REPRESENTATION (article 24) - NETHERLANDS - C118 - 2006

Confederation of Turkish Trade Unions (TURK-IS)

Closed

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Report of the Committee set up to examine the representation made by the Confederation of Turkish Trade Unions (TURK-IS) under article 24 of the Constitution of the ILO, alleging non-observance by the Netherlands of the Equality of Treatment (Social Security) Convention, 1962 (No. 118)

Report of the Committee set up to examine the representation made by the Confederation of Turkish Trade Unions (TURK-IS) under article 24 of the Constitution of the ILO, alleging non-observance by the Netherlands of the Equality of Treatment (Social Security) Convention, 1962 (No. 118)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Introduction
1. In a communication dated 18 June 2003, the Confederation of Turkish Trade Unions (TURK-IS) made a representation under article 24 of the Constitution of the International Labour Organization alleging that the Government of the Netherlands has not complied with the provisions of the Equality of Treatment (Social Security) Convention, 1962 (No. 118).
2. On 20 December 2004, the Government of the Netherlands deposited the instrument of denunciation by the Netherlands of Convention No. 118, which was registered by the Office on the same date. Pursuant to Article 16 of the Convention, its denunciation by the Netherlands took effect on 20 December 2005, one year after the date of its registration. As since that date the Netherlands ceased to be a party to the Convention, the examination of the representation and the conclusions made by the Committee relate to the period prior to 20 December 2005 when the Netherlands still remained bound by this instrument.
3. The provision of the Constitution of the International Labour Organization concerning the submission of representations is as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
4. The procedure to be followed in the case of representations is governed by, the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization. (Endnote_1) In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General communicated the representation to the Government of the Netherlands and brought it before the Officers of the Governing Body. At its 288th Session (November 2003), on the recommendation of its Officers, (Endnote_2) the Governing Body decided that the representation was receivable and, at its following session in March 2004, set up a committee to examine the representation, composed of Mr Michel Thierry (Government member, France), Chairperson, Mr Lucia Sasso-Mazzufferi (Employer member, Italy) and Mr Simon Steyne (Worker member, United Kingdom). At its 296th Session (June 2006), the Governing Body nominated Ms Lidija Horvatic (Employer member, Croatia) to replace Ms Sasso-Mazzufferi who ceased to be a member of the Governing Body.
5. The Committee held its first meeting on 23 March 2004. In accordance with article 4, paragraph 1, of the Standing Orders, it invited the Government to send its observations on the representation before 31 May 2004. It also invited the complainant organization to supply any supplementary information by the same date.
6. Supplementary information from TURK-IS was supplied by fax on 24 May 2004 and communicated by the Office to the Government of the Netherlands. In a letter dated 11 June 2004 the Government communicated its observations on the representation.
7. The Committee held its last meeting in Geneva on 9 November 2006 and adopted its report. The Committee is aware of the highly technical and complex nature of the questions dealt within the report, which require expert knowledge of the international social security law. In order to make the report more user-friendly, certain portions of the text are highlighted for ease of understanding and reference. In addition, on the request of the Committee, the Office prepared, in simple language avoiding the complexities of the legal terminology, a synopsis of the key questions and findings of the report, which is found in the annex.
Examination of the representation
Allegations made by the Confederation of Turkish Trade Unions (TÜRK-IS)
8. TURK-IS refers to the situation of Turkish workers who have worked in the Netherlands and have acquired the right to a permanent disability benefit (WAO) and a supplementary-benefit (TW). According to TÜRK-IS, the supplementary benefit is not a form of social assistance paid to the disabled irrespective of their entitlement to the WAO, but a complementary component forming an integral part of the permanent disability benefit. The workers concerned have been receiving the WAO and the supplementary benefit for years. However, since 1 January 2000, by virtue of an amendment to the Dutch legislation, payment of the supplementary benefit to persons residing outside the Dutch territory was terminated, subject to a transition period of three years. With reference to Article 3(1) of the Convention, TÜRK-IS alleges that the termination of the payment of the supplementary benefit abroad results in discrimination against workers of different nationalities residing in other countries and constitutes a violation of ILO Convention No. 118. In this connection, it refers to rulings of the Dutch tribunals, including the Central Court of Appeal in Utrecht, which concluded that the supplementary benefit is an integral part of the WAO and cannot be considered a non-contributory benefit.(Endnote_3) Any restriction of its payment to receivers of the WAO residing outside the Netherlands is thus contrary to Article 5(1) of the Convention. TÜRK-IS concludes by stating that the practice in the Netherlands is in violation of Convention No. 118.
9. In the supplementary information supplied by fax on 24 May 2004, TÜRK-IS indicates that the refusal to pay the supplementary benefit has negatively affected approximately 2,500 beneficiaries of the WAO residing in Turkey who are suffering considerable hardship due to difficult economic conditions and high rates of inflation and who require a higher income to protect their living standards. In this respect, TÜRK-IS indicates that the level of the supplementary benefit is determined in accordance with the minimum living standards in the Netherlands where the GNP per person is US$23,300, while in Turkey it amounts to only $2,490 per person.
10. The Committee notes that the above allegations are based on the provisions of the Dutch Export Restrictions on Benefits Act of 27 May 1999 (Wet Beperking Export Uitkeringen, hereinafter BEU), the Supplementary Benefits Act of 6 November 1986 (Toeslagenwet, hereinafter TW) and the Invalidity Insurance Act (WAO), as well as on the decision of 14 March 2003 No. 02/1308 TW et al. of the Central Court of Appeal of Utrecht (Centrale Raad van Beroep, hereinafter CRvB), which is the highest court in the Netherlands for social security matters. The payment of Dutch social security benefits abroad is also regulated by the provisions of the relevant bilateral and multilateral social security agreements, including the European Convention on Social Security and Convention No. 118. Under article 94 of the Dutch Constitution, national provisions that conflict with directly applicable international treaty provisions are to be disregarded. Convention No. 118 has been recognized by the CRvB as containing directly applicable provisions within the meaning of this article of the Dutch Constitution. The following sections of the report indicate the factual information available to the Committee on the payment of Dutch social security benefits abroad.
The Export Restrictions on Benefits Act (BEU)
11. According to the information provided by the Government, until 1 January 2000 beneficiaries of Dutch social insurance benefits, irrespective of their nationality, were able, to receive their benefits all over the world. In legal terms, the personality principle applied. In 1996, about 250,000 benefits were paid outside the Netherlands, of which over 130,000 benefits were paid within the European Union (EU)/European Economic Area (EEA). On 1 January 2000, the BEU, as amended by the Act of 22 December 1999, entered into force. The personality principle was superseded by the principle of territoriality in determining a person's right to receive Dutch social security benefits. In accordance with the BEU, a person, regardless of nationality, has no right to receive social insurance benefits if s/he, or the person on whose behalf s/he claims the benefit, has not lived in the Netherlands for more than a three-month period.
12. The Dutch Government states that the BEU was adopted to improve the investigation procedure for benefits paid to persons living abroad. The restriction on the export of benefits does not apply if a treaty has been concluded with the country concerned and which includes contractual agreements for ascertaining a person's entitlement to benefit. Persons who reside in a country which is not party to such a treaty with the Netherlands are not entitled to receive Dutch benefits. The transitional provisions in the BEU provided for a deferral of the export restriction for three years (until 31 December 2002) for persons receiving a benefit and living outside the Netherlands as of 1 January 2000. The transition period was extended for one year until 31 December 2003 in view of the fact that on 1 January 2003 the Netherlands was still negotiating supervision treaties with 36 countries. According to the information provided by the Government in its latest report on Convention No. 118, as of 1 May 2004 a total of 39 bilateral control treaties had been signed. These treaties cover almost 99 per cent of the total number of beneficiaries residing outside the Netherlands.
The Supplementary Benefits Act (TW)
13. The Supplementary Benefits Act (TW) came into force on 1 January 1987. It provides for a supplement to top up benefits under the unemployment, sickness and invalidity insurance schemes to the level of the guaranteed minimum income in the Netherlands for benefit claimants whose total income (plus that of their partner) falls short of that level. The TW supplement is means-tested. All the income of claimants and their partners from work- related earnings, including most social security benefits, is taken into account when fixing the amount of the benefit. Assets such as private home and savings are disregarded. No contributions are paid for the TW supplements, which are funded from the public budget.
14. The BEU also amended the TW by adding a new section 4(a). Under subsection 1 of section 4(a), persons who do not live in the Netherlands are not entitled to the TW supplement. Subsection 3 equates the fact of not living in the Netherlands with non-residence in the Netherlands for an uninterrupted period of more than three months. As a result, beneficiaries who took up residence in a foreign country on or after 1 January 2000 have lost their entitlement to the TW supplement. Section XI of the BEU, however, lays down transitional rules on entitlement to the TW supplement for persons who were entitled to such supplements on the day prior to the entry into force of the BEU and were not living in the Netherlands on that date. In the first year after the entry into force of the BEU (2000), these persons were to be paid the amount to which they would have been entitled had they lived in the Netherlands. In the second year (2001), two-thirds, and in the third year (2002), one-third of this amount was paid. As of 1 January 2003, all payment of TW benefits abroad was terminated.
15. The TW includes a total ban on the export of supplements which cannot be abrogated by a bilateral treaty. It differs in this respect from the basic social insurance benefits, which can still be exported provided that the Netherlands has concluded a treaty with the country involved. According to the Government, the reason for this difference in approach is the non-contributory character of the TW benefit and the fact that it supplements the basic social insurance benefit, raising it to the relevant social assistance minimum level in the Netherlands. The TW supplement is therefore non-exportable in the same way as social assistance. The Government emphasized that the prohibition in the TW is applied regardless of the nationality of the beneficiary. Thus, both Dutch and Turkish nationals receive invalidity benefit when living in Turkey, but not the supplement provided on the basis of the TW. Once they return to the Netherlands, both are again entitled to the TW supplement.
Social security agreements between the Netherlands and Turkey
16. On 5 April 1966, the Netherlands and Turkey entered into a bilateral treaty on social security (Dutch Treaty Series, 1966, No. 155). In 2000, the Netherlands and Turkey signed an amended bilateral social security treaty, accompanied by the Supplementary Agreement (Dutch Treaty Series, 2000, No. 25), providing for enforcement arrangements as required by the BEU. These arrangements include official identification of the beneficiary by the competent institution of the country of residence, verification of the claims and payments, and the medical and administrative controls required by the Dutch legislation for claimants resident in Turkey. The amended treaty has not yet come into force.
17. Since 1977, the European Convention on Social Security (ECSS) signed on 14 December 1972, to which the Netherlands and Turkey are parties, has largely superseded the bilateral treaty of 1966. (Endnote_4) According to Article 11(1) of this Convention, "neither invalidity cash benefits, old-age or survivors' cash benefits, pensions in respect of occupational injuries or diseases, nor death grants, payable under the legislation of one or more Contracting Parties, shall be liable to reduction, modification, suspension, suppression or forfeiture by reason of the fact that the beneficiary is resident in the territory of a Contracting Party other than that in which the institution liable for payment is situated". As both the Netherlands and Turkey are Parties to the ECSS, the Dutch Government confirmed that, in accordance with this provision of the ECSS, all Dutch social insurance benefits, including the WAO benefit, are continuing to be provided to beneficiaries living in Turkey.
18. As regards the TW benefit, the situation is different. In accordance with article 11(3) of the ECSS, the provisions of its paragraph 1 shall not apply to certain non-contributory benefits insofar as they are listed in Annex VI to the Convention. In the opinion of the Dutch Government, pursuant to article 11(3) of the ECSS, a prohibition of the export of non- contributory benefits is possible if they are duly listed in Annex VI to the ECSS. On 26 February 2002, the TW benefit was listed by the Government in Annex VI to the ECSS with retroactive effect going back to 1 January 2000. This amendment was published in the Dutch Treaty Series of 18 October 2002, No. 185, and entered into force on 1 December 2002. Listing the TW benefit in Annex VI freed the Netherlands from its obligation under the ECSS to export this benefit to Turkey.
Decision of the Central Court of Appeal of Utrecht
19. In the decision of 14 March 2003, the Central Court of Appeal (CRvB) concluded that the application of the BEU to the social security benefits paid under the TW resulted in a breach of the Netherlands' obligation under Article 5(1) of Convention No. 118 to pay the TW supplement to recipients of the disability benefit (WAO) who reside abroad. This decision was based on the following arguments.
20. The CRvB considered that supplements under the TW that are granted to top up benefits under the WAO must be regarded as invalidity benefit within the meaning of Article 2, paragraph 1(d), of Convention No. 118 on the grounds that the term "benefits" refers to all benefits, including any supplements. The CRvB further ruled that the TW supplement to a WAO benefit should not be considered as a non-contributory benefit within the meaning of Article 2(6)(a) of Convention No. 118,(Endnote_5) because entitlement to a supplement can exist only if conditions have been satisfied for receiving a WAO benefit, the award of which is based on occupational activity. Any uncertainty about the nature of the TW benefit arising from the fact that eligibility for such a supplement is only indirectly contingent on the payment of contributions and work cannot be interpreted to the detriment of the beneficiaries, as the State of the Netherlands has not eliminated or reduced this uncertainty, in the manner provided for in Article 2(6) of Convention No. 118, by communicating a statement to the ILO to the effect that benefits under the TW are non-contributory, and in not doing so has also prevented ILO oversight of this matter.
21. Because the CRvB held that the f W supplement is a contributory invalidity benefit, it reviewed it in the light not of Article 5(2)(Endnote_6) but of Article 5(1) of Convention No. 118. The CRvB considered that Article 5(1) places on the parties to the Convention a strict and unconditional obligation to export benefits, an obligation which cannot be limited or made dependent on further bilateral or multilateral agreements between the parties. Consequently, the CRvB concluded that the phasing out of the TW supplement and its termination owing to residence outside the Netherlands contravenes Article 5(1) of Convention No. 118 and that the Netherlands must therefore export this benefit to Turkey.
Notification made by the Netherlands under Article 2(6) of the Convention
22. In a note verbale dated 22 May 2003, the Government of the Netherlands communicated a statement made under Article 2, paragraph 6, of Convention No. 118, in which it considered, inter alia, that benefits provided under the TW of 6 November 1986, with effect from 1 January 2000, to be benefits of the type (non-contributory) referred to in paragraph 6(a) of Article 2 of the Convention, because the granting of these benefits does not depend either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity. Non-contributory benefits, in the view of the Government, cannot be exported. Since the entry into force of the BEU on 1 January 2000, a person who does not reside in the Netherlands is no longer entitled to a supplement under the TW.
23. The above statement was registered by the Office on 23 May 2003, the date of receipt of the note verbale. It was notified to all Members of the ILO and communicated to the Secretary-General of the United Nations for registration in accordance with article 102 of the Charter of the United Nations.
24. In its 2003 observation, (Endnote_7) the Committee of Experts examined the effect of the Government's statement concerning the non-contributory nature of the TW benefit on the application of the Convention. While noting that the Dutch Government had not respected the time limit set by the Convention for submitting the notification, it considered that this fact did not invalidate the information contained in the Government's statement. However, the failure to respect the time limit had delayed proper supervision of the Convention by the Committee and the timely information of all the Members of the ILO and the persons protected by the Convention on the nature of the TW benefit. As the notification procedure established in paragraphs 6 and 7 of Article 2 does not envisage its retroactive application, the Committee of Experts pointed out that the notification made by the Netherlands takes effect for the purposes of the Convention as from the date of its registration by the Office (23 May 2003) and not retroactively from 1 January 2000, as claimed by the Government.
25. With regard to the Government's claim that the notification of the non-contributory nature of specified benefits opened the possibility for the Netherlands to restrict the export of these benefits by having recourse to the permissive provisions of Article 5(2) of the Convention, the Committee of Experts pointed out that the fact of having made such notification was not sufficient in itself to ensure automatic applicability of the permissive provisions of the Convention to these benefits, which has to be ascertained by the supervisory bodies of the ILO. The Committee of Experts has reserved the right to examine the Government's notification as to the non-contributory nature of the benefits in question and the consequent applicability to them of the permissive provisions of the Convention once all the relevant elements of the Dutch social security legislation have been made available to it. Subsequent consideration of this case by the Committee of Experts was suspended while it was dealt with under the special procedure of representation.
Observations of the Government of the Netherlands on the representation
26. In a letter dated 11 June 2004, the Government communicated its observations on the representation. Additional information was provided in the report on the application of the Convention for the period from 1 June 2001 to 1 June 2004 submitted to the ILO in September 2004.
27. The Government of the Netherlands stated that, in its opinion, the application of the general principle of Convention No. 118 regarding equality of treatment in social security is in no way infringed by the introduction of the BEU. On the basis of this Act, no person, whether of Dutch or any other nationality, has the right to receive social insurance benefits if he or she, or the person on whose behalf he or she claims the benefit, does not live in the Netherlands. This restriction on the export of benefits does not apply if a treaty has been entered into with the country concerned.
28. With regard to the non-exportability of the TW benefit, in response to the judgement of the CRvB the Government sent a notification to the ILO defining the TW benefit as a non- contributory benefit within the meaning of Article 2(6) (a) of Convention No. 118. In the opinion of the Government, this means that Article 5(2), not Article 5(1), of the Convention is now applicable and, pursuant to Article 5(2), conditions may be attached to the export of non-contributory benefits, such as the conclusion of further agreements to that end. This being the case, there is no obligation under Convention No. 118 to export the TW supplement: The notification by the Government of the Netherlands under Article 2(6) of the Convention must be seen in this light. This notification has been published in Dutch Treaty Series, 2003, No. 73. The Government of the Netherlands therefore concludes that the Netherlands is not failing to comply with Convention No. 118.
29. With regard to the current, payment of the TW supplement to beneficiaries living abroad, in about 3,000 cases TW supplements have been phased but in accordance with the transitional provisions of the BEU. Of these cases, 1,400 live in Turkey. The amount of supplements provided to beneficiaries, living in Turkey is about 5 million. Pursuant to the decision of the CRvB, the Employee Insurance Schemes Implementing Body (UWV) continued to pay the TW supplements that had been phased out, terminated or not awarded to claimants living in Turkey for the period until 1 July 2003. On 1 July 2003, the export of the TW supplement to Turkey was again terminated on the basis of the Government's notification under Convention No. 118 of the non-contributory nature of this supplement.
The Committee's conclusions
Relation of the allegations to the provisions of the Convention
30. Under article 2(2)(f) of the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization, the representation "must indicate in what respect it is alleged that the Member against which it is made has failed to secure the effective observance within its jurisdiction of the said Convention". The representation alleges that the Netherlands is in breach of Article 3(1) of the Convention as a result of "the stipulation of a discrimination against workers of different nationalities residing in other countries" and of Article 5(1) of the Convention as a result of "the termination of the payment of the supplementary benefit to receivers of the WAO residing outside the Netherlands".
31. Article 3(1) of the Convention provides that:
1. Each Member for which this Convention is in force shall grant within its territory to the nationals of any other Member for which the Convention is in force equality of treatment under its legislation with its own nationals, both as regards coverage and as regards the right to benefits, in respect of every branch of social security for which it has accepted the obligations of the Convention.
Article 5 of the Convention provides that:
1. In addition to the provisions of Article 4, each Member which has accepted the obligations of this Convention in respect of the branch or branches of social security concerned shall guarantee both to its own nationals and to the nationals of any other Member which has accepted the obligations of the Convention in respect of the branch or branches in question, when they are resident abroad, provision of invalidity benefits, old-age benefits, survivors' benefits and death grants, and employment injury pensions, subject to measures for this purpose being taken, where necessary, in accordance with Article 8.
2. In case of residence abroad, the provision of invalidity, old-age and survivors' benefits of the type referred to in paragraph 6(a) of Article 2 may be made subject to the participation of the Members concerned in schemes for the maintenance of rights as provided for in Article 7.
3. The provisions of this Article do not apply to benefits granted under transitional schemes.
32. Whereas Article 3(1) establishes the general principle of equality of treatment in social security between non-nationals and nationals within the territory of the Member, Article 5(1) of the Convention establishes an additional obligation to provide certain social security benefits to beneficiaries residing abroad which goes beyond the strict limits of legal equality of treatment. As those provisions establish two separate, though complementary, obligations, the failure of a Member to comply with the obligation to export benefits would not necessarily result in the breach of the obligation to secure equal treatment inside the country. (Endnote_8)
33. The Committee points out that Article 3(1) calls for the granting of equality of treatment within the territory of a State, whereas the representation alleges discrimination against workers residing in other countries. Within the legal framework of Convention No. 118, discrimination occurs only where there is unequal treatment of non-nationals compared with the nationals of the Member concerned under its legislation. A condition of residence within the territory of the State imposed with regard to the granting of benefits would not therefore constitute discrimination if it were applied equally to both nationals and non-nationals. In accordance with the Dutch social security legislation mentioned in the representation, foreign nationals who cease to or resume living in the Netherlands lose or regain their right to the TW benefit under the same terms and conditions as Dutch nationals. In its observation on the representation, the Government of the Netherlands states that "nationality is no criterion for entitlement to social insurance benefits under Dutch social security legislation. [...] Furthermore, the export ban in the TW is applied regardless of the nationality of the beneficiary. Thus, both Dutch and Turkish nationals receive their invalidity benefit when living in Turkey, but not the supplement on the basis of the TW. Once they return to the Netherlands, both are entitled (again) to the TW supplement." As it is applied equally to nationals and non-nationals, this legislation complies with the definition of legal equality of treatment and does not discriminate against foreign workers in this respect. With regard to the reference to "workers of different nationalities", whom TÜRK-IS considers to be affected, it has to be borne in mind that the obligation of the Netherlands to provide benefits abroad only covers nationals of the countries which have accepted the obligations of the Convention in respect of the same branch of social security, subject to the type of benefit in question and the conditions of reciprocity applicable in each particular case. Thus, the extent to which "different nationalities" may be affected by the said legislation can be assessed only on a country-by-country basis and does not permit any generalization.
34. In the light of these considerations, the Committee finds the abovementioned Dutch social security legislation to be in compliance with Article 3(1) of the Convention. It will therefore limit its subsequent examination of the representation to those allegations which imply failure of the Netherlands to comply with Article 5(1) of the Convention due to the termination of the provision of the TW supplement to Turkish nationals receiving the Dutch permanent disability benefit (WAO) and who are currently residing in Turkey.
Relation of the allegations to the branches of social security covered by Article 5 of the Convention
35. Article 5(1) of the Convention is applicable to four out of nine branches of social security covered by the Convention (invalidity benefits, old-age benefits, survivors' benefits and death grants, and employment injury pensions) and is based on the requirement of branch-by-branch reciprocity between the Members concerned. To examine the representation, it is therefore necessary to determine in respect of which branch of social security the obligations of Article 5(1) are alleged to be violated by the Netherlands, whether the principle of reciprocity between the Netherlands and Turkey is observed under this branch and whether the TW benefit forms part of this branch.
36. Referring to Article 5(1) of the Convention, the representation does not explicitly specify the branch of social security accepted by the Netherlands in respect of which the obligations of the Convention are not being complied with. According to the representation, the violation of Article 5(1) arises from the failure to provide the supplementary TW benefit, which TÜRK-IS considers to be "an integral part of the invalidity pension (WAO, permanent disability benefit)". The representation further refers to the decision of the CRvB, which ruled that "supplements under the TW that are granted to top up benefits under the Invalidity Insurance Act (WAO) must be regarded as invalidity benefit within the meaning of Article 2, paragraph l(d), of the Convention." The Committee therefore notes that the representation alleges violation of Article 5(1) of the Convention in respect of the invalidity benefit branch, which has been accepted by both the Netherlands and Turkey and in respect of which they are linked by the regime of automatic reciprocity for the provision of invalidity benefits to beneficiaries resident abroad.
37. The Committee further notes that the WAO benefit in the Dutch social security system covers permanent disability arising both from general causes and from employment-related causes without distinguishing between the two. The representation refers to "Turkish workers who have worked in the Netherlands and have acquired the right to invalidity pension (WAO, permanent disability benefit) under the Dutch legislation", which suggests that in the majority of cases the WAO benefit has been acquired by the Turkish workers due to work-related accidents or diseases sustained in the course of their employment in the Netherlands. Contrary to disability resulting from general causes, which is covered by the invalidity benefit branch, disability resulting from work-related accidents or diseases is recognized by the Convention as a separate contingency covered by the employment injury branch of social security referred to in Article 2(1 )(g), for which the Netherlands and Turkey have also accepted the obligations of the Convention. The WAO is cited by the Government as the legislation that it has in effective operation for the employment injury branch in compliance with Article 2(l) (g) of the Convention. (Endnote_9) The fact that the WAO does not distinguish between employment-related and general disability does not imply that, for the purposes of the application of the Convention, the benefits-provided under the WAO should be considered exclusively within the framework of the invalidity benefit branch referred to in Article 2(l)(d) of the Convention. On the contrary, in so far as WAO benefits are intended to provide compensation for employment-related accidents or diseases, these benefits, as well as the corresponding TW supplement, should also be examined within the framework of the employment injury benefit branch, as specified in Article 2(l)(g) of Convention No. 118.
38. The distinction between benefits provided under the invalidity benefit branch and those provided under the employment injury benefit branch has an important consequence with regard to the obligation of their export abroad under Article 5 of the Convention, depending on their contributory or non-contributory nature as defined by Article 2(6). Indeed, whereas paragraph 1 of Article 5 is applicable to benefits provided under both branches, irrespective of their nature, paragraph 2 applies only to non-contributory benefits provided under the invalidity benefit branch. More precisely, Article 5 establishes an unconditional obligation to export disability pensions resulting from employment-related causes, including any supplements or increments, irrespective of their contributory, or non- contributory nature. It also establishes this obligation with regard to invalidity benefits resulting from general causes, including any supplements or increments which are of a contributory nature. In contrast, the export of invalidity benefits resulting from general causes, including any supplements or increments which are of a non-contributory nature, as defined in Article 2(6)(a) of the Convention, may be made subject to certain conditions under paragraph 2 of Article 5. In effect, leaving aside for the moment any other considerations, the application of these provisions of the Convention to the WAO benefit and the corresponding TW supplement would result in the following hypothetical situations. Presuming that, as claimed by the Government, the TW benefit is a non-contributory supplement to a contributory WAO pension, the provision of the WAO benefit as a result of employment-related causes as well as the TW supplement to the WAO benefit, in case of residence abroad, has to be ensured under Article 5(1) of the Convention without any restriction, disregarding the non-contributory nature of the TW supplement. The provision of this benefit abroad cannot therefore be made conditional upon the participation of the Members concerned in schemes for the maintenance of rights in accordance with paragraph 2 of Article 5. In the case of disability resulting from general causes, the WAO benefit, which is contributory, also has to be exported unconditionally in conformity with Article 5(1) of the Convention, while the export of the corresponding non-contributory TW supplement may be made subject to the condition provided for in Article 5(2).
39. At this stage, it would therefore appear that the Netherlands would be in breach of Article 5(1) of the Convention in all cases where it terminated the export of the TW supplement to Turkish recipients of the WAO benefit provided in compensation for employment-related accident or disease. This conclusion does not depend upon the determination of the nature - contributory or non-contributory - of the TW benefit and could be overturned only if it is found that the benefit does not fall within the scope of the employment injury branch, as defined by the Convention, particularly in relation to the application of Article 5.
40. With regard to the termination of the export of the TW supplement to Turkish recipients of the WAO benefit provided in compensation for general invalidity, the Netherlands would be in breach of Article 5(1) of the Convention only if the permissive provisions of Article 5(2) were inapplicable in this case. The reasons for such a situation might consist either of the fact that the TW benefit is not recognized as being of a non-contributory nature, or that the Netherlands was not-fulfilling its obligation to participate in schemes for the maintenance of rights in respect of non-contributory benefits. On the other hand, the termination of the export of the TW supplement to the WAO general invalidity benefit would not contradict the provisions of Article 5 if the TW benefit were found to fall outside the scope of the invalidity benefit branch within the meaning of the Convention, particularly in relation to the application of Article 5. To confirm or invalidate these conclusions, it is first necessary to determine whether and to what extent the TW benefit falls within the scope of the Convention and the respective branches of social security covered by the Convention.
Does the TW benefit fall within the scope of the branches of social security covered by the Convention?
41. In reply to the representation, the Government of the Netherlands indicates that the TW Act "provides a supplement to specific social insurance benefits (unemployment, sickness, invalidity)" without singling out any branch in particular and maintains that "there is no obligation under Convention No. 118 to export the TW supplement" under any of these branches. The same position was taken by the Government in its notification of the nature of the TW benefit under Article 2(6) of the Convention, which requires a Member to specify the "branch of social security which has legislation providing for benefits of the type indicated in clause (a) or (b)" of this Article. The notification submitted by the Netherlands did not specify any particular branch of social security which has legislation providing the supplementary TW benefit and indicated that the TW is a separate piece of legislation providing supplements in not one but three completely different branches of social security.
42. The Committee notes that the Government does not deal with the TW benefit on a branch-by-branch basis, but it emphasizes the specific features of the TW benefit scheme (separate legislation, broader scope of coverage, a different contingency covered, different criteria for entitlement to benefit, income test, financing from taxation), which make it distinct from the insurance benefits provided under the branches in question. The Committee notes in particular that the TW is a separate piece of legislation which does not fall within any particular branch of the Dutch social security system, but establishes an autonomous benefit scheme in addition to existing national insurance schemes (General Old-Age Pensions Act (AOW), General Surviving Relatives Act (ANW), General Act on Exceptional Medical Expenses (AWBZ) and employees' insurance schemes (WAO, (Health Insurance Act (ZFW), Unemployment Benefits Act (WW)). According to A short survey of social security in the Netherlands, Half-yearly summary, January 2004 (p. 2), published by the Ministry of Social Affairs and Employment, the TW benefit scheme forms part of the system of social provisions which are aimed at guaranteeing minimum family income to all residents: "As well as National Insurance schemes, there are also social provisions that supplement (family) incomes, bringing them up to the minimum guaranteed income level, depending on the particular domestic situation. The social provisions explained in this brochure are the Supplementary Benefits Act (TW), the Wajong (Disablement Assistance Act for Handicapped Young Persons), the Act on Income Provisions for Older, Partially Disabled Unemployed Persons (IOAW), the Act on Income Provisions for Older, Partially Disabled Formerly Self-employed Persons (IOAZ) and the National Assistance Act (ABW)." In its observation on the representation, the Government also emphasized "the fact that the TW provides a supplement on top of the underlying social insurance benefit up to the relevant social assistance minimum in the Netherlands". As it covers all existing employees' insurance schemes in the social security system of the Netherlands, the TW does not address the specific risks covered by the respective branches, but establishes a mechanism guaranteeing the application through these branches of the universal minimum income in the Netherlands. From this point of view, the scheme established by the TW falls outside the scope of the Convention, as it covers a contingency - income below guaranteed national minimum - not envisaged by the traditional branches of social security to which the Convention applies by virtue of Article 2(1).
43. Due to its much broader scope, consisting of multiple branches, and the distinct contingency covered, the TW benefit scheme can hardly be fitted into the traditional notion of a "branch of social security", as conceived in ILO social security standards, including Convention No. 118. However, in the absence of any definition of the term "branches of social security" in the Convention itself, the question may be raised as to whether, for the purpose of the broader application of the principle of equality of treatment in social security, the TW supplement could still be considered on a branch-by-branch basis within the legislative framework of each of the social security branches in respect of which it supplements the benefits. In this respect, examination of the allegations of non-compliance with Article 5(1) of the Convention requires the Committee to consider the question of whether the TW supplement enters into the scope of the invalidity benefit and the employment injury benefit branches.
44. As indicated by the Committee of Experts in its General Surveys Convention No. 118 was designed to cover the same branches of social security as those covered by Convention No. 102 in order to ensure consistency in the application of ILO social security standards. The question therefore arose of "should the scope of these branches be determined by reference to a uniform international standard or shouldit be left to the discretion of each country? It would appear from the preparatory work in respect of this instrument that the Conference was not prepared to leave the determination of the matters to be covered by the various branches to the discretion of each ratifying State, but that its intention was rather that these branches should cover a range of benefits corresponding to those prescribed in related instruments laying down substantive requirements as to the protection to be afforded by these branches. For instance, to determine which benefits should be deemed to come under the heading of 'medical care', it would be appropriate to refer to the relevant provisions of the Social Security (Minimum Standards) Convention, 1952 (No. 102)." (Endnote_10) By the same token, it would be appropriate to refer to the relevant provisions of Convention No. 102 to determine which benefits should be deemed to come under the invalidity benefit branch or the employment injury benefit branch within the meaning of Article 2(l)(d) or (g) of Convention No. 118.
45. From the point of view of Convention No. 102, the TW benefit would not come under the heading of "invalidity benefit" because the purpose of the TW scheme, which is to guarantee the minimum income, does not correspond to the contingency of "inability to engage in any gainful activity" covered by invalidity benefit (Article 54). The same could be said for the contingency of permanent loss of earning capacity or corresponding loss of faculty due to accident or a prescribed disease resulting from employment, as covered by the employment injury benefit (Article 32). Another reason is that the TW benefit is means-tested. The singular feature of ILO standards concerning employment injury benefit (Part VI of Convention. No. 102 and Convention No. 121) is that means-tested benefits are not recognized by them as the appropriate form of protection against the risk of permanent disability due to employment injury. In the case of the invalidity benefit branch, meanstested benefits can be taken into account only where the scheme covers all residents whose means during the contingency do not exceed prescribed limits (Article 55(c) of Convention No. 102 and Article 9(l)(c) of Convention No. 128), but are disregarded in the case of schemes covering employees. In the Netherlands, the TW supplement is paid only to persons who are entitled to the WAO benefit, which covers employees but not residents. Consequently, the TW supplement is not taken into account by the Committee of Experts for the purpose of assessing the application by the Netherlands of Part II (Invalidity benefit) of Convention No. 128 or Part TX (Invalidity benefit) of the European Code of Social Security, which corresponds to Part EK. (Invalidity benefit) of Convention No. 102. As the TW supplement is not recognized as the appropriate form of protection under ILO Conventions laying down the substantive requirements to be met by invalidity and employment injury benefits, the Committee sees no compelling reasons for it to be recognized as such under Convention No. 118, particularly in the absence of any definition of the term "branches of social security" in this instrument. The Committee therefore concludes that the benefits provided under the TW do not fall within the scope of the invalidity and employment injury branches of social security to which Convention No. 118 applies.
Application of Article 5 of the Convention
46. While it may appear appropriate to refer to the provisions of relevant social, security Conventions in order to determine the scope of the branches of social, security mentioned in Convention No. 118, it should also be borne in mind that, in view of its objectives, which are to secure equality of treatment, the provision of benefits abroad and the maintenance of migrants' rights', Convention No. 118 is intended to be very wide in.scope. This approach is reflected in the particularly broad definition of the term "benefits" (Endnote_11) and the no less broad definition of the term "legislation" providing for such benefits included in Article l(a) and (b) of. the Convention. Taken together, these definitions permit the Convention to be applied to the broadest range of benefits within the legal framework of national social security systems'. From this point of view, the question may arise as to whether, taking into account the specificity of the Dutch social security system, the TW benefit could be considered as part of the invalidity benefit branch, if only for the purpose of the maintenance of rights and the provision of benefits abroad. While the answer to this question should be left to the discretion of the competent national authorities, such an inclusive interpretation reflecting the fact that the Dutch social security system incorporates the TW benefit into its various branches would not stand at odds with the general purposes and the spirit of the Convention. (Endnote_12) It is such an inclusive interpretation that was adopted by the Central Court of Appeal in assessing the application of Article 5 of the Convention in the context of the Dutch system of social security, when it ruled that the TW supplement to the WAO benefit must be regarded as invalidity benefit within the meaning of the Convention for the purpose of determining whether it should be payable abroad. Comparing this decision with the more restrictive interpretation of the scope of the invalidity benefit branch of the Convention given by the Committee in paragraph 45 above, one should bear in mind that it is primarily up to the member State concerned to judge whether or not its national law and practice are or can be compatible with the provisions of the international labour Convention in question, subject to the ILO supervisory procedures. In principle, while ILO Conventions are deemed to establish minimum standards and should be interpreted as such by the ILO supervisory bodies, including this Committee, these Conventions do not preclude member States from using their provisions in order to grant more favourable conditions to the workers concerned. Once granted, however, more favourable conditions could not be revoked simply on the grounds that they go beyond the minimum protection prescribed by the Convention in' question. (Endnote_13) Following this logic, the Committee considers that the broad terms and objectives of Convention No. 118 leave sufficient discretion to the competent national authorities to extend its scope of application to cover particular social security benefits, such as the TW supplement, forming part of their national social security system arid its composing branches. In contrast, the Committee does not enjoy such latitude, in accommodating the specific characteristics of national social security systems, as it is bound to apply the provisions of the Convention in the same manner to all national social security systems so as tq ensure the necessary consistency in the application of the ILO's social security Conventions. Due to this difference of approaches, the Committee considers it necessary to examine the application of Article 5 by the Netherlands in the light Of the CRvB's decision as well.
47. The complainant organization considered the TW supplement to be an integral part of the invalidity benefit, pointing out that Turkish workers have been receiving the WAO benefit together with the TW supplement "for years" and suffer considerable hardship due to its termination. It emphasized the ^social and human side of the problem facing migrant workers who have considered the TW supplement as an acquired right in the Dutch invalidity benefit branch, the maintenance of which is one of the main objectives of the Convention. From this point of view, the method of maintenance of rights that is applicable - either through the direct export of the benefit or the conclusion of multilateral or bilateral agreements - depends on whether the TW benefit is considered to be a contributory or a non-contributory benefit. The complainant organization considers the TW benefit to be directly exportable as part of the contributory WAO benefit. The CRvB observed that any uncertainty arising from the fact that the non-contributory nature of the TW benefit was not duly notified by the Netherlands in accordance with Article 2(6) of the Convention could not be interpreted to the detriment of beneficiaries residing abroad, who should therefore continue to receive the TW supplement directly in their country of residence. The Dutch Government, on the other hand, having made a notification under the Convention concerning the non-contributory nature of the TW benefit, argues that, pursuant to Article 5(2), the second method is applicable and the export of the TW benefit to Turkey may consequently be made subject to the conclusion of a bilateral agreement to that end. According to the Government, the possibility offered by Article 5(2) of the Convention to make the export of non-contributory benefits subject to certain conditions, such as the conclusion of a bilateral agreement, frees the Netherlands entirely from the obligation to export the TW benefit under the terms of the Convention. Finally, in its notification under Article 2(6) of the Convention, the Government simply stated that non- contributory benefits could not be exported.
48. The Committee wishes to point out that there is nothing in the text of the Convention itself or in the preparatory work to support the opinion that non-contributory benefits cannot be exported. On the contrary, of the three types of benefits mentioned in the Convention - contributory, non-contributory and benefits granted under transitional schemes - only the later are explicitly excluded by paragraph 3 of Article 5; the other types of benefits fall within the scope of Article 5; the purpose of which is to ensure the provision of these' benefits abroad. While the export of non-contributory benefits may be subject to the conclusion of further bilateral or multilateral agreements to that end, as indicated in Article 5(2), this exceptional possibility does not free a Member from the obligation established by the Convention to export such benefits. As the aim of the Convention is the provision of social security benefits abroad, the Member remains under the obligation to endeavour in good faith to conclude such bilateral or multilateral agreements with a view to achieving this aim also in respect of non-contributory benefits. (Endnote_14) On the other hand, this obligation is not absolute and, if the two Members are unable to reach an agreement, such failure should not be interpreted as non-compliance with Article 5(2).
49. The Committee recalls in this respect .that. the.TW, as amended by the BEU, imposed a total ban on the export of TW supplements, which cannot be abrogated by a bilateral treaty, and that, in line with this legislation, the Government has declared non-contributory benefits to be, non-exportable, in the. same way as social assistance, and has consistently, excluded the TW benefit from the export provisions of multilateral social security agreements such as the ECSS. It further notes that the social security treaty between the Netherlands and Turkey signed in 2000 does not deal with the subject of the TW benefit, and that the Dutch Government has expressed no intention of settling the question of its export through bilateral negotiations. It therefore appears that thepresent Dutch legislation and policy would preclude the negotiation and conclusion of any bilateral or multilateral agreement providing for the export of Dutch non-contributory benefits to other Member parties to Convention No. 118. Indeed, by engaging in any such negotiations, the Dutch Government would violate its own law, which prescribes a total ban on the export.of the TW benefit. In this situation, the Committee wishes to point out that having recourse to the permissive provision of Article 5(2) of the Convention, which envisages the export of non-contributory benefits through participation in bilateral or multilateral agreements, without manifesting any real intention to conclude such agreements in good faith, would be contrary to the letter and spirit of this Article of the Convention. Using this permissive provision to justify the total denial of the Member's obligation to export non-contributory benefits under any conditions would be a misuse of Article 5(2) of the Convention and would not be in conformity with the general principle of good faith in the implementation of obligations under international treaties.
50. From this perspective, the total and unconditional prohibition of the payment of the TW benefit abroad imposed by the TW, as amended by the BEU, would be inconsistent with the purpose of Article 5 of the Convention and precludes the possibility for the Netherlands to invoke the permissive provisions contained in paragraph 2 of this Article, notwithstanding the notification it has made under Article 2(6). This would also mean that the decision of the Dutch Government to discontinue payment abroad of the TW supplement to the WAO benefit as from 1 July 2003, in spite of the contrary decision of the CRvB, cannot be justified by reference to the permissive provisions of Article 5(2) of the Convention. (Endnote_15) Thus, in so far as within the framework of the Dutch social security system the TW benefit is deemed by the CRvB to form part of the invalidity benefit branch for the purpose of the application of Article 5 of the Convention, the Netherlands remains bound by the obligation to provide it. to the recipients of the WAO benefit residing in Turkey in accordance with Article 5(1) of the Convention.
51. Without prejudicing the position of the CRvB, which is free to interpret the Convention's provisions, in the light of the Dutch social security system, the Committee considers itself bound by the strictly legal interpretation of the Convention in line with other international social security standards. According to this approach, which ensures equal application of the provisions of the Convention to the social security systems of all Member States, the Committee concludes, for the reasons explained in paragraphs 42 and 45 of the report, that the TW. benefit scheme as a whole does not fall within the scope of application of the Convention and that the TW supplement to the WAO benefit does not fall within the scope of either the invalidity benefit branch, or,the employment injury benefit branch covered by Article. 5 of the Convention. The Committee therefore does not find the Netherlands to be in breach of Article 5(1) of Convention No. 118 on the grounds that it terminated the provision of the TW supplement to recipients, of the WAO benefit residing in Turkey.
Summary of the Committee's conclusions
52. The representation alleges that the Netherlands is in breach of Articles 3(1) and 5(1) of the Convention due to the termination of the payment of the TW supplement to receivers of the WAO benefit residing outside the Netherlands, which results in discrimination against workers of different nationalities residing in other countries (paragraph 30).
53. Having examined the Dutch social security legislation with regard to Article 3(1), the Committee finds that it grants equality of treatment within the territory of the Netherlands to all persons protected, irrespective of their nationality, in full compliance with this provision of the Convention (paragraph 34).
54. The Committee notes the specificity of the Dutch social security system, which combines traditional branches of social insurance covering particular risks with the universal scheme guaranteeing minimum family income to all residents irrespective of the risk suffered. To ensure that social insurance benefits do not fall below the universal minimum income in the Netherlands, the system has a number of social provisions, including the TW, which supplement the benefit in question up to the level of the guaranteed minimum. The TW benefit scheme establishes this mechanism for all branches of the Dutch social security system protecting employees against the risks of sickness, unemployment and invalidity. The purpose, structure and specific features of the TW scheme, in the opinion of the Committee, make it distinct from the traditional branches of social security (paragraph 42).
55. With regard to Article 5(1) of the Convention, the analysis of the TW benefit scheme leads the Committee to conclude that the TW supplement, to the WAO benefit does not fall within the scope of the branches of social security (invalidity benefit and employment injury benefit), to which Article 5(1) applies (paragraph 45), while the TW scheme as a whole, due to its specific features, falls outside the scope of application of the Convention defined-by its Article 2(1) (paragraph 42). The TW supplements being irrelevant for the purpose of application of the Convention, the Committee finds the Netherlands not to be in breach of Article 5(1) of the Convention (paragraph 51).
56. Finally, the Committee recalls that Convention No. 118 was denounced by the Netherlands with effect from 20 December 2005. Consequently, the conclusions made by the Committee refer to the period prior to this date when the Convention still remained in force for the Netherlands.
The Committee's recommendations
57. In the light of the foregoing conclusions, the Committee recommmends that the Governing Body:
(a) approve this report, and specifically the conclusions set out in paragraphs 53 and 55 concerning the application by the Netherlands of Articles 3(1) and 5(1) of the Equality of Treatment (Social Security) Convention, 1962 (No. 118); and
(b) declare closed the procedure initiated in connection with this representation.
Geneva, 9 November 2006.
Point for decision; Paragraph 57.
Endnote 1
Adopted by the Governing Body at its 57th Session (8 April 1932), modified at its 82nd Session (5 February 1938), 212th Session (7 March 1980) and 291st Session (18 November 2004).
Endnote 2
GB.288/18/2.
Endnote 3
"The distinction between "contributory" and "non-contributory" benefits is of great importance for the application of Convention No. 118, since special provisions apply as regards the latter in conjunction with ratification (Article 2, paragraph 6(a)), as regards the conditions of residence to which the application of the principle of equality of treatment may be made subject (Article 4, paragraph 2) and in respect of the payment of certain benefits abroad (Article 5, paragraph 2). In practice, it is however not always easy to determine whether a benefit should be considered as "contributory" or "non-contributory" (in the sense of paragraph 6(a) of Article 2 of the Convention)." ILO: Equality of Treatment (Social Security), General Survey by the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part IB), International Labour Conference, 63rd Session, Geneva, 1977, para. 21, p. 6.
Endnote 4
Under article 5(1) of the ECSS, the ECSS replaces, in respect of persons to whom it is applicable, any social security convention binding two or more of its contracting parties.
Endnote 5
Article 2(b)(a) of the Convention defines non-contributory benefits as "benefits other than those the grant of which depends either on direct financial participation by the persons protected or their employer, or on a qualifying period of occupational activity".
Endnote 6
Article 5(2) of the Convention permits to subject the payment of certain non-contributory benefits abroad to the conclusion of bilateral or multilateral agreements between the parties.
Endnote 7
ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), International Labour Conference, 92nd Session, Geneva, 2004, pp. 342-343.
Endnote 8
To highlight the difference between the obligation to grant benefits on an equal footing inside the country and the obligation to pay them abroad, it may be pointed out that equality of treatment without payment of benefits abroad would be perfectly in line, for example, with the Social Security (Minimum Standards) Convention, 1952 (No. 102), which, while establishing equality of treatment of non-national residents (Article 68(1)), permits suspension of the payment of benefit "as long as the person concerned is absent from the territory of the Member" (Article 69(a)).
Endnote 9
The WAO is also the principal legislation giving effect to Part VI (Employment injury benefit) of the European Code of Social Security, as well as to the Employment Injury Benefits Convention, 1964 (No. 121), which has replaced the former obligations of the Netherlands under Part VI (Employment injury benefit) of the Social Security (Minimum Standards) Convention, 1952 (No. 102).
Endnote 10
ILO: Equality of Treatment (Social Security), General Survey by the Committee of Experts on the Application of Conventions and Recommendations, Report HI (Part 4B), International Labour Conference, 63rd Session, Geneva, 1977, para. 36, p. 9.
Endnote 11
As confirmed by the preparatory work-for the Convention, this term must be taken in its broadest meaning. See ILO: Equality of Treatment of Nationals, and Non-Nationals in Social Security, Report V(l), International Labour.Conference, 46th Session, Geneva, 1962, p. 24.
Endnote 12
Highlighting "profoundly human and social" objectives of the Convention to bring a minimum of economic security for migrant workers returning to their home countries, the Committee of Experts emphasized the need "to keep in mind these simple human objectives and not allow the sometimes extremely complex technical problems raised by Convention No. 118 to cause us to lose sight of the social nature of its provisions or the urgency of the matters with which it deals". ILO: Equality of Treatment (Social Security), General Survey, op. cit, paras 134 and 136, p. 66.
Endnote 13
The principle of non-retrogression is enshrined in article 19(8) of the ILO Constitution, which reads: "In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Gonvention by any Member be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation."
Endnote 14
In this respect the Committee of Experts drew attention "to the difference in the terms applicable, to 'non-contributory' benefits (within the meaning of para. 6(a) of Article 2), the provision of which may be made subject to participation in schemes for the maintenance of rights, and to benefits of the type referred to in para. 1 of Article 5, the payment of which abroad may not be made subject to the conclusion of an agreement or instrument as provided for in Article 8. This difference is important in practice, especially as concerns the prospects for ratification of the Convention. For instance, the fact that the invalidity, old-age and survivors' pensions provided for in the New Zealand .Social Security'Act 1964, as amended, are not payable abroad is. not contrary to Article 5 of.the Convention because these are non-contributory benefits. All that would be required of the country concerned, if it ratified this Convention, would be to endeavour in good faith to participate in a scheme for the maintenance of rights as provided for in Article 7". ILO: Equality of Treatment (Social Security), General Survey, op. cit, footnote 5, p. 51.
Endnote 15
This concerns in particular the TW supplement to the WAO benefit provided in the case of -general ivalidity, taking into account that the TW supplement to the WAO benefit provided in the case of employment injury would have to be exported unconditionally under Article 5(1) of the Convention.