Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the information and legislation supplied by the Government in its report for the period ending June 2001, which contained a reply to its previous observation concerning Article 5 of the Convention.

For many years the Committee has been pointing out the need to incorporate into the Brazilian legislation a provision guaranteeing the payment of long-term benefits abroad. It recalls that section 203 of the Regulations on social security benefits, approved by Decree No. 2172 of 1997, subjects the payment of benefits abroad to the existence of bilateral agreement with the country of residence of the beneficiary concerned or, in the absence of such an agreement, to the adoption of instructions by the Ministry of Insurance and Social Assistance (MPAS). The Committee regrets to note that the Government’s report does not contain any indication that the Brazilian social security benefits are being actually transferred abroad either in pursuance of any existing bilateral agreements or any instructions issued by the MPAS.

In its previous observation, the Committee identified a number of areas in which progress was essential to ensure that the payment of benefits was made directly to the beneficiaries residing abroad, and not through their substitutes residing in Brazil whose power of proxy is renewed every six months, as is the case now under section 109 of Act No. 8213 of 24 July 1991. In reply, the Government states that the system of direct payment of benefits to beneficiaries residing abroad, which is in the process of being established, is going to be adopted only for countries with which there are bilateral social security agreements. Provisions on direct payment to beneficiaries resident in the contracting State will be included in new international social security agreements signed by Brazil. As indicated in the report, Brazil has at present such agreements with Argentina, Cape Verde, Chile, Greece, Italy, Luxembourg, Portugal, Spain and Uruguay, and negotiations are continuing, not without progress, with Austria, Canada, Guatemala and the United States.

The Committee notes this information. It notes in particular a significant change in the Government’s policy concerning the transfer of social security benefits abroad. In its previous report for 1998-1999, the Government indicated that the MPAS, the financial services of the National Social Insurance Institute and the Bank of Brazil, were negotiating the modification of 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 as from 1999. Furthermore, in 1999, the MPAS required the National Social Security 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. As the present report makes no reference to these undertakings, which were intended to cover also beneficiaries residing in countries with which Brazil had no bilateral agreements, the Committee is bound to stress once again that by accepting the obligations of the Convention for the branches covered by Article 5, the Government has undertaken to guarantee the payment of respective benefits both to Brazilian nationals and to the nationals of any other state which has accepted the obligations of the Convention for the same branch, as well as to refugees and stateless persons, in case of their residence abroad, even in the absence of bilateral social security agreements with the country of nationality or the country of residence of the beneficiary concerned and irrespective of whether or not the new country of residence of the beneficiary is a party to the Convention. The Committee therefore hopes that, while further developing its network of bilateral agreements, Brazil will not fail to take unilateral measures, for example by issuing the ministerial instructions envisaged by section 203 of Decree No. 2172 of 5 March 1997, to guarantee in law and in practice the provision of benefits abroad, whatever be the place of residence of the beneficiary concerned. The Committee would also ask the Government to proceed with the compilation of reliable statistics on the number of beneficiaries resident abroad by their nationality, type of benefit paid and country of residence, and to supply these to the ILO as soon as they are available.