Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Articles 4 and 5 of the Convention. With reference to its previous comments, the Committee recalls that section 49 of Decree No. 74-499 of 27 April 1974 respecting the old-age, invalidity and survivors’ schemes in the non-agricultural sector and section 77 of Act No. 81-6 of 12 February 1981 to organize social security schemes in the agricultural sector provide that the grant of the above benefits to nationals of Tunisia is subject to the applicant residing in Tunisia at the date on which the application is made, although this requirement is lifted for foreign nationals of countries which are bound to Tunisia by a bilateral or multilateral social security treaty. As Tunisian nationals do not benefit from equality of treatment with foreign nationals, in accordance with Article 4(1) of the Convention, and may be refused, contrary to Article 5(1) of the Convention, the provision of old‑age, invalidity and survivors’ benefit in the event that they are resident abroad when applying for the benefit in a country that has not concluded a bilateral treaty with Tunisia, the Committee previously requested the Government to bring the national legislation into full conformity with the Convention by abolishing the above residence requirement for Tunisian nationals.

Over the course of the past 25 years, the Government indicated in 1987 that, even though Tunisian nationals are obliged to be resident in Tunisia on the date of making the application for the pension, the residence requirement was subsequently lifted in relation to the provision of pension arrears. In 2002, the Government added, although without citing the relevant provisions, that the requirement of residence in Tunisia for the grant of pensions is also lifted for Tunisian nationals in the event of the assignment of a Tunisian worker to an enterprise based in a country with which Tunisia has concluded a social security agreement, or in the event of a temporary stay in the country of origin of the worker and her or his dependants. With regard to the requirement for Tunisian nationals to be resident in Tunisia at the time when the application for benefit is made, the Government undertook to take the Committee’s comments into consideration in the revision of the texts in question. However, in its last report, received in September 2006, the Government no longer refers to this intention and confines itself simply to indicating that when section 49 of Decree No. 74-499 of 1974 and section 77 of Act No. 81-6 of 1981 are “read in conjunction” with the provisions of the bilateral and multilateral social security agreements concluded by Tunisia, the requirement of residence is also lifted for the nationals of the contracting countries and for Tunisians resident in those countries. The clause relating to the lifting of the residence requirement forms part of the Association Agreement with the European Union in which the principle of free remittance is fully valid in relation to all social security benefits envisaged in sections 62 to 64 of the Agreement for the nationals of both contracting parties.

The Committee observes that the outcome of reading the above provisions in conjunction, as indicated by the Government, namely the raising of the residence requirement, only concerns Tunisian nationals resident in countries to which Tunisia is bound by bilateral or multilateral agreements and does not therefore resolve the problem of inequality of treatment of Tunisian nationals who may not benefit from any system of reciprocity established by such agreements. Nor is it clear to which residence requirement the Government is referring in its report: the requirement to be resident in Tunisia at the date of applying for the benefits or the residence requirement after making the application when pension arrears are due. Finally, with regard to a reading of the above legislation in conjunction with the provisions of Convention No. 118, the Committee would be grateful if the Government would demonstrate, by referring to decisions of the institutions administering social security, that the requirement to be resident in Tunisia at the time of making the application for benefits that is imposed under these laws is effectively raised for all Tunisian nationals, in the same way as for nationals of any other State that has ratified the Convention, wherever they are resident outside Tunisia and even in the absence of bilateral or multilateral agreements with the State in question. By way of illustration, the Committee requests the Government to explain the manner in which section 49 of Decree No. 74-499 of 1974 and section 77 of Act No. 81-6 of 1981 would apply in practice to Tunisian nationals and nationals of Egypt, Mauritania, the Syrian Arab Republic or Turkey, and their dependants, who are resident in one of these countries at the time that they make the application for their benefits in Tunisia.

Furthermore, the Committee notes the Government’s statement in its report that it has accepted the obligations of the Convention for the following branches of social security: medical care, sickness benefit, maternity benefit, employment injury benefit, and it indicates that invalidity and retirement pensions are not covered by the clause raising the residence requirement envisaged by the Convention as these benefits are not among the branches of social security accepted by Tunisia when ratifying the Convention. The Committee is bound to recall that when ratifying the Convention in 1965 Tunisia accepted its obligations in respect of the following branches: (a) medical care; (b) sickness benefit; (c) maternity benefit, (g) employment injury benefit; and (i) family benefit. On 21 April 1976, Tunisia extended its obligations to the following branches: (d) invalidity benefit; (e) old-age benefit; and (f) survivors’ benefit which, under the terms of Article 2(5) of the Convention, are deemed to be an integral part of the ratification and to have the force of ratification as from the above date. Under the terms of Article 2(2) of the Convention, Tunisia is under the obligation to apply the provisions of the Convention in respect of all the branches accepted. The Committee therefore hopes that the Government will ensure that institutions administering social security responsible for reading the national legislation “in conjunction” with the provisions of the Convention are correctly informed (by a circular, if necessary) of the extent and scope of Tunisia’s international obligations under the Convention and ascertain that invalidity and retirement pensions are covered by the clause raising the residence requirement for nationals of Tunisia on an equal footing with the nationals of other countries which have ratified the Convention, in accordance with the specifications of Articles 4 and 5.

Branch (g) (Employment injury benefit). In its previous comments concerning Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), the Committee noted that, by virtue of section 59 of Act
No. 94-28 of 21 February 1994 establishing the compensation scheme for occupational accidents and diseases, foreign beneficiaries of periodical payments who cease to reside in Tunisia receive as the whole of their compensation a lump sum equal to three times the total of the annual periodical payment which was or would have been granted to them, subject to the more favourable provisions of bilateral social security agreements or international treaties. In reply, the Government indicates that, taking into account the hierarchy of standards, the provisions of Conventions, including those of Convention No. 19, prevail over section 59 referred to above. The provisions of Conventions are imperative laws of immediate application and do not require instructions to be issued to institutions administering social security for their implementation. The Committee takes due note of these statements which, mutatis mutandis, would also be applicable to the provisions of Convention No. 118. Article 5(1) of Convention No. 118 requires the payment of periodical payments due in respect of employment injury in the event of residence abroad irrespective of the conclusion of any other bilateral or multilateral social security agreement. In view of the complementary obligations of Tunisia under Conventions Nos 19 and 118, the Committee requests the Government to confirm explicitly whether the nationals of all the States that have ratified Convention No. 19 and the nationals of all the States that have accepted the obligations of Convention No. 118 for branch (g) (Employment injury benefit), as well as Tunisian nationals, benefit from the provision of their periodical payments – and not a lump sum equal to three times the annual periodical payment – when they cease to be resident on the territory of Tunisia. In the absence of clear instructions to institutions administering social security, please provide examples of the application in practice of Act No. 94-28 of 21 February 1994, with particular reference to section 59, based on a specific case of the remittance of benefits consisting of the current payment of periodical payments in respect of employment injury, for example, to a national of Egypt, Mauritania, the Syrian Arab Republic or Turkey, and to their dependants resident in one of these countries.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.