Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided by the Government in reply to its previous comments.

Article 5 of the Convention (in relation to Article 10, paragraph 1).  With reference to its previous comments concerning the need to incorporate into the national legislation a provision guaranteeing the payment of long-term benefits in the event of residence abroad, the Committee notes the information and legislative texts provided in the Government’s reports received in 1998 and 1999.

The Committee recalls that, contrary to this Article of the Convention, section 109 of Act No. 8213 of 24 July 1991 respecting social insurance provides that, in the event of the residence of the beneficiary abroad, benefits shall be paid to a substitute whose power of proxy shall be renewed every six months. However, section 203 of the Regulations on social insurance benefits, approved by Decree No. 2172 of 1997, states that the benefit due to a beneficiary who is resident abroad shall be provided under the terms of the agreement concluded between Brazil and the country of residence of the beneficiary in question or, in the absence of such an agreement, in accordance with the instructions issued by the Ministry of Insurance and Social Assistance (MPAS). The Committee also recalls that of the 38 countries, including Brazil, which have ratified Convention No. 118, Brazil has only concluded bilateral social security agreements with Cape Verde, Italy and Uruguay. In the absence of such agreements with other countries which have ratified the Convention, the social security benefits due from Brazil to beneficiaries residing in these countries can only be paid if appropriate instructions are adopted by the MPAS. In the absence of such instructions, benefits will continue to be paid to a substitute in Brazil. In this context, the Committee had requested the Government to indicate whether instructions have in fact been adopted by MPAS concerning the payment of benefits abroad and, if not, to indicate the measures which have been taken or are envisaged to give full effect to Article 5 of the Convention in both law and practice.

In its reply, the Government states that the MPAS, which is the authority responsible for policy relating to the general social security scheme and bilateral agreements concluded by Brazil, is continuing to endeavour to implement all the provisions of Convention No. 118. For some time, the system for implementing social security has been undergoing decentralization and development, not only with regard to the services provided to beneficiaries, by supplying them with information on the agreements which are in force, but also with a view to strengthening collaboration with liaison bodies in contracting parties. Six of the federated states of Brazil now have their own liaison bodies with contracting States with a view to promoting and accelerating the application of bilateral agreements. Negotiations concerning bilateral agreements are continuing with Austria, Canada, Guatemala and the United States. Furthermore, although the Brazilian social insurance scheme does not currently have a system for the direct payment of benefits to beneficiaries residing abroad, the Government indicates that the discussions between the MPAS, the financial services of the National Social Insurance Institute (INAS) and the Bank of Brazil have reached an advanced stage with a view to modifying the current contract between the social insurance system and the bank so that benefits due to beneficiaries residing abroad, whether or not they are provided under the terms of international agreements, can be paid directly to them from 1999, with priority being given to payments for insured persons living in Italy, Uruguay and Argentina. Furthermore, in 1999, the MPAS required the National Social Insurance Institute, which is the liaison body for international agreements, and DATAPREV, the enterprise entrusted with processing the statistical data concerning social insurance, to compile reliable statistics on the level of benefits paid to beneficiaries resident abroad, whether or not an agreement had been signed with their country of residence. The Government will supply these data to the ILO as soon as they are available.

The Committee notes this information with interest. However, it notes that, with regard to the legal situation, the Government states that no amendment has been made to the legislation respecting the general social security scheme in relation to equality of treatment, as envisaged in Convention No. 118. Section 109 of Act No. 8213 applies to Brazilian nationals and foreign nationals covered by the general social security scheme who are resident in a country which has not concluded a social security agreement with Brazil, or a country which has concluded a bilateral agreement with Brazil but this agreement does not provide for the direct payment of benefits to the beneficiary, or through the competent institution in the other contracting State (Argentina, Cape Verde, Chile, Italy, Luxembourg, Paraguay and Uruguay). Beneficiaries who are resident in the above countries must therefore appoint a substitute in Brazil, to whom the benefits will be paid. However, the payment of Brazilian benefits to beneficiaries resident abroad through the competent institution of the contracting State is envisaged and carried out on the basis of bilateral agreements with Greece, Portugal and Spain. With regard more specifically to Italy, the Government explains that, although section 15(2) of the Additional Protocol to the migration agreement signed between Italy and Brazil in Brasilia on 30 January 1974 provides that the payment of benefits may be made directly to beneficiaries residing in the other contracting State or through the liaison bodies of the States concerned, in practice the benefits provided by the Brazilian general social security scheme are paid to beneficiaries residing in Italy through their substitutes who are resident in Brazil. According to the Government, this is due in the first place to the fact that there is no arrangement between Brazil and Italy for Brazilian benefits to be paid through the Italian liaison body and, secondly, to the fact that the Brazilian social insurance system does not currently have a system for making direct payments to beneficiaries resident in Italy. With regard to the new social security agreement signed with Italy on 26 June 1995, section 23 of which also provides for the payment of benefits to beneficiaries residing in the other contracting party either directly, or through the competent institution in the country of residence, the Government indicates that this agreement was approved by the Brazilian National Congress by means of Legislative Decree No. 32 of 1997 and transmitted to the President of the Republic for enactment. However, it cannot yet be promulgated, and therefore applied, because it has not been approved by the Italian Parliament. Finally, with regard to the ministerial instructions envisaged in section 203 of the Regulations respecting social insurance benefits in the event of the absence in bilateral agreements of provisions concerning the direct payment of Brazilian benefits or their payment through the competent institution in the country of residence, the Government indicates that such instructions are issued on each occasion that guidance is found necessary in this field in the form of a ministerial decision or an opinion of the legal service or even an instruction from the social insurance secretariat, which is the technical body responsible for the application and interpretation of the social insurance legislation administered by the INAS.

Taking into account this information, the Committee would be grateful if the Government would indicate in its next report any progress achieved with a view to:

(a)  establishing a system for the direct payment of social security benefits to beneficiaries residing abroad, whether or not they are provided under international agreements, by modifying the current contract between the social security scheme and the Bank of Brazil;

(b)  extending this payment system to cover the provision of invalidity, old-age, survivors’ and employment injury benefits, both to Brazilian nationals and to the nationals of any other State which has accepted the obligations of the Convention for the corresponding branches, as well as for refugees and stateless persons, irrespective of their country of residence;

(c)  issuance of the ministerial instructions envisaged by section 203 of the Regulations on the payment of social security benefits for the purpose of implementing the above system of transfer of benefits in the States concerned which have ratified the Convention;

(d)  supplementing, where appropriate, the bilateral social security agreements concluded by Brazil with provisions for the payment of benefits directly to beneficiaries or through the competent institution in the other contracting State;

(e)  enacting and applying in practice the new social security agreement concluded with Italy on 26 June 1995, which provides for the payment of benefits to beneficiaries residing in the other contracting party either directly or through the competent institution in the country of residence;

(f)  compiling reliable statistical data on the number of beneficiaries residing abroad and the amounts of benefit paid to them; and

(g)  concluding bilateral agreements with Austria, Canada, Guatemala and the United States in the field of social security.