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Agreement and Administrative Arrangement both signed at Vienna on July
13, 1990; entered into force November 1, 1991. Amended by supplementary
agreement signed at Vienna October 5, 1995; entered into force January
1, 1997.
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Contents |
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AGREEMENT BETWEEN THE UNITED
STATES OF AMERICA AND THE REPUBLIC OF AUSTRIA ON SOCIAL SECURITY
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The Government of the United States of America
and
The Government of the Republic of Austria,
Being desirous of regulating the relationship between their two
countries in the area of social security,
Have agreed as follows:
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GENERAL PROVISIONS
Article 1
- For the purpose of this Agreement:
- "Austria" means the Republic of Austria, and "United States"
means the United States of America;
[Subparagraph (b) deleted effective January 1, 1997.]
- "national" means, as regards Austria, a citizen of Austria,
and, as regards the United States, a national of the United States
as defined in Section 101, Immigration and Nationality Act of 1952,
as amended;
- "laws" means, as regards Austria, the laws, regulations and statutory
instruments which relate to the branches of social security specified
in subparagraph (1)(a) of Article 2, and, as regards the United States,
the laws and regulations specified in subparagraph (1)(b) of Article
2;
- "competent authority" means, as regards Austria, the Federal Minister
responsible for the application of the laws specified in subparagraph (1)(a)
of Article 2, and, as regards the United States, the Social Security
Administration;
- "agency" means, as regards Austria, the institution responsible
for the application of the Austrian laws, and, as regards the United
States, the Social Security Administration;
- "competent agency" means the agency responsible for applying the
laws in a specific case;
- "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 has been completed, or any similar period insofar as it is
recognized by such laws as equivalent to a period of coverage;
- "benefit" means any cash benefit provided for in the laws of either
Contracting State, including all components thereof provided out of
public funds, all increments, readjustment sums, additional allowances
and lump-sum payments;
- "refugee" means a person defined as a refugee in Article 1 of the
Convention relating to the Status of Refugees dated July 28, 1951,
and the Protocol to that Convention dated January 31, 1967;
- "stateless person" means a person defined as a stateless person
in Article 1 of the Convention relating to the Status of Stateless
Persons dated September 28, 1954.
- Any other expression used in this Agreement shall have the meaning
assigned to it in the laws being applied.
Article 2
- This Agreement shall apply:
- as regards Austria,
- to the laws concerning pensions insurance, with the exception
of the special insurance for notaries;
and, with regard to Part II only,
- to the laws concerning sickness insurance and accident insurance;
- as regards the United States, to the laws governing the
Federal Old-Age, Survivors and Disability Insurance Program:
- 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, and
- Chapter 2 and Chapter 21 of the Internal Revenue Code
of 1986 and regulations pertaining to those chapters.
- This Agreement shall also apply to any laws which amend
or supplement the laws specified in paragraph 1 of this Article.
- Unless otherwise provided in this Agreement, laws within the meaning
of paragraph (1) of this Article shall not include treaties or other
international agreements concluded between one Contracting State and
a third state, except insofar as they contain provisions relating to
the apportionment of insurance burdens.
Article 3
This Agreement shall apply to:
- persons who are or have been subject to the laws of one or both Contracting
States;
- other persons with respect to the rights they derive from the persons
mentioned in subparagraph (a).
Article 4
- Unless otherwise provided in this Agreement, nationals of one Contracting
State who are or have been subject to the laws of that Contracting State
and who reside in the territory of the other Contracting State shall,
together with other persons who derive rights from the foregoing, receive
equal treatment regarding eligibility for and payment of benefits with
the nationals of the other Contracting State.
- With regard to provisions of Austrian laws concerning the crediting
of periods of war service and periods considered as such, United States
nationals shall receive equal treatment with Austrian nationals provided
they had Austrian nationality immediately before March 13, 1938.
- Provisions relating to the apportionment of insurance burdens that
may be contained in international treaties shall not be affected.
Article 5
- Unless otherwise provided in this Agreement, any provision of the
laws of a Contracting State under which entitlement to or payment of
cash benefits is dependent on residence or presence in the territory
of that Contracting State shall not be applicable to nationals of a
Contracting State, refugees or stateless persons, or other persons who
derive rights from the foregoing, who reside in the territory of the
other Contracting State.
- As regards Austrian laws, paragraph (1) of this Article shall not
apply to the compensatory supplement.
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Provisions on Coverage
Article 6
Unless otherwise provided in Articles 7 through 9, persons who are employed
or self-employed within the territory of one of the Contracting States
shall, with respect to that work, be subject to the laws of only that
Contracting State even when the place of residence of the person concerned
or the principal place of business of the employer is located in the territory
of the other Contracting State.
Article 7
- 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.
- A person who would otherwise be compulsorily covered under the laws
of both Contracting States with respect to self- employment and who
is a resident of one Contracting State shall be subject to the laws
of only the Contracting State of which the person is a resident.
- (a) If a person is employed as an officer of 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.
(b) When an Austrian national is sent to perform services in the United
States for an Austrian air transport organization, paragraph (1) of this
Article shall be applied without reference to the 5-year time limit.
- If a person is employed as an officer or member of a crew on a vessel
which flies the flag of one Contracting State and is covered under the
laws of both Contracting States, the person 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 laws
of the United States.
Article 8
- 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.
- Notwithstanding Article 6, 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 paragraph (1), shall be subject to the laws of only the
first Contracting State.
- Paragraph (2) of this Article shall apply as appropriate to the Representative
of the Austrian Trade Commission and to the Representative's assistants,
and to persons employed by the Austrian National Tourist Office in the
United States.
- Paragraph (2) of this Article shall apply to employees of the Federal
Government of the United States or any of its instrumentalities.
- A person employed by the American International School in Austria
shall be exempt from Austrian laws if he is a United States national,
or a national of a State other than a Contracting State who does not
reside in Austria.
Article 9
- At the request of an employed person and his employer or a self-employed
person, the competent authorities of the two Contracting States may
provide, by mutual agreement, for exceptions to Articles 6 through 8
of this Agreement, taking into account the nature and circumstances
of the work.
- Where, in accordance with paragraph (1) of this Article, a person
is subject to Austrian laws, those laws shall apply to him as if he
were employed in the territory of Austria. 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.
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Provisions Concerning Benefits
Article 10
- Except as otherwise provided in this Agreement, if a person has completed
periods of coverage under the laws of both Contracting States, these
periods, insofar as they do not coincide, shall be added together for
the purpose of establishing entitlement to a benefit.
- When it is not possible to determine the time when specific periods
of coverage were completed under the laws of one of the Contracting
States, it shall be presumed that such periods do not coincide with
periods of coverage completed under the laws of the other Contracting
State.
Chapter 1
Benefits Under Austrian Laws
Article 11
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:
- 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.
- 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.
- A quarter of coverage under United States laws shall be treated as
three months of coverage under Austrian laws.
Article 12
- 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.
- 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:
- 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.
- 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.
- Subparagraph (a) shall not apply
- to benefits resulting from supplementary insurance,
- to means-tested benefits designed to ensure a minimum income.
- 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.
Article 13
[Deleted effective January 1, 1997.]
Article 14
[Deleted effective January 1, 1997.]
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Chapter 2
Benefits Under United States Laws
Article 15
- Where a person has sufficient periods of coverage under United
States laws to satisfy the requirements for entitlement to benefits
under United States laws, the United States agency shall determine
the amount of the benefit according to the laws which it applies taking
into account the periods of coverage completed only under United States
laws.
- Where entitlement to a benefit under United States laws is established
according to the provisions of Article 10, the United States agency
shall compute a pro rata primary insurance amount in accordance with
United States laws based on
- the person's average earnings credited exclusively under United
States laws and
- the ratio of the duration of the person's periods of coverage
credited under United States laws to the duration of a coverage
lifetime as described in accordance with United States laws.
Benefits payable under United States laws shall be based on the pro
rata primary insurance amount.
- In determining eligibility for benefits under Article 10,
the United States agency shall credit one quarter of coverage for
every 3 months of coverage certified as creditable by the Austrian
competent agency to the extent that the months do not coincide with
calendar quarters already credited as quarters of coverage under United
States laws. The total number of quarters of coverage to be credited
for a year shall not exceed 4.
- Entitlement to a benefit under United States laws which results
from Article 10 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 provisions
of that Article.
- This Agreement shall not result in entitlement to a benefit under
United States laws unless the person on whose record benefits are
claimed has completed at least 6 quarters of coverage under those
laws.
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MISCELLANEOUS PROVISIONS
Article 16
- The competent authorities of the two Contracting States shall make
all joint administrative arrangements necessary for the application
of this Agreement.
- The competent authorities of the two Contracting States shall communicate
to each other, as soon as possible, information concerning the measures
taken for the application of this Agreement and concerning all changes
in their respective laws which may affect its application.
Article 17
Liaison agencies for the implementation of this Agreement shall be:
- for Austria, the Main Association of Austrian Social Insurance Agencies
("Hauptverband der oesterreichischen Sozialversicherungstraeger")
- for the United States, the Social Security Administration.
Article 18
- The competent authorities, liaison agencies and agencies of the Contracting
States, within the scope of their respective authority, shall assist
each other in applying this Agreement. This assistance shall be free
of charge, subject to exceptions to be agreed upon in an administrative
arrangement.
- Where administration of this Agreement requires an agency of a Contracting
State to seek a medical examination of a person in the territory of
the other Contracting State, such examination shall, upon request of
the competent agency of the first Contracting State and at its expense,
be arranged by the agency of the other Contracting State in accordance
with its rules.
- The statutes of a Contracting State concerning confidentiality shall
apply to any information about an individual which is transmitted in
accordance with this Agreement to that Contracting State by the other
Contracting State.
Article 19
- The competent authorities, liaison agencies 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. The correspondence may be in the writer's official
language.
- An application or document may not be rejected by a competent authority,
liaison agency or agency of a Contracting State solely because it is
in the official language of the other Contracting State.
Article 20
- 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 taxes, fees or charges,
including consular and administrative fees, the exemption shall also
apply to documents which are submitted to the competent authority or
an agency of the other Contracting State in accordance with its laws.
- Copies of documents which are certified as true and exact copies by
the agency of one Contracting State shall be accepted as true and exact
copies by the 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 21
- Any claim, notice or written appeal which, under the laws of one
Contracting State, must have been filed within a prescribed period with
the agency of that Contracting State, but which is instead filed within
the same period with the agency of the other Contracting State, shall
be considered to have been filed on time.
- (a) Any claim for a benefit submitted under Austrian laws shall be
considered to be a claim for the corresponding benefit under United
States laws for which the applicant meets the entitlement requirements
if he provides information at the time of filing indicating that the
person on whose record benefits are claimed has completed periods of
coverage under United States laws; this shall not apply, however, when
the applicant expressly requests that the determination of an old-age
benefit under United States laws be deferred.
(b) If an applicant has filed a claim for a benefit with the United
States agency and has not specifically restricted the claim to benefits
under United States laws, the claim shall also be considered to be
a claim for the corresponding benefit under Austrian laws 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 Austrian laws.
Article 22
- Disagreements arising in connection with the application of this Agreement
shall, as far as possible, be resolved by mutual agreement between the
competent authorities of the Contracting States.
- If any such disagreement has not been resolved within a period of
six months, either Contracting States may submit the matter to binding
arbitration by an arbitral body whose composition and procedure shall
be agreed upon by the Contracting States.
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TRANSITIONAL AND FINAL PROVISIONS
Article 23
- This Agreement shall not establish entitlement to benefits for any
period before its entry into force or a lump-sum death benefit if the
person died before its entry into force.
- In determining entitlement to benefits under this Agreement, periods
of coverage completed under the laws of a Contracting State prior to
its entry into force shall be taken into account; however, neither Contracting
State shall take into account periods of coverage occurring prior to
the earliest date for which periods of coverage may be credited under
its laws.
- (a) Subject to the provisions of paragraph (1), this Agreement shall
also apply to events relevant to rights under the laws which occurred
prior to its entry into force.
(b) In cases to which subparagraph (a) applies, a benefit under Austrian
laws due only by virtue of this Agreement shall be determined, at the
request of the beneficiary, in accordance with the provisions of this
Agreement. If the claim for determination of such benefit is submitted
within two years from the date of entry into force of this Agreement,
the benefit shall be paid from that date; otherwise, the benefit shall
be paid from the date determined under Austrian laws.
- The provisions of this Agreement shall apply only to an application
for benefits which is filed on or after the date this Agreement enters
into force.
- Determinations made before the entry into force of this Agreement
shall not affect rights arising under it.
- This Agreement shall not result in any reduction in the amount of
benefits to which entitlement was established prior to its entry into
force.
Article 24
This Agreement shall not affect any existing rights under
Austrian laws of any person who has suffered disadvantages in the field
of social security because of political or religious reasons or by reason
of ethnic origin.
Article 25
[Deleted effective January 1, 1997.]
Article 26
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 supplementary agreements may be given retroactive
effect if they so specify.
Article 27
- 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.
- 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.
- If this Agreement is terminated, rights regarding entitlement to
or payment of benefits acquired under it shall be retained; the Contracting
States shall make arrangements dealing with rights in the process of
being acquired.
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IN WITNESS WHEREOF, the undersigned, being duly
authorized thereto, have signed this Agreement.
DONE at Vienna, Austria on July 13, 1990, in duplicate in the English
and German languages, both texts being equally authentic.
For the Government of the United States of America:
Michael J. Habib
For the Government of the Republic of Austria:
Eric Nettel
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ADMINISTRATIVE
ARRANGEMENT
FOR THE IMPLEMENTATION OF THE AGREEMENT
BETWEEN THE UNITED STATES OF AMERICA
AND
THE REPUBLIC OF AUSTRIA ON SOCIAL SECURITY
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Pursuant to paragraph (1) of Article 16 of the Agreement between
the United States of America and the Republic of Austria on Social Security
of this date, hereinafter referred to as the "Agreement," the Competent
Authorities:
for the United States of America,
the Secretary of Health and Human Services
for the Republic of Austria,
the Federal Minister for Labor and Social Affairs
have agreed as follows:
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Chapter I
General Provisions
Article 1
The terms used in this Administrative Arrangement shall have the same
meaning as in the Agreement.
Article 2
The liaison agencies designated in Article 17 of the Agreement shall
agree upon joint procedures and forms necessary for the implementation
of the Agreement and this Administrative Arrangement.
Chapter II
Provisions on Coverage
Article 3
- Where the laws of a Contracting State are applicable in accordance
with any of the provisions of Articles 6 through 8 of the Agreement,
the agency of that Contracting State, upon request of the employer or
self-employed person, shall issue a certificate stating that the employee
or self-employed person is subject to those laws. This certificate shall
be evidence that the person concerned is exempt from the laws of the
other Contracting State.
- The certificate referred to in paragraph (1) shall be issued
- in Austria: by the competent sickness insurance agency;
- in the United States: by the Social Security Administration.
- The agency of a Contracting State which issues a certificate referred
to in paragraph (1) shall furnish a copy of the certificate to the liaison
agency of the other Contracting State as agreed by the liaison agencies.
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Chapter III
Provisions on Benefits
Article 4
- The agency of the Contracting State with which a claim for benefits
is first filed in accordance with Article 21 of the Agreement shall
inform the competent agency of the other Contracting State of this fact
without delay, either directly or by way of the liaison agency of this
other Contracting State, and provide such evidence and other information
as may be required to complete action on the claim.
- The competent agency of a Contracting State which receives a claim
that was first filed with an agency of the other Contracting State shall
without delay provide the competent agency of this other Contracting
State with such evidence and other available information as may be required
for it to complete action on the claim.
- The competent agency of the Contracting State with which a claim
for benefits has been filed shall verify the information pertaining
to the applicant and his family members. The types of information to
be verified shall be agreed upon by the liaison agencies.
- The competent United States agency shall notify the competent Austrian
agency, upon its request, of the benefits, if any, awarded to the applicant.
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Chapter IV
Miscellaneous Provisions
Article 5
In accordance with measures to be agreed upon pursuant to Article 2 of
this Administrative Arrangement, the competent agency of one Contracting
State shall, upon request of the competent agency of the other Contracting
State, furnish available information relating to the claim of any specified
individual for the purpose of administering the Agreement.
Article 6
The agency of a Contracting State which receives a claim, notice or written
appeal referred to in Article 21 of the Agreement shall indicate the date
of receipt on the document and forward the document without delay to the
competent agency of the other Contracting State, either directly or by
way of the liaison agency of this other Contracting State.
Article 7
The liaison agencies of the two Contracting States shall exchange statistics
on the payments made to beneficiaries under the Agreement. These statistics
shall be furnished annually in a form to be agreed upon.
Article 8
- Where administrative assistance is requested under Article 18 of the
Agreement, expenses other than regular personnel and operating costs
of the agencies providing the assistance shall be reimbursed.
- Upon request, the agency of either Contracting State shall furnish
without cost to the agency of the other Contracting State any medical
information and documentation in its possession relevant to the disability
of the claimant or beneficiary.
- The agency of one Contracting State shall reimburse amounts owed under
paragraph (1) of this Article upon presentation of a detailed statement
of expenses by the agency of the other Contracting State.
Article 9
This Administrative Arrangement shall enter into force on the date of
entry into force of the Agreement and shall have the same period of validity.
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DONE at Vienna, Austria on July 13, 1990, in
duplicate in the English and German languages, both texts being equally
authentic.
For the Competent Authority of the United States of America:
Michael J. Habib
For the Competent Authority of the Republic of Austria:
Josef Schuh
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