Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

For more than 30 years the Committee has been pointing out the need to incorporate into the Brazilian legislation a provision guaranteeing the payment abroad of long-term social security benefits foreseen in Article 5 of the Convention. The Government’s report of 2007 once again stated that there has been no change in the situation since 2001: section 312 of the Social Security Regulations, approved by Decree No. 3048 of 6 May 1999, continues to subject the payment of benefits abroad to the existence of the corresponding bilateral agreement with the country of residence of the beneficiary in question or, in the absence of such an agreement, to the adoption of the corresponding instructions by the Ministry of Insurance and Social Assistance (MPAS). However, benefits are not paid, even to countries with which Brazil has bilateral agreements (Argentina, Cape Verde, Chile, Greece, Italy, Luxembourg, Portugal, Spain and Uruguay), except to beneficiaries resident in some of these countries, namely in Spain, Greece and Portugal. According to the report, a tender process is in progress to contract a bank to pay benefits to beneficiaries resident in countries with which Brazil has bilateral agreements, subsequently it is foreseen to extend the same system of payment to beneficiaries resident in other countries.

Judging by the fact that the tender process mentioned in the report is “in progress” since 2000 without result and that, in the meantime, no instructions foreseen by section 312 of the Social Security Regulations have been issued by the MPAS, the Committee cannot but conclude that there is no political will to institute an effective system of the transfer of social security benefits abroad, not even within the framework of bilateral social security agreements specifically establishing such mechanisms. In this regrettable situation, it is the role of the supervisory system to alert the Government, as well as other States parties to the Convention, to the fact that Brazil is in breach of its international obligation under Article 5 of the Convention to guarantee the payment of benefits 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, irrespective of the country of residence and even in the absence of any bilateral social security agreements with the country of nationality or the country of residence of the beneficiary concerned. In doing so, the Committee strongly urges Brazil, while further developing its network of bilateral agreements, to take unilateral measures, for example by issuing the ministerial instructions envisaged by the abovementioned section 312 of the Social Security Regulations, to guarantee in law and in practice the provision of the benefits abroad whatever the place of residence of the beneficiary concerned.

Observation (CEACR) - adopted 2003, published 92nd ILC session (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.

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.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

Article 5 of the Convention. In its previous comments, the Committee asked the Government to continue to supply statistical information on the number of beneficiaries of Brazilian social security benefits residing abroad and on the amount of the benefits transferred by Brazil country-wise. In reply, the Government stated in a report received in 1996 that the concern for meeting adequately the growing demand for benefits under the bilateral social security agreements concluded by Brazil, has lead to some decentralization and the creation of three administrative divisions at the national level. It added that the collection of quantitative data in regard to all the individuals covered by these agreements was not yet completed, but would be sent to the ILO, as soon as available. In its last report of 1997 the Government provided the statistical information on the number of beneficiaries receiving Brazilian social security benefits in Portugal, Spain and Greece. The Committee hopes that in its next report the Government will be able to provide fuller statistics, by country of payment, in regard to the number of beneficiaries residing abroad and the amounts of benefits transferred abroad.

As regards more particularly the reasons for the sharp decrease of the number of beneficiaries residing in Italy, for which the Committee inquired in its previous comments, the Government indicates that the corresponding statistics are not available due to the fact that benefits are paid directly by the federal States to the designated substitutes of the beneficiaries in Brazil. It also states that a new bilateral social security agreement has been signed with Italy on 26 June 1995 (in addition to the Migration Agreement of 1960). The Committee notes in this respect that, according to section 5(1) of this agreement, cash benefits due under the legislation of a contracting party are to be paid in full, without any restriction, to the persons residing on the territory of the other contracting party. In addition, section 23 of the agreement specifies that payment of benefits should be made directly to the beneficiaries residing in the other contracting party by the competent institution of each of the contracting parties in its own currency or by the competent institution of the country of residence of the beneficiary according to the arrangements made between the institutions of both countries. The Committee further notes that, according to section 203 of the Decree No. 2.172 of 5 March 1997 approving the new Regulations on social insurance benefits, the provision of the benefit due to the beneficiary residing abroad is effected under the terms of the agreement between Brazil and the country of residence of the beneficiary in question. As in spite of these provisions of legislation and the bilateral agreement with Italy, the report maintains that beneficiaries residing in Italy continue to be paid the benefits due to them through their substitutes in Brazil, the Committee would be grateful if the Government would clarify in its next report the situation in law and explain how payment of benefits is made in practice by the competent institution of Brazil to the beneficiaries residing in Italy through their designated substitutes.

Articles 7 and 8 (in relation to Article 10, paragraph 1). In reply to Committee's previous comments, the Government indicates in its report of 1996 that, in addition to Italy, new social security agreement have been signed with Greece and revised agreements -- with Chile and Portugal, and that a multilateral agreement among the MERCOSUR countries is being negotiated which will replace bilateral agreements existing between MERCOSUR countries. The Committee notes with interest that the agreements concluded with Italy, Greece and Chile apply to all the workers covered by the social security schemes of the contracting States, irrespective of their nationality, and that the same broad approach permitting to give better effect to these provisions of the Convention, is also followed by the draft multilateral agreement among the MERCOSUR countries. It further notes, from the report of 1997, that the bilateral agreements with Austria, Canada, Guatemala and the United States are still under negotiations. The Committee requests the Government to indicate the progress achieved in this field and to supply the text of any new agreement concluded.

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

Observation (CEACR) - adopted 1997, published 86th ILC session (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.]

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 5 of the Convention. The Committee notes the information supplied by the Government concerning the raising of the restrictions imposed by the Central Bank with regard to the transfer of funds. In this context, the Government refers to 75 beneficiaries residing in Italy for whom benefits are paid through designated substitutes in Brazil whereas, according to the statistics supplied in the annexature to the information received in 1990, the Government mentioned 1,600 beneficiaries in Italy who were receiving Brazilian social security benefits. The Committee would be grateful if the Government would supply information on the reasons for such a decrease in the number of beneficiaries in Italy receiving Brazilian social security benefits.

Furthermore, the Committee notes the statistical information supplied by the Government concerning the transfer of benefits to Spain and Portugal. It would be grateful if the Government would continue to supply in all its future reports statistical information on the number of beneficiaries residing abroad and on the amount of the benefits transferred, with an indication in particular of the country of residence of the beneficiary.

Articles 7 and 8 (in relation to Article 10, paragraph 1). With reference to its previous comments, the Committee notes with interest that new agreements have been prepared for signature with Spain, Italy and Portugal and that negotiations are under way with Austria, Canada, Guatemala and the United States in particular. It also notes that the agreements concluded with Argentina and Uruguay apply to all the workers covered by the social security scheme of the contracting States irrespective of their nationality. The Committee therefore hopes that, in the conclusion of any new agreements, the Government will continue to adopt the same broad approach with regard to the scope of the agreements so as to give better effect to these provisions of the Convention. It hopes that the Government will supply information in its next report on any progress achieved in this respect and that it will supply the text of any new agreement which is concluded.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Article 5 of the Convention (in relation to Article 10, paragraph 1). With reference to the comments that it has been making for more than 20 years concerning the payment of long-term benefits in the event of residence abroad, the Committee notes the information supplied by the Government in its last two reports. It also notes Acts Nos. 8212 and 8213 of 24 July 1991 respecting social insurance. In this context, it notes that, in the same way as the previous legislation, section 109 of Act No. 8213 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. The Committee also notes that, until the regulations provided for under section 154 of Act No. 8213 are adopted, the Regulations on social insurance benefits provided for by Decree No. 83080 of 24 January 1979 remain in force.

With regard more particularly to section 424 of the Regulations on social insurance benefits, the Government states that the payment of benefits abroad is made on the basis of agreements concluded with the countries of residence of the beneficiaries and that it has not been considered necessary to adopt any instructions as provided for under section 424. The Committee however notes that among the countries which have ratified Convention No. 118, only Cape Verde, Italy and Uruguay have concluded a social security agreement with Brazil. The Committee is therefore bound to point out once again to the Government that in accordance with Article 5 of the Convention 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 Member 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 Committee trusts that the regulations to be issued under Act No. 8213 which, in accordance with section 154, should have been adopted within 60 days following the publication of the Act, will contain a provision guaranteeing the payment of benefits in the event of residence abroad, in accordance with the provisions of Article 5 of the Convention. In the meanwhile, the Committee hopes that the Social Security Office will adopt the necessary instructions to this effect under section 424 of the Regulations on social insurance benefits.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the information supplied by the Government in its report.

Article 5 of the Convention (in relation to Article 11). With reference to its previous comments, the Committee notes that the agreements concluded with a number of countries only relate to the manner in which benefits are to be paid (through a Brazilian bank to a foreign bank), that is, by avoiding intermediaries. In this way, in the case of residents abroad, a worker can receive benefits directly from the official bank of his country where there is a corresponding agreement.

However, the Committee notes that the Government has not supplied information concerning the adoption of instructions regarding the granting and maintenance of benefits to beneficiaries residing abroad under section 424 of the Regulations on social welfare benefits (Decree No. 83.080 of 24 January 1979). The Committee therefore requests the Government to supply information in this respect and to provide detailed information on the restrictions imposed by the Central Bank regarding transfer of funds.

The Committee notes that the Government does not have at its disposal statistical information distinguishing between foreigners and Brazilians, due to the fact that both are treated under equal conditions. In these circumstances, the Committee hopes that the Government will take the necessary measures to give effect to the recommendation which the secretariat of the Social Security Office planned to propose to the National Institute of Social Security for the compilation of statistics regarding the number of beneficiaries resident abroad, and on the value of the benefits that are transferred, particularly with indications in regard to the beneficiary's country of residence. Meanwhile, the Committee requests the Government to supply any available information on the number of beneficiaries resident abroad.

Articles 7 and 8. The Committee once again requests the Government to supply a copy of the new social security agreement concluded with Italy, to which the Government referred in its previous report, and of any agreements concluded in this connection with other Members for which the Convention is in force.

The Committee notes that the Government makes no reference to the comments made by the National Confederation of Industry in a communication dated 15 October 1987. Nevertheless, the Committee has examined these comments, which agree with the information supplied by the Government in its report, to the effect that the Brazilian legislation provides for equality of treatment between foreigners and nationals.