Posted the: 2009-06-19 Numac: 2009015031 FEDERAL PUBLIC SERVICE Foreign Affairs, trade outside and COOPERATION to development 12 February 2009. -Law concerning consent to the agreement on social security between the Kingdom of Belgium and the Republic of Korea, signed at Brussels, 5 July 2005 (1) (2) ALBERT II, King of the Belgians, to 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 Republic of Korea, signed in Brussels on 5 July 2005, released 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, February 12, 2009.
ALBERT by the King: Foreign Minister K. DE GUCHT the Minister of Social Affairs, Ms. L. ONKELINX the Minister of independent, Ms. S. LARUELLE the Minister of Pensions, Ms. M.
ARENA sealed with the seal of the State: the Minister of Justice, S. DE CLERCK _ Notes (1) Session 2007 - 2008 and 2008-2009.
Bill tabled on June 23, 2008, no. 4 - 820/1. -Report, n ° 4-820/2.
Parliamentary Annals. -Discussion and vote: meeting of November 6, 2008.
Documents. -Draft transmitted by the Senate, no. 52-1561/1. -Text adopted in plenary and subject to Royal assent, session No. 52-1561/2.
Parliamentary Annals. -Discussion and vote: meeting of November 27, 2008.
(2) pursuant to article 29 this convention enters into force on July 1, 2009.
CONVENTION on social security between the Kingdom of Belgium and the Republic of Korea the Kingdom of Belgium and the Republic of Korea, 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) "Belgium" means: the Kingdom of Belgium;
«Korea» means: the Republic of Korea.
(b) the term "national" means: in relation to the Belgium: a person of Belgian nationality;
with regard to the Korea: a citizen of the Republic of Korea as defined by "The Nationality Law", such as amended.
(c) the term 'legislation' means: the laws and regulations referred to in article 2.
(d) 'competent authority' means: in relation to the Belgium: Ministers, each in relation to the application of the legislation referred to in article 2, paragraph 1 (a));
with regard to the Korea: Minister of health and welfare.
(e) the term "organization" means: in relation to the Belgium: the institution, organization or authority to apply, in whole or in part, the laws referred to in article 2, paragraph 1 a);
with regard to the Korea: the National Pension Corporation.
(f) the term "period of insurance" means: any period of contributions 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 a period of contributions.
(g) the term "pension" means: any pension or any cash benefit, including any supplements or increases which are applicable under the laws referred to in article 2.
(h) the term 'member of the family' means: any person defined or recognised as a member of the family or designated as a member of the household respectively by Belgian and Korean legislation.
(i) the term "stateless person" means: any person defined as a stateless person in article 1 of the Convention of 28 September 1954 relating to the status of stateless persons.
(j) the term "refugee" means: any person having obtained the recognition of refugee status pursuant to the Convention of 28 July 1951 relating to the status of refugees and the Protocol of 31 January 1967.
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 Belgium, to the legislation concerning: (i) pensions retirement and survival of salaried workers and the self-employed;
(ii) disability of employees, the sailors in the Navy market, workers minor and independent workers;
and, with regard to title II only, to the legislation concerning: (iii) social security of employees;
(iv) in the social status of self-employed persons;
(b) in relation to the Korea: the National Pension Act and its regulations.
2. the present Convention will also apply to all legislative or regulatory acts which amend or supplement the laws listed in paragraph of this article.
It will 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.
This Convention is not applicable to legislative or regulatory acts establishing a new branch of social security, unless an agreement is reached between the competent authorities of the Contracting States.
3. unless otherwise provided in this agreement, the legislation referred to in paragraphs 1 and 2 of the present article includes no treaties or other international social security agreements concluded between a Contracting State and a third State or a legislation enacted for their specific application.
Article 3 scope personal unless provided otherwise, this Convention applies: a) to persons who are or who have submitted to the legislation of one of the Contracting States and which are: (i) nationals of one of the Contracting States, or of (ii) stateless persons or refugees recognized by one of the Contracting States, as well as to members of their families and their survivors;
(b) to members of the family and survivors of people who were subjected to the legislation of one of the two Contracting States, without regard to the nationality of the latter when those members of the family or those survivors are nationals of one of the Contracting States or stateless persons or refugees recognized by one of the Contracting States.
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 of the Contracting States under the same conditions as nationals of that State.
Article 5 export of benefits l. Unless this agreement provides otherwise, pensions acquired under the legislation of one of the Contracting States cannot undergo any reduction or change the beneficiary resides or resides in the territory of the other Contracting State.
2. the owed pensions by one of the Contracting States shall be paid to nationals of the other Contracting State who reside in the territory of a third State under the same conditions provided for in the national legislation of the first Contracting State for its nationals residing in the territory of that third State.
Article 6 reduction or suspension Clauses reduction or suspension clauses provided for by the legislation of a Contracting State, in the event of cumulation of a pension with other benefits from social security or with other professional income, are prejudicial to the recipients, even if it benefits acquired under a regime of the other Contracting State, or if the relevant professional activities are pursued on the territory of the other Contracting State.
However, this rule is not applicable to cumulation of two pensions of the same nature.
TITLE II. -Provisions determining the applicable law Article 7 General rules 1. Subject to articles 8 to 10, the applicable law is determined in accordance with the following provisions: a) person who is a salaried or self-employed professional activity in the territory of a Contracting State is subject to the legislation of that State;
(b) a person who is part of the travelling or flying personnel by an undertaking, for hire or reward or for its own account, international transport of passengers or goods with Headquarters on the territory of a Contracting State is subject to the legislation of that State.
2. in the case of simultaneous exercise of independent professional activity in Belgium and employee in Korea, the activity carried out in Korea 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.
3. the person who exercises independent professional activity in the territory of one and the other Contracting State is subject only to the legislation of the Contracting State on the territory of which he has his habitual residence. For the fixing of the amount of income to be taken into consideration for
contributions due under the legislation of that Contracting State, account shall be taken of professional self-employed income earned on the territory of the two States, in accordance with their respective laws.
Article 8 specific rules 1. Self-employed person who, being at the service of an undertaking having the territory of one of the Contracting States where it is normally is posted by this company on the territory of the other Contracting State to undertake work for the account of, remains subject to the legislation of the first State as if it continued to be occupied its territory provided that the anticipated duration of the work it must perform more than not 60 months. The members of the family accompanying the employee are subject to the legislation of the first Contracting State unless they exercise professional activities.
2. case the detachment continues beyond the period mentioned above, the legislation of the first Contracting State compulsory insurance will be applicable provided that the competent authorities of both Contracting States or the bodies appointed by them accept the joint request of the worker and the employer.
Article 9 civil servants, members of diplomatic missions and consular posts 1. Officials and clerks are subject to the legislation of the Contracting State of which the administration employing them. These people, as well as their family members are, therefor, regarded as residing in that State, even if they are in the other Contracting State.
2. a) nationals of a Contracting State sent by the Government of that Contracting State on the territory of the other Contracting State as members of a diplomatic mission or a consular post are subject to the legislation of the first Contracting State.
(b) persons who are nationals of a Contracting State, engaged by a diplomatic mission or a consular office of that Contracting State on the territory of the other Contracting State are subject to the legislation of the first Contracting State.
However, these persons may opt for the application of the legislation of the other Contracting State with the agreement of their employer within the six months of the beginning of the occupation or the date of entry into force of this Convention.
Persons not covered by the above provisions of this letter are subject to the legislation of the other Contracting State.
((c) where the diplomatic mission or consular post of a Contracting State is the people which, pursuant to letter b) of this paragraph, are subject to the legislation of the other Contracting State, the mission or post takes into account the obligations imposed on employers by the legislation of that Contracting State.
((d) the provisions of the letter b) and (c)) of this paragraph shall apply by analogy to persons employed in the private service of a person referred to in the letter a) of this paragraph.
(e) the provisions of the letter a) to (d)) of this paragraph shall not apply to members of a consular post or the persons employed on private persons service.
((f) the provisions of this paragraph are also applicable to the members of the family of persons referred to in the letter a) to d), living in their household, unless they exercise themselves a professional activity.
Article 10 provision of amendment the competent authorities may provide, by mutual agreement, in the interests of certain insured persons or certain categories of insured persons, the amendments to 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 the Pensions Chapter 1. -Provisions concerning the Belgian pensions Section 1st.
-Pensions and survival Article 11 1. Subject to the provisions of paragraph 2, periods of insurance completed in accordance with Korean law on pensions are aggregated as necessary, on condition that they do not overlap with periods of insurance completed under Belgian legislation, with a view to the acquisition, retention or recovery of the right to pensions.
2. when the Belgian legislation for the granting of certain pensions provided that periods of insurance have been completed in a given profession, not are totaled, for admission to the benefit of these pensions, periods of insurance completed or recognized equivalent in the same profession in Korea.
3 where the Belgian legislation granting certain pensions provided that periods of insurance have been completed in a particular profession and when these periods were able to qualify such pensions, these periods are considered valid for determining pensions under the general scheme for workers.
Article 12 1. Where the person meets the conditions required by Belgian legislation to qualify for pensions without it being necessary to perform totalization, the Belgian Agency calculates the right to the pension directly on basis of periods of insurance completed in Belgium and Belgian legislation only.
This organization is also the calculation of the amount of the pension that would be obtained by application of the rules laid down in paragraph 2, letter a) and b). The highest amount is only retained.
2. If a person qualifies for a pension under Belgian legislation, which the right is open only in light of the aggregation of periods of insurance completed in accordance with article 11, the following rules apply: has) the Belgian agency calculate the theoretical amount of the pension that would be due if all the insurance periods completed under the legislation of both Contracting States had been completed only under the Belgian legislation;
(b) the Belgian organisation 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 recorded under the littera has).
Section 2. -Disability Article 13 for the acquisition, retention or recovery of the right to invalidity pensions, the provisions of article 11 shall apply by analogy.
Article 14 1. If the right to Belgian disability pension is only open by aggregation of insurance periods Korean and Belgian made in accordance with article 13, the amount of pension payable is determined according to the rules laid down by article 12, paragraph 2.
2. where the right to Belgian disability pension is open without requiring to use the provisions of article 13, and that the amount resulting from the addition of the Korean pension and the Belgian pension calculated in accordance with paragraph 1 of this article, is less than the amount of the pension payable on basis of Belgian legislation only the competent Belgian authority allocates a supplement equal to the difference between the sum of the two above-mentioned pensions and the amount due under Belgian legislation only.
Article 15 1. By way of derogation from the provisions of article 11, paragraph 1 and article 14, the rights to disability pensions to workers who were employed in mining or quarrying with underground in Belgium and in Korea are determined according to the rules laid down in article 12 when, taking into account the periods tabulated for this purpose, these workers meet the requirements prescribed by the special Belgian legislation on invalidity of minor and related workers.
2. for the purposes of paragraph 1, are aggregated with periods of effective occupation or assimilated into mining or quarrying with Belgian underground mining, periods of insurance in the same profession on the territory of the Korea, both for the acquisition for the determination of the right.
3. If, taking into account the periods thus summed, the person concerned does not meet the requirements for receiving pensions under the special Belgian legislation on invalidity of minor and related workers, periods of effective occupation or assimilated into mining or quarrying with Belgian underground mining are taken into account for the granting of pensions of employees disability insurance plan.
Article 16 the holder of a disability pension from the Belgian legislation preserves the benefit of the pension during a stay in the other Contracting State, when this stay has been previously authorized by the Belgian competent body. However, this authorization may be refused where the residence is located in the period during which, under Belgian law, the Belgian competent body must conduct an evaluation or review of the degree of invalidity.
CHAPTER 2. -Provisions concerning pensions Korean Article 17 totaling and pensions 1. If a person is not entitled to pensions and survival under Korean law on the basis of the periods of insurance completed exclusively under Korean law, Korean Agency takes into account the person insurance periods completed under the legislation of Belgian, provided that they do not coincide, in order to determine the rights to the person to pensions under Korean law.
2. to obtain the benefit of a pension disability or survival, condition of Korean law that a person must be covered when the insured risk occurs shall be considered as being fulfilled if the person is covered for a pension under the Belgian legislation during a period in which the insured risk occurs.
3. for the purposes of paragraph 1, periods of insurance recognised by the Belgian as legalization as periods of insurance completed in a given profession will be considered as periods equivalent activities under Korean law only insofar as the activities performed in Belgium are those of the same occupation recognized under the legislation of Korea.
4. when periods of insurance under the Belgian legislation are taken into consideration for the purpose of establishing entitlement to benefits under the legislation Korean in accordance with paragraph 1 and 2 of this article, the pension payable is determined as follows: a) the Korean body first calculates an amount of pension equal to the amount that would be due to the person if all the insurance periods completed under the legislation of both Contracting States had been completed under the legislation Korean. To determine the amount of the pension, the Korean Agency takes into account the average regular monthly income of the person being subjected to Korean law.
(b) the Korean organization calculates partial pension payable in accordance with the legislation Korean on the basis of the amount of pension calculated in accordance with the previous littera, in proportion to the duration of insurance periods taken into account under its own legislation over the duration of all insurance periods taken into consideration under the legislation of both Contracting States.
5. the lump-sum refunds are granted to nationals of the other Contracting State under the same conditions as those applicable to Korean nationals. Lump sum repayments to nationals of a third State are however granted in accordance with Korean law.
6. the Korean legislation limiting the right to pensions disability or survival due to non-payment of contributions at the time where the person fulfilled the other conditions for the granting of pension shall apply for the period covered by the Korean law.
CHAPTER 3. -Provisions Commons Article 18 1.
If, due to the increase in the cost of living, the variation in the level of wages or other reasons for adjustment, old age pensions, survival or disability of one of the Contracting States are altered by a percentage or amount determined, this percentage or amount must be applied directly to old age pensions, survival or disability of that Contracting State without having the other Contracting State for a recalculation of old-age pensions, survival or disability.
2 However, in the case of changing the mode of establishment or to the rules of calculation of disability, old age, and survival pensions, a recalculation is made in accordance with article 12, 14 or 17.
TITLE IV. (-Provisions various Article 19 responsibilities of the competent authorities the competent authorities: has) take, by administrative arrangement, the measures necessary for the implementation of this Convention, including measures concerning consideration of periods of insurance, and designate liaison bodies and relevant agencies;
(b) define the mutual administrative assistance procedures, including the apportionment of the expenses related to obtaining necessary medical, administrative and other certificates for the purposes of this Convention;
(c) communicate directly all information concerning the measures taken for the application of this Convention;
(d) shall communicate, in the shortest delays, any change in their legislation which may affect the application of this Convention.
Article 20 administrative cooperation 1. For the purposes of this Convention, the competent authorities and the competent bodies of each of the Contracting States lend themselves reciprocally their good offices among others in determining the entitlement to and payment of any pension granted under this Convention, 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. the benefit of the exemptions or reductions of fees, stamp, registry or registration rights provided for by the legislation of one of the Contracting States for documents required to be produced for the application of the legislation of that State, is extended to similar documents required to be produced for the application of the legislation of the other State and coins.
3. the certificates and the documents to be produced for the purposes of this Convention shall be exempt from authentication by diplomatic or consular authorities.
Copies of documents certified by an instance of one of the Contracting States shall be accepted as certified copies by an instance of the other Contracting State, without further legalization.
4. for the purposes of this Convention, the competent authorities and the competent bodies of the Contracting States are entitled to correspond directly between them and with anyone, regardless of residence. Correspondence can be done in one of the official languages of the Contracting States.
It is not permissible that an application or a document is rejected by the competent authority or the competent authorities of a Contracting State, only because the writing was made in an official language of the other State Contracting.
Article 21 applications, statements and appeals 1. Claims, declarations or appeals which should be introduced, according to the legislation of a Contracting State, within a specified period to an authority or an agency of this State, are admissible if they are introduced within the same period to an authority or agency of the other Contracting State. In this case, claims, declarations or appeals must be sent without delay to the authority or to the Agency of the first Contracting State either directly or through the competent authorities of the Contracting States.
The date on which such claims, declarations or appeals were introduced to an authority or agency of the other Contracting State is considered to be the date of introduction to the authority or the competent body to learn.
2. a request for pensions under the legislation of one of the Contracting States shall be considered as also a pension application of the same kind under the legislation of the other Contracting State provided that the applicant wishes to and provides information showing that periods of insurance have been completed under the legislation of the other Contracting State.
Article 22 confidentiality unless otherwise provided in the laws and regulations of a State Contracting, information about a person, communicated in accordance with this Convention to the competent authority or the competent authority of that Contracting State by the competent authority or the competent agency of the other Contracting State will be used exclusively for the implementation of this Convention and the legislation to which this Convention is applicable. This information communicated to the competent authority or the competent authority of a Contracting State shall be subject to the application of laws and national regulations of that Contracting State concerning the protection of privacy and confidentiality of personal data.
Article 23 payment of pensions 1. An agency of a Contracting State may be validly pension for a person residing in the territory of the other Contracting State in the currency of that Contracting State. If pensions are paid in the currency of the other Contracting State, the conversion rate will be the rate of Exchange in effect the day where pensions are paid.
2. where a Contracting State imposes currency controls or other similar measures restricting payments, remittances or transfers of funds or financial instruments to persons who are outside that Contracting State, it will take without delay the measures to ensure payment of any amount to be paid in accordance with this Convention to those defined in article 3 who reside in the other Contracting State.
Article 24 settlement of disputes disputes relating to the interpretation and execution of this agreement will be resolved, to the extent possible, by the competent authorities.
Title V. - Transitional provisions and final Article 25 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. the present Convention no right to pensions 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 present Convention is taken into account for the determination of entitlement to a pension opens in accordance with the provisions
of this Convention.
4 none of the Contracting States will be obliged to take into account insurance periods prior to the date the oldest which insurance periods can be recognized under its law.
5. this Convention does not apply to rights which had been liquidated by the granting of a lump sum or the reimbursement of contributions.
6. for the purposes of article 8 to the delivered persons in a Contracting State before the date of entry into force of this Convention, the periods of occupancy to which reference is made in this article will be considered as commencing on that date.
Article 26 Revision, prescription, forfeiture 1. Any pension that has not been awarded or which has been suspended because of the nationality of the person concerned or by reason of his residence in the territory of the Contracting State other than that where the debtor organization, is at the request of the person concerned, liquidated or restored from the entry into force of this Convention.
2. the rights of persons concerned having awarded prior to the entry into force of this Convention, the liquidation of a pension are revised at their request, taking into account the provisions of the present 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 this 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 State Contracting in question.
Article 27 duration this agreement is concluded for an indefinite period. It may be denounced by one of the Contracting States by a written notification addressed to the other State with a twelve month notice period.
Article 28 warranty of acquired rights, or by way of acquisition in the event of denunciation of this Convention, the rights and payments of pensions acquired under the Convention will be maintained.
The Contracting States will take arrangements in relation to the rights in the process of acquisition.
Article 29 entry into force this Convention shall enter into force the first day of the third month following the date of receipt of the note by which the last of the two Contracting States will be served to the other Contracting State that all the formalities required by national legislation have been completed.
In witness whereof the undersigned, duly authorized, have signed this Convention.
Done at Brussels, 5 July 2005, in duplicate, in languages English, Korean, French and Dutch, the four texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.