Protocol

Protocol (1995) amending Social Security Agreement (1990)

SUPPLEMENTARY AGREEMENT AMENDING THE AGREEMENT BETWEEN THE REPUBLIC OF AUSTRIA AND THE UNITED STATES OF AMERICA ON SOCIAL SECURITY

The Republic of Austria

and

the United States of America

being desirous of amending and supplementing the Agreement on Social Security of July 13, 1990

hereinafter referred to as the “Agreement” have agreed as follows:

Article I

1.

a) Subparagraph (1) (b) of Article 1 of the Agreement shall be deleted.

b) Subparagraph (1) (e) of Article 1 of the Agreement shall be revised by replacing the words “the Secretary of Health and Human Services” with the words “the Social Security Administration”.

2. Paragraph (2) of Article 5 of the Agreement shall be revised to read as follows:

“(2) As regards Austrian laws, paragraph (1) of this Article shall not apply to the compensatory supplement.”

3. Paragraph (1) of Article 7 of the Agreement shall be revised to read as follows:

“(1) If a person who is normally employed in the territory of one Contracting State is sent by an employer having a place of business in the territory of that Contracting State to the territory of the other Contracting State for a temporary period, the person shall be subject to the laws of only the first Contracting State as if the person were employed in its territory, provided that the employment in the territory of the other Contracting State is not expected to exceed five years.”

4. Paragraph (2) of Article 9 of the Agreement shall be revised by adding the following sentence at the end thereof:

“If the person is a United States national and subject to Austrian laws as an exception to Article 8, those laws shall apply to him as if he were an Austrian national.”

5. Article 11 of the Agreement shall be revised to read as follows:

“When a person who has completed periods of coverage under the laws of both Contracting States, or the survivor of such a person, claims a benefit, the competent Austrian agency shall determine, in accordance with Austrian laws, whether the claimant is entitled to a benefit by adding together the periods of coverage, as provided in Article 10 and taking into account the following provisions:

a) Where Austrian laws make the award of certain benefits conditional upon the completion of periods of coverage in an occupation covered by special schemes or in a specified occupation or employment, only periods of coverage completed under a corresponding scheme, or, failing that, in the same occupation or, where appropriate, in the same employment, under United States laws shall be taken into account for the award of such benefits.

b) Where Austrian laws provide that the period of payment of a pension shall prolong the reference period in which the periods of coverage must be completed, periods during which a pension has been awarded under United States laws shall prolong the aforesaid reference period.

c) A quarter of coverage under United States laws shall be treated as three months of coverage under Austrian laws.”

6. Article 12 of the Agreement shall be revised to read as follows:

“(1) Where under Austrian laws entitlement to a benefit exists without the application of Article 10, the competent Austrian agency shall determine the amount of the benefit in accordance with Austrian laws on the basis of periods of coverage to be taken into account exclusively under those laws.

(2) Where under Austrian laws entitlement to a benefit exists only with the application of Article 10, the competent Austrian agency shall determine the amount of the benefit in accordance with Austrian laws on the basis of periods of coverage to be taken into account exclusively under those laws and taking into account the following provisions:

a) Benefits or parts of benefits the amount of which does not depend on the duration of the periods of coverage completed shall be calculated in proportion to the ratio of the duration of the periods of coverage to be taken into account for the calculation under Austrian laws to 30 years, but not exceeding the full amount.

b) Where periods after the contingency arises are to be considered for the calculation of invalidity or survivors benefits, these periods shall be taken into account only in proportion to the ratio of the duration of the periods of coverage to be taken into account for the calculation of the benefit under Austrian laws to two-thirds of the number of full calendar months between the date on which the person concerned reached the age of 16 and the date on which the contingency occurred, but not exceeding the full period.

c) Subparagraph (a) shall not apply

(i) to benefits resulting from supplementary insurance,

(ii) to means-tested benefits designed to ensure a minimum income.

(3) Where the periods of coverage to be taken into account under Austrian laws for the calculation of the benefit are in aggregate less than twelve months, and no entitlement to a benefit has been established under Austrian laws exclusively on the basis of these periods of coverage, no benefit under these laws shall be paid.”

7. Articles 13 and 14 of the Agreement shall be deleted.

8. Article 25 of the Agreement shall be deleted.

Article II

(1) This Supplementary Agreement shall enter into force on the first day of the third month following the month in which each Government shall have received from the other Government written notification that it has complied with all statutory and constitutional requirements for the entry into force of this Supplementary Agreement.

(2) Paragraph 2 of Article I of this Supplementary Agreement shall be effective retroactively beginning with the entry into force of the Agreement.

(3) Paragraph (1) of Article 12 of the Agreement as amended by paragraph 6 of Article I of this Supplementary Agreement shall be effective retroactively from November 1, 1996, if the Supplementary Agreement enters into force after this date.

(4) Except as provided in paragraph 3 of this Article, this Supplementary Agreement shall not result in any recalculation of benefits to which entitlement was established prior to its entry into force.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, have signed this Supplementary Agreement.

DONE at Vienna on October 5, 1995, in duplicate in the German and English languages, both texts being equally authentic.

For the Government of the Republic of Austria:
Dr. Michael Fitz

For the Government of the United States of America:
Joan E. Corbett