1. When a person is entitled to a Belgian old-age or survivor benefit without any need for the aggregation, the competent Belgian institution calculates the amount of the benefit on the basis of the periods of insurance completed in accordance with Belgian legislation only. The competent Belgian institution is also the calculation of the amount of the benefit that would be obtained by the application of the rules laid down in paragraph 2 of this article.
The higher of these two amounts is only retained.
2. where a person is entitled to a benefit Belgian old-age or survivor only by the aggregation of periods of insurance completed in accordance with article 11, the following rules shall apply: a) the Belgian competent institution shall calculate the theoretical amount of the benefit that would be due if all the insurance periods completed under the legislation of both Contracting States had been completed only under the legislation which it administers;
(b) the competent Belgian institution then calculates the amount due, on the basis of the amount referred to in the littera), in proportion to the duration of the periods of insurance completed under its sole legislation compared to the duration of periods of insurance referred to in the letter a).
Section b. - Invalidity benefits Article 13 Totalisation for the acquisition of entitlement to a benefit of Belgian disability by a person whose periods of insurance have been completed in accordance with the Belgian law, article 11 shall apply mutatis mutandis.
Article 14 calculation of the amount of the disability benefit 1. When a person is entitled to a disability benefit Belgian only by aggregation of periods of insurance under the Belgian legislation and periods of insurance under the Brazilian legislation in accordance with article 11, article 12, paragraph 2, shall apply mutatis mutandis to the calculation of the amount of the benefit payable.
2. where a person entitled to an invalidity benefit Belgian without it being necessary to call in section 11, and that the amount resulting from the addition of the Brazilian disability and calculated Belgian invalidity benefit delivery according to paragraph 1 of the present article is less than the amount of the benefit due on the basis of the Belgian legislation only , the competent Belgian institution allocates a supplement equal to the difference between the sum of these two benefits and

the amount due under Belgian legislation only.
Article 15 period of minimum insurance in cases referred to in article 14, paragraph 1, no Belgian invalidity benefit is payable by the competent Belgian institution where the total duration of the periods of insurance completed under Belgian legislation before the occurrence of the event is less than a year.
Article 16 special provisions concerning disability benefits the holder of a Belgian invalidity benefit retains the benefit of this provision during a stay on the territory of the Brazil, when this temporary stay has been previously authorized by the competent Belgian institution. However, this authorization may be refused by the competent Belgian institution where the temporary residence is located in the period during which, under Belgian legislation, the competent Belgian institution must undergo assessment or the revision of the degree of invalidity.
Section v. - Provisions common to Belgian benefits Article 17 new calculation of benefits 1. If, due to the increase in the cost of living, of the variation in the level of wages or other causes of adaptation, the amounts of old-age benefits, survival or Brazilian disability are modified by a percentage or amount determined, the competent Belgian institution is not obliged to proceed with a new calculation of the amounts of retirement benefits, survival or Belgian disability.
2 However, in the event of changing the mode of establishment of rights or the rules of calculation of old-age benefits, survival or Brazilian disability, a recalculation is made by the competent institution Belgian pursuant to section 12 or 14.
CHAPTER 2. -Provisions concerning Brazilian benefits Article 18 survivor's benefit if Brazilian legislation makes the right to a survivor's benefit on the condition that the insured's death took place during a period of insurance, the condition of the establishment of the benefit entitlement is considered fulfilled if the death took place at a time where the person was subject to Belgian law.
Article 19 totaling 1.
If, according to Brazilian law, no right to benefits exists solely on the basis of the periods of insurance completed under the Brazilian legislation, these periods shall be aggregated with the periods of insurance completed under the Belgian legislation on the condition that they do not overlap.
2. If entitlement to a benefit is only open by aggregation of periods of insurance, the following rules shall apply for the calculation of the amount of the benefit: a) the Brazilian institution originally calculated the amount of the benefit assuming that all the 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 shall take into account wages and remuneration having formed the basis for payment of contributions during the periods of insurance completed under the Brazilian legislation (notional amount);
(b) if the theoretical amount is less than the minimum limit of the benefit, the theoretical amount is raised to the minimum limit of the benefit;
(c) Finally, the Brazilian competent institution calculates the benefit proportional to pay according to Brazilian legislation, on the basis of the theoretical amount of the benefit, in proportion to the duration of periods of insurance in accordance with the Brazilian legislation compared to the total duration of the periods of insurance completed under the legislation of both Contracting States (benefit pro rata).
3. as regards the Brazil, no benefit will be due by the Brazilian competent Institution when the total duration of the periods of insurance completed under Brazilian law is less than one year, unless the procedures provided for in Brazilian legislation have been completed.
TITLE IV. (-Provisions various Article 20 Missions from the competent authorities the competent authorities: has) take, by administrative arrangement, the measures necessary for the implementation of this Convention and shall designate liaison bodies and institutions;
(b) define the mutual administrative assistance procedures, including the distribution of expenditures relating to the obtaining of the necessary medical, administrative and other expert opinion for the purposes of this Convention;
(c) communicate, directly between them, all information concerning the measures taken for the application of this Convention;
(d) communicate directly between them and in the shortest time limits, any change in their legislation which may affect the application of this Convention.
Article 21 administrative cooperation 1. For the purposes of this Convention, the competent authorities and competent institutions of each of the Contracting States reciprocally 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 expenses.
2. all acts and documents to be produced in application of the present Convention shall be exempt from authentication by diplomatic or consular authorities.
3. for the application of this Convention, the competent authorities and the liaison of the contracting bodies are authorized to correspond directly with each other. Correspondence can be done 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 allowed to communicate, for the purposes of the application of this agreement, personal data, including data relating to the incomes of the people whose knowledge is necessary for the institution of a Contracting State, for the purposes of welfare or social assistance legislation.
2. the communication by the institution of a Contracting State to personal data is subject to legislation on the protection of the data of that Contracting State.
3. the preservation, processing or dissemination of personal data by the institution of the State Contracting to which they are provided are subject to legislation on the protection of the data of that Contracting State.
4. the data referred to in this article may not be used for any purpose other than the implementation of the laws relating to social security or social assistance.
Article 23 requests, declarations and use claims, declarations or appeals which should be introduced, according to the legislation of a Contracting State, within a specified period to an authority, a body or a Court of this State shall be admissible if they are introduced within the same period to an authority, a body or a Court of the other Contracting State. In this case, the authority, the agency or the Court so seized shall without delay send these requests, declarations or appeals to authority, the body or the jurisdiction of the first Contracting State either directly or through the competent authorities of the Contracting States. The date to which such claims, declarations or appeals were introduced to an authority, a body or a Court of the other Contracting State is considered as the date of submission to the authority, the organization or the competent court to learn. An application or document may be rejected because it is written in an official language of the other Contracting State.
Article 24 payment of benefits 1.
Receivable agencies of benefits under this Convention will validly release in the currency of their State.
2. transfers resulting from the application of the present Convention are held in accordance with the agreements in force on this matter between the two Contracting States.
3. where monetary limitations are established in one of the two Contracting States, the competent authorities take, immediately and by mutual agreement, measures necessary for the purposes of the application of this Convention to ensure the transfer of benefits.
Article 25 recovery of undue payments when the institution of a Contracting State paid to a recipient of benefits a sum which exceeds that to which he is entitled, that institution may, under the conditions and limits laid down by the legislation which it administers, request the institution of the other debtor of benefits for the beneficiary State, withhold the overpayment on the amounts which it pays recipient audit. The latter institution make the deduction under the conditions and limits provided for such setting-off by the legislation which it administers as if he were overpayments by itself, and shall transfer the amount deducted to the creditor institution.
Article 26 Cooperation in the fight against fraud in addition to the implementation of the General principles of administrative cooperation, the Contracting States shall agree, in an administrative arrangement, terms that they lend their assistance to combat cross-border fraud relating to contributions and social security benefits, in particular as regards

the actual residence of the people, the appreciation of the resources, the calculation of the contributions and the overlapping of benefits.
Title V. - Transitional provisions and final Article 27 contingencies prior to the entry into force of the Convention 1. This Convention also applies to contingencies is conducted prior to its entry into force.
2. this Convention does not right open for the payment of benefits for a period prior to its entry into force.
3. any period of insurance completed under the legislation of a Contracting State before the date of entry into force of the Convention is taken into account for the determination of the entitlement to a benefit granted in accordance with the provisions of the Convention.
4. this Convention does not apply to rights which had been liquidated on a final basis by the granting of a lump sum or the reimbursement of contributions.
Article 28 Revision, prescription, forfeiture 1. Any benefit which has not been awarded or which has been suspended because of the nationality of the concerned or due to his residence in the territory of the Contracting State other than that where the debtor organization is, at the request of the person concerned, awarded or reinstated from the entry into force of this Convention.
2. the rights of persons concerned having awarded prior to the entry into force of the said Convention, the liquidation of a benefit, are revised at their request, taking into account the provisions of the Convention. Under no circumstances, such a revision must have reduced the earlier rights of the persons concerned.
3. If the request referred to in paragraphs 1 or 2 of the present article is presented within a period of two years from the date of entry into force of this Convention, rights in accordance with the provisions of the Convention are acquired from this date, without the provisions of the legislation of one or the other State Contracting relating to the forfeiture or the prescription of rights, are prejudicial to the persons concerned.
4. If the request referred to in paragraphs 1 or 2 of the present article is submitted after the expiry of a period of two years following the entry into force of this Convention, the rights which are not stricken forfeited or which are not prescribed are acquired from the date of the application, subject to more favourable provisions of the legislation of the Contracting State concerned.
Article 29 settlement of disputes disputes relating to the interpretation and execution of this agreement will be resolved, to the extent possible, by the competent authorities.
Article 30 during this Convention is concluded for an indefinite period. It may be denounced by one of the Contracting States by written notification through diplomatic channels to the other Contracting State, with a twelve month notice period.
Article 31 warranty of acquired rights, or by way of acquisition in the event of denunciation of this Convention, the rights and benefits acquired under the Convention will be maintained. The Contracting States will take arrangements in relation to the rights in the process of acquisition.
Article 32 entry into force this Convention shall be ratified in accordance with the internal legislation of each of the Contracting States. It comes into force the first day of the third month following the date on which both Contracting States have exchanged, through diplomatic channel, the instruments of ratification.
In witness whereof the undersigned, duly authorized, have signed this Convention.
Done at Brussels, Kingdom of Belgium, October 4, 2009, in duplicate, in languages, Dutch, French, and Portuguese, the three texts being equally authentic.