Observation (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

Article 5 of the Convention (in relation to Article 10, paragraph 1). The Committee notes with regret that the Government's reports received in 1996 and 1997 do not contain any answer to the Committee's previous comments, which it has been making for more than 25 years now, concerning the need to include in the national legislation a provision guaranteeing the payment of long-term benefits in the event of residence abroad.

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 absence of the beneficiary the payment of benefits shall be made to a substitute whose authority shall be renewed every six months. However, section 424 of the Regulations on social insurance benefits approved by Decree No. 83080 of 24 January 1979, which remained in force until the new regulations provided for under section 154 of the above-mentioned Act were to be adopted, stipulated that the provision of the benefit due to the beneficiary residing abroad was effected under the terms of the agreement between Brazil and the country of residence of the beneficiary in question or, in the absence of such agreement, under the terms of the instructions adopted by the Ministry of Social Insurance and Assistance (MPAS). The Committee further recalls that in its previous report the Government has considered it unnecessary to adopt the said instructions, as the payment of benefits abroad was made on the basis of the bilateral agreements.

With regard to the present situation in law, the Committee notes, from the Government's report on Convention No. 19, that while new Regulations on social insurance benefits were approved by Decree No. 2.172 of 1997, section 203 of these Regulations contains exactly the same provision as section 424 of the old Regulations. As regards the conclusion of the bilateral agreements, it further notes, from the Government's reports, that new agreements providing for the payment of benefits abroad were concluded with Italy and Greece and revised agreements with Chile and Portugal. Thus, of the 37 countries which have ratified Convention No. 118, Brazil has concluded bilateral social security agreements only with Cape Verde, Italy and Uruguay. In the absence of such agreements with the other ratifying countries, the provision of Brazilian social security benefits to the beneficiaries residing in those countries could be effectuated, under the terms of section 203 of the new Regulations mentioned above, only if the instructions called for in this section are adopted by the MPAS. In the absence of such instructions, payment of benefits to the beneficiary residing abroad would continue to be made to his substitute in Brazil in accordance with section 109 of Act No. 8213. In this situation, the Committee would ask the Government to indicate whether any such instructions are, in fact, adopted and, if not, what measures are being taken or contemplated in order to give full effect to the provisions of Article 5 of the Convention in legislation as well as in practice. The Committee wishes to remind the Government once again that, in accordance with this Article, the provision of invalidity, old-age and survivors' benefits, death grants and employment injury pensions shall be guaranteed as of right, even in the absence of bilateral agreements, both to its own nationals and to the nationals of any other State which has accepted the obligations of the Convention for the corresponding branches, and to refugees and stateless persons, in the event of the residence of the beneficiary abroad irrespective of the country of residence.

[The Government is asked to report in detail in 1999.]