belgiquelex.be - Carrefour Bank of Legislation 10 FEBRUARY 2003. - Law regulating the transfer of pension rights between Belgian pension plans and institutions of public international law (1)
ALBERT II, 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 78 of the Constitution.
CHAPTER I
er. - Definitions and scope
Art. 2. For the purposes of this Act, we must hear:
1° by "institution": the community institutions and the bodies assimilated to them for the application of the status of officials and other agents of the European Communities.
Also considered as institutions, community-based organizations whose pension plan provides:
(a) the employee or the temporary agent who has entered into service with the organization after having constituted the pension rights of the head of a professional activity exercised in Belgium, the right to request to transfer to the organization an amount corresponding to the plan for the redemption of pension entitlements that he has constituted the head of that activity;
(b) an employee or a temporary agent who has ceased his or her duties with the organization to perform a professional activity in Belgium, the right to request the transfer to the pension plan in which he or she constitutes the rights of the head of that activity, an amount corresponding to the actuarial equivalent or to the redemption of his or her pension rights under the pension plan of the organization;
2° by "staff": any person who has been appointed under the conditions provided for by the statute of the institution to a permanent employment in the institution by a written act of the authority vested with the authority to appoint the institution;
3° by "temporary agent": the temporary agent referred to in Article 2(a), 2(c) and 2(d) of the regime applicable to other agents of the European Communities established by Article 3 of the Regulation (EEC/Euratom/ECSC) No 259/68 of the Council of 29 February 1968 or by similar provisions of the statute of another institution;
4° by "administration": the Pension Administration, the National Pension Board, the Outre-Mer Social Security Office or the National Institute of Social Insurance for Independent Workers;
5° by "the Board": the National Board of Pensions;
6° by "pension": pensions, rents and personal benefits referred to in Article 3, § 1
er, as well as any other benefit taking place.
Art. 3. § 1
er. This Act applies to persons who, from the head of their business, have constituted the rights to:
1° a pension referred to in section 38 of the Act of 5 August 1978 of economic and budgetary reforms;
2° a dependant pension of the pension plan of the employed workers granted pursuant to Royal Decree No. 50 of 24 October 1967, the Act of 20 July 1990 establishing a flexible retirement age for the employed workers and adapting the pensions of the employed workers to the evolution of the general well-being and the Royal Decree of 23 December 1996 implementing articles 15, 16 and 17 of the Act of 26 July 1996 on the modernization of the security
3° a dependant pension of the Overseas Social Security Office granted under the Act of 17 July 1963 on Overseas Social Security;
4° a dependant pension of the pension plan for self-employed persons established by Royal Decree No. 72 of 10 November 1967 on the pension and survival of self-employed persons, by the Act of 15 May 1984 on measures of harmonization in pension schemes and by the Royal Decree of 30 January 1997 on the pension plan for self-employed persons pursuant to articles 15 and 27 of the Act of 26 July 1996 on the modernization of social security
er4° of the Act of 26 July 1996 to fulfil the budgetary conditions of Belgium's participation in the European Economic and Monetary Union;
5° a pension dependant of the general budget of the European Communities or dependent on the pension plan of another institution.
§ 2. The King may, by order deliberately in the Council of Ministers, render, from the date it fixes, the provisions of this Act applicable to institutions of public international law other than those referred to in Article 2, 1°. In this case, the Agency may determine the time limit for the application under section 5 and filed with these institutions to be submitted to the Agency. In addition, it may, in accordance with the principles contained in this Act, provide for transitional measures for officials or former officials who have entered into service with these institutions before the date on which this Act is made applicable to them, and for those entitled to them.
CHAPTER II. - Social insurance
who enter the service of an institution
Art. 4. § 1
er. An employee or temporary officer who, after having constituted a right to one or more pensions referred to in Article 3, § 1
er, 1° to 4°, entered into the service of an institution may, with the agreement of the institution, request that it be transferred to that institution or its pension fund, as part of its membership in these pension plans for the period prior to its entry into the service of the institution, the amounts fixed in accordance with section 7.
Paragraph 1
er also applies to the temporary officer who became a civil servant who had obtained the maintenance of his rights to a pension referred to in Article 3, § 1
er1° to 4° pursuant to Article 42 of the regime applicable to other agents of the European Communities established by Article 3 of the Regulation (EEC/Euratom/CECA) No 259/68 of the Council of 29 February 1968 or a similar provision of the status of another institution.
§ 2. For the employee or temporary officer who, prior to his or her entry to the service of an institution, has successively or simultaneously constituted rights to several pensions referred to in Article 3, § 1
er, 1° to 4°, the transfer request made for one of these pensions automatically applies for transfer for other pensions.
§ 3. An employee who, during a period of detachment referred to in section 37, paragraph 1
er, point (b), second draw, of the statute of the officials of the European Communities established by Article 2 of the Regulation (EEC/Euratom/CECA) No 259/68 of the Council of 29 February 1968 or during a period of personal consent referred to in Article 40 of that Statute or similar provisions of the statute of another institution, no longer constitutes rights in the regime of the institution but in one of the pension plans referred to, §
er, 1° to 4° and which subsequently resumes service within the institution, can only apply for transfer for the latter period.
Art. 5. § 1
er. The application referred to in section 4 must be filed with the institution under the conditions and deadlines established by the institution.
§ 2. In the event of an employee's or temporary officer's death before the expiry of the period in which the transfer request could be filed, the eligible persons may apply the application under the conditions and time limits set by the institution.
In the event of coexistence of a number of eligible persons, the application referred to in paragraph 1
er must be introduced by all eligible persons.
§ 3. Any application deemed admissible by the institution shall be forwarded by the institution to the Agency together with a document recognizing the agreement of the institution.
§ 4. For an employee or temporary officer who, prior to his or her entry to the service of an institution, was subject to one of the pension plans referred to in section 3, § 1
er, 1°, 3° or 4°, the Agency shall forward the application and the document recognizing the agreement of the institution to each of the other jurisdictions concerned. This transmission must be carried out within one month after the date on which the application referred to in § 3 came to the Agency.
Where the employee or temporary officer has established the rights to a pension referred to in Article 3, § 1
er, 1° that is not managed by the Pension Administration, this administration shall forward the application and the document recognizing the agreement of the institution to each of the public authorities or bodies in the pension plan of which the agent has established rights to such a pension.
§ 5. As long as the application for transfer under section 4 has not become irrevocable under section 9, the grievor or the temporary agent may, with the agreement of the institution, withdraw his application. This withdrawal is final and automatically applies to all pensions referred to in Article 3, § 1
er1° to 4°.
Art. 6. In case of application of Article 5, § 4, paragraph 1
er, each of the jurisdictions to which the transfer request has been forwarded by the Agency, shall calculate the amount that, with respect to it, must be transferred to the institution.
The same applies to each of the public authorities or bodies to which, pursuant to Article 5, § 4, paragraph 2, the application was transmitted by the Pension Administration.
Art. 7. § 1
er. For a professional activity of the head of which the grievor or the temporary officer constituted the rights to a pension referred to in Article 3, § 1
er, 1°, the amounts to be transferred pursuant to section 4 are constituted by the contributions calculated on the basis of the remuneration that has been the subject of the mandatory deduction provided for in sections 60 or 62 of the Act of 15 May 1984 establishing measures of harmonization in pension plans.
For the purposes of paragraph 1
er, the contribution rate is set at 16.36 p.c. for the period after 30 September 1983, at 15.86 p.c. for the period between 1
er May 1982 and 30 September 1983 and 15.36 p.c. for the period prior to 1
er May 1982.
In the event that the rates of contributions provided for in Article 38, § 2, 1 and § 3, 1 of the Act of 29 June 1981 establishing the general principles of social security of employed workers would be amended, the rate of contributions provided for in paragraph 2 would be adjusted accordingly.
Is assimilated to a professional activity defined in paragraph 1
er, the one that gives rise to the application of section 1
er of the Act of 5 August 1968 establishing certain relationships between public and private sector pension schemes.
Is also considered to be a professional activity defined in paragraph 1
er, that exercised in the public sector immediately prior to the entry into service of an institution but which has already resulted in the application of sections 4 and 6 of the Act of 5 August 1968 referred to above. In this case, the amounts paid in this amount are refunded to the pension plan to which the individual was initially submitted.
No transfer of contributions is made for:
1° the time bonuses granted for services and periods leading to the consideration of such services beyond their simple duration;
2° periods of military service;
3° graduating bonuses;
4° periods of unpaid leave;
5° the availability periods for which no waiting treatment has been received.
§ 2. For a professional activity of the head of which the grievor or the temporary officer constituted the rights to a pension referred to in Article 3, § 1
er, 2°, the amounts to be transferred pursuant to section 4 shall be made by contributions calculated on the basis of the elements in the individual account of the worker for periods of activity or inactivity for which contributions have been paid or transferred.
For the purposes of paragraph 1
er, the contribution rate is set at 16.36 p.c. for the period after 30 September 1983, at 15.86 p.c. for the period between 1
er May 1982 and 30 September 1983 and 15.36 p.c. for the period prior to 1
er May 1982.
In the event that the rates of contributions provided for in Article 38, § 2, 1 and § 3, 1 of the Act of 29 June 1981 establishing the general principles of social security of employed workers would be amended, the rate of contributions provided for in paragraph 2 would be adjusted accordingly.
Is assimilated to a professional activity defined in paragraph 1
er, that exercised with a public authority or body to which the person concerned was no longer a member when he entered the service of an institution and which gave rise to the application of sections 4 and 6 of the Act of 5 August 1968 referred to above.
§ 3. For a professional activity of the head of which the grievor or the temporary officer constituted the rights to a pension referred to in Article 3, § 1
er, 3°, the amounts to be transferred are constituted by contributions to the Pension Fund and the Solidarity and Equalization Fund pursuant to articles 17 and 18 of the Act of 27 July 1963 on overseas social security.
§ 4. For a professional activity of the head of which the grievor or the temporary officer constituted the rights to a pension referred to in Article 3°, § 1
er, 4°, the amounts to be transferred are:
(a) for the period prior to 1
er January 1984, by the part of the contributions to the formation of annuities provided for in Article 37, § 1
er Royal Decree No. 72 above;
(b) for the period between 1
er January 1984 and December 31, 1996, by part of the pension sector contributions to a social insurance fund under Royal Decree No. 38 of 27 July 1967, which organized the social status of self-employed persons;
(c) for the period after 31 December 1996, by 60 p.c. of contributions to a social insurance fund under the above-mentioned Royal Decree No. 38, excluding management fees provided for in Article 20, § 4 of the same Royal Decree. This percentage may be amended by the King by order deliberately in the Council of Ministers, depending on the changes in expenses for pension benefits. This change may take place every three years (or four) and not earlier than 1
er January of the fourth year following the effective date of this Act.
§ 5. Amounts to be transferred under §§ 1
er2 and 4, those resulting from voluntary payments to validate certain periods in a pension referred to in Article 3, § 1
er, 1°, 2° or 4°, with the exception of voluntary payments to validate periods after entry to the institution's service. The amounts resulting from the latter payments, plus of compound interest calculated in the manner provided for in § 6, paragraph 4, shall be refunded to the interested party.
§ 6. The amounts to be transferred in accordance with § 1
er and 2, are increased by a compound interest rate of 3.5 p.c. year. These interests take place on 1
er July of the calendar year to which these amounts relate and are due until the last day of the semester in which the total amount to be transferred has been communicated to the grievor or to the temporary agent in accordance with Article 8, § 3.
Derogation from paragraph 1
erif the professional activity giving entitlement to a pension in one of the pension plans referred to in §§ 1
er or 2 did not start on 1
er January, the amounts to be transferred that relate to the first year of professional activity only produce the interest set out in that paragraph from 1
er January of the calendar year following the beginning of the activity.
The amounts to be transferred in accordance with §§ 3 and 4 are increased by compound interest, with a rate of 3.5 p.c. year. These interests take place on the first day of the semester following the day on which contributions have been paid and are due until the last day of the semester in which the total amount to be transferred has been communicated to the employee or to the temporary agent in accordance with Article 8, § 3.
The amounts to be transferred that relate to voluntary payments referred to in § 5 are increased by a compound interest rate of 3.5 per cent per year. These interests take place on 1
er January of the calendar year following that in which the voluntary payments were made and are due until the last day of the semester in which the total amount to be transferred was communicated to the grievor or to the temporary agent in accordance with Article 8, § 3.
The King may amend the compound interest rate referred to in paragraph 1
er, 3 and 4 depending on the evolution of market interest rate.
Art. 8. § 1
er. Each administration other than the Agency shall communicate to the Agency the final amount to be transferred with respect to it and the periods of professional activity for which the transfer is made.
§ 2. Each of the public authorities or bodies to which the application was transmitted by the Pension Administration pursuant to Article 5, § 4, paragraph 2, shall communicate to that Administration the elements referred to in § 1
er. This Administration communicates these to the Agency.
§ 3. On the basis of communications referred to in § 1
er and 2, as well as elements specific to the pension plan referred to in Article 3, § 1
er, 2°, the Agency shall communicate to the grievor or to the temporary officer the overall amount that will be transferred to the institution. This communication must be made within four months of the date on which the transfer request was received from the Agency.
§ 4. The amount disclosed in accordance with § 3 becomes final as soon as the employee or temporary officer gives the Agency its agreement on this amount.
In the absence of an administrative challenge referred to in § 5, paragraph 1
er within three months after the communication, the amount becomes final at the end of that period.
In case of administrative dispute referred to in § 5, paragraph 1
erthe amount becomes final on the date referred to in paragraph 2 if the new communication confirms the previous communication. If the original communication is amended, the amount becomes final as soon as the grievor or temporary officer gives the Agency its agreement on the amount of the new communication. In the absence of an administrative challenge within three months of the new communication, the amount of this new communication becomes final at the end of the latter period.
In the event of an appeal brought in pursuance of § 5, paragraph 2, the amount to be transferred shall be final only from the time when a decision having authority to make an amendment to the total amount to be transferred pursuant to Article 8, § 3.
§ 5. Any dispute regarding the total amount to be transferred under § 3 shall be filed with the Agency within three months of the communication. The decision made following a challenge is the subject of a new communication by the Agency.
If disagreement persists, an appeal to the competent court may be filed no later than three months after the date of the new communication.
§ 6. The Agency shall disclose to the institution the final amount to be transferred. This communication is made in the month following the month in which the amount became final under § 4.
Art. 9. § 1
er. The transfer request becomes irrevocable on the date on which the Agency receives from the institution the final confirmation of the transfer application filed by the grievor or the temporary agent.
§ 2. The Agency shall inform the administrations and the public authorities and bodies to which the application was transmitted by the Pension Administration pursuant to Article 5, § 4, paragraph 2, of the date on which the application for transfer became irrevocable. This information is communicated in the month following the month in which the Agency received the confirmation referred to in § 1
er.
Art. 10. Each administration other than the Agency and each of the public authorities or bodies to which the application was transmitted by the Pension Administration pursuant to section 5, § 4, paragraph 2 shall pay to the Agency the amounts established pursuant to section 7.
Art. 11. § 1
er. Payments under section 10 must be made to the Agency no later than the last day of the fourth month after the date on which the authorities or public bodies to which the application was transmitted by the Pension Administration pursuant to section 5, § 4, paragraph 2, were informed by the Agency that the request for transfer became irrevocable under section 9, § 1
er.
§ 2. The Agency shall transfer to the institution the total final amount referred to in Article 8, § 3 no later than the last day of the sixth month following that in which the transfer application became irrevocable under Article 9, § 1
er.
Art. 12. Without prejudice to the application of the provisions of Article 14, pension plans referred to in Article 3, § 1
er1° to 4° shall, from the date of the transfer, be discharged, in respect of the employee or temporary agent and their entitled persons, of any obligation of the head of pension rights that the employee or temporary agent had established for the period prior to his or her entry into service of the institution, even in the case of a new condition or affiliation with any of the said plans.
However, these obligations remain with respect to the divorced spouse who, on the date on which the transfer is made, has already entered into a dependant pension of a pension plan referred to in Article 3, § 1
er, 2° to 4° resulting, in whole or in part, from the professional career referred to in paragraph 1
er.
Art. 13. If the employee or temporary officer has already entered into a dependant pension of a pension plan referred to in Article 3, § 1
er, 1° to 4°, the transfer is subject to the prior reimbursement of all amounts that, in any event, have been attributed to the dependants of these pension plans, with a compound interest rate of 3.5 p.c. a year. These interests take place on 1
er July of the calendar year in which these amounts were liquidated and are due until the last day of the semester preceding the refund.
Derogation from paragraph 1
er, if the pension did not take place on 1
er January, the amounts to be reimbursed and related to the year in which the pension is taking place shall be the interest set out in that paragraph only from 1
er January of the calendar year following that of taking the pension.
CHAPTER III. - Social insurance of an institution
who become socially insured of a Belgian pension plan
Art. 14. An employee or temporary officer who ceases to operate with an institution to engage in a new professional activity of the head of which are constituted by the rights to a pension referred to in Article 3, § 1
er, 1° to 4°, may apply for the transfer to the pension plan in which pension rights are constituted by the head of the exercise of this new professional activity, in respect of its participation in the pension plan of the institution, under the conditions, terms and time fixed by the institution:
(a) the actuarial equivalent of pension rights established by the employee or temporary agent in the pension plan of the institution;
(b) the redemption plan for contributions made to the employee or temporary agent in the pension plan of the institution.
Art. 15. The application referred to in Article 14 shall, under penalty of forclusion, be filed by registered letter to the position within six months after the start of the new professional activity. This application must be filed with the administration that manages the pension plan in which the former employee or former temporary officer constitutes pension rights.
In the event of an activity of the head of which the former officer or former temporary officer is entitled to a pension referred to in Article 3, § 1
er, 1° that is not managed by the Pension Administration, the application must be addressed to the authority or public body that is the employer of the employee.
Art. 16. In the event of the death of the former employee or temporary former agent before the expiry of the period in which the transfer request could be filed, the eligible persons may file the application before the expiry of the period provided for in section 15.
In the event of coexistence of a number of eligible persons, the application referred to in paragraph 1
er must be introduced by all eligible persons.
Art. 17. Where it is admissible, the transfer request shall be forwarded to the institution within three months of its receipt either by the administration or by the authority or public body referred to in section 15, paragraph 2.
Art. 18. The institution shall calculate the amount that shall be transferred to the public administration or authority or body referred to in section 15, paragraph 2, pursuant to section 14. This amount is increased by a compound interest rate of 3.5 p.c. a year. These interests take place on the first day of the month following the termination of office to the institution and are due until the last day of the sixth month following the month in which the application was filed. Such interest shall not be payable if the amount to be transferred is updated at the time of transfer.
Art. 19. The institution shall communicate either to the administration, or to the public authority or body referred to in section 15, paragraph 2, the amount resulting from the application of section 18.
Art. 20. § 1
er. For the former employee or temporary officer who constitutes pension rights in a pension plan referred to in Article 3, § 1
er, 1°, the number of years of service that may be taken into account in this pension plan is calculated according to the terms set out in § 2.
§ 2. The amount transferred by the institution shall be converted to a fictional annuity under the terms and conditions set out in sections 1
er and 2 of the Royal Decree of 24 March 1994 introducing various amendments to the public sector pension regulations.
The number of years of eligible pension calculation services is obtained by dividing the fictional pension referred to in paragraph 1
er by the amount of a pension annuity determined on the basis of the gross annual salary taken into account for the calculation of the pension and collected by the former employee or former temporary agent at the beginning of the activity, as well as on the basis of the fortieth 1/60. This number of years is expressed with two decimals.
Art. 21. For the purposes of calculating the pension of the former employee or the former temporary officer who constitutes pension rights in the pension plan referred to in Article 3, § 1
er, 2°, the annual gross remuneration it has generated within the institution and the periods to which it relates are communicated to the Agency.
The amount of pension rights is calculated in accordance with the pension legislation referred to in Article 3, § 1
erTwo.
Art. 22. For the former employee or temporary officer who constitutes pension rights in the pension plan referred to in Article 3, § 1
er, 3°, the amount transferred by the institution is assimilated to the payment of a single premium ensuring the benefit of old age and survival insurance benefits, in accordance with the terms provided for in Article 63 of the Law of 17 July 1963 on overseas social security.
Art. 23. § 1
er. For the former employee or temporary officer who constitutes pension rights in the pension plan referred to in Article 3, § 1
er, 4°, the period that may be taken into account in this pension plan is that during which pension rights were constituted in the institution's plan.
§ 2. The amount of pension rights is calculated in accordance with the pension legislation referred to in Article 3, § 1
erFour.
Art. 24. The administration, either the authority or the public body referred to in section 15, paragraph 2, shall communicate to the former official or the former temporary officer all the data that shall be taken into account in calculating the pension in the Belgian pension plan.
Art. 25. As long as the application for transfer under section 14 has not become irrevocable under section 26, the former employee or temporary officer may withdraw his transfer request. This withdrawal is final.
Art. 26. The request for transfer becomes irrevocable on the date on which the institution receives, either from the administration, or from the authority or public body referred to in section 15, paragraph 2, the final confirmation of the request for transfer filed by the former employee or by the former temporary officer after the latter has signed its agreement on the data communicated to it in accordance with section 24.
Art. 27. Consideration in a pension plan referred to in Article 3, § 1
er1° to 4° of the years of services for which the transfer is requested under section 14 is subject to the effective transfer by the institution either to the administration or to the power or public body referred to in section 15, paragraph 2, of the amount communicated under section 19.
CHAPTER IV. - Amending provision
Art. 28. Article 29 of the Act of 21 May 1991 establishing certain relations between Belgian pension schemes and those of institutions of public international law is supplemented as follows:
"It only applies to applications filed with the institution before 1
er January 2002. »
CHAPTER V. - Entry into force
Art. 29. This Act produces its effects on 1
er January 2002 and applies to requests for transfer made from that date, either in accordance with the provisions of Chapter II to the institution, or in accordance with the provisions of Chapter III to the administration, or to the authority or public body referred to in Article 15, paragraph 2.
Promulgate this law, order that it be coated with the Seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 February 2003.
ALBERT
By the King:
Minister of Social Affairs and Pensions,
F. VANDENBROUCKE
Minister of Average Class,
R. DAEMS
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Session 2002-2003.
Chamber of Representatives:
Parliamentary documents. - Bill No. 50-2101/1. - Report, no. 50-2101/2. - Text adopted in plenary and transmitted to the Senate, No. 50-2101/3.
Full report: 13 December 2002.
Senate:
Parliamentary document. - Project not referred to by the Senate, No. 2-1394/1.
