The Family Allowances, National Insurance and Industrial Injuries (Germany) Order 1961

Made: 26th June 1961

At the Court at Buckingham Palace, the 26th day of June 1961

Present,

The Queen's Most Excellent Majesty in Council

Whereas at Bonn on the twentieth day of April, nineteen hundred and sixty, a Convention between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Germany on social security (which Convention is set out in the First Schedule to this Order and is hereinafter referred to as “the Convention”) and a Protocol supplementing the Convention (which Protocol is set out in the Second Schedule to this Order and is hereinafter referred to as “the Protocol”) were signed on behalf of those Governments:

And Whereas by Article 50 of the Convention it is provided that the Convention shall enter into force on the first day of the second month following the month in which the instruments of ratification are exchanged:

And Whereas by Article 9 of the Protocol in the Second Schedule it is provided that the Protocol shall enter into force on the day when the Convention enters into force:

And Whereas the Convention has been ratified by the said Governments and the Instruments of ratification were exchanged on the 5th day of June, 1961, and accordingly the Convention and the Protocol enter into force on the 1st day of August, 1961:

And Whereas by section 64 of the National Insurance Act, 1946 , as extended by subsection (1) of section 4 of the Family Allowances and National Insurance Act, 1956 and section 85 of the National Insurance (Industrial Injuries) Act, 1946 , it is provided that Her Majesty may, by Order in Council, make provision for modifying or adapting the Family Allowances Act, 1945 , and the said Acts of 1946 in their application to cases affected by agreements with other governments providing for reciprocity in the matters specified in those sections:

Now, therefore, Her Majesty, in pursuance of the said section 64 of the National Insurance Act, 1946, as so extended, and the said section 85 of the National Insurance (Industrial Injuries) Act, 1946, and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

Citation and interpretation

1

• (1) This Order may be cited as the Family Allowances, National Insurance and Industrial Injuries (Germany) Order, 1961.

• (2) The rules for the construction of Acts of Parliament contained in the Interpretation Act, 1889 , shall apply for the purpose of the interpretation of this Order as they apply for the purpose of the interpretation of an Act of Parliament

Modification of Acts

2

The provisions contained in the Convention and in the Protocol shall have full force and effect, so far as the same relate to England, Wales and Scotland and provide by way of agreement with the Government of the Federal Republic of Germany for reciprocity in any matters specified in either subsection (1) of section 64 of the National Insurance Act, 1946, as extended by subsection (1) of section 4 of the Family Allowances and National Insurance Act, 1956, or subsection (1) of section 85 of the National Insurance (Industrial Injuries) Act, 1946; and the Family Allowances Acts, 1945 to 1959, the National Insurance Acts, 1946 to I960, and the National Insurance (Industrial Injuries) Acts, 1946 to 1960, shall have effect subject to such modifications as may be required therein for the purpose of giving effect to any such provisions.

FIRST SCHEDULE — CONVENTION ON SOCIAL SECURITY BETWEEN THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE FEDERAL REPUBLIC OF GERMANY

The United Kingdom of Great Britain and Northern Ireland and The Federal Republic of Germany,

Being resolved to co-operate in the social field,

Affirming the principle that the nationals of one Contracting Party should receive under the social security legislation of the other equal treatment with the nationals of the latter,

Desirous of giving effect to this principle and of making arrangements enabling persons who go from the territory of one Party to the territory of the other to keep the rights which they have acquired under the legislation of the former Party or to acquire corresponding rights under the legislation of the latter,

Desirous further of making arrangements for insurance periods completed under the legislation of the two Parties to be added together for the purpose of determining the right to receive benefit,

Have agreed as follows:—

PART I — DEFINITIONS AND SCOPE

Article 1

For the purpose of the present Convention—

• (1) “the United Kingdom” means the United Kingdom of Great Britain and Northern Ireland, and “Federal Republic” means the Federal Republic of Germany;

• (2) “territory” means, in relation to the United Kingdom, England, Scotland, Wales, Northern Ireland and the Isle of Man, and, in relation to the Federal Republic, the area in which the Basic Law for the Federal Republic of Germany is in force;

• (3) “national” means, in relation to the United Kingdom, a citizen of the United Kingdom and Colonies, and, in relation to the Federal Republic, a German within the meaning of the Basic Law for the Federal Republic;

• (4) “legislation” means the legislation specified in Article 2 in force in any part of the territory of one (or the other) Contracting Party;

• (5) “competent authority” means, in relation to the United Kingdom, the Minister of Pensions and National Insurance, the Ministry of Labour and National Insurance for Northern Ireland or the Isle of Man Board of Social Services, as the case may require, and, in relation to the Federal Republic, the Federal Minister of Labour and Social Affairs ;

• (6) “social security authority” means the institute or authority appropriate for the application of the legislation, or any part thereof, specified in Article 2;

• (7) “competent social security authority” means, in relation to the United Kingdom, the Minister of Pensions and National Insurance, the Ministry of Labour and National Insurance for Northern Ireland, the Isle of Man Board of Social Services or the statutory authorities appointed to determine questions under the legislation of the United Kingdom, as the case may require, and, in relation to the Federal Republic, the social security authority specified by the competent authority, or the social security authority with which the person concerned is insured at the time of the claim to benefit, or with which he has title to benefit, or would have title if he were in the territory of the Federal Republic ;

• (8) “German social security authority” means a social security authority located in the territory of the Federal Republic of Germany;

• (9) “employed person” means a person who comes within the definition of an employed person or a person who is treated as such in the legislation of one (or the other) Contracting Party: “employment” means employment as an employed person, and the words “employ” and “employer” refer to such employment;

• (10) “dependant” means, in relation to the United Kingdom, a person who would be treated as such for the purpose of any claim to receive benefit for a dependant under the legislation of the United Kingdom, and, in relation to the Federal Republic, a person who, for the purpose of the benefit in question, comes within the definition of a dependant in German legislation;

• (11) “contribution period” means a period in respect of which contributions, appropriate to the benefit in question, have been paid or treated as paid under the legislation of one (or the other) Party;

• (12) “equivalent period” means, in relation to the United Kingdom, a period in respect of which contributions, appropriate to the benefit in question, have been credited under the legislation of the United Kingdom, and, in relation to the Federal Republic, a substitute period, an excluded period, a reckonable period, or a period of uninsurable employment (Beschäftigungszeit) as defined in German legislation, to the extent that it is treated as equivalent to a contribution period in accordance with that legislation;

• (13) “benefit” means any pension, allowance, grant or other cash benefit, provided under the legislation of one (or the other) Party, and includes any increase in the benefit and any additional allowance payable therewith;

• (14) “sickness benefit” means, in relation to the United Kingdom, sickness benefit, as defined in the legislation of the United Kingdom, other than invalidity pension, and, in relation to the Federal Republic, cash sickness benefit payable under German legislation;

• (15) “invalidity pension” means, in relation to the United Kingdom, sickness benefit, as defined in the legislation of the United Kingdom, which is payable to a person in respect of any period during which he is an invalid, as defined in German legislation, and for which he is entitled to receive an invalidity pension under that legislation or would be so entitled if he satisfied the other conditions laid down by that legislation, and, in relation to the Federal Republic, a pension (including a miner's pension) payable under German legislation concerning pensions insurance in the case of inability to follow a former occupation or incapacity for employment;

• (16) “old age pension” means, in relation to the United Kingdom, a contributory old age pension or retirement pension, as defined in the legislation of the United Kingdom, and, in relation to the Federal Republic, a retirement benefit payable under German legislation concerning pensions insurance;

• (17) “survivor's benefit” means, in relation to the United Kingdom, a widow's pension, widow's basic pension, widow's allowance or widowed mother's allowance, excluding any part of that allowance payable for her first child and any increase payable for any other child, and, in relation to the Federal Republic, a widow's pension, widower's pension or former spouse's pension, payable under German legislation concerning pensions insurance;

• (18) “orphan's benefit” means, in relation to the United Kingdom, a guardian's allowance, that part of a widowed mother's allowance payable for her first child or any increase of a widowed mother's allowance payable for any other child, or a child's special allowance, and, in relation to the Federal Republic, an orphan's pension payable under German legislation concerning pensions insurance;

• (19) “family allowance” means in relation to the United Kingdom, a family allowance as defined in the legislation of the United Kingdom and, in relation to the Federal Republic, a children's allowance as defined in German legislation, or a wife's allowance or maintenance allowance payable in the Saar;

• (20) “vessel or aircraft” means, in relation to the United Kingdom, a seagoing ship or vessel, registered in the territory of the United Kingdom, or any other British sea-going ship or vessel of which the owner (or managing owner, if there is more than one owner) or manager resides or has his principal place of business in the territory of the United Kingdom, or an aircraft, registered in that territory, of which the owner (or managing owner, if there is more than one owner) resides or has his principal place of business in that territory; and, in relation to the Federal Republic, a sea-going ship which flies the Federal flag in accordance with German legislation or an aircraft which is included in the register of German aircraft.

Article 2

• (1) The provisions of the present Convention shall apply—

• (a) in relation to the United Kingdom, to—

• (i) the National Insurance Act, 1946, the National Insurance Act (Northern Ireland), 1946, the National Insurance (Isle of Man) Act, 1948, and the legislation in force before the 5th July, 1948, which was replaced by those Acts;

• (ii) the National Insurance (Industrial Injuries) Act, 1946, the National Insurance (Industrial Injuries) Act (Northern Ireland), 1946, and the National Insurance (Industrial Injuries) (Isle of Man) Act, 1948 ;

• (iii) the Family Allowances Act, 1945, the Family Allowances Act (Northern Ireland), 1945, and the Family Allowances (Isle of Man) Act, 1946 ;

• (b) in relation to the Federal Republic, to the legislation concerning—

• (i) sickness insurance;

• (ii) pensions insurance for manual workers, for salaried workers and for miners, and the special Saar Scheme for iron and steel workers;

• (iii) accident insurance;

• (iv) children's allowances, and, in the Saar, wives' allowances and maintenance. allowances ;

• (v) old age assistance for farmers.

• (2) Subject to the provisions of paragraphs (3), (4) and (5) of this Article, the Convention shall apply also to any legislation which amends, supplements or consolidates the legislation specified in paragraph (1) of this Article.

• (3) The Convention shall apply to any legislation which extends the existing legislation to new classes of persons, unless, within three months of the date when information concerning the said legislation is given in accordance with the provisions of paragraph (b) of Article 38 of the Convention, the competent authority of one Contracting Party gives notice to the competent authority of the other Party that it shall not so apply.

• (4) The Convention shall apply to any legislation which relates to a branch of social security not covered by the legislation specified in paragraph (1) of this Article only if the two Parties make an agreement to that effect.

• (5) The Convention shall apply to legislation which amends or supplements the legislation specified in paragraph (1) of this Article for the purpose of giving effect to a reciprocal agreement on social security concluded with one or more other countries, or a Regulation, promulgated by the European Economic Community, which is binding on one of the Parties, only if the two Parties make an agreement to that effect.

PART II — GENERAL PROVISIONS

Article 3

• (1) Subject to the provisions of Article 49 of the present Convention, a national of one Contracting Party shall enjoy the rights, and shall be subject to the obligations, of the legislation of the other Party under the same conditions as a national of the latter Party.

• (2) Subject to the provisions of paragraphs (3) and (4) of this Article and of Articles 13, 17 and 27 of the Convention, a person who is in, or resident in, the territory of one Party shall be treated as if he were, respectively in, or resident in, the territory of the other Party for the purpose of entitlement to claim, or to receive payment of, any benefit under the legislation of the latter Party.

• (3) The provisions of paragraph (2) of this Article shall not apply to home confinement grant or .unemployment benefit payable under the legislation of the United Kingdom, or to family allowances payable under the legislation of either Party.

• (4) Where, under German legislation, payment of benefit to a person outside the territory of the Federal Republic is subject to the condition that he informs the competent social security authority of his address, or, at the request of that authority, reports from time to time at a specified office, this condition shall apply to the payment of benefit made by virtue of paragraph (2) of this Article.

• (5) Any provisions of the present Convention which apply to nationals of either Party shall apply also to persons who are not nationals of either Party but whose claim to benefit is based on the insurance of a national of either Party.

• (6) Subject to the provisions of Article 7 of the Convention, the Convention shall apply to those members of the forces, members of the civilian component and their dependants, who are mentioned in the first sentence of paragraph (1) of Article 13 of the Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, signed at Bonn on the 3rd August, 1959 , in so far as that Agreement relates to the Forces of the United Kingdom and their civilian component, in the same way as the Convention applies to other persons.

Article 4

• (1) Subject to the provisions of paragraph (2) of Article 36 of the present Convention, and in accordance with the provisions of paragraphs (2) and (3) of this Article, where a national of either Contracting Party who is ordinarily resident in the territory of the Federal Republic has paid contributions as an employed person under the legislation of the United Kingdom, he shall be entitled voluntarily to continue insurance under German legislation concerning sickness insurance and pensions insurance.

• (2) For the purpose of applying the provisions of paragraph (1) of this Article in the case of voluntarily continued sickness insurance, the following shall apply—

• (a) any contribution period or equivalent period, completed by a person under the legislation of the United Kingdom as an employed person, shall be treated as a period of sickness insurance completed under German legislation ;

• (b) continued insurance shall not be allowed unless an application is made to the competent social security authority within three months of the date of arrival in the territory of the Federal Republic, or of the expiry of the period covered by the last contribution paid under the legislation of the United Kingdom, or of the date on which the present Convention enters into force, whichever is the latest.

• (3) For the purpose of applying the provisions of paragraph (1) of this Article in the case of voluntarily continued pensions insurance—

• (a) any contribution, paid by a person under the legislation of the United Kingdom as an employed person, shall be treated as a contribution paid under German legislation for a compulsorily insurable employment;

• (b) where a person was last employed in the territory of the United Kingdom and satisfies the conditions for continuing as a contributor in the pensions insurance scheme for manual workers, and also in the pensions insurance scheme for salaried workers, he can be insured only in that branch of continued insurance which would have been appropriate to the type of employment which he was last following in the United Kingdom, had that employment been followed in the Federal Republic ;

• (c) where a person was last employed in the territory of the United Kingdom in employment which would not have been compulsorily insurable under German legislation, he shall be entitled to continue insurance only in the pensions insurance scheme for salaried workers;