Agreement on Social Security Between the Government of Canada and the Government of the Italian Republic

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE ITALIAN REPUBLIC,

Resolved to strengthen further the relations between their two countries in the field of social security, and

Taking note of changes to their respective social security legislation since the Agreement of Social Security between Italy and Canada was signed in Toronto on 17 November 1977,

Have agreed as follows:

PART IGeneral Provisions

ARTICLE 1Definitions

• 1 For the purposes of this Agreement,

  • (a) benefit means any cash benefit, pension or allowance for which provision is made in the legislation of either Party and includes any supplements or increases applicable to such a cash benefit, pension or allowance;

  • (b) competent authority means, in relation to a Party, the Minister or Ministers responsible for the application of the social security legislation in all or part of the territory of that Party;

  • (c) competent institution means, in relation to Italy, an institution charged with the application of the legislation described in Article 2(1)(a), and, in relation to Canada, the competent authority;

  • (d) creditable period means a period of contributions or residence used to acquire the right to a benefit under the legislation of either Party; it also means, in relation to Italy, a period deemed to be a period of contributions by the legislation of Italy, and, in relation to Canada, a period during which a disability pension is payable under the Canada Pension Plan;

  • (e) government employment means, in relation to Italy, employment of a person by a public agency, and, in relation to Canada, employment as a member of the Royal Canadian Mounted Police or the Armed Forces of Canada, employment of any person by the Government of Canada or the government or a municipal corporation of any province and includes any employment as may be so designated by the competent authority of either Party;

  • (f) Government of Canada means the Government in its capacity as representative of Her Majesty the Queen in right of Canada and represented by the Minister of Employment and Immigration; and

  • (g) legislation means, in relation to Italy, the laws, regulations and other legislative enactments regarding the social security schemes and branches specified in Article 2(1)(a), and, in relation to Canada, the laws and regulations specified in Article 2(1)(b).

• 2 Any term not defined in this Article has the meaning assigned to it in the applicable legislation.

ARTICLE 2Legislation to Which the Agreement Applies

• 1 This Agreement shall apply:

  • (a) with respect to Italy:

    • (i) to the legislation concerning general compulsory insurance for employees, and related special schemes for selfemployed workers, in regard to disability, old age and survivors;

    • (ii) to the legislation concerning the special schemes for certain categories of workers to the extent that the legislation relates to the risks covered by the legislation referred to in subparagraph (i);

    • (iii) to the legislation concerning compulsory insurance with respect to tuberculosis; and

    • (iv) to the legislation concerning family benefits for pension beneficiaries;

  • (b) with respect to Canada:

    • (i) to the Old Age Security Act and the regulations made thereunder;

    • (ii) to the Canada Pension Plan and the regulations made thereunder.

• 2 This Agreement shall apply also to the laws, regulations and other legislative enactments which amend the legislation referred to in paragraph 1.

• 3 This Agreement shall apply also to laws, regulations and other legislative enactments which extend the existing legislation of a Party to new categories of beneficiaries, only if no objection to the extension on the part of that Party has been communicated to the other Party within three months of the date of entry into force of such laws, regulations or legislative enactments.

ARTICLE 3Persons to Whom the Agreement Applies

This Agreement shall apply to any person who is or who has been subject to the legislation of Canada or Italy, and to the dependants and survivors of such a person within the meaning of the applicable legislation of either Party.

ARTICLE 4Equality of Treatment

Any person who is or who has been subject to the legislation of a Party, and the dependants and survivors of such a person, shall be eligible for benefits under the legislation of the other Party and subject to the obligations of that legislation under the same conditions as citizens of the latter Party.

ARTICLE 5Export of Benefits

• 1 Unless otherwise provided in this Agreement, benefits acquired by any person described in Article 3 under the legislation of a Party, including benefits acquired by virtue of this Agreement, shall be paid in the territory of the other Party, and shall not be subject to any reduction, modification, suspension, cancellation or confiscation by reason only of the fact that the person resides in the territory of the other Party.

• 2 Benefits payable under this Agreement to a person who is or who has been subject to the legislation of both Parties, and to the dependants or survivors of such a person, shall be paid in the territory of a third State.

PART IIProvisions Concerning the Applicable Legislation

ARTICLE 6General Rule

• 1 Subject to the following provisions of this Part II,

  • (a) an employed person who works in the territory of a Party shall, in respect of that work, be subject only to the legislation of that Party; and

  • (b) a self-employed person who ordinarily resides in the territory of a Party and who works for his or her own account in the territories of both Parties shall, in respect of that work, be subject only to the legislation of the first Party.

• 2 For purposes of subparagraph 1(b), a person shall be deemed to reside in the territory of the Party in which that person has a permanent home available, and, if a permanent home is available in the territories of both Parties, the person shall be deemed to reside in the territory of the Party of his or her centre of vital interests.

ARTICLE 7Detachments

• 1 An employed person who is subject to the legislation of a Party and who is assigned by his or her employer to work in the territory of the other Party shall, in respect of that work, be subject only to the legislation of the first Party for a period not exceeding 24 months.

• 2 The period to which the previous paragraph refers may be extended, at the request of the employer and the employed person, if the competent authorities of both Parties consider that the reasons given by the requesters justify the extension.

ARTICLE 8Employment in the Continental Shelf Area

• 1 Article 7 shall apply to a person who is sent to work on an installation situated in the continental shelf area of a Party in connection with the exploration of the seabed and sub-soil of that area or the exploitation of its mineral resources, as though that installation were situated in the territory of that Party.

• 2 For purposes of this Article, the continental shelf area of a Party includes every area beyond the territorial seas of that Party that, in accordance with international law and the laws of that Party, is an area in respect of which that Party may exercise rights with respect to the seabed and sub-soil and their natural resources.

ARTICLE 9Employment Aboard Ships and Aircrafts

• 1 A person who, but for this Agreement, would be subject to the legislation of both Parties in respect of employment as a member of the crew of a seagoing ship shall, in respect of that employment, be subject only to the legislation of Italy if the ship is flying the Italian flag and only to the legislation of Canada in any other case.

• 2 A member of a flight crew employed by an international airline company operating in the territories of both Parties shall, in respect of that employment, be subject to the legislation of the Party in whose territory the company has its head office, unless the person is a permanent resident of the territory of the other Party, in which case he or she shall be subject to the legislation of the latter Party.

ARTICLE 10Government Employment

• 1 A person engaged in government employment in respect of a Party who is sent in the course of that employment to the territory of the other Party shall, in respect of that employment, be subject only to the legislation of the first Party.

• 2 A person who ordinarily resides in Canada and who becomes engaged by a public agency of Italy under the terms of a contract governed by Italian or local law shall, in respect of that employment, be subject only to the legislation of Canada unless the person is a citizen of Italy in which case he or she may elect to be subject to the legislation of Italy.

• 3 A person who ordinarily resides in Italy and who becomes engaged in a government employment in respect of Canada shall, in respect of that employment, be subject only to the legislation of Italy unless the person is a citizen of Canada in which case he or she may elect to be subject to the legislation of Canada.

• 4 The election referred to in paragraphs 2 and 3 must be made within three months of the beginning of the employment or, in regard to a person already engaged on the date of the entry into force of this Agreement, within three months of that date.

• 5 The provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961, regarding the social security coverage of a private servant, and the provisions of the Vienna Convention on Consular Relations of 24 April 1963, regarding the social security coverage of a member of the private staff, shall apply to those categories of persons.

ARTICLE 11Exceptions

The competent authorities of the Parties may, by common agreement, make exception to the provisions of Articles 6 to 10 with respect to any person or categories of persons.

ARTICLE 12Definition of Certain Periods of Residence with Respect to the Legislation of Canada

For the purpose of calculating the amount of benefits under the Old Age Security Act,

• (a) if a person is subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada during any period of residence in Italy, that period shall be considered as a period of residence in Canada for that person and for that person’s spouse and dependants who reside with him or her and are not subject to the legislation of Italy by reason of employment;

• (b) if a person is subject to the legislation of Italy during any period of residence in the territory of Canada, that period shall not be considered as a period of residence in Canada for that person and for that person’s spouse and dependants who reside with him or her and are not subject to the Canada Pension Plan or to the comprehensive pension plan of a province of Canada by reason of employment.

PART IIIProvisions Concerning Benefits

CHAPTER ITotalizing

ARTICLE 13Periods under the Legislation of Canada and Italy

• 1 If a person is not entitled to a benefit because he or she has not completed sufficient creditable periods under the legislation of a Party, entitlement to that benefit shall be determined by totalizing these periods and those specified in paragraphs 2 and 3 of this Article, provided that the periods do not overlap.

(a) For purposes of determining entitlement to a benefit under the Old Age Security Act of Canada, a creditable period under the legislation of Italy or a period of residence in Italy, after the age at which periods of residence in Canada are creditable for purposes of that Act, shall be considered as a period of residence in Canada.

• (b) For purposes of determining entitlement to a benefit under the Canada Pension Plan, a calendar year including at least 13 weeks which are creditable under the legislation of Italy shall be considered as a year for which contributions have been made under the Canada Pension Plan.

• 3 For purposes of determining entitlement to a benefit under the legislation of Italy,

  • (a) a calendar year which is a creditable period under the Canada Pension Plan shall be considered as 52 weeks of contributions under the legislation of Italy; and

  • (b) a week which is a creditable period under the Old Age Security Act of Canada and which is not part of a creditable period under the Canada Pension Plan shall be considered as a week of contributions under the legislation of Italy.

ARTICLE 14Periods under the Legislation of a Third State

If a person is not entitled to a benefit on the basis of the periods creditable under the legislation of the Parties, totalized as provided in Article 13, entitlement to that benefit shall be determined by totalizing these periods and periods creditable under the legislation of a third State with which both Parties are bound by separate social security instruments which provide for totalizing of periods.

ARTICLE 15Minimum Period to Be Totalized

Notwithstanding the provisions of Articles 13 and 14, if the total duration of the creditable periods completed under the legislation of a Party is less than one year (52 weeks) and if, taking into account only those periods, no right to a benefit exists under that legislation, the competent institution of that Party shall not be required to award benefits in respect of those periods by virtue of this Agreement. These periods shall, however, be taken into consideration by the competent institution of the other Party to determine entitlement to benefits under the legislation of that Party through the application of this Chapter.

ARTICLE 16Entitlement to Italian Voluntary Insurance

For purposes of determining entitlement to the continuation, on a voluntary basis, of Italian insurance, periods creditable under the legislation of Canada shall, to the extent necessary, be totalized with the periods creditable under the legislation of Italy, provided that they do not overlap.

CHAPTER IIBenefits under the Legislation of Canada

ARTICLE 17Benefits under the Old Age Security Act

• 1 If a person is entitled to the payment of a pension or spouse’s allowance solely through the application of the totalizing provisions of Chapter I of this Part III, the competent institution of Canada shall calculate the amount of the pension or spouse’s allowance payable to that person in conformity with the provisions of the Old Age Security Act governing the payment of a partial pension or a spouse’s allowance, exclusively on the basis of the periods of residence which may be considered under the Old Age Security Act.

• 2 If a person is entitled to the payment of a pension in Canada without recourse to the provisions of this Agreement, but has not resided in Canada for the minimum period required by the Old Age Security Act for entitlement to payment of a pension outside Canada, the pension payable in Canada shall be paid outside Canada if the creditable periods, when totalized as provided in Chapter I of this Part III, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for entitlement to the payment of a pension outside Canada.

• 3 Notwithstanding any other provision of this Agreement,

  • (a) the competent institution of Canada shall not be liable to pay an Old Age Security pension to a person who is outside Canada unless that person’s creditable periods, when totalized as provided in Chapter I of this Part III, are at least equal to the minimum period of residence in Canada required by the Old Age Security Act for entitlement to payment of a pension outside Canada; and

  • (b) the spouse’s allowance and the guaranteed income supplement shall be paid to a person who is outside Canada only to the extent permitted by the Old Age Security Act.

ARTICLE 18Benefits under the Canada Pension Plan

If a person is entitled to a benefit solely through the application of the totalizing provisions of Chapter I of this Part III, the competent institution of Canada shall calculate the amount of benefit payable in the following manner:

• (a) the earnings-related portion of such benefit shall be determined in conformity with the provisions of the Canada Pension Plan, exclusively on the basis of the pensionable earnings under that Plan; and

• (b) the flat-rate portion of the benefit shall be determined by multiplying:

  • (i) the amount of the flat-rate portion of the benefit determined in conformity with the provisions of the Canada Pension Plan

  by

  • (ii) the fraction which represents the ratio of the periods of contributions under the Canada Pension Plan in relation to the minimum qualifying period required under that Plan to establish entitlement to that benefit, but in no case shall that fraction exceed the value of one.

CHAPTER IIIBenefits under the Legislation of Italy

ARTICLE 19Calculating the Amount of Benefit Payable

• 1 If a person meets the requirements of the legislation of Italy for entitlement to benefits without recourse to the totalizing provisions of Chapter I of this Part III, the competent institution of Italy shall pay the amount of the benefit calculated solely on the basis of the creditable periods under the legislation which it is applying; the preceding shall apply even if the person is entitled, under the legislation of Canada, to a benefit on the basis of the totalizing of periods, as provided in Chapter I of this Part III.

• 2 If a person is not entitled to a benefit under the legislation of Italy solely on the basis of the creditable periods under that legislation, the competent institution of Italy shall determine whether entitlement to that benefit can be established through the application of the totalizing provisions of Chapter I of this Part III. The amount of the benefit shall be calculated as follows:

  • (a) by determining the theoretical amount of the benefit to which the person would be entitled if all the totalized periods had been completed under the legislation of Italy;

  • (b) by determining the actual amount of the benefit to which the person is entitled by reducing the theoretical amount calculated as provided in subparagraph (a) on the basis of the ratio of the creditable periods under the legislation which it is applying to the total of the periods completed under the legislation of both Parties;

  • (c) for purposes of determining the amount of a benefit within the meaning of this paragraph, the competent institution of Italy shall use the average earnings or income which is subject to contributions under the legislation of Italy even in respect of the creditable periods under the legislation of Canada;

  • (d) if the total length of the creditable periods under the legislation of both Parties exceeds the maximum period specified by the legislation of Italy for entitlement to a full benefit, the competent institution of Italy shall consider this maximum period instead of the total length of the periods in question.

• 3 If the legislation of Italy makes entitlement to certain benefits subject to periods of contributions having been completed in an occupation covered under a special scheme, only the periods creditable under the legislation of Canada completed in the same occupation shall be taken into account. If, after totalizing such periods, the person does not meet the entitlement conditions for those benefits, such periods shall be used for purposes of establishing entitlement to benefits under the general compulsory scheme.

• 4 If entitlement to a benefit is established through the application of Article 14, creditable periods under the legislation of third States shall be taken into account for purposes of calculating the theoretical amount and the ratio of periods referred to in subparagraphs 2(a) and (b) of this Article.

• 5 If a person who resides in Italy is entitled to benefits under the legislation of both Parties, and if the combined amount of those benefits does not total the minimum pension amount (trattamento minimo di pensione) prescribed under the legislation of Italy, the competent institution of Italy shall grant, in addition to the benefits it pays, a supplement necessary to arrive at that minimum pension amount.

ARTICLE 20Italian Family Benefits

• 1 Subject to paragraph 2, a person who receives an Italian old age, disability or survivors pension shall also be paid family benefits for members of his or her family who reside in Canada, provided that the conditions prescribed in Italian legislation are met.

• 2 Paragraph 1 shall not apply in regard to a member of the family of a person who resides in Canada if a Canadian child benefit, other than one under the Canada Pension Plan, is payable for that family member.

ARTICLE 21Cash Benefits for Tuberculosis

When a person does not meet the requirements of the legislation of Italy for entitlement to cash benefits for tuberculosis solely on the basis of the periods of contributions credited under the legislation of Italy, periods creditable under the legislation of Canada shall, to the extent necessary, be taken into account to establish such entitlement. These cash benefits shall also be payable to a beneficiary who resides in Canada.

PART IVAdministrative and Miscellaneous Provisions

ARTICLE 22Administrative Arrangement

• 1 The competent authorities of the Parties shall establish, by means of an administrative arrangement, the measures necessary for the application of this Agreement.

• 2 The competent authorities and institutions of the Parties shall be indicated, and the liaison agencies of the Parties designated, in that arrangement.

ARTICLE 23Exchange of Information and Mutual Assistance

• 1 The competent authorities and institutions responsible for the application of this Agreement:

  • (a) shall, to the extent permitted by the legislation which they administer, communicate to each other any information necessary for the application of this Agreement;

  • (b) shall lend their good offices and furnish assistance to one another with regard to the determination or payment of any benefit under this Agreement; and

  • (c) shall communicate to each other, as soon as possible, all information about the measures taken by them for the application of this Agreement or about changes in their respective legislation insofar as these changes affect the application of the provisions of this Agreement.

• 2 Unless otherwise provided in this Agreement, and subject to any conditions which may be set out in an administrative arrangement concluded pursuant to Article 22, the assistance referred to in subparagraph 1(b) shall be provided free of charge.

• 3 Unless disclosure is required under the laws of a Party, any information about an individual which is transmitted in accordance with this Agreement to that Party by the other Party is confidential and shall be used only for purposes of implementing this Agreement and the legislation to which this Agreement applies.

ARTICLE 24Medical Examinations

• 1 If a competent institution of a Party requests the competent institution of the other Party to conduct a medical examination of an applicant or beneficiary who resides in the territory of the latter Party, such examination shall be arranged or carried out by an institution of the latter Party.

• 2 The costs related to a medical examination, whether it is performed by a specialist or a general practitioner, shall be borne by the institution which has requested the examination.

• 3 The conditions under which the provisions of the preceding paragraphs will be applied shall be set out in an administrative arrangement concluded pursuant to Article 22.

ARTICLE 25Exemptions or Reductions of Taxes or Charges or Fees

• 1 Any exemptions from or reduction of taxes, or charges or legal, consular or administrative fees, for which provision is made in the legislation of one Party in connection with the issuing of any certificate or document required to be produced for the application of that legislation shall be extended to certificates or documents required to be produced for the application of the legislation of the other Party.

• 2 Any acts or documents of an official nature required to be produced for the application of this Agreement shall be exempt from any authentication by diplomatic or consular authorities and similar formality.

ARTICLE 26Language of Communication

For the application of this Agreement, the competent authorities and institutions of the Parties, and the liaison agencies, may communicate directly with one another in any of the official languages of either Party.

ARTICLE 27Submitting Claims, Notices or Appeals

• 1 Any claim, notice or appeal concerning the determination or payment of a benefit under the legislation of a Party which should, for the purposes of that legislation, have been presented within a prescribed period to a competent institution of that Party, but which is presented within the same period to a competent institution of the other Party, shall be treated as if it had been presented to the competent institution of the first Party.

• 2 A claim for a benefit under the legislation of a Party shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party, provided that the applicant requests in writing that it be considered a claim under the legislation of the other Party.

• 3 In any case to which paragraph 1 or 2 applies, the institution to which the claim, notice or appeal has been submitted shall transmit it as soon as possible to the competent institution of the other Party.

ARTICLE 28Payment of Benefits

• 1 The competent institution of a Party shall discharge its obligations under this Agreement in the currency of that Party.

• 2 Benefits shall be paid to beneficiaries free from any deduction for administrative expenses that may be incurred in paying the benefits.

ARTICLE 29Resolution of Disputes

• 1 The competent authorities of the Parties shall resolve, to the extent possible, any disputes which might arise in interpreting or applying this Agreement according to its spirit and fundamental principles.

• 2 The Parties shall consult promptly at the request of either concerning disputes which have not been resolved by the competent authorities in accordance with paragraph 1.

• 3 If a dispute cannot be resolved, it shall be submitted, at the request of either Party, to an arbitration tribunal consisting of one representative appointed by each of the Parties and by a third member chosen jointly by the two Parties, or, failing an agreement, by the President of the International Court of Justice.

• 4 The decision of the arbitrators shall be final and binding.

ARTICLE 30Understandings with a Province of Canada

The relevant authority of Italy and a province of Canada may conclude understandings concerning any social security matter within provincial jurisdiction in Canada insofar as those understandings are not inconsistent with the provisions of this Agreement.

PART VTransitional and Final Provisions

ARTICLE 31Consideration of Previous Events and Periods and Transitional Provisions

• 1 Any period prior to the date of entry into force of this Agreement which is creditable under the legislation of either Party shall be taken into account for the purpose of determining the right to a benefit under this Agreement.

• 2 Subject to paragraph 4, no provision of this Agreement shall confer any right to receive payment of a benefit for a period before the date of entry into force of the Agreement.

• 3 Subject to paragraph 2, a benefit, other than a lump sum payment, shall be paid under this Agreement in respect of events which occurred before the date of entry into force of the Agreement.

• 4 Claims for benefits under consideration on the date of coming into force of this Agreement, and claims for such benefits received after that date where entitlement would exist prior to that date through the application of the Agreement on Social Security between Canada and Italy signed in Toronto on 17 November 1977, shall be determined according to that Agreement in regard to rights established up to the date of coming into force of this Agreement, and according to this Agreement in respect to rights arising from this Agreement.

ARTICLE 32Termination of the Agreement of 17 November 1977 and Recalculation of Benefits

• 1 With the coming into force of this Agreement, the Agreement on Social Security between Canada and Italy, signed in Toronto on 17 November 1977, shall be terminated.

(a) Benefits awarded through the application of the Agreement referred to in paragraph 1 may be recalculated by the competent institutions, either directly or on request by the beneficiary, taking into account the provisions of this Agreement.

• (b) If a request for recalculation is submitted to a competent institution within 24 months of the date of coming into force of this Agreement, the recalculation shall have effect from that date, without the provisions of the legislation of a Party regarding the expiration or prescription of entitlement being applied to the individual.

• (c) If a request for recalculation is submitted to a competent institution later than 24 months from the date of entry into force of this Agreement, the recalculation shall have effect from the date of submission of the request in respect of rights that are neither expired nor prescribed.

• (d) In no case shall the amount of a benefit be reduced as a result of such recalculation.

ARTICLE 33Entry into Force and Termination

• 1 This Agreement shall be ratified and shall enter into force on the first day of the fourth month following the month in which the instruments of ratification have been exchanged.

• 2 This Agreement shall remain in force without any limitation on its duration. It may be denounced at any time by either Party giving 12 months’ notice in writing to the other Party.

• 3 If this Agreement is terminated, any right acquired by a person in accordance with the provisions of this Agreement shall be maintained, and measures required for the settlement of any rights then in course of acquisition by virtue of its provisions shall be agreed upon by the Parties.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.

Done in two copies at Rome, this 22nd day of May, 1995, in the English, French and Italian languages, the three texts being equally authoritative.