Denmark – USA Social Security Agreement (2007)

Social Security Agreement (2007)

This Treaty was signed on June 13, 2007 and entered into force on October 1, 2008.

AGREEMENT ON SOCIAL SECURITY BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF DENMARK

The Government of the United States of America, and

the Government of the Kingdom of Denmark,

Being desirous of regulating the relationship between their two countries 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. “territory” means, as regards the United States, the States thereof, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands, and as regards the Kingdom of Denmark, its national territory, with the exception of Greenland and the Faroe Islands;

b. “national” means, as regards the United States, a national of the United States as defined in Section 101, Immigration and Nationality Act, as amended, and as regards the Kingdom of Denmark, a person with Danish citizenship;

c. “laws” means the laws and regulations specified in Article 2 of this Agreement;

d. “competent authority” means, as regards the United States, the Commissioner of Social Security, and as regards the Kingdom of Denmark, the Minister of Social Affairs;

e. “agency” means, as regards the United States, the Social Security Administration, and as regards the Kingdom of Denmark, an institution responsible for application of Danish laws;

f. “period of coverage” means a period of payment of contributions, or a period of earnings from employment or self-employment, as defined or recognized as a period of coverage by the laws under which such period was completed, or any similar period insofar as it is recognized by such laws as equivalent to a period of coverage;

g. “benefit” means any benefit provided for in the laws specified in Article 2 of this Agreement;

h. “residence” means in relation to the Kingdom of Denmark, ordinary residence in Denmark which is lawfully established;

i. “refugee” shall have the meaning assigned to it in Article 1 of the Convention on the Status of Refugees, dated July 28, 1951 and in the Protocol to the Convention dated January 31, 1967;

j. “stateless person” shall have the meaning assigned to it in Article 1 of the Convention on the Status of Stateless Persons, dated September 28, 1954;

k. “self-employed person” means in relation to the Kingdom of Denmark, any person who is entitled to benefits in pursuance of the Act on Daily Cash Benefits in the Event of Sickness and the regulations pertaining thereto on the basis of earned income other than wages or salary.

2. Any term not defined in this Article shall have the meaning assigned to it in the applicable laws.

Article 2. Scope

1. For the purpose of this Agreement, the applicable laws are:

a. as regards the United States, the laws governing the Federal old-age, survivors, and disability insurance program:

i. Title II of the Social Security Act and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections,

ii. Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters;

b. as regards the Kingdom of Denmark:

i. the Social Pensions Act and the regulations made thereunder;

ii. the Act on the highest, the intermediate, the increased ordinary and the ordinary anticipatory pension; and

iii. the Labour Market Supplementary Pension (ATP) Act and the regulations made thereunder.

2. Unless otherwise provided in this Agreement, the laws referred to in paragraph 1 of this Article shall not include treaties or other international agreements or supranational legislation on Social Security that may be concluded between one Contracting State and a third State, or laws or regulations promulgated for their specific implementation.

3. Except as provided in the following sentence, this Agreement shall also apply to legislation which amends or supplements the laws specified in paragraph 1. This Agreement shall apply to future legislation of a Contracting State which creates new categories of beneficiaries or new benefits under the laws of that Contracting State unless the Competent Authority of that Contracting State notifies the Competent Authority of the other Contracting State in writing within three months of the date of the official publication of the new legislation that no such extension of the Agreement is intended.

Article 3. Persons Covered

Unless otherwise provided in this Agreement, it shall apply to:

a. nationals of the Contracting States,

b. refugees,

c. stateless persons,

d. other persons with respect to the rights they derive from the foregoing, and

e. nationals of a State other than a Contracting State who are not included in (d).

Article 4. Equality of Treatment

Unless otherwise provided in this Agreement, a person designated in Article 3(a), (b), (c), or (d) who resides in the territory of a Contracting State shall, in application of the laws of that Contracting State regarding entitlement to or payment of benefits, receive equal treatment with nationals of that Contracting State.

Article 5. Portability of Benefits

1. Unless otherwise provided in this Agreement, any provision of the laws of a Contracting State which restricts entitlement to or payment of benefits solely because the person resides outside or is absent from the territory of that Contracting State shall not be applicable to the persons designated in Article 3 (a), (b), (c) or (d) who reside in the territory of the other Contracting State.

2. Section 202(t)(11)(E) of the Social Security Act of the United States shall not apply to a Danish national unless he or she is a resident of the United States, Denmark or a third country with which the United States has a Social Security agreement in force concluded pursuant to section 233 of the Social Security Act.

PART II Provisions Concerning Applicable Laws

Article 6. Provisions on Coverage

1. Except as otherwise provided in this Article, a person employed within the territory of one of the Contracting States shall, with respect to that employment, be subject to the laws of only that Contracting State.

2. a. Where a person who is normally employed in the territory of the United States by an employer in that territory is sent by that employer to the territory of Denmark for a temporary period, the person shall be subject to the laws of only the United States as if the person were employed in the territory of the United States, provided that the period of employment in the territory of Denmark is not expected to exceed five years. For purposes of applying this paragraph, an employer and an affiliated company of that employer (as defined under the laws of the United States) shall be considered one and the same, provided that the employment would have been covered under United States laws absent this Agreement.

b. Where a person who is resident in the territory of Denmark and employed by an employer whose registered office or place of business is situated in that territory is sent by that employer from that territory to the territory of the United States for a temporary period, the person shall be subject to the laws of only Denmark as if the person were employed and resident in the territory of Denmark, provided that the period of employment in the territory of the United States is not expected to exceed three years.

3. Paragraph 2 shall apply where a person who has been sent by his or her employer from the territory of one Contracting State to the territory of a third State and who is compulsorily covered under the laws of that Contracting State while employed in the territory of the third State is subsequently sent by that employer from the territory of the third State to the territory of the other Contracting State.

4. A self-employed person who resides within the territory of a Contracting State shall be subject to the laws of only that State.

5. Where the same activity is considered to be self-employment under the laws of one Contracting State and employment under the laws of the other Contracting State, that activity shall be subject to the laws of only the first Contracting State if the person is a resident of that State and to the laws of only the other Contracting State in any other case.

6.

a. A person who is employed as an officer or member of a crew on a vessel which flies the flag of one Contracting State and who is covered under the laws of both Contracting States, shall be subject to the laws of only the Contracting State whose flag the vessel flies. For purposes of the preceding sentence, a vessel which flies the flag of the United States is one defined as an American vessel under the applicable laws of the United States.

b. If a person is employed as an officer or member of a crew on an aircraft and is covered under the laws of both Contracting States, the person shall be subject to the laws of only the Contracting State in whose territory the employer is headquartered.

7.

a. This Agreement shall not affect the provisions of the Vienna Convention on Diplomatic Relations of April 18, 1961, or of the Vienna Convention on Consular Relations of April 24, 1963.

b. Nationals of one of the Contracting States who are employed by the Government of that Contracting State in the territory of the other Contracting State but who are not exempt from the laws of the other Contracting State by virtue of the Conventions mentioned in subparagraph (a) shall be subject to the laws of only the first Contracting State. For the purpose of this paragraph, employment by the United States Government includes employment by an instrumentality thereof, and employment by the Danish Government includes employment by Danish public employers.

8. If, under paragraph 2, a person continues to be subject to the laws of a Contracting State while in the territory of the other Contracting State, that paragraph shall also apply by analogy to the person’s family members who accompany the person, unless they are themselves employed or self-employed in the territory of the latter Contracting State.

9. The Competent Authorities of the two Contracting States may agree to grant an exception to the provisions of this Article with respect to particular persons or categories of persons, provided that any affected person shall be subject to the laws of one of the Contracting States.

10. Except as otherwise provided in this Part, a person who does not reside in the territory of the Kingdom of Denmark shall not be subject to Danish laws.

11. United States nationals employed in the territory of Denmark shall be covered by the Labour Market Supplementary Pension (ATP) scheme unless the employment period is on a short term basis, which means a maximum of 6 months or, in case of employment as part of a training or education scheme, 18 months.

PART III Provisions on Benefits

Article 7. Benefits Under United States Laws

The following provisions shall apply to the United States:

1. Where a person has completed at least six quarters of coverage under United States laws, but does not have sufficient periods of coverage to satisfy the requirements for entitlement to benefits under United States laws, the agency of the United States shall take into account, for the purpose of establishing entitlement to benefits under this Article, periods of coverage and periods of Danish residence as defined in paragraph 2 which are credited under Danish laws and which do not coincide with periods of coverage already credited under United States laws.

2. For purposes of this Article, a “period of Danish residence”, means a period after March 31, 1957:

i. credited or recognized as a period of residence under Danish laws during the qualifying period laid down in the Social Pensions Act; and

ii. during which a person has worked.

3. In determining eligibility for benefits under paragraph 1 of this Article, the agency of the United States shall credit one quarter of coverage for every 3 months of coverage or 3-month period of Danish residence certified by the agency of Denmark; however, no quarter of coverage shall be credited for any calendar quarter already credited as a quarter of coverage under United States laws. The total number of quarters of coverage to be credited for a year shall not exceed four.

4. Where entitlement to a benefit under United States laws is established according to the provisions of paragraph 1 of this Article, the agency of the United States shall compute a pro rata Primary Insurance Amount in accordance with United States laws based on (a) the person’s average earnings credited exclusively under United States laws and (b) the ratio of the duration of the person’s periods of coverage completed under United States laws to the duration of a coverage lifetime as determined in accordance with United States laws. Benefits payable under United States laws shall be based on the pro rata Primary Insurance Amount.

5. Entitlement to a benefit from the United States which results from paragraph 1 of this Article shall terminate with the acquisition of sufficient periods of coverage under United States laws to establish entitlement to an equal or higher benefit without the need to invoke the provision of paragraph 1 of this Article.

Article 8. Benefits Under Danish Laws

The following provisions shall apply to Denmark:

1. United States nationals shall be entitled to a Danish social pension under the same conditions as Danish nationals residing in the territory of Denmark if in the qualifying period laid down in the Social Pensions Act the person has had a total period of work under Danish laws of at least 12 months.

2. Where the condition on work under paragraph 1 of this Article has not been met, a person shall be entitled to a Danish social pension if the person has been resident in Denmark for a period of not less than 10 years in the qualifying period laid down in the Social Pensions Act, of which not less than five years immediately precede the date on which the pension is first payable.

3. Social pension and the highest, the intermediate, the increased ordinary and the ordinary anticipatory pension shall be payable to United States nationals and persons designated in Article 3 (b), (c), or (d) residing in the territory of the United States if the person concerned fulfills the condition on work in paragraph 1 of this Article.

4. Where the condition on work in paragraph 1 of this Article has not been met, a pension awarded in pursuance of the Social Pensions Act to a United States national or a person designated in Article 3 (b), (c), or (d) residing in the territory of Denmark shall nonetheless continue to be payable in the territory of the United States.

5. For purposes of meeting the 12-month work requirement of paragraph 1 of this Article, the following periods shall be accepted:

a. periods of work for which membership contributions were paid in respect of a member of the Danish Labour Market Supplementary Pension Scheme (ATP);

b. periods before April 1, 1964, for which a person establishes that he or she worked under Danish laws;

c. periods for which a person establishes that he or she was self?employed under Danish laws.

6. Periods described in paragraph 5 of this Article may be combined for purposes of meeting the 12-month work requirement in paragraph 1 of this Article.

7. The basic amount and the anticipatory pension payable in pursuance of the Social Pensions Act as well as the basic amount, anticipatory allowance, disability allowance, unemployability allowance and extra supplementary allowance payable in pursuance of the Act on the highest, the intermediate, the increased ordinary and the ordinary anticipatory pension shall be payable to a person designated in Article 3 (a), (b), (c) or (d) residing in the territory of the United States.

8. The provisions laid down in the Social Pensions Act, making periods of stay abroad equivalent with residence in the territory of Denmark in the calculation of the period of residence, shall apply to United States nationals only if they have completed a period of residence or work in Denmark under Danish laws totalling at least 12 months in the qualifying period as laid down in the Social Pensions Act.

9. Periods of residence completed under Danish laws after March 31, 1957 shall be taken into account for the calculation of social pensions under Danish laws payable to nationals of the United States and persons designated in Article 3 (b), (c) or (d) resident in the territory of the United States.

PART IV Miscellaneous Provisions

Article 9. Administrative Arrangements

The Competent Authorities of the two Contracting States shall:

a. make all necessary administrative arrangements for the implementation of this Agreement and designate liaison agencies

b. communicate to each other information concerning the measures taken for the implementation of this Agreement; and

c. communicate to each other, as soon as possible, information concerning all changes in their respective laws which may affect the implementation of this Agreement.

Article 10. Mutual Assistance

The Competent Authorities and the agencies of the Contracting States, within the scope of their respective authorities, shall assist each other in implementing this Agreement. This assistance shall be free of charge, subject to exceptions to be agreed upon in an administrative arrangement.

Article 11. Confidentiality of Exchanged Information

Unless otherwise required by the national statutes of a Contracting State, information about an individual which is transmitted in accordance with this Agreement to that Contracting State by the other Contracting State shall be used exclusively for purposes of implementing this Agreement. Such information received by a Contracting State shall be governed by the national statutes of that Contracting State for the protection of privacy and confidentiality of personal data.

Article 12. Documents

1. Where the laws of a Contracting State provide that any document which is submitted to the Competent Authority or an agency of that Contracting State shall be exempted, wholly or partly, from fees or charges, including consular and administrative fees, the exemption shall also apply to corresponding documents which are submitted to the Competent Authority or an agency of the other Contracting State in the implementation of this Agreement.

2. Documents and certificates which are presented for purposes of this Agreement shall be exempted from requirements for authentication by diplomatic or consular authorities.

3. Copies of documents which are certified as true and exact copies by an agency of one Contracting State shall be accepted as true and exact copies by an agency of the other Contracting State, without further certification. The agency of each Contracting State shall be the final judge of the probative value of the evidence submitted to it from whatever source.

Article 13. Correspondence and Language

1. The Competent Authorities and agencies of the Contracting States may correspond directly with each other and with any person wherever the person may reside whenever it is necessary for the administration of this Agreement.

2. An application or document may not be rejected by a Competent Authority or agency of a Contracting State solely because it is in the language of the other Contracting State.

Article 14. Applications

1. A written application for benefits filed with an agency of one Contracting State shall protect the filing date of the claimant for benefits under the laws of the other Contracting State if the applicant requests that it be considered an application under the laws of the other Contracting State.

2. If an applicant has filed a written application for benefits with an agency of one Contracting State and has not explicitly requested that the application be restricted to benefits under the laws of that Contracting State, the application shall also protect the filing date of the claimant for benefits under the laws of the other Contracting State if the applicant provides information at the time of filing indicating that the person on whose record benefits are claimed has completed periods of coverage under the laws of the other Contracting State.

3. The provisions of Part III shall apply only to benefits for which an application is filed on or after the date this Agreement enters into force.

Article 15. Appeals and Time Limits

1. A written appeal of a determination made by an agency of one Contracting State may be validly filed with an agency of either Contracting State. The appeal shall be dealt with according to the procedure and laws of the Contracting State whose decision is being appealed.

2. Any claim, notice or written appeal which, under the laws of one Contracting State, must have been filed within a prescribed period with an agency of that Contracting State, but which is instead filed within the same period with an agency of the other Contracting State, shall be considered to have been filed on time.

Article 16. Transmittal of Claims, Notices and Appeals

In any case to which the provisions of Article 15 of this Agreement apply, the agency to which the claim, notice or written appeal has been submitted shall indicate the date of receipt on the document or on a form agreed upon for this purpose pursuant to Article 9 (a) and transmit it without delay to the liaison agency of the other Contracting State.

Article 17. Currency and Fees

1. Payments under this Agreement may be made in the currency of the Contracting State making the payments.

2. In case provisions designed to restrict the exchange or exportation of currencies are introduced by either Contracting State, the Governments of both Contracting States shall immediately take measures necessary to insure the transfer of sums owed by either Contracting State under this Agreement.

Article 18. Settlement of Disagreements

Any disagreement regarding the interpretation or implementation of this Agreement shall be resolved through consultation between the Competent Authorities.

Article 19. Supplementary Agreements

This Agreement may be amended in the future by supplementary agreements which, from their entry into force, shall be considered an integral part of this Agreement. Such agreements may be given retroactive effect if they so specify.

PART V Transitional and Final Provisions

Article 20. Transitional Provisions

1. This Agreement shall not establish any claim to payment of a benefit for any period before the date of entry into force of the Agreement, or to a lump sum death benefit under United States laws if the person died before the entry into force of the Agreement.

2. In determining the right to benefits under this Agreement, consideration shall be given to periods of coverage and other events material to the determination of benefits which occurred before the entry into force of this Agreement, except that neither Contracting State shall take into account periods of coverage which occurred prior to the earliest date for which periods of coverage may be credited under its laws.

3. In applying subparagraph (a) of Article 6, paragraph 2, in the case of persons who were sent from the territory of the United States to the territory of Denmark prior to the date of entry into force of this Agreement, the period of employment referred to in that subparagraph shall be considered to begin on that date.

4. Determinations concerning entitlement to benefits which were made before the entry into force of this Agreement shall not affect rights arising under it.

5. The implementation of this Agreement shall not result in any reduction in the amount of a benefit to which entitlement was established prior to its entry into force.

Article 21. Termination

1. This Agreement shall remain in force and effect until the expiration of one calendar year following the year in which written notice of its termination is given by one of the Contracting States to the other Contracting State.

2. If this Agreement is terminated, entitlement to benefits acquired under the Agreement shall be retained.

Article 22. Entry Into Force

This 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 Agreement.

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

DONE at Copenhagen on June 13, 2007, in duplicate in the English and Danish languages, the two texts being equally authentic.

FOR THE GOVERNMENT                                  FOR THE GOVERNMENT>
OF THE UNITED STATES                                 OF THE KINGDOM>
OF AMERICA:                                                OF DENMARK:>
James P. Cain                                               Eva Kjer Hansen>