Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 5.
PART A
AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY
AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY (the "Contracting Parties")
DESIRING to strengthen the existing friendly relations between the two States and resolved to regulate their relations in the field of social security:
HAVE AGREED as follows:
PART I
GENERAL PROVISIONS
Article 1
Definitions
1. For the purposes of this Agreement,
(a) "national" means,
as regards the Federal Republic of Germany, a German citizen within the meaning of the Basic Law ( Grundgesetz ) for the Federal Republic of Germany; and
as regards Australia, a citizen of Australia;
(b) "legislation" means,
as regards the Federal Republic of Germany, the laws, regulations and other general legislative acts related to the branches of social security specified in paragraph 1(a) of Article 2; and
as regards Australia, the laws specified in subparagraph 1(b) of Article 2;
(c) "competent authority" means,
as regards the Federal Republic of Germany, the Federal Ministry of Labour and Social Affairs ( Bundesministerium für Arbeit und Sozialordnung ); and
as regards Australia, the Secretary to the Commonwealth Department responsible for the laws specified in subparagraph 1(b) of Article 2;
(d) "institution" means,
as regards the Federal Republic of Germany, the institution or authority responsible for the application of the legislation specified in paragraph 1(a) of Article 2; and
as regards Australia, the institution or agency responsible for the administration of the laws specified in subparagraph 1(b) of Article 2;
(e) "German period of coverage" means a period of contributions or any other period insofar as it is, under the German legislation, equivalent to a period of contributions for the purposes of benefit entitlement;
(f) "period of Australian working life residence" means a period defined as such in the Australian legislation;
(g) "benefit" means, in relation to a Contracting Party, a benefit, pension or allowance for which provision is made in the legislation of that Party, and includes any additional amount, increase or supplement that is payable, in addition to that pension, benefit or allowance;
(h) "widowed person" means, in relation to Australia, a person who stops being a partnered person because of the death of the person's partner, but does not include a person who has a new partner;
(i) "carer payment" means, in relation to Australia a carer payment payable to the partner of a person who is in receipt of an Australian disability support pension or age pension.
2. Any term not defined in paragraph 1 has the meaning assigned to it in the applicable legislation.
Article 2
Legislative scope
1. Unless otherwise provided in this Agreement, it shall apply:
(a) as regards the Federal Republic of Germany, to the legislation concerning:
(i) Wage Earners' Pension Insurance ( Rentenversicherung der Arbeiter ),
(ii) Salaried Employees' Pension Insurance ( Rentenversicherung der Angestellten ),
(iii) Miners' Pension Insurance ( Knappschaftliche Rentenversicherung ),
(iv) Steelworkers' Supplementary Insurance ( Hüttenknappschaftliche Zusatzversicherung ),
(v) Farmers' Old Age Security ( Alterssicherung der Landwirte ); and
(b) as regards Australia, to the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(i) age pension,
(ii) disability support pension,
(iii) carer payment,
(iv) pensions payable to widowed persons, and
(v) double orphan pension.
2. Notwithstanding the provisions of paragraph 1(b), this Agreement shall apply to women who are receiving wife pension at the date this Agreement comes into force and who are the wives of:
(a) persons receiving age pension; or
(b) persons receiving disability support pension for the severely disabled.
3. This Agreement shall also apply to laws, regulations and other general legislative acts in so far as they amend, supplement or replace the legislation of the Contracting Parties.
4. Notwithstanding the provisions of paragraph 1, the legislation of the Contracting Parties shall not include any laws made at any time for the purpose of giving effect to any other agreement on social security or any supra - national law.
5. Australian carer payment and double orphan pension are included in this Agreement to reciprocate those proportions of German benefit included to support a spouse and other dependants.
Article 3
Personal scope
Unless otherwise provided in this Agreement, it shall apply:
(a) in the operation of the German legislation, to
(i) nationals of either Contracting Party;
(ii) refugees, within the meaning of Article 1 of the Convention of July 28, 1951 and of the Protocol of January 31, 1967 Relating to the Status of Refugees;
(iii) stateless persons, within the meaning of Article 1 of the Convention Relating to the Status of Stateless Persons of September 28, 1954;
(iv) other persons to the extent that they derive rights from a national of either Contracting Party, from a refugee or from a stateless person within the meaning of this Article;
(v) nationals of a state other than a Contracting Party, unless they are included in the group of persons specified in subparagraph (iv); and
(b) in the operation of the Australian legislation, to any person who is or has been an Australian resident and, where applicable, to other persons in regard to the rights they derive from the persons described above.
Article 4
Equality of treatment
1. Unless otherwise provided in this Agreement:
(a) in the application of the German legislation, persons specified in subparagraphs (a)(i), (ii), (iii) and (iv) of Article 3 who ordinarily reside in the territory of either Contracting Party shall be treated equally to German nationals; and
(b) in the application of the Australian legislation, persons specified in paragraph (b) of Article 3 shall be treated equally.
2. Unless otherwise provided in this Agreement, benefits under the German legislation shall be awarded to nationals of Australia, who ordinarily reside outside the territories of both Contracting Parties, under the same conditions as they are awarded to German nationals who ordinarily reside outside the territories of the Contracting Parties.
Article 5
Equivalence of territories
1. Unless otherwise provided in this Agreement, the German legislation which requires that the acquisition of an entitlement to benefits or the payment of benefits be dependent on ordinarily being resident in the Federal Republic of Germany shall not be applicable to the persons specified in subparagraphs (a)(i), (ii), (iii) and (iv) of Article 3 who ordinarily reside in Australia.
2. Subject to paragraph 3, where a person would be qualified for a benefit under the Australian legislation or under this Agreement except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:
(a) is an Australian resident or ordinarily residing in the territory of the Federal Republic of Germany or of a third country with which Australia has implemented an agreement on social security that includes provision for co - operation in the lodgement and determination of claims for benefits; and
(b) is in Australia, the territory of the Federal Republic of Germany or the territory of that third country,
that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purposes of lodging that claim, to be an Australian resident and in Australia on that date.
3. The requirement for a person to have been an Australian resident at some time shall not apply to a person who claims a double orphan pension under this Agreement.
PART II
PROVISIONS CONCERNING BENEFITS
Article 6
Totalisation and calculation - German benefits
The following shall apply as regards the German institution:
(a) When German periods of coverage have been completed, periods of Australian working life residence shall also be taken into account for purposes of determining eligibility for benefits under German legislation, provided that these periods do not coincide with the above mentioned periods of coverage.
(b) The periods of Australian working life residence to be taken into account under subparagraph (a) shall be assigned to that branch of insurance whose institution is responsible for determining entitlement to a pension as if only the German legislation is applied. If, according to the foregoing, the Miners' Pension Insurance is the competent institution, periods of Australian working life residence shall be taken into account for the Miners' Pension Insurance only if the relevant person was employed in a mining enterprise in underground operations during this time.
(c) For purposes of determining eligibility for a benefit payable under the German legislation:
(i) a month which is recognised as a month in a period of Australian working life residence shall be considered as a month of contributions under the German legislation; and
(ii) a year which is recognised as a year in a period of Australian working life residence shall be considered as twelve months of contributions under the German legislation.
(d) Earnings points shall be determined solely on the basis of pension rating periods to be taken into account under the German legislation in the calculation of German benefits.
Article 7
Totalisation - Australian benefits
1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated:
(a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the Australian legislation for a benefit;
(b) a period of Australian working life residence equal to or greater than the period identified in accordance with paragraph 4 for that person; and
(c) a German period of coverage,
then for the purposes of a claim for that Australian benefit, that German period of coverage shall be deemed, only for the purposes of meeting any minimum qualifying periods for that benefit set out in the Australian legislation, to be a period in which that person was an Australian resident.
2. For the purposes of paragraph 1, where a person:
(a) has been an Australian resident for a continuous period which is less than the minimum continuous period required by the Australian legislation for qualification of that person for a benefit; and
(b) has accumulated a German period of coverage in two or more separate periods that equals or exceeds in total the period referred to in subparagraph (a),
the total of the German periods of coverage shall be deemed to be one continuous period.
3. For the purposes of this Article, where a person's period as an Australian resident and a German period of coverage coincide, the period of coincidence shall be taken into account once only by Australia as a period as an Australian resident.
4. The minimum period of Australian working life residence to be taken into account for the purposes of paragraph 1 shall be as follows:
(a) for the purposes of an Australian benefit that is payable to a person who is not an Australian resident, the minimum period required shall be 12 months, of which at least six months must be continuous; and
(b) for the purposes of an Australian benefit that is payable to an Australian resident, no minimum period shall be required.
5. For the purposes of a claim by a person for a pension payable to a widowed person, that person shall be deemed to have accumulated a German period of coverage for which his or her partner accumulated a German period of coverage but any period during which the person and his or her partner both accumulated German periods of coverage shall be taken into account once only.
Article 8
Calculation - Australian benefits
1. Subject to paragraph 2, where a person who is outside Australia is qualified for an Australian benefit by virtue of this Agreement, other than double orphan pension, the rate of benefit shall be determined according to the Australian legislation.
2. Subject to paragraph 3, where an Australian benefit is payable, whether by virtue of this Agreement or otherwise, to a person who is outside Australia, the rate of that benefit shall be determined according to Australian legislation but, when assessing the income of that person for the purposes of calculating the rate of the Australian benefit, only a proportion of the German benefit shall be regarded as income. That proportion shall be calculated by multiplying the number of whole months (not exceeding 300) of Australian working life residence used in the assessment of that person's Australian benefit by the amount of German benefit and dividing that product by 300.
3. Only a person receiving a proportionalised Australian benefit shall be entitled to receive the concessional assessment of income described in paragraph 2.
4. Where an Australian benefit is payable, whether by virtue of this Agreement or otherwise, to a person who ordinarily resides in the Federal Republic of Germany, Australia shall disregard, when assessing the income of that person, any German social assistance and payments of a similar character provided in case of need insofar as they are proposed by the liaison agencies specified in Article 16 and jointly approved by the competent authorities and listed in the Administrative Arrangement ( Verwaltungsvereinbarung ).
5. The provisions in paragraphs 1, 2 and 4 shall continue to apply for 26 weeks where a person comes temporarily to Australia.
6. Subject to the provisions of paragraph 7, where an Australian benefit is payable only by virtue of the Agreement to a person who is in Australia, the rate of that benefit shall be determined by:
(a) calculating that person's income according to the Australian legislation but disregarding in that calculation any German benefit to which the person is entitled;
(b) deducting that German benefit from the maximum rate of that Australian benefit; and
(c) applying to the remaining benefit obtained under subparagraph (b) the relevant rate calculation set out in the Australian legislation, using as the person's income the amount calculated under subparagraph (a).
7. The provisions in paragraph 6 shall continue to apply for 26 weeks where a person departs temporarily from Australia.
8. Where a member of a couple is, or both that member and his or her partner are, entitled to a German benefit or benefits and/or any payment referred to in this Article, each of them shall be deemed, for the purposes of this Article and of the Australian legislation, to be in receipt of one half of either the amount of that benefit or the total of both of those benefits, as the case may be.
Article 9
Payment of Australian benefits overseas
1. Australian benefits are also payable into the territory of the Federal Republic of Germany.
2. Where the Australian legislation provides that a benefit is payable outside the territory of Australia, then that benefit, when payable under this Agreement, is also payable outside the territories of both Contracting Parties.
3. Where qualification for an Australian benefit is subject to limitations as to time, then references to Australia in those limitations shall be read also as references to the territory of the Federal Republic of Germany.
4. Any provisions of Australian legislation which prohibit the payment of an Australian benefit to a former Australian resident who:
(a) returns to Australia to again become an Australian resident;
(b) claims an Australian benefit; and
(c) departs Australia within a period specified in that legislation,
shall not apply to a person who receives that benefit by virtue of the Agreement.
5. Where a double orphan pension would be payable to a person under the social security laws of Australia, in respect of a young person whose sole surviving parent died while that young person was an Australian resident, if that person and that young person were residents of Australia, that pension shall, subject to the provisions of those laws, be payable while that person and that young person are residents of the Federal Republic of Germany.
PART III
MISCELLANEOUS PROVISIONS
CHAPTER 1
ADMINISTRATIVE ASSISTANCE
Article 10
Mutual assistance
1. The institutions, associations of institutions, authorities and competent authorities of the Contracting Parties shall provide assistance to each other in the application of the legislation specified in paragraph 1 of Article 2 and in the implementation of this Agreement, in the same manner in which they apply their own legislation.
2. The institution of one Contracting Party, when requested by the institution of the other Contracting Party, shall, to the extent permitted by its legislation, provide to that institution free of charge any medical data and documents in its possession relating to the general disability of an applicant or beneficiary.
3. If an institution of one Contracting Party requires an applicant or beneficiary who lives in the territory of the other Contracting Party to undergo a medical examination, such examination shall, at the request of that institution, be arranged or carried out by the institution of the latter Contracting Party. The medical examination will be done at the expense of the requesting institution.
4. The agencies referred to in paragraph 1 shall, within their respective areas of jurisdiction and to the extent possible, communicate to each other such information and transmit such documentation as may be required to maintain the rights and obligations of the persons concerned under the legislation specified in paragraph 1 of Article 2 and under this Agreement. Such information or documentation regarding a person shall also be transmitted to that person at his or her request.
5. The assistance referred to in paragraph 1 shall be provided free of charge, subject to any arrangement reached between the competent authorities for the reimbursement of certain types of expenses.
Article 11
Fees
1. Where, under the legislation of one Contracting Party documents submitted to an authority or institution of that Contracting Party are partly or fully exempt from administrative charges, including consular fees, this exemption shall also apply to documents which are submitted to an authority or institution of the other Contracting Party in accordance with its legislation.
2. Documents which, in the application of the legislation specified in paragraph 1 of Article 2 and in the implementation of this Agreement, must be submitted to an authority or institution of one Contracting Party, may be submitted to an authority or institution of the other Contracting Party without consular authentication or any other similar formality.
Article 12
Languages of communication
In the application of the legislation specified in paragraph 1 of Article 2 and in the implementation of this Agreement, the agencies referred to in paragraph 1 of Article 10 may communicate in their respective official languages directly with each other as well as with persons concerned and with their representatives.
Article 13
Lodgement of documents
1. If a claim for a benefit under the legislation of one Contracting Party has been submitted to an agency of the Contracting Party which, under the legislation of the latter Contracting Party, is competent to receive a claim for a corresponding benefit, that claim shall be deemed to have been submitted to the competent institution of the first Contracting Party on the same date as the claim was lodged with the agency in the other Contracting Party. This provision shall apply, as appropriate, to other claims, notices and appeals.
2. Where a claim, notice or appeal is received by an agency of one Contracting Party, that agency shall ensure it is forwarded without delay to the appropriate liaison agency of the other Contracting Party.
3. In relation to Australia, an appeal means an appeal submitted to a body established under the social security laws of Australia.
4. Subject to paragraph 5, a claim by a person for a benefit from a Contracting Party, whether lodged in the territory of that Contracting Party or of the other Contracting Party, shall be deemed to be a claim for a corresponding benefit from that other Contracting Party if the information disclosed by the person in the original claim indicates that the person may be qualified for corresponding benefit. The foregoing shall not apply if the person is under the normal age pension age of the other Contracting Party and the person explicitly requests that the determination of entitlement to old age benefits acquired under the legislation of the other Contracting Party be deferred.
5. Paragraph 4 shall not apply if the original claim or a copy is not received by the appropriate liaison agency of the other Contracting Party within six months of the lodgement of the original claim.
Article 14
Recovery of overpayments
1. Where a German institution has made an overpayment of a benefit to a person for any period and the Australian institution is to pay arrears of an Australian benefit for the same period, the Australian institution shall, at the request of that German institution, deduct from those arrears the amount of the overpayment by the German institution and shall transfer the amount so deducted to the German institution.
2. Where:
(a) a benefit is paid or payable under German legislation to a person in respect of a past period;
(b) for all or part of that period, Australia has paid to that person a benefit under its social security law; and
(c) the amount of the benefit paid by Australia would have been reduced had the benefit paid or payable under German legislation been paid during that period;
then
(d) the amount that would not have been paid by Australia had the benefit described in subparagraph (a) been paid on a periodical basis throughout that past period shall be a debt due by that person and may be recovered by Australia; and
(e) Australia may determine that the amount or only part of that debt may be deducted from future payments of a benefit payable by Australia to that person.
3. Where a German institution has not yet paid the benefit described in subparagraph 2(a) to the person:
(a) the German institution shall, at the request of the institution of Australia pay the amount of the benefit necessary to meet the debt described in subparagraph 2(d) to the Australian institution and shall pay any excess to the person; and
(b) any shortfall may be recovered by the competent authority of Australia under subparagraph 2(e).
4. In paragraph 2, "benefit" means, in relation to Australia, a pension, benefit or allowance that is payable under the social security law of Australia.
Article 15
Data protection
1. In providing assistance under Article 10, a Contracting Party shall supply to the other Contracting Party data about a person, particularly about any payments it makes to that person, only where that person:
(a) wishes to make use of any provision of the Agreement; or
(b) claims a benefit from the first Contracting Party after the Agreement enters into force; or
(c) is receiving a benefit from the second Contracting Party before the Agreement enters into force and authorises the first Contracting Party to provide the data to the second Contracting Party.
2. Notwithstanding any laws or administrative practices of a Contracting Party, no personal data concerning a person which is received by that Contracting Party from the other Contracting Party shall be transferred or disclosed to any other country or to any organisation within that other country without the prior written consent of that other Contracting Party.
3. The Contracting Parties agree that there is no obligation on any institution to disclose personal data except under paragraph 1.
4. The processing and use of any personal data or any business or industrial secret made in accordance with this Agreement or with any arrangement for the implementation of the Agreement shall be governed by the respective national laws concerning the protection of data. The said data shall be transmitted to the bodies specified in Article 16 only. The recipient of the data shall be obliged to protect the data effectively against unauthorised access, modification and disclosure.
5. Data transmitted in accordance with this Article shall not be disclosed by the recipient without authorisation and shall be processed or used only for the purposes of implementing this Agreement or the legislation to which it applies. The passing on of this data by the recipient for other purposes is permissible in the framework of the law of the Contracting Party receiving the data provided this serves social security purposes including related judicial proceedings. However, the foregoing shall not prevent the Contracting Party receiving the data from passing it on in cases that are mandatory under the laws and regulations of that Party for the interests protected by criminal law or for the purposes of taxation. In all other cases the passing on to bodies other than those specified in Article 16 shall only be permissible upon prior consent of the transmitting bodies.
6. The transmitting body shall ensure that transmitted data is correct and reasonably necessary for the purpose for which the transmission is intended. Should the transmitting body find that data has been transmitted otherwise than in accordance with this paragraph the transmitting body shall notify the recipient immediately. The recipient shall be obliged to correct or delete the data. It shall, at the request of the transmitting body, notify that body of the purposes for which the transmitted data has been used and the results obtained from that usage.
7. The recipient of the data shall, upon the request of a person, provide to that person details of the data transmitted in relation to that person and the uses for which that data is intended to be put. In all other cases, the right of the person concerned to receive details of the data held in relation to that person shall be determined by the national law of the Contracting Party whose body requested the information.
8. A recipient of data transmitted under this Agreement shall delete that data when it ceases to be necessary for the application of this Agreement or the legislation to which the Agreement applies.
9. Should the transmission of incorrect data result in a person receiving a lesser amount of benefit, the agency responsible for paying the benefit shall adjust the amount of the benefit and pay any retrospective amounts owing to the person when the correct data is received.
CHAPTER 2
IMPLEMENTATION AND INTERPRETATION OF THE AGREEMENT
Article 16
Implementation arrangements and liaison agencies
1. The Governments of the Contracting Parties or the competent authorities may conclude arrangements for the implementation of this Agreement. The competent authorities shall keep each other informed about any amendments or additions to their legislation.
2. The following are designated as liaison agencies for the implementation of this Agreement:
(a) in the Federal Republic of Germany,
for the Wage Earners' Pension Insurance,
the Landesversicherungsanstalt Oldenburg - Bremen, Oldenburg
for the Salaried Employees' Pension Insurance,
the Bundesversicherungsanstalt fur Angestellte, Berlin
for the Miners' Pension Insurance,
the Bundesknappschaft, Bochum
for the Steelworkers' Supplementary Insurance,
the Landesversicherungsanstalt für das Saarland, Saarbrucken
(b) in Australia,
the institution responsible for the administration of the laws specified in subparagraph 1(b) of Article 2.
3. Where German legislation does not already make provision to this effect, the liaison agency designated for the Wage Earners' Pension Insurance system shall be responsible, within the scope of that system, for all procedures including the determination and award of benefits, provided that:
(a) there are German periods of coverage and periods of Australian working life residence;
(b) the person entitled to a benefit ordinarily resides in Australia; or
(c) the person entitled to a benefit is an Australian national who ordinarily resides outside the territories of both Contracting Parties.
This paragraph shall not apply to the provision of medical, occupational, and supplementary rehabilitation benefits.
4. The jurisdiction of the Railways Insurance Institution and the Seamen's Insurance Institution shall remain unaffected.
5. The liaison agencies listed in paragraph 2 and the institutions mentioned in paragraph 4 shall, within their respective areas of jurisdiction, be responsible for generally informing the persons concerned about their rights and obligations under this Agreement.
6. The liaison agencies listed in paragraph 2 and the institutions mentioned in paragraph 4, with the participation of the competent authorities, shall conclude an Administrative Arrangement ( Verwaltungsvereinbarung ) setting out the administrative measures required and expedient for implementing this Agreement.
7. As far as possible, the liaison agencies listed in paragraph 2 and the institution mentioned in paragraph 4 shall compile statistics on the payments made under the Agreement for each calendar year. Where possible, these statistics will show the number and total amount of pensions and lump - sum settlements by type of pension. These statistics shall be exchanged.
8. Cash benefits payable to recipients in the territory of the other Contracting Party shall be paid without recourse to a liaison agency in that Contracting Party.
Article 17
Currency and exchange rate
1. To provide for the effective payment of benefits an institution of a Contracting Party may, at its discretion, pay a benefit to a person in the territory of the other Contracting Party in the currency of:
(a) the first Contracting Party;
(b) the other Contracting Party; or
(c) a third country.
2. If benefits of a German institution are paid in the currency of the other Contracting Party or of a third country, the conversion rate shall be the rate of exchange in effect on the day when the remittance is made.
Article 18
Resolution of disputes
1. Disagreements between the two Contracting Parties regarding the interpretation or application of this Agreement shall, as far as possible, be settled by the competent authorities.
2. Unless otherwise agreed, if a disagreement cannot thus be resolved it shall, at the request of either Contracting Party, be submitted to an arbitration tribunal whose composition shall be agreed upon by the Contracting Parties in each instance. The arbitration tribunal shall establish its own rules of procedure, including the allocation of costs. The decisions of the arbitration tribunal shall be binding.
PART IV
TRANSITIONAL AND FINAL PROVISIONS
Article 19
Consideration of entitlements under the Agreement
1. This Agreement shall not establish any entitlement to benefits for any period prior to its entry into force.
2. Unless otherwise provided in the Agreement, when the Agreement is being implemented and when rights under it (including deciding eligibility for benefits under the Agreement) are being determined, all valid and relevant events including periods of coverage and periods as an Australian resident, no matter when they occurred, shall be taken into consideration.
3. The legal force of former decisions shall not preclude the application of this Agreement.
4. If a benefit has been determined under German legislation with binding force before the entry into force of this Agreement, a review and recalculation under this Agreement of this benefit shall only be carried out if the beneficiary explicitly so requests.
Article 20
Concluding Protocol
The attached concluding protocol shall form an integral part of this Agreement.
Article 21
Entry into force
1. This Agreement shall be subject to ratification; the instruments of ratification shall be exchanged in Berlin as soon as possible.
2. This Agreement shall enter into force on the first day of the second month following the month in which the instruments of ratification are exchanged.
Article 22
Period of the Agreement
1. This Agreement shall be concluded for an indefinite period of time. Either Contracting Party may denounce this Agreement in writing through diplomatic channels at the end of a calendar year by giving three months' notice. This period of notice shall be calculated from the day on which the notice is received by the other Contracting Party.
2. In the event of termination by denunciation, the provisions of this Agreement shall continue to apply in respect of claims to benefits acquired not later than the effective date of that termination; restrictive legislation regarding the exclusion of an entitlement or the suspension or withdrawal of benefits on the grounds of temporary or ordinary residence in another state shall not be applicable to such claims.
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed this Agreement.
DONE at Canberra on this thirteenth day of December 2000 in two copies in the English and German languages, each text being equally authentic.
FOR AUSTRALIA: FOR THE FEDERAL REPUBLIC OF GERMANY:
JOCELYN NEWMAN Dr HORST BÄCHMANN and WALTER RIESTER
[Signatures omitted]
CONCLUDING PROTOCOL TO THE AGREEMENT BETWEEN AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY ON SOCIAL SECURITY
At the time of signing the Agreement on Social Security concluded this day between Australia and the Federal Republic of Germany, the plenipotentiaries of both Contracting Parties stated that they are in agreement on the following points:
1. With reference to Article 2 of the Agreement:
(a) Part II of the Agreement shall not apply to the Steelworkers' Supplementary Insurance and to the Farmers' Old Age Security of the Federal Republic of Germany;
(b) subject to paragraph (c), where under the German legislation both the conditions for the application of the Agreement and the conditions for the application of any other convention or supranational arrangement are satisfied, the German institution shall disregard that other convention or supranational arrangement when applying the Agreement; and
(c) paragraph 4 of Article 2 and the preceding subparagraph shall not apply if the social security legislation, which arises for the Federal Republic of Germany from international treaties or supranational laws or is designed to implement them, contains provisions relating to the apportionment of insurance burdens.
2. With reference to Article 4 of the Agreement:
(a) provisions relating to the apportionment of insurance burdens that may be contained in international treaties between the Federal Republic of Germany and other States shall not be affected;
(b) the German legislation guaranteeing the participation of insured people and employers in the self government bodies of the institutions and their associations and in the adjudication of social security matters shall remain unaffected; and
(c) Australian nationals who ordinarily reside outside the territory of the Federal Republic of Germany shall be entitled to voluntary coverage under the legislation specified under subparagraphs 1(a)(i), (ii) and (iii) of Article 2 if they have periods of contributions under that legislation for at least sixty calendar months. This shall also apply to persons specified in subparagraphs (a)(ii) and (iii) of Article 3 who ordinarily reside in the territory of Australia.
3. With reference to Article 5 of the Agreement:
(a) With respect to contingencies under German Industrial Accident Insurance which occurred prior to 1 January 1997 the following shall apply:
Article 5 shall apply, as appropriate, to cash benefits payable under German Industrial Accident Insurance to beneficiaries who are Australian nationals and who ordinarily reside in Australia, provided that the applicable law of Australia or of a federal state or territory regarding statutory accident insurance provides for payment of corresponding cash benefits to German nationals who ordinarily reside in the territory of the Federal Republic of Germany. This shall apply, as appropriate, with regard to the persons specified in subparagraphs (a)(ii), (iii) and (iv) of Article 3 who ordinarily reside in Australia, provided that the applicable law of Australia or of a federal state or territory regarding statutory accident insurance provides for the payment of corresponding cash benefits to the persons specified in subparagraphs (a)(ii), (iii) and (iv) of Article 3, who ordinarily reside in the territory of the Federal Republic of Germany;
(b) the German legislation regarding cash benefits based on period of coverage completed under laws other than (German) federal law shall not be affected;
(c) the German legislation regarding cash benefits in respect of occupational accidents (including occupational diseases) for which the injured party was not insured under (German) federal law at the time the accident occurred shall not be affected;
(d) the German legislation regarding medical, occupational and supplementary rehabilitation benefits provided by a pension insurance institution shall not be affected. Australian legislation which provides for, applies to or affects disability support pension for a person who is not severely disabled shall not be affected;
(e) with regard to a pension under the German legislation governing reduced earning capacity, Article 5 of the Agreement shall apply to persons who ordinarily reside in Australia only if entitlement exists when the labour market situation is disregarded; and
(f) the German legislation providing for the suspension of claims under German pension insurance for persons who go abroad to evade criminal proceedings against them shall not be affected.
4. With reference to Article 6 of the Agreement:
(a) Article 6 shall apply, as appropriate, to benefits which are granted at the discretion of an institution under the German legislation;
(b) residence periods in Australia during which an employment or self employment was exercised shall be equivalent to the periods of compulsory contributions required under the German legislation for a claim to a pension;
(c) where the German legislation provides that the entitlement to benefits requires the completion of certain periods of coverage within a specified period and where the legislation also provides that this period is extended by certain circumstances or periods of coverage, periods of coverage under the legislation of the other Contracting Party or comparable circumstances within the territory of the other Contracting Party shall be taken into account for such an extension. Comparable circumstances are periods during which disability or age pensions or benefits on account of sickness, unemployment or industrial accidents (with the exception of pensions) were paid under the Australian legislation as well as periods of child raising in Australia; and
(d) mining enterprises within the meaning of subparagraph (b) of Article 6 are enterprises which mine minerals or similar substances and those which quarry stone and earth predominantly in underground operations.
5. With reference to Article 9 of the Agreement:
Australian disability support pension under the Agreement shall not be payable for more than 26 weeks to a person who is not severely disabled while that person is outside Australia.
6. With reference to Article 15 of the Agreement:
A person who:
(i) is in receipt of a pension on account of reduced earning capacity from the Federal Republic of Germany at the time the Agreement enters into force;
(ii) ceases to be entitled to that pension because of age; and
(iii) immediately qualifies for an age pension from the Federal Republic of Germany,
shall be deemed not to have claimed that age pension for the purposes of subparagraph 1(b) of Article 15.
7. With reference to Article 16 of the Agreement:
German court decisions and German institutions' notifications may be communicated direct to persons residing in Australia and may be sent by registered mail with acknowledgement of receipt. The first sentence shall also apply to decisions, notifications, and other documents which must be served, issued in connection with the implementation of the German law governing war victims' assistance and those laws which declare the first mentioned law to be applied accordingly.
8. In the implementation of the Agreement, the German legislation, to the extent that it contains more favourable provisions for persons who have suffered because of their political attitude or for reasons of their race, religion or ideology shall not be affected.
DONE at Canberra on this thirteenth day of December 2000 in two copies in the English and German languages, each text being equally authentic.
FOR AUSTRALIA: FOR THE FEDERAL REPUBLIC OF GERMANY:
JOCELYN NEWMAN Dr HORST BÄCHMANN and WALTER RIESTER
[Signatures omitted]
PART B
Agreement between Australia and the Federal Republic of Germany on Social Security to govern persons temporarily employed in the territory of the other State
("Supplementary Agreement")
Australia and the Federal Republic of Germany,
Desiring to strengthen the existing friendly relations between the two States and resolved to expand their mutual cooperation in the field of social security and to facilitate the performance of work in the other State and in particular, to avoid that an employee is subject to the legislation of both States at the same time have agreed upon the following to supplement the Agreement on Social Security between Australia and the Federal Republic of Germany of 13 December 2000:
Article 1
Definitions
1. For the purposes of this Supplementary Agreement,
(a) "territory" means,
as regards the Federal Republic of Germany,
the territory of the Federal Republic of Germany;
as regards Australia,
the territory of Australia;
(b) "legislation" means,
as regards the Federal Republic of Germany,
the laws, regulations and other general legislative acts related to the branches of social security covered by the scope of this Supplementary Agreement (paragraph 1(a) of Article 2);
as regards Australia,
the laws covered by the scope of this Supplementary Agreement (paragraph 1(b) of Article 2);
(c) "competent authority" means,
as regards the Federal Republic of Germany,
the Federal Ministry of Labour and Social Affairs
(Bundesministerium für Arbeit und Soziales);
as regards Australia,
the Commissioner of Taxation or an authorised representative of the Commissioner;
(d) "institution" means,
as regards the Federal Republic of Germany,
the insurance institution responsible for the implementation of the legislation specified in paragraph 1 (a) of Article 2 and the body designated by the competent authority;
as regards Australia,
the Commissioner of Taxation or an authorised representative of the Commissioner.
2. Any term not defined in paragraph 1 has the meaning assigned to it in the applicable legislation.
Article 2
Legislative scope
1. This Supplementary Agreement shall apply to the following legislation:
(a) as regards the Federal Republic of Germany,
the legislation concerning the Statutory Pension Insurance;
(b) as regards Australia,
the legislation concerning the Superannuation Guarantee.
2. This Supplementary Agreement shall also apply to laws, regulations and other general legislative acts in so far as they amend, supplement or replace the legislation of the Contracting States.
Article 3
Personal scope
This Supplementary Agreement shall apply in respect of all persons who are ordinarily resident or employed in the territory of either Contracting State.
Article 4
Applicable
legislation for employees
1. Unless otherwise provided in this Supplementary Agreement, an employee shall be subject to the legislation of the Contracting State in whose territory he is actually performing the work.
2. Paragraph 1 shall apply analogously to self - employed persons.
Article 5
Applicable legislation in case of detachment
When an employee who is employed in one Contracting State is sent by his employer, who ordinarily engages in considerable business activities in the sending State, to the territory of the other Contracting State in the context of that employment to perform services there for this employer that are known to be time - limited beforehand, then, provided that the employee concerned continues to be subject to the legislation of the first Contracting State in relation to that employment, only the legislation of the first Contracting State shall continue to apply with regard to that employment during the first forty - eight calendar months as though the employee were still employed in the territory of the first Contracting State. The period of forty - eight calendar months shall start on the first day of the calendar month in which the employee takes up employment in the territory of the other Contracting State.
Article 6
Applicable legislation on board sea - going vessels
This Supplementary Agreement shall not affect the application of the national legislation of the two Contracting States for persons who work on board a sea - going vessel.
Article 7
Applicable legislation for persons employed with
diplomatic missions or consular posts
Nothing in this Supplementary Agreement shall affect the application of the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961, or of the Vienna Convention on Consular Relations of 24 April 1963.
Article 8
Exceptions from
the provisions on the applicable legislation
1. At the joint request of the employee and the employer or at the request of a self - employed person, the competent authorities of the Contracting States or the bodies designated by them may, by mutual agreement, derogate from the provisions of this Supplementary Agreement in relation to the applicable legislation provided that the person concerned continues to be subject or will be subjected to the legislation of either Contracting State. In this regard, the nature and the circumstances of the employment shall be taken into account.
2. The application shall be filed in the Contracting State whose legislation is to apply.
Article 9
Administrative assistance
The competent authorities and the institutions of the Contracting States shall provide mutual assistance to each other in the implementation of this Supplementary Agreement as if they were applying their own legislation. The assistance shall be provided free of charge.
Article 10
Languages of communication, service
and legalisation
1. In implementing this Supplementary Agreement, the competent authorities and the institutions of the Contracting States may communicate in their respective official languages directly with each other as well as with persons concerned and their representatives. Documents may be served on a person who is staying in the territory of the other Contracting State directly and by registered mail with acknowledgment of receipt.
2. Documents, especially applications and certifications, may not be rejected because they are written in the official language of the other Contracting State.
3. Documents, especially certifications, to be submitted in application of this Supplementary Agreement shall not require legalisation or any other similar formality.
Article 11
Data protection
1. Where personal data is transmitted under this Supplementary Agreement, the following shall apply whilst the laws applicable to each Contracting State shall be duly observed:
(a) The data may, for the purposes of implementing this Supplementary Agreement and the legislation to which it applies, be transmitted to the competent bodies in the receiving State. The receiving body may only use the data for these purposes. The passing on of this data to other bodies within the receiving State or the use of this data in the receiving State for other purposes is permissible in the framework of the law of the receiving State provided this serves social security purposes including related judicial proceedings.
However, the foregoing shall not prevent the passing on of that data in cases where doing so is mandatory under the laws and regulations of the receiving State for the interests protected by criminal law or for the purposes of taxation. In all other cases the passing on to other bodies shall be only permissible upon prior consent of the transmitting body.
(b) In individual cases the recipient of the data shall, at the request of the transmitting body, inform that body of the use of the transmitted data and the results obtained thereof.
(c) The transmitting body shall ensure that the data to be transmitted is correct and that its transmission is necessary and proportionate with regard to the purposes pursued with the transmission of the data. In this context, any prohibition to transmit data under the respective national law has to be respected. Data shall not be transmitted if the transmitting body reasonably assumes that doing so would violate the purpose of a national law or injure any interests of the person concerned that are worthy of protection. If it becomes evident that incorrect data or data the transmission of which was not permissible under the law of the transmitting State has been transmitted, the receiving body has to be immediately notified of this fact. The receiving body is obliged to correct or delete this data without delay.
(d) Upon request, the person concerned shall be informed of any personal data transmitted and the intended use of that data. In all other cases, the right of the person concerned to receive information about any personal data held in relation to that person shall be determined by the national law of the Contracting State whose body requests the information.
(e) Transmitted personal data shall be deleted as soon as it is no longer required for the purpose for which it was transmitted, and if there is no reason to assume that social security interests of the person concerned which are worthy of protection will be affected by the deletion of the data.
(f) The transmitting and the receiving bodies shall record the transmission and the receipt of personal data.
(g) The transmitting and the receiving bodies shall protect transmitted personal data effectively against unauthorized access, unauthorized modification and unauthorized disclosure.
2. The provisions of paragraph 1 shall apply analogously to business and industrial secrets.
Article 12
Implementing arrangements
1. The Governments of the Contracting States or the competent authorities may conclude arrangements necessary for the implementation of this Supplementary Agreement. The competent authorities shall inform each other of any amendments and additions to their legislation which is covered by the scope of this Supplementary Agreement (paragraph 1 of Article 2).
2. The liaison agencies hereby set up for the implementation of this Supplementary Agreement are:
(a) in the Federal Republic of Germany,
German Liaison Agency Health Insurance - International (Deutsche Verbindungsstelle Krankenversicherung - Ausland (DVKA), Bonn;
(b) in Australia,
the Australian Taxation Office.
3. The liaison agencies may, within their respective areas of jurisdiction and with the participation of the competent authorities, agree upon the administrative measures necessary and appropriate for the implementation of this Supplementary Agreement. However, the provisions of paragraph 1 shall remain unaffected.
Article 13
Settlement of disputes
1. Disagreements between the two Contracting States regarding the interpretation or application of this Supplementary Agreement shall be settled, as far as possible, by the competent authorities.
2. If a disagreement cannot be settled in this way, it shall, if necessary, be settled by a joint ad hoc commission set up by mutual agreement.
Article 14
Concluding provision
This Supplementary Agreement shall not affect the Agreement on Social Security between the Federal Republic of Germany and Australia of 13 December 2000.
Article 15
Concluding
Protocol
The attached Concluding Protocol shall form an integral part of this Supplementary Agreement.
Article 16
Ratification and entry into force
1. This Supplementary Agreement shall be subject to ratification; the instruments of ratification shall be exchanged as soon as possible in Canberra.
2. This Supplementary Agreement shall enter into force on the first day of the second month following the month in which the instruments of ratification have been exchanged.
Article 17
Duration of the Supplementary
Agreement
1. This Supplementary Agreement shall be concluded for an indefinite period of time. Either Contracting State may terminate it through diplomatic channels at the end of the calendar year giving three months' written notice. The relevant date for calculating the period of notice shall be the day on which the notice is received by the other Contracting State.
2. This Supplementary Agreement shall also cease to be in force if the Agreement on Social Security between the Federal Republic of Germany and Australia of 13 December 2000 ceases to be in force.
3. In the event that this Supplementary Agreement shall cease to be in force in accordance with paragraph 1 or 2, the Supplementary Agreement shall continue to have effect in relation to all persons who immediately before the date of termination, are subject only to the legislation of one Contracting State by virtue of Article 5 or 8 provided the person continues to meet the corresponding requirements.
In witness whereof , the undersigned, being duly authorized thereto, have signed this Supplementary Agreement.
Done at Berlin on the ninth day of February 2007, in duplicate in the English and German languages, each text being equally authentic.
For the Government of Australia:
| For the Government of the Federal Republic of Germany:
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Concluding Protocol
to
the Supplementary Agreement between Australia and the Federal Republic of Germany on Social Security to govern persons temporarily employed in the territory of the other State
At the time of signing the Supplementary Agreement between Australia and the Federal Republic of Germany on Social Security to govern persons temporarily employed in the territory of the other State concluded this day, the plenipotentiaries of both Contracting States stated that they are in agreement on the following points:
1. With reference to paragraph 1(a) of Article 2 of the Supplementary Agreement:
(a) If, by virtue of Articles 4, 5 and 8 of the Supplementary Agreement, German legislation applies to a person working in the territory of Australia, the German laws and regulations in the field of employment promotion shall also be applicable to this person and his employer in the same way.
(b) If, by virtue of Articles 4, 5 and 8 of the Supplementary Agreement, Australian legislation applies to a person working in the territory of the Federal Republic of Germany, the German laws and regulations in the field of employment promotion shall not be applicable to this person and his employer.
2. With reference to Articles 4 to 8 of the Supplementary Agreement:
Persons to whom German legislation applies shall also include those who, under German legislation, are insurance - free or exempted from insurance.
3. With reference to Article 5 of the Supplementary Agreement:
(a) It shall not be considered a case of detachment to the other Contracting State in particular when:
- the work of the detached employee does not correspond to the employer's business operations in the sending State;
- the employer of the detached employee ordinarily does not engage in considerable business activities in the sending State;
- the person recruited for the purpose of detachment is not ordinarily resident in the sending State at that time;
- this constitutes illegal labour leasing under German law; or
- the employee has worked in the sending State for less than two months after termination of the last period of detachment.
(b) For persons who are already detached on the day of entry into force of the Supplementary Agreement the specified period shall begin on that date.
(c) Article 5 of the Supplementary Agreement shall apply analogously to a self - employed person who ordinarily engages in considerable business activities in the territory of the Federal Republic of Germany if that person temporarily works in the territory of Australia on a time limited basis. In this situation only the legislation of the Federal Republic of Germany shall continue to apply with regard to that work during the first forty - eight calendar months as though the self - employed person were still working in the territory of the Federal Republic of Germany. The period of forty - eight calendar months shall start on the first day of the calendar month in which the self - employed person takes up work in the territory of Australia. Item 3 (b) shall apply analogously.
4. With reference to Article 8 of the Supplementary Agreement:
(a) Where, in application of Article 8 of the Supplementary Agreement, German legislation applies to a per -/span> son, the person shall be deemed to be employed or to work at the place where he or she was last employed or working; however, a different arrangement resulting from the previous application of Article 5 of the Supplementary Agreement shall continue to be effective. When he or she was previously not employed or working in the territory of the Federal Republic of Germany, he or she shall be deemed to be employed or working at the place where the competent German authority has its seat.
(b) Article 8 of the Supplementary Agreement shall apply in particular to an employee of an enterprise located in one Contracting State who is temporarily employed in the other Contracting State by an associated enterprise and, during this period, receives remuneration in the state of employment at the expense of the associated enterprise.
5. With reference to paragraphs 1(a) and (e) of Article 11 of the Supplementary Agreement:
With regard to Australia, the term "social security" shall also include the Superannuation Guarantee.
ARRANGEMENT FOR THE IMPLEMENTATION OF THE SUPPLEMENTARY AGREEMENT OF 9 FEBRUARY 2007 BETWEEN AUSTRALIA AND FEDERAL REPUBLIC OF GERMANY ON SOCIAL SECURITY TO GOVERN PERSONS TEMPORARILY EMPLOYED IN THE TERRITORY OF THE OTHER STATE
The Government of Australia and the Government of the Federal Republic of Germany, on the basis of paragraph 1 of Article 12 of the Agreement of 9 February 2007 between Australia and the Federal Republic of Germany on Social Security to govern persons temporarily employed in the territory of the other State,
hereinafter referred to as the "Supplementary Agreement"
have agreed as follows:
Part I
General provisions
Article 1
Definitions
Where terms which appear in the Supplementary Agreement are used in this Arrangement, they shall have the same meaning as they have in the Supplementary Agreement.
Article 2
Duty to inform
The liaison agencies set up pursuant to paragraph 2 of Article 12 of the Supplementary Agreement and the bodies designated by the competent authorities pursuant to Article 8 of the Supplementary Agreement shall, within their respective areas of jurisdiction, be responsible for generally informing the persons concerned about the Supplementary Agreement.
Article 3
Duty to communicate facts
1. The bodies referred to in paragraph 2 of Article 12, in Article 8 and in Article 9 of the Supplementary Agreement shall, within their respective areas of jurisdiction, communicate to each other and to the persons concerned the facts and transmit the evidence necessary to secure the rights and obligations that follow from the legislation specified in paragraph 1 of Article 2 of the Supplementary Agreement and the Supplementary Agreement and this Arrangement.
2. Where a person is obliged, under the legislation specified in paragraph 1 of Article 2 of the Supplementary Agreement, under the Supplementary Agreement or under this Arrangement, to communicate to the institution or another body, certain facts, this obligation shall also apply with regard to corresponding facts obtaining in the territory of the other Contracting State or under its legislation. This shall also apply if a person has to transmit certain evidence.
3. Article 11 of the Supplementary Agreement shall also be applied to the duty to communicate facts under paragraphs 1 and 2.
Article 4
Certificate on the applicable legislation
1. In the circumstances described in Articles 5 and 8 of the Supplementary Agreement, the competent authority or the competent body of the Contracting State whose legislation is applicable shall, on request, issue a certificate stating, in respect of the employment in question, that this legislation is applicable to the employee and the employer. A specific period of validity must be given on the certificate.
2. Where German legislation is applicable, the certificate shall, in the circumstances described in Article 5 of the Supplementary Agreement, be issued by the health insurance institution to which the pension contributions are paid, and by the Deutsche Rentenversicherung Bund , Berlin, in any other case. In the circumstances described in Article 8 of the Supplementary Agreement, the Deutsche Verbindungsstelle Krankenversicherung - Ausland (DVKA) - (German Liaison Agency Health Insurance - International), Bonn, shall issue the certificate.
3. Where Australian legislation is applicable, the certificate shall be issued by the Commissioner of Taxation, or an authorised representative of the Commissioner.
4. If there are doubts as to whether the legislation referred to in the certificate is actually applicable, or if the facts certified therein differ from the actual circumstances, the body that has issued the certificate shall, on request, review and correct it, if necessary.
Part II
Final Provision
Article 5
Entry into force and duration of the Arrangement
1. This Arrangement shall enter into force on the date on which both Governments have informed each other that the national requirements for such entry into force have been fulfilled. The relevant date shall be the day on which the last notification is received.
2. This Arrangement is to be applied from the date of the entry into force of the Supplementary Agreement and shall have the same period of duration.
Done at Berlin on the ninth February 2007 in duplicate in the English and German languages, each text being equally authentic.
For the Government of Australia:
| For the Government of the Federal Republic of Germany:
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