Key Benefits:
DECREE NO. 7,281, DE 1º OF SEPTEMBER 2010.
Promulga the Social Security Conven between the Federative Republic of Brazil and the Republic of Chile, firmed in Santiago on April 26, 2007, and gives other arrangements
THE PRESIDENT OF THE REPUBLIC, in the use of the attribution conferring you the art. 84, inciso IV, of the Constitution, and
Considering that the Federative Republic of Brazil and the Republic of Chile have celebrated, in Santiago, in April 26, 2007, a Social Security Conven ;
Considering that the National Congress passed this Convenger through Legislative Decree no 266, of June 10, 2009 ;
Considering that the Convium entered into international vigor on 1st September 2009, in the terms of your article 33 ;
DECRETA:
Art. 1º The Social Welfare Arrangement between the Federative Republic of Brazil and the Republic of Chile, signed in Santiago on April 26, 2007, apensed by copy to this Decree, will be executed and fulfilled as entirely as it contains.
Art. 2º They are subject to the approval of the National Congress any acts that may result in revision of the said Arranger, as well as any further adjustments that, in the terms of the art. 49, inciso I, of the Constitution, carries charges or engraved commitments to the national heritage.
Art. 3º This Decree goes into effect on the date of its publication.
Art. 4º It is revoked the Decree No 1,875 of April 25, 1996.
Brasilia, 1º September 2010 ; 189º of the Independence and 122º of the Republic.
LUIZ INACIO LULA DA SILVA
Celso Luiz Nunes Amorim
Carlos Eduardo Gabas
SOCIAL SECURITY ARRANGEMENT BETWEEN THE FEDERAL REPUBLIC
DO BRAZIL AND THE REPUBLIC OF CHILE
The Federative Republic of Brazil
and
The Republic of Chile
(henceforth named?Contracting Parties?),
Wishing to establish standards that regulate the relations between the two countries on Social Security,
Resolve to celebrate the present Convengen of Social Security on the following terms:
T I T U L O I
General provisions
ARTICLE 1º
Definitions
1.Os terms that relate to follow have, for the effects of the application of the Convenium, the following meaning:
a)?Contracting Parties? or?Parts?: the Federative Republic of Brazil and the Republic of Chile ;
b)?Legislation: laws, regulations and too much normative acts pertinent to the material incidence field of Convenium, as defined in Article 2º;
c)?Competent Authority?: in the repub Federative of Brazil, the Minister of Social Security ; in the Republic of Chile, the Minister of Labour and Social Welfare ;
d)?Competent Institution?: body responsible for the implementation of the relevant legislation to the material incidence field of the Convengen as defined in Article 2º;
and)?Liaison Body?: body of coordination between the institutions that intervene in the application of the Convenium and information to those concerned about rights and obligations derived from that applicati
f)?Worker?: every person who, for accompli or have undertaken paid activity, albeit on its own, is or has been subject to the legislation referred to in Article 2º;
g)?Period of insurance?: any period considered as such by the legislation to which the person was or is subordinated in each of the Contracting Parties ;
h)?Cash benefits?: any provision, benefit, income, subsidy or compensation provided for in the legislation referred to in Article 2º, included any add-on, supplement or revaluation ;
i)?Beneficiary?: defined person or considered as such by the legislation by virtue of which the benefits are granted.
2.Os too much terms and expressions used in the Convenium have the meaning that is assigned to them by the legislation applied.
ARTICLE 2º
Scope of Material Application
1.O Convium present will be applied:
I) For part of Brazil, to the legislation of the Regime General Social Security, noted the provisions of Article 19, as regards the following benefits:
a) retirement for disability ;
b) retirement per age ; and
c) pension per death.
II) On part of Chile, to legislation on:
a) the Retirement System for Old age, Disability and Pension for Death, based on individual capitalization ; and
b) the Retirement Regimes by Age, Disability and Pension per Death administered by?Institute de Normalización Previsional?.
2.O present Convengen will apply equally to legal provisions that in the future complement or modify those mentioned in the preceding paragraph.
3.O Convengen will apply to legal provisions to establish a new Welfare Scheme or to include within the existing schemes of a Party new categories of persons, unless one of the Contracting Parties commits to the other its refusal within six (6) months, counted from the date of the notification of respective modifications.
ARTICLE 3º
Scope of Personal Application
The present Convenger will apply to the people who are or have been submitted to the legislation of one or both of the Contracting Parties, as well as their legal beneficiaries.
ARTICLE 4º
Equality of Treatment
At the limits of the forecast in the present Convenger, the persons referred to in Article 3º shall be subject to the obligations and duties set out in the legislations mentioned in Article 2º and shall have rights to the benefits provided therein, on the same terms as are ensured to nationals.
ARTICLE 5º
Irredutibility of the Value of Benefits
1. Cash benefits of contributory character granted and paid by virtue of national legislation are not subject to reduction, modification, suspension or retention by the fact that the beneficiary resides in the territory of the other Party or in a third party country.
2. If in any of the Contracting Parties provisions are enacted which restrict the transfer of foreign exchange, the two Parties shall immediately adopt necessary measures to ensure the effectivation of the rights derived from the present Convengen.
3. Benefits given in accordance with the present Convention by one of the Contracting Parties to beneficiaries of the other Contracting Party, who reside in a third country, shall be in effect under the same conditions and with equal scope given to the own nationals who reside in that third country.
T I T U L O II
Provisions on the Applicable Legislation
C A P I T U L O I
General Standards
ARTICLE 6º
Workers Covered
1. Persons to whom the present Convenger shall apply shall be subject exclusively to the Social Security legislation of the Contracting Party in whose territory they exercise their work activities, except the exceptions provided for in Article 7º.
2. To the self-employed worker who, by virtue of the provisions of this Convenger and in reason of the peculiarities of his activity, is subject to the legislation of both Parties, he shall apply exclusively to the legislation of the Party in whose territory he / she has his / her residence. Having more than one residence, you will apply for the legislation of the Party where you have the principal residence in the form of the declaration struck by the person concerned.
3. The rights acquired by the persons referred to in Article 3º, in accordance with the legislation of one of the Contracting Parties, shall be maintained even when the person concerned is residing in the territory of the other Party.
4. The person working in a governmental body or an international official body that one of the Contracting Parties shall be an effective member, being moved to the territory of the other Party shall be subject to the legislation of the Party which has hired her, save when covered by Social Welfare Regime of the mentioned organ or international official body.
C A P I T U L O II
Exceptions to the General Norms
ARTICLE 7º
Displaced Workers
1. The worker who, being in the service of a company in one of the Contracting Parties, is displaced by that undertaking to the territory of the other Party to perform temporary work, continuing to receive their salaries by the home company, shall remain submitted to the legislation of the first Party provided that the period of temporary work does not exceed two years.
2. If, under unforeseen circumstances, the duration of the work to be carried out exceeds two years, it may continue to apply to the legislation of the first Party, for up to two more years, provided that the Competent Authority of the second Party authorizes it.
3. The extension referred to in the preceding paragraph shall be admitted only once, even if the period initially authorized has been less than two years.
4. The company that temporarily sends the worker to the territory of the other Party shall be subject exclusively to the legislation of the Country where the worker exercises his or her activities in a permanent character.
5. The worker who exercises activity on his own in the territory of a Party, and who carries out temporary work on his or her account in the territory of the other Party, will continue to be governed by the legislation of the former, provided that the duration of the work is not exceeds two years, imextendable.
ARTICLE 8º
Personal of Air Transport Companies
and International Land
The flight personnel hired by companies from air transport and the personnel providing services on board vehicles of land transport undertakings shall be subject to the legislation of the Party where the Company has its registered office, except where they are contracted by a subsidiary of the Company constituted in the another Party in which the worker has his residence.
ARTICLE 9º
Crew in Maritime vessels
1. Where a worker exercises his or her labour activity on board a vessel with a flag belonging to one of the Contracting Parties, the legislation of that Party shall apply.
2. The worker exercising paid activity per company or person based in the territory of one of the Contracting Parties, on board vessel with flag of the other Party, shall be subject to the legislation in force in the territory of the registered office of the Company or person, as long as you maintain your residence.
ARTICLE 10
Load and Discharge Personnel of Ship
Port workers, employees in cargo and discharge work, repair or inspection of these works, shall be subject to the legal provisions in force in the Contracting Party of the port headquarters.
ARTICLE 11
Employees of Diplomatic and Consular Missions
1. This Convc will not affect the provisions of the Vienna Convention on Diplomatic Relations of April 18, 1961 and the Vienna Convention on Consular Relations of April 24, 1963.
2. Nationals of a Contracting Party sent to the territory of the other Party as Members of the Diplomatic Personnel of a Diplomatic Mission or as Consular Officials of a Consular Repartition will be subject to the legislation of the Contracting Party that the designer.
3. Nationals of a Contracting Party who provide services in a Diplomatic Mission or Consular Repartition in the territory of the other Contracting Party may opt for the legislation of their home state or that of the other Contracting Party, in a time limit of six (6) months from the beginning of the duration of the present Convengen. The same option will be able to exercise those who are hired after the start of the duration of this Convention, in which case the period of six (6) months will be counted from the date of the hiring. Should you not make use of this option, you will be governed by the legislation of the Contracting Party where the Diplomatic Mission or Consular Repartition finds.
4. Without prejudice to the provisions of paragraph 1, the provisions of paragraphs 2 and 3 of this Article shall apply to the contracted service personnel:
a) by the Diplomatic Mission or Repartition Consular ;
b) by member of diplomatic personnel ;
c) per consular employee ;
d) by administrative or technical personnel of the Diplomatic Mission or Consular Repartition.
ARTICLE 12
Magnification of Exceptions
The competent authorities of both Parties Contractors may, by common agreement, suppress or modify the exceptions provided for in this Chapter.
T I T U L O III
Rules for Recognition of Rights and Calculation of Prestations
C A P I T U L O I
From the Totalization of Insurance Periods
ARTICLE 13
Totalization of Insurance Periods
The periods of insurance fulfilled in the Parties Contractors, in different times, will be totaled for the purposes of implementing entitlement to the benefits provided for in the legislations set out in Article 2º.
ARTICLE 14
Calculation Rules
1. The worker who has been alternately submitted to the legislation of one and another Contracting Party, noted the provisions of paragraph 2 of this Article shall be entitled to the benefits provided for in this Chapter, under the following conditions:
a) if the required requirements are completed by the domestic legislation of a Contracting Party, the competent institution of this Party shall determine the right to the benefit, taking into account, solely, the periods of insurance completed in this same Party ; and
b) if they are not completed the requirements required by domestic legislation, the competent institution of each Party shall determine the right to benefit totalling, with the periods themselves, the share of periods of insurance completed under the legislation of the other Party, provided that it does not concomers, necessary to achieve the right to benefit.
2. If you are effected the totalization, if you are entitled to the benefit, for the calculation of the amount to be paid you will apply the following rules:
(a) shall determine the amount of the provision to the which interested would do jus as if all totaled insurance periods had been complied with under their own legislation, but taking by basis of calculation the wages that gave rise to the pickups in the party that grants the benefit (provision theoretical) ;
b) the benefit value will be established applying to the theoretical provision, calculated in the form of the preceding paragraph, the existing proportion between the period of insurance served in the Party calculating the provision and the totality of the insurance periods required by the internal legislation of each Party contractor (provision pro rata temporis) ;
c) when the value of the provision, established in compliance with point (?a? (theoretical provision), resulting in value lower than the minimum possible established by the legislation of the State, the respective managing body shall observe, in relation to that minimum, the proportionality verified in the preceding paragraph.
ARTICLE 15
Minimum Period for Totalization
If the total duration of insurance periods complied under the legislation of one of the Contracting Parties not to reach a year and if, taken into account only these periods, no entitlement to benefits is implemented, by virtue of the provisions of that legislation, the competent institution of that Party shall shall not be obliged to grant the benefits on the grounds of the said periods. In countering, the competent institution of the other Contracting Party, if it so permits domestic domestic legislation, should take these periods of insurance into account, whether for the implementation of the right, whether for the calculation of the benefit.
C A P I T U L O II
The Maintenance of the Quality of Insurance and Verification
Information in Permanent Disability Case
ARTICLE 16
Maintenance quality maintenance
If the legislation of a Contracting Party requires that the provision of the benefits requires that the worker is subject to such legislation at the time when the general fact of the benefit is observed, he is understood to comply with that condition if, in checking that fact, the worker is contributing or receiving benefit in the other Contractor Party.
ARTICLE 17
Verification of Information in Case of Permanent Disability.
1. In order to recognize the physical incapacity of the worker, the competent institutions of each of the Contracting Parties shall take into account the expert medical reports and administrative data issued by the Institution of the other Party, without prejudice, if understand necessary, from the right to subject the insured to examination by a doctor by her chosen.
2. If the Competent Institution of a Contracting Party requests the competent institution of the other Contracting Party to carry out additional medical examinations, which are of their sole interest, such examinations shall be financed by the institution competent that requested them.
3. When dealing with workers affiliated with the Individual Capitalization System, the Chilean competent institution shall refund the full cost of such examinations, and shall require such worker to be required by the percentage due. Notwithstanding, the Chilean competent institution will be able to deduct the cost of the pecuniary benefits due or the balance of its individual capitalization account.
C A P I T U L O III
Application of Party Legislation
ARTICLE 18
Chilean Legislation
1. The affiliates to a Pension Fund Administrator will fund their pensions in Chile with the balance accumulated in their individual capitalization account. When this balance is insufficient to fund retirements of value at least equal to that of the minimum pension guaranteed by the State, the affiliates will be entitled to the totalization of computable periods in accordance with Article 13 of this Convenger to have right to the benefit of minimum pension for old age or disability. Equal law will have the pension recipients per death.
2. For the purposes of determining the fulfilment of the requirements required by Chilean legislation for early retirement in individual capitalization systems, they will be considered to be beneficiaries of the pension schemes indicated in paragraph 4 of this Article the affiliates to which benefits have been granted as per the legislation of Brazil.
3. Employees who are affiliated with the Individual capitalization system in Chile will be able to voluntarily contribute in that System, in the quality of self-employed persons during the time they reside in Brazil, without prejudice to the fulfilment of the obligations laid down in Brazilian law Employees who choose to make use of this benefit will be exempted from the obligation to contribute to the financing of their medical assistance.
4. The insured under the pension schemes administered by the?Institute de Normalización Previsional? shall also be entitled to the statement of the periods of contribution marked in Article 13 of this Convenger, to be entitled to the benefits set out in the legal provisions applicable to them.
5. In the cases contemplated by paragraphs 1 and 4 of this Article, the competent institution shall determine the right to the Chilean benefit, as if all periods of contribution had been fulfilled under its own legislation. For the purpose of the benefit payment shall calculate the party to pay for it as the existing proportion between the periods of contribution fulfilled exclusively under that legislation and the total of required periods corresponding to the chilena legislation.
6. Dealing with minimum value benefits that are in charge of the?Institute de Normalización Previsional?, the determination of the right to such benefits shall be in the manner provided for in the preceding paragraph and, for the purpose of their payment, the calculation shall be made on the basis of the existing proportion between the periods of contribution fulfilled exclusively in Chile and the total contribution periods performed in the two Contracting Parties. In the case where the sum of the aforementioned periods is higher than the period required by Chilean legislation for acquisition of the right to a full benefit, the excess years will not be considered for the purpose of that calculation.
ARTICLE 19
Brazilian Law
1. The worker's contribution time to other existing pension schemes in Brazil, except for supplementary pension and private pension schemes, will be assumed by the competent institution of Brazil when proven in the form of the legislation in force, for all purposes, and certified to Chile's liaison body as the contribution time of the previdual regime that it treats this Convenium.
2. The contribution time certified by the competent institution of Chile for employees linked to other existing pension schemes in Brazil, except for supplementary or private pension schemes, will be considered by the institution competent from Brazil and certified for such schemes as if the contribution time were itself, in accordance with the internal legislation of each Contracting Party.
T I T U L O IV
Diverse, Transitional and Final provisions
C A P I T U L O I
Diverse Provisions
ARTICLE 20
Health Benefits for Beneficiaries
The beneficiaries who reside in the territory of a Contracting Party and receive benefit as per the legislation of the other Contracting Party, shall be entitled to medical assistance in accordance with the legislation of the Contracting Party in which they reside, with the same rights and obligations as which they receive similar benefits according to the legislation of that Party.
ARTICLE 21
Facts and Legally Relevant Acts
The facts and acts legally relevant to the recognition of a right, benefit or benefit shall be recognized by the Parties, irrespective of the territory in which they have occurred, respected the internal legislation of each Contracting Party.
ARTICLE 22
Update of Prestations
The economic benefits recognized by the application of Title III standards shall be updated in accordance with the legislation in force in the Contracting Parties.
ARTICLE 23
Issue of Documents and their Legal Effects
1. Applications, resources, démarches and other acts to be borne by the person concerned, who should be submitted or practiced within a specified time, in accordance with the legislation of a Party, shall repudiate if submitted within the prescribed period before an authority or institution of the other Party
2. The liaison bodies referred to in point?a? of Article 27 shall establish criteria, deadlines and rules for the processing of the documents mentioned in paragraph 1 of this Article.
ARTICLE 24
Languages to use
For the due application and compliance of this Convention, competent authorities, liaison bodies and competent institutions of the two Parties shall communicate directly with each other and with those interested in Portuguese or Spanish languages.
ARTICLE 25
Coins and Cambial Parity
1. The competent institutions shall make the payment of the benefits granted pursuant to this Convention, in currency of the Contracting Party that carries out the payment.
2. If the payment is made in the currency of the other country, parity should be established by the lowest official parity of the Party that abs the benefit.
ARTICLE 26
Administrative Adjustments
The competent authorities of both Parties shall establish administrative adjustments for the implementation, application and execution of this Conven
ARTICLE 27
Administrative Measures
The competent authorities of the two Parties undertake to take the following measures for due fulfilment of the present Convengen:
a) designate the liaison bodies ;
b) communicate with each other the measures adopted internally for the application of this Convegen ;
c) notify one another of the provisions legislative and regulatory which modify the legislation referred to in Article 2º;
d) render each other the widest collaboration technical and administrative for the application of this Convegen, within the scope of its own
ARTICLE 28
Divergences and Controversies
1. The competent authorities should resolve upon negotiation the differences in interpretation of this Convengen and the administrative adjustments.
2. Should a dispute not be resolved by negotiation within a period of up to six months from the first negotiation request, this must be submitted to an Arbitral Commission, the composition and procedures of which shall be fixed by common agreement by the Contracting Parties. The decision of this Arbitral Commission will be binding and definitive.
ARTICLE 29
Administrative Cooperation between the competent Institutions
1. For the purpose of ensuring the implementation of this Convenger, the Competent Institutions will collaborate mutually and act in the same way as if they implemented their own legislation.
2. The Competent Institutions of both Contracting Parties will be able to request, at any time, documents, medical reports, documentary evidence and laws that may lead to the acquisition, modification, suspension, extension, extinction or maintenance of the rights to the benefits by them recognised. In any circumstance, listening to requests that are made by the competent Institutions, when referred by the Social Security's own means, will be free of charge.
ARTICLE 30
General provisions
For the purposes of this Convenium, it will not be required legalization by the diplomatic, consular and public registration authorities of the documents sent by the liaison bodies.
ARTICLE 31
The Mixed Commission
1. A Permanent Joint Committee of Technicians formed by representatives of the two Contracting Parties shall have the following functions:
a) advising the competent authorities, whenever requested, in the application of this Convum ;
b) to issue opinions to the authorities competent, on its own initiative or upon request, with reference to the application of the Convenium ;
c) to propose to the competent authorities possible modifications or enhancements in the Convenium and complementary standards ;
d) perform any other relative function the interpretation and application of these agreements which the competent authorities, in common agreement decide to assign to it.
2. The Mixed Commission may constitute a committee for the development of a system for electronic data transfer and technical cooperation on social welfare, in accordance with the legislation of each Contracting Party, for the purpose of facilitate and expedite the application of the present Convengen.
3. For the implementation of the provisions of paragraph 2, the Joint Committee may be worth specialized technical consultancy and support from international bodies.
4. The Mixed Commission shall meet alternately on the territory of one and the other Contracting Party whenever, by common accord, it is convened by the competent authorities.
C A P I T U L O II
Transitional Provisions
ARTICLE 32
Establishment of Original Rights before the
Entry in Vigor of the Convgen Present
1. Periods of insurance completed prior to the effective date of this Convum shall be taken into consideration for the determination of the right to benefits recognized by virtue of this International Act.
2. The application of this Convegen will generate entitlement to benefits for events occurring prior to its entry into effect. In the meantime payment will only be due from the date of entry into force of this Convenger or of the application to be made, as per the case and the requirements laid down by the legislation of each Party.
3. Benefits which have been dismissed by Chile prior to the entry into force of this Convention shall be reviewed by this Party at the request of the persons concerned, taking into account the provisions of the Convengen, provided that it is required within up to two years of the from the entry into force of this Convengen. To this end, Brazil will certify all the periods of contribution made in that country. The right to benefits will be acquired from the date of the application. No benefits due in single payment will be reviewed.
4. The Social Security Agreement between the Government of the Federative Republic of Brazil and the Government of the Republic of Chile, signed on October 16, 1993, will cease to produce effect from the date of entry into force of the present Convengen.
5. The present Convium ensures the rights acquired in the ampairing of the Agreement cited in paragraph 4.
C A P I T U L O III
Final Provisions
ARTICLE 33
Ratification and Entry in Vigor
This Convengen will be approved by each of the Contracting parties in accordance with the constitutional requirements of each and shall enter into force on the first day of the second month following the exchange of instruments of ratification.
ARTICLE 34
Watch Deadline
1. The present Convenium will have validity for an indefinite time. It may be denounced by either Contracting Party. The complaint is to be notified by diplomatic means, producing the termination of the Convenium once transcurated twelve months counted since the date of the complaint.
2. In the case of the termination of the Convum, its provisions will continue to be applied in respect of the rights acquired under their amparo.
Done in Santiago, Chile, on April 26, 2007, in two original copies, in Portuguese and Spanish, being both equally authentic.
BY THE FEDERAL REPUBLIC OF BRAZIL: ______________________________ CELSO AMORIM Minister of Foreign Affairs ____________________________ MARINE LUIZ Minister of Social Welfare | BY THE REPUBLIC OF CHILE: _____________________________________ ALEJANDRO FOXLEY RIOSECO Minister of Foreign Affairs _________________________________ OSVALDO ANDRADE Minister of Labour and Social Security |
Done in Santiago, Chile, on April 26, 2007, in two original copies, in Portuguese and Spanish, being both equally authentic.
BY THE FEDERAL REPUBLIC OF BRAZIL: |
BY THE REPUBLIC OF CHILE: |