Report 2008 – 2009

Max Planck Institute for Foreign and International Social Law

PREFACE

Preface Subsequently, three sections comprehensive- ly document the events carried out at, or with This report provides information about the the involvement of, the Institute, as well as activities performed by the Max Planck Insti- the publications it has brought forth, and the tute for Foreign and International Social Law lectures and teaching activities conducted by during the past two years. It depicts the re- its staff members in the period under review search projects and activities carried out by (IV.-VI.). The final sections list grantees and the Institute staff members and describes the guests (VII.) and sum up the Institute along developments experienced by the Institute with its staff, bodies and functions (VIII.). over the two-year period 2008 – 2009. This report 2008 – 2009, too, contains an in- The structure of this report is based on that terim account of our activities. However, we of previous reports. To begin with, the intro- also hope that it will at the same time allow its duction (I.) delineates the research pro- readers to gain insights into the developments gramme of the Institute, introduces the lat- of social law and stimulate interest in overall ter and summarises the individual research issues of social law. To know that we have projects that run the gamut of social benefits succeeded in doing so would make particu- law. It particularly details the theoretical and larly worthwhile all efforts put into the pro- methodical issues of comparative social law, duction of this report. On that note, I would as well as the role of the welfare state within again like to express my heartfelt thanks to all the process of European integration. Subse- staff members involved. quently, a brief description of the promotion of junior researchers, another core task of Munich, February 2010 the Institute, is given. The introduction is concluded by a summary of the Institute's Ulrich Becker general tasks, as well as by a description of its structure and of the changes observed during the reporting period.

The next section outlines the individual re- search projects (II.). The objectives of the lat- ter, as well as their configurations and chosen methods of research are portrayed in brief, self-contained accounts. The respective texts have been prepared by those staff members entrusted with the project coordination, even if most projects are jointly planned and fre- quently carried out in collaboration with sev- eral researchers of the Institute. The third section of this report provides information about the promotion of junior researchers (III.). Since doctoral students are assigned an important place at the Institute, a description of the individual dissertation projects is pro- vided in keeping with the previous report.

1 REPORT 2008 – 2009 Contents

Preface 1

Contents 2

I. Introduction 5

1. Research Programme of the Institute 6 1.1. Theoretical Foundation 6 1.2. National and Supranational Social Law 12 1.3. Modernisation of Developed Social Benefits Systems 18 1.4. Establishment of New Social Benefits Systems in Threshold Countries 22

2. Promotion of Junior Researchers 24

3. Development of the Institute 26 3.1. Tasks, History and Structure of the Institute 26 3.2. Staff Changes 26 3.3. The Institute as a Research and Meeting Place 27

II. Research 29

1. Europeanisation and Internationalisation 30 1.1. General Principles of Social Security Law in Europe 30 1.2. European Coordination Law 32 1.3. Transnational Health Care Provision in Europe 34 1.4. New Developments in European Law 35 1.5. Posting Workers in the European Union 36 1.6. The Social Dimension of Integration Processes in Latin American Countries 39 1.7. International Standard Setting and Innovation in Social Security 40

2. Changes in Developed Countries 43

Regulatory Instruments and Forms of Action 2.1. Activation and Employment Promotion 43 2.2. Quality Assurance in Long-Term Care 44 2.3. Choice and Competition in Hospital Health Care 45 2.4. Mediation in Bavarian Social Jurisdiction 49

Structural Reforms in Social Benefits Systems 2.5. The "Swedish Model" in the Context of the Nordic Welfare States 52 2.6. Harmonisation and Extension of Coverage in Turkish Social Insurance Law 54 2.7. Developments Regarding Old Age Pensions in Italy 57 2.8. Occupational Pensions in Europe 59 2.9. Comparison of Old Age Security Schemes for Civil Servants 61 2.10. Social Security and Long-Term Care Dependency 63 2.11. The Law Concerning Persons with Disabilities 66

Family and Social Security 2.12. Modernisation of Gender Role Models – A Challenge to Family Law and Social Law in Europe 68

2 CONTENTS

2.13. Institutional Framework Conditions Regarding Solidarity Between Adults in Europe 71 2.14. Family Policy as an Economic Policy: On the Introduction of Parental Allowance in Germany 75

3. Transformation in Threshold Countries 77 3.1. Health Reforms in China 77 3.2. Pension Insurance in China as a Constitutional Task 80 3.3. The Right to Health in Latin America – Appropriate and Effective Access to Health Care Services 81

4. Multi-Focus Research 83 4.1. Emeritus Workplace Hans F. Zacher: Theory of Comparative Social Law 83 4.2. Legal Doctrine and Legal Comparison in Social Law 88 4.3. The German Welfare State – Structure, Differentiation and Further Development 92 4.4. The Social History of Pension Insurance in the German Empire: 1871 – 1914 95 4.5. The Activities of Players' Agents in National and International Sports Law 96 4.6. The Ban on Majority Ownership: German Football's "50 + 1 Rule" Under National and International Law 99

III. Promotion of Junior Researchers 103

1. Doctoral Group: "Impact of Constitutional Law and International Law on the Configuration of Social Security" 104 1.1. Social Security in Portugal and its Constitutional Principles 105 1.2. The Influence of Constitutional Law on the Configuration of Social Security in the Republic of Poland 106 1.3. The Impact of Constitutional Law and International Law on the Configuration of the Social Security System in Hungary 106 1.4. Influence of the International Institutions on the Configuration of Social Security in P. R. China 109

2. Doctoral Group: "The Triangular Benefit Delivery Relationship in Social Law" 111 2.1. The Provision of Further Education Programmes for Employment Promotion Through Third Parties 112 2.2. Occupational Rehabilitation of Persons with Disabilities 113 2.3. Pricing Regulation for Pharmaceuticals and Legal Limits 114 2.4. Individual Cooperation for Young People 115 2.5. Steering Mechanisms Regarding the Efficiency of Medical Devices Provision 116

3. Individual Dissertation Projects 118 3.1. Social Security Contributions 118 3.2. The Rationing of Public Health Services from a Legal Perspective 119 3.3. State Responsibility for Inpatient Long-Term Care Services 120 3.4. Social Security Status of Migrants with Irregular Resident Status 121 3.5. The Right to Hear a Specific Physician (Section 109 SGG) in Social Court Practice 122 3.6. Mediation in Social Jurisdiction 123

3 REPORT 2008 – 2009

4. Doctorates 124 5. Professorships 124

IV. Events Organised by the Institute 125

1. Symposia, Conferences and Workshops 126 2. Guest Lectures 134 3. Visitors and Delegations 136

V. Publications 137

1. Publications of the Institute 138 2. Publications by the Institute Staff 138

VI. Papers and Lectures 153

1. Papers 154 2. Lectures and Courses 169

VII. Grantees and Guests 171

1. Grantees 172 2. Guests 172

VIII. The Institute 175

1. Personalia 176 2. Scientific Advisory Board and Board of Trustees 178 3. Institute Library 178 4. The AMALIE Database Project 181 5. Work of Institute Members in External Bodies 182 6. Collaborations 184 7. Legal Opinions 187 8. Alumni Meeting 2008 188

Imprint 191

4 I. Introduction REPORT 2008 – 2009

1. Research Programme of tion, which leads to the effect that the line between law and politics may get blurred. the Institute This, however, is a problem located at the downstream level of interpretation of consti- 1.1. Theoretical Foundation tutional law and not, as in social law, already at the upstream level pertaining to the estab- The Functional Conditionality and lishment of institutions designated for inter- Political Arbitrariness of Social Law vention on the part of the welfare state. In fact, the question as to which social benefits In its core, social law is the law of social bene- systems are to be established remains an open fits. Social benefits are those benefits which one. The constitution contributes little to an are provided by the government, or for which answering of the question as to how much so- at least some sort of public responsibility is as- cial protection is needed, and thus hardly fig- sumed, and which pursue a particular social ures in the determination of the security level objective. This social objective is, above all (1). And even the question as to what kind of and in contrast to other social measures in a social protection is to be granted, i.e. how so- wider sense, the setting up of a certain infra- cial benefits systems are to be configured, is structure such as public transport or the provi- not predefined by objective necessities in sion of certain goods such as water, in order to terms of socio-political requirements (2). help, to support, to secure or to compensate individuals. With the aid of social benefits, in- (1) It is widely known, however, that it is the dividuals are to be enabled to secure their live- task of the state – or more generally, of a po- lihood and to participate in society. Social litical community – to address the social hard- benefits law in this sense is the very core of ships and needs of its citizens. And any inter- the Institute's research activities, with our re- national review will give evidence of the fact search seeking to take a holistic account of the that at least most states fulfil this task in prac- various equivalent protective measures. tice and provide help, support, compensation It follows from this very rough circumscription and coverage against risks through the grant- that social benefits law can be defined by its ing of social benefits. specific functionality. And it is this functionality which makes it imperative to change the positive law on social benefits more or less perma- nently in order to adapt it to societal changes in general and to its societal reference points in particular. At the same time, however, law is to fulfil a stabilisation function. In order to do so, it can stipulate the points of reference itself. And it can try to establish a normative framework for all societal and governmental action, and this is the specific task of consti- tutional law.

True, the latter postulates a high degree of abstraction: The constitution, too, must leave room for political deci- sions. The provisions con- tained in it are therefore in The Virtues of the Good Regiment (Isaac Schwentner, 1592, particular need of specifica- Old Town Hall, Regensburg).

6 I. INTRODUCTION

In Germany, there exists a well-established is being reinforced within the European Un- historical and ideological background for the ion through its Fundamental Rights Charter conviction that it is the task of the state to with the relevant social rights contained in it, secure the principles of the exercise of whereby welfare state tasks are emphasised. freedoms and to support those who are limit- ed in their capability to exercise their freedoms All this, however, does not predefine the ex- autonomously. This had been pointed out al- tent and level of intervention on the part of ready by Lorenz von Stein in the mid-19th cen- the social state. The sort and amount of so- tury: "Real freedom is owned only by him who cial benefits to be granted to an individual owns the conditions of the latter, i.e. who remains open in the aforementioned general owns the material and intellectual goods description. Since social law measures out as the conditions for self-determination." what assistance an individual is to, and can (Geschichte der sozialen Bewegung in Frank- expect to, receive under certain conditions reich von 1789 bis auf unsere Tage, vol. 3, granted by the society in which he lives, the Das Königtum, die Republik und die Sou- determination of social benefits depends on veränität der französischen Gesellschaft seit the views we hold in regard to the role of the der Februarrevolution 1848, 3rd ed. 1921, p. individual and to his life in a society and thus 104), and from this he deduced that the state to the responsibilities of the state. This re- had to "support the economic and societal quires political decisions. The specification progress of all its citizens" (Gegenwart und of general values in terms of social law greatly Zukunft der Rechts- und Staatswissen- varies even within the European Union. This schaften Deutschlands, 1876, p. 215). These can be illustrated, for instance, by a brief look quotes express the correlation to self-respon- at the statutory old age security systems: The sibility that had existed from the beginning, replacement rate of old age pensions, meas- yet at the same time they illustrate the inter- ured against previously earned income, great- relation between the protection of freedom ly varies among the member states (for a and equality. The welfare state should inter- rough overview cf. 'Pensions at a Glance' vene in cases where individuals can no longer published by the OECD). help themselves (and their families), where this cannot be expected or where their self- (2) What is more, no clear function-related sufficiency is compromised (Laband, Das specifications according to which social bene- Staatsrecht des Deutschen Reiches, vol. 3, 5th fits systems must or should be organised can ed. 1913, p. 289). It is to support the actual be discerned. A comparison of the systems potentialities to exercise one's freedom, thus established in other states yields proof of creating the fundamental conditions for a this. The population of a country can be pro- freedom-oriented society inclusive of its eco- vided with health care via a state-run health nomic system. At the same time, the chances service or a health insurance. True, the re- of all to participate in society are to be equal- spective choice of organisation will imply ised, or at least adjusted, with state support certain consequences: national health sys- being differentiated according to individual tems are tax-financed, for instance, while needs. Analogous ideas have become largely insurance systems are based on contribu- established in state practice. The interde- tions. However, even when a system has pendency of freedom and equality is retained been chosen, there still remains enough free- here, regardless of the modern theories sprung dom as regards its configuration. The insur- from mostly US American philosophy of the ance option conveys little about the question 20th century on the establishing of state tasks, as to who is to receive insurance coverage, which base their allocation rules either on the and just as little about the issue under which one or the other specific basic value. At the legal form the insurance providers operate, same time, a normative concept of social jus- how contributions are calculated and which tice and the welfare state has been established financial compensations are effected within at the international level. Human rights have the system. Conversely, opting for a national been contributing to this fact (particularly the health service does not automatically deter- International Covenant on Economic, Social mine the question whether the respective and Cultural Rights, as well as the European service providers are involved in health care Social Charter), and now that the Lisbon provision as independent agents or as em- Treaty has entered into force the phenomenon ployees, and it says nothing either about the

7 REPORT 2008 – 2009

way their services are remunerated. Provi- the relevant laws; on the other hand with the sion for old age can, and increasingly does, function and the functioning of the law per rest on several pillars: A first pillar, which se, thus addressing the objectives of legal serves as basic insurance and which, as a comparison. It is remarkable in this regard rule, is operated under public law; a supple- that the discussion is ultimately less about mentary second one which is agreed on by the correct procedure than about the signifi- the parties to a collective agreement or sub- cance of comparisons. sidised and regulated by the state; and a third where insurees can freely opt for the insur- (2) Against this background it must be noted ance coverage of their choice and which is that the projects of legal comparison carried subject to some sort of regulation not for rea- out at the Institute in the past and the present sons pertaining to social policy but for rea- have been focusing to a special degree on the sons of consumer protection. Contrary to functionality principle. While it has been as- certain studies which seem to observe an in- sumed that social law reacts to certain social terrelation between private actors and state needs and seeks to correct deviations from a bodies for the first time, the fact that the situation that is regarded as the rule, it is par- second pillar also takes on a social security ticularly the finding of the relevant laws function does not come as news. Already the which, in most cases, rests upon a differen- extended study on old age provision carried tiated socio-political basis. Projects laid out out by the Institute in 1991 (Zacher, Al- accordingly are therefore able – even in terssicherung im Rechtsvergleich) described crossing the often overemphasised line be- the complexity of this protection system and tween public and private law, i.e. independ- emphasised the need to combine various sys- ent of the respectively chosen forms of inter- tems. On these grounds it can be said that vention on the part of the social state – to only an overall picture will give information illustrate the complexity of the rules of social on the actual level of social security in a law and to analyse their interplay. In this way, country. This, however, reveals nothing about functional equivalences can be worked out the extent to which private forms of insur- without this necessarily having to be con- ance are regulated, and therefore also noth- nected to a general theory (i.e. one that goes ing about the extent to which the state, by beyond the subject of social law) for the ex- way of supporting the former, has acquitted planation of these equivalences. And it can itself of its duty to provide social security. It be demonstrated, as measured by general is obvious that the assessment of situations regulation theories or by superior normative differs greatly if one looks at, say, Germany statements, for instance on postulations re- on the one hand, and the United Kingdom garding justice, what kind of particularities on the other – and the greatly varying effects feature in the different types of social bene- of the financial crisis on the respective old fits systems even if they follow comparable age provision systems confirm this conclu- objectives (of security). sion. This, however, does not reveal anything about the objectives of the comparison of so- Consequences for the Methodology and cial law. The latter can, first of all, certainly Validity of Legal Comparison serve to portray the variety of potential legal solutions. Yet, if such a comparison is to be (1) The diversity and variety of social bene- anything more than a random listing of solu- fits systems first and foremost underlines the tions, it will also have to attempt to organise significance of a methodical approach to le- them. Further, it should preferably lead to an gal comparison that is just as traditional as it evaluation. In many cases, however, such an is general, namely the significance of the evaluation will run into difficulties. If it functionality principle. makes reference to the bases of the compari- Indeed, the methodology of legal comparison son and thus to the socio-political reviewing is increasingly being discussed again. These of certain situations of need, it will in turn discussions primarily deal with two different also have to make its own socio-political questions: on the one hand with epistemo- statements. If, on the other hand, the evalu- logical requirements that principally concern ation is to lead to normative statements, dif- the finding of a subject that is to be incorpo- ficulties may arise because, for one thing, an rated into a comparison, i.e. the finding of overarching normative standard across legal

8 I. INTRODUCTION

systems is not always readily apparent and, ƒthe interface between the socio-political for another thing, because the constitutional and the legal responsibility hosts studies provisions that primarily come into consid- which give information on the interplay of eration as such standards are relatively open different social benefits systems in the to socio-political system decisions. This context of coping with particular social means that subsequent decisions are subject needs. They are to be set up as broadly as to more restricted legal specifications as re- possible in the form of overall studies or gards system consistency or congruity, yet needs-based macro-comparisons, or must that they in turn are dependent on previous at least again include legal systems with system decisions and thus on the institution- varying basic normative concepts, since al configuration of social benefits systems. they are to convey fundamental informa- Since system decisions may vary depending tion regarding an entire area of social bene- on the relevant country, even the conclusions fits law. In terms of social policy they are to be derived from common normative speci- revealing in that they reflect the complex- fications remain restricted in their validity as ity of intervention on the part of the wel- regards the evaluation of existing social bene- fare state. This is significant particularly fits systems. in order to obtain comprehensive knowl- edge on those systems that might influ- (3) All this does not mean, however, that ence and even substitute each other. In studies of legal comparison in social benefits the future, however, it will make sense to law are superfluous. Quite the contrary: In no longer resume the classic categories of times of reforms pertaining to social law great social security, such as sickness, accident interest is still expressed with regard to infor- or old age insurance. It is of greater inter- mation on alternative solutions to socio-politi- est, at least if there is sufficient basic cal problems. Due to their detail and accuracy, knowledge in this regard, to choose com- comparative legal studies are particularly cap- prehensive socio-political issues as start- able of providing precise and complete infor- ing points, for instance the prolongation of mation on the institutional conditions and working life or integration into the labour particularities of a specific social policy. In market. A comparison that seeks to find this regard, different configurations are to be functional equivalents must then factor in selected depending on the respective overall very differently oriented and organised aim: benefits; with regard to the aforemen- tioned examples this includes the inter- ƒIf they are to illustrate the effects of the play of different provision and compensa- law, they can by way of single studies exam- tion systems such as insurance against the ine particular forms of intervention on the risk of sickness, accidents, invalidity or, part of the welfare state or focus on par- respectively, pension insurance, as well as ticular steering instruments. In such cas- employment promotion; further, it must es, the conditions for the effectivity of the also include the legal configuration of the law should be included and information role of the employer. should be given on either the various ap- proaches to a solution via law or the vari- The two aforementioned approaches are ous fields of application of law. The coun- characterised by the intent to base the re- tries for comparison are to be chosen spective targeted results on the comparative accordingly: either – to highlight the con- basis and thus on the core issues of social trasts – in accordance with the respective- politics. Nonetheless, it is a fact that re- ly varying basic normative concepts, or – search has so far only marginally touched on with a view to a potential parallelism of the necessity to use comparisons in social individual measures or instruments – with law also directly for the purpose of obtaining a similar institutional configuration of the legal knowledge. Within this meaning, re- respective social benefits systems that at- search in legal comparison may be oriented tract interest. Studies in comparative law at working out common principles and ap- cannot, however, deliver their own effec- plication rules, at facilitating the systemati- tiveness analyses. For this purpose, they sation of national social law, and at recognis- are dependent on interdisciplinary re- ing foreign dogmatic particularities. If it search that includes the social sciences; pursues these objectives, the conceptualisa-

9 REPORT 2008 – 2009

tion of individual comparative research Code Book X, but more fundamentally al- projects will require an intensified elabora- so the preliminary binding measures and tion of dogmatic issues, without this also thus studies on how insecurity can be re- having to mean that the simultaneous illus- duced gradually. Another starting point tration of the common problem and the so- that is just as interesting is the utilisation cio-political indicators suitable for its de- of administrative contracts as a coopera- scription would have to be foregone. As tive form of action for the selection of regards the depiction of foreign law, the dif- benefits that are to be designed individu- ferent levels of legal doctrine deserve atten- ally; after all, they are gaining new signifi- tion. In this context it is interesting to see cance particularly as regards employment which role social law, in terms of a particular promotion and, at the same time, they form of administrative law, plays in relation dissolve the lines between coercion and to general administrative law, and to find out acceptance, thus putting less binding le- which regulative provisions belong to consti- gal protection into question. Detached tutional law. from the forms of action and related to the decision programme or, respectively, to The individual properties of social law can the control of the results arising from it, be examined step by step at different levels. the examination of discretion and of Research projects of this type unfold their scopes of evaluation in social benefits ad- value particularly in comparison with general ministration, too, promises advantages, principles and institutes. since many of the issues that are to be de- cided upon require special expertise, e.g. ƒAt a constitutional level information can as regards the assessment of individual be obtained on the relationship between states of health, the effectiveness of phar- the state and the individual, the politically maceutical products or the security of constituted community and society, for in- health care provision on the whole. stance by way of examining the following issues: the forms of state duties exercised, The comparison of social law is also allotted for the outline of which the experiences of a further genuinely legal task area which is social law gained in connection with the characterised by its hierarchy of legal norms so-called enabling state yield ample dem- and which can be addressed by way of di- onstration material; related to this but rectly identifying potential conflicts between more fundamental, the significance of a norms at higher levels and ones at subordi- differentiation between private and public nate levels rather than by socio-political or law or, respectively, the exchangeability of systematic preconsiderations pertaining to the latter due to the aforementioned phe- law. nomenon, i.e. the parallel existence of in- surance authorities and insurance com- ƒThis refers, on the one hand, to the verifi- panies as providers of social security. cation of the compatibility of national Comparable as regards objectives, but regulations with international law or with more specifically oriented at a contribu- European Union law. Such verification, tion to the science of legal sources and to too, requires a comparison of legal sys- the application potential of particular tems. A vertical comparison of law may steering instruments, it is worth studying easily lead to misunderstandings, however, the relationship between competition, as international and supranational law are state regulation and self-obligation via neo- valid in their own right. The law of nations corporatist regulation on the part of those and European Union law form part of the involved. national legal system and in this regard subject the national legislator to specifica- ƒAt an operational level social law can yield tions. In doing so, they also provide their contributions to questions concerning le- own valuation standards, and this is the gal doctrine that are connected to particu- key distinction from a comparison of sepa- lar forms of action: To mind here comes rated national legal systems. the permanent administrative act, whose revocation has with good reason been sub- jected to a special regulation in Social

10 I. INTRODUCTION

ƒValuation standards across legal systems On the one hand, it is the endeavour for more do not only result from individual social efficiency that is behind the indicated re- law regulations pertaining to international forms of social benefits systems. It is not for law or to contract law and to the second- nothing that both in health care and in em- ary law of the European Union, but also ployment promotion attempts at quality as- from fundamental rights and from general surance are becoming increasingly signifi- legal principles such as the principle of cant. This factors in the improvement of the rule of law. With the Treaty of Lisbon benefits and services, but also generally in having entered into effect in Europe, the the efforts to account for the efficiency prin- corresponding general provisions are be- ciple in a more pronounced way. On the other coming more and more defined. This will hand it is striking that the aforementioned increasingly facilitate the future measur- concept of self-responsibility is experiencing ing of social state intervention against a renaissance. However, the changes are by common principles of European law. far more differentiated than what some state- ments have us believe. Looking at the overall Dynamics of Social Law: The Fundamental range of social state intervention, it is hardly Processes of Change appropriate to speak of an extensive decrease in state responsibility as regards social pro- As emphasised at the beginning, social law is tection. The activation strategy adopted in a changing law. This is true not least because employment policy is, rather, highly ambi- social law has to adapt to the societal condi- tious and characterised by the endeavour to tions which it seeks to influence. Yet, the integrate all employable persons into the la- transformations in the past years have been bour market. In family policy, too, the state is radical and have resulted in structural chang- now trying to exert a stronger influence on es that also make clear that the underlying societal processes. It is based on the expecta- values are at least being subjected to shifts of tion that the protecting and supporting state emphasis (1). The changing processes as such may, in return for its services, expect a certain can be categorised according to the affected degree of personal efforts taken on the part of operating level and level of development (2). its citizens, as well as some input in order to increase the benefits to society. The empha- (1) Well over are the times when the social sis on self-responsibility in the welfare state state, and thus also the social benefits sys- cannot do without a considerable degree of tems, were geared at expansion. Change has paternalism. At the same time it is unclear been necessitated by the developments on how much space the society of citizens is the job market observed for some years now, supposed to be allowed without this compro- as well as by societal changes brought about mising the reliability of necessary social cor- for their part especially by globalisation and rections, and how much competition and an aging and shrinking population. The ef- how many alternatives social benefits systems forts made to effect savings in social policy can take in order to continue to fulfil their have therefore been noticeable for quite a functions. That these systems, even if they while. In Germany, cost containment acts enforce solidarity, contribute to societal sta- have since the 1980s ranked among the fa- bility has in Germany been proven by the his- voured legislative measures in statutory tory of statutory pension insurance: The lat- health insurance law. By way of the Pension ter contributed significantly to the integration Reform Act of 1992 a consolidation course of large population groups both after World was adopted also in pension insurance. Apart War II and after the Reunification. And it is from a modification to the pension adjust- particularly through social benefits that the ment, this involved the reinforcement of the effects of the current financial crisis on the so-called participation equivalence, i.e. of the labour markets have been cushioned. correlation between contributions and pen- sion payments. It is a trend which also fea- (2) If one analyses the observable changes tures in the statutory old age provision sys- whilst taking into account the relevant regu- tems of most other European countries, just lation levels as well as the respectively like the extension of the combination of un- reached stages of development, three sepa- funded and funded pension schemes. rate processes can be discerned. They run parallel to each other and, as has been

11 REPORT 2008 – 2009

detailed in previous reports, are interrelated tutionalised process of benchmarking; or be- in many ways. These processes are: cause conventional social security options are to be replaced by new forms of protection ƒthe Europeanisation and Internationalisa- in the wake of societal development and tion of social law. This phenomenon is change. In any event, knowledge of the re- characterised by the increasing signifi- spective national legal systems is required in cance of supranational regulation levels the mentioned cases. The regulation tech- and the interconnections that arise from niques used therein as well as the ideas of the provisions stipulated at these levels order underlying these systems are to be in- and from national law (cf. below, 2.2. and cluded in the legal comparison just as much II.1.); as their distinctive modes of action, and their societal and cultural requirements. ƒthe adjustment or, respectively, modernisa- tion of social security systems in developed In this way, general structures and principles countries, characterised by a modification such as the shaping of democracy, the rule of of the forms of tasks to be completed on law or the protection of individual freedoms the part of the state and by the utilisation are gaining in importance, but especially so of new forms of steering and of action (cf. are the institutional arrangements on which below, 2.3. and II.2.); the actions of those affected and of the ad- ministration are based. That the develop- ƒthe transformation of social benefits sys- ment of social benefits systems takes on an tems in developing countries or emerging increasingly important role, and not only in nations. In these countries the societal financial terms, but particularly in regard to change, which is connected to rapid eco- the realities of people's lives and to the stabi- nomic growth, leads to the necessity of lisation of society, can be readily gathered setting up new and more comprehensive from the current reform debates. social benefits systems that are to contrib- ute to the support and completion of the traditional forms of security (cf. below, 1.2. National and Supranational Social 2.4. and II.3.). Law

The differentiation of the mentioned pro- Europeanisation cesses shows particularities which are im- portant for the analysis and understanding of In its decision on the Lisbon Treaty – re- these processes. For their examination, fun- markable in many regards, but also in need damental questions play an important role in of discussion – the Federal Constitutional many respects. Social law can serve as an Court has not only emphasised in a deliber- area of reference for enquiries into overlap- ately pointed and at the same time simplify- ping concerns of legal policy and legal doc- ing way the role of the state in these times of trine, for instance as regards the effects of increasing international integration, but has privatisation or the role of competition in so- also counted social state intervention among cial benefits schemes. At the same time, its core tasks. Viewed in this light, the ques- comparative law is increasingly gaining in tion as to what extent European integration significance. In times of intensified exchang- jeopardises the performance of this task is es of information, a frequently posed ques- again becoming ever more pressing. And this tion is whether and which national regulatory is the point of origin for the repeatedly ar- patterns can be transferred to other coun- ticulated fear that the European Union might tries' social benefits schemes – either be- undermine the foundations of social welfare. cause reform needs are similarly embedded It mostly implicates a one-dimensional exam- in different states in that, say, demographic ination of the relationship between the su- developments threaten the fundaments of pranational and the national legal system: pay-as-you-go risk coverage schemes; or be- How does European Union law affect na- cause increasing economic interpenetration tional law? And how much scope is left to the and migration calls for a greater convergence national legislator for the regulation of his so- of social benefits schemes, as in the case of cial state intervention? Already in the past the European Union through the now insti- years it had been emphasised that this sort of

12 I. INTRODUCTION

examination was not suitable to sufficiently This also means: The decision regarding the outline the particularities of European inte- establishment and configuration of social gration. It is curtailed in two ways: For one benefits systems is to be effected through the thing, it does not take into account the inter- democratic process of political opinion-form- actions taking place between the various ing by each member state individually. The levels of the legal systems. For another thing, underlying legitimation requirements are it restricts itself to the isolated effects of the based on national specifications; the norma- legally binding European provisions without tive framework is provided by the national factoring in their socio-political basis. It here- constitutions. by mostly ignores the fact that – both through individual social regulations in the broader (2) The allocation of powers provided in the sense and by way of socio-political coordina- constitutional order thus leaves the member tion processes – more and more European states their determining role in regard to the social standards are developed. social system, as long as this means the spe- cial protection of employees and the granting (1) As regards the starting point: In the po- of social benefits. However, this does not rule litical multi-level governance system of the out the possibility that this role might de facto European Union the distribution of compe- be jeopardised. After all, the economic liber- tences is an expression of the normative at- ties and economic-political principles con- tribution of responsibility. In accordance with tained in the EC Treaty do not merely refer to the concept of the treaties, social protection particular areas of life, but are generally ap- is to remain within the area of national re- plicable. Accordingly, they may also relate to sponsibility. The welfare state is not only a social benefits law. Indeed, the contingencies national accomplishment, but shall also con- between commercial law and social law have tinue to be seen as a national issue. In that greatly increased since the mid-nineties. For regard, and with particular reference to the the welfare state two phenomena are of sig- implementation of the Lisbon Treaty, nothing nificance in this regard: the extension of so- has changed. To be sure, the coordination of cial rights on the one hand, and the opening the various social security systems had from up of socially isolated markets on the other the beginning constituted a vital task of the hand. European Community that was approached While it has always been commonplace with- in order to prevent any loss of social rights in the EC for contribution-financed pay- due to migration (as for the coordination regu- ments to be exported, this is not so usual for lations and their reform, cf. II.1.2.). And ex- benefits in kind: They are to be granted tending far beyond that, a common social abroad only in exceptional cases. This is policy has since the 1970s formed in the based on the postulation that the state should Community, while the dispute over the rela- be in a position to assure the quality of the tionship between economic law and social respective service provision. The European benefits law, which had existed at the time of Court of Justice upended this approach some its foundation, gradually ceased. It is particu- time ago in a series of decisions: it argued larly through the Single European Act, the that due to the economic nature of medical Maastricht Treaty and the Treaty of Amster- and other treatment services, both their bene- dam that the competences of the Community ficiaries and their providers could base them- regarding law-making in this area have been selves on the free rendering of services. On perceptibly extended. However, they have these grounds they are allowed to receive or been formulated just as cautiously as they are provide treatment abroad, and they are en- now being exercised. The European Union, titled to have such treatment abroad reim- into which the European Community has al- bursed by their health insurance or health so formally been completely incorporated service (for details see II.1.3.). since the ratification of the Lisbon Treaty, may only enact regulations pertaining to so- Yet, the more recent jurisdiction of the Euro- cial security for the purpose of protecting pean Court of Justice does not only extend particular groups of persons; a harmonisation social rights in terms of territory, but also in of health policy has been ruled out. Further- terms of persons protected. The reason for more, the regulations may only contain mini- this is no longer the protection of an econom- mum requirements. ic activity, but the prohibition of discrimina-

13 REPORT 2008 – 2009

tion based on nationality. This prohibition of justify exceptions – one could, in this respect, discriminatory practices goes hand in hand talk of the negative side of negative integra- with EU citizenship, which by now consti- tion. It is as if Europe had put the hand of the tutes more than just an "empty shell". Every market on the social benefits systems, yet EU citizen, i.e. every citizen of an EU mem- without wanting to destroy their structures ber state, now has the right to reside in any through its grasp. other member state of his or her choice. This A first evidence of this hypothesis is the fact right of residence leads to rights during a citi- that the European Court of Justice has recog- zen's residence due to the prohibition of dis- nised the freedom to call on the services of crimination. Non-national EU citizens must any care provider(s) within the European Un- no longer be denied social benefits by the ion, but that it has also limited this freedom host country on the grounds of foreign citi- in the case of social benefits. For one thing, zenship. Even the requirement to provide an exception is to be made for inpatient treat- evidence of permanent residence now comes ment. For another thing, the member states under pressure due to it constituting an indi- have the right to limit the freedoms of in- rect discrimination. The resulting benefit for sured persons if the functionality of the secur- EU citizens from other EU member states ity systems is jeopardised. also and especially applies to non-contribu- A step further has been taken by the Euro- tory benefits, i.e. assistance and support al- pean Court of Justice in regard to the rela- lowances like social welfare, benefits for their tionship between European competition law integration into the labour market or educa- and national social benefits law. For the ac- tional grants. It is a crucial point in that the tivities of social benefits institutions are not general right of free movement – unlike the classified as entrepreneurial, and in this sense free movement of workers, the right of estab- economic activities, but as social activities. lishment or the freedom to provide services This characterisation also includes the pro- – is independent of employment. In this re- curement activities necessary for the actual spect, social rights are no longer directly ex- provision of benefits. In sum, this means: Eu- pected to be at least some sort of de facto and ropean Union law does not enforce the open- regular compensation for productivity gains. ing up of markets, but leaves it up to the deci- sion of the respective state to opt for an either market- based or non-market-based organisation of the provision of goods and services.

(4) Exceptions in favour of social law are no longer only made by the judicature with regard to primary law, but can also increasingly be found in EC secondary law. They have thus lost their sole connection to negative integration and reached posi- tive integration. Therefore, European Court of Justice, Luxembourg. they are transported from the application level to the (3) Anyone who might, in view of these de- level of law-making, thus acquiring an ab- velopments, have expected the increasing stract and general meaning. influence of European economic law to re- The most important examples of this can be sult – quasi inevitably – in an erosion of the found in the Posted Workers Directive and in national social benefits systems, has been the Services Directive, as well as in European proven wrong. Rather, the scopes of action of public procurement law, the applicability of the member states have largely been retained. which to the activities of the sickness funds The instrument for maintaining these scopes has been made plain by the European Court of action is the utilisation of the possibility to of Justice in the reporting period. The Ser-

14 I. INTRODUCTION

vices Directive, which is to help make practi- into an independent goal of European policy. cal improvements to the free circulation of This goal has meanwhile in turn been rein- services within the European Union, had forced in the context of primary law and has been the subject of long discussions and of a become part of a stable European anti-dis- long legislative procedure. The result of it is crimination policy. It should further be noted that it is applicable neither to "health ser- that the concept of the "social market econo- vices" nor to particular "social services" nor my" has for the first time been expressly "non-economic services of general interest". mentioned in the Lisbon Treaty. The plans for the so-called Patient Directive, The European Charter of Fundamental which was to stipulate special provisions for Rights might assume similar importance in cross-border treatment services, have been this regard. With the Lisbon Treaty entering put on hold. Conversely, the Posted Workers into force, it has turned into a legally binding Directive is creating its own secondary law document. The Charter documents the sta- exceptions from the freedom to provide ser- tus of fundamental rights protection attained vices with the aim of extending at least some in Europe. This also includes the protection basic conditions prevailing in the domestic of social rights, summarised in a chapter labour market also to foreign workers who are headed "Solidarity". The respective provi- posted to a member state. This regulation sions are not predominantly designed to lay aims at the protection of workers and em- down individual rights. They are rather in- ployees and the preservation of fair competi- tended to identify state tasks. And it is par- tion, yet it does not aim at the protection of ticularly in view of the fact that social bene- the domestic labour market as regards the fits law is not to be entrenched at European, merely temporary activity of employees in the but at member state level, and of the afore- context of a rendered service. In the end, mentioned problem that the assumption of however, the Posted Workers Directive con- the hence continuing state responsibility may stitutes a compromise that purposes a bal- be compromised in practice, that one thing ance between the national collective bargain- becomes clear: The social rights of the Char- ing policy and the utilisation of comparative ter of Fundamental Rights do not place the advantages in terms of labour costs. European institutions under an obligation to engage in further activities. They rather com- (5) European Union law has thereby also ex- pel these institutions to respect established perienced a gradual enrichment in regard to national social benefits law, i.e. they may pos- social law in the very field of commercial law, sibly also compel them not to take individual which is its basic domain. Yet, is this develop- measures. In this regard, they reinforce the ment of a general kind? And is it stable and described development towards a more re- not merely owed to rather short-term fluctua- strained exercise of the fundamental freedoms tions in European policy? This is indicated – and of competition law in cases that may re- which is an important step beyond the cited sult in collisions with socio-political meas- decisions of the Court of Justice and the le- ures taken by the member states. gislator – by the increasing normative foun- dation of social issues at European level. The (6) The European Union has not stopped its European Union is no longer only dependent efforts to enrich its economic law with "infu- on legal guiding principles stemming from sions" of social law and to extend its general the member states. Rather, its legal regula- principles on the social protection of its citi- tions increasingly reflect social objectives in zens. Rather, it has continued its convergence their own right that are gaining in impor- strategy initiated in the 1980s by way of a tance. The procedure of normative enrich- strategy that has been operating under the ment and superimposition is by no means name of Open Method of Coordination new. In this regard, I should like to mention (OMC) and which has received its own con- the contractual agreement on equal pay for tractual basis within the framework of em- men and women. This regulation originally ployment policy. served to establish equal competition. Since This strategy is distinguished by its proce- the 1970s the regulation has, through several dural character. Thus, common goals are laid guidelines, partly been defined more precise- down, indicators for the assessment of the ly, and partly been extended, with the result goal attainment are determined and national that the topic of gender equality has mutated measures are examined, in order to then

15 REPORT 2008 – 2009

reconsider further measures as well as to re- ments for the organisation of solidarity, they assess the goals and indicators. It is, within discernibly follow their own paths and the the framework of the overall process, not a once chosen lines of development. Thirdly, matter of enacting binding provisions. How- the European Union reinforces certain ten- ever, especially in areas covered by the OMC dencies for reform: by way of its request for the convergences within the meaning of com- financial feasibility of social benefits it inten- mon reform strategies cannot be overlooked. sifies the emphasis on individual self-respon- This equally concerns old age security and sibility, the focus on particularly needy per- labour market policy. These developments sons as regards assistance, and the priority of also appear to be influenced by the objectives contribution-based provision and prevention. promoted by EC bodies. In many respects, And yet, the normative basic ideas of social clear directions are posited, and an independ- policy in Europe forming in this way seem to ent profile of a common social policy has be- be in keeping with those developed in the come discernible over the years. It focuses on member states. the integration of economic and social policy, As a result, European economic law is en- on the prohibition to discriminate, on equal riched by social law, if only to a moderate ex- access to social benefits, and on the support tent and with repeatedly arising coordination of particularly needy persons. difficulties. Noticeable at the same time is the endeavour to transform into common (7) How can these developments be de- goals the underlying substratum, gained by scribed? There is a whole range of potential way of comparison, of the various national points of criticism that can hardly be over- welfare states. In this sense, too, the Europe- looked: They first and foremost refer to the an Union builds upon national achievements. still recognisable orientation towards basic It does filter the perceived, changes it and economic decisions. Furthermore, European opens up new perspectives. Yet, it does not social policy is, like the overall integration make any specifications. While the scope for process, highly pragmatic. What is largely action among the member states is actually missing is an independent normative dis- narrowed, they gain new influence by partici- course at European level. One will look in pating in the European discourse. The con- vain for instructions based on constitutional cept of the social state in Europe is thus char- theories on how to effect a just organisation acterised by an evolving process of interaction. of the relationship between society and the It is, at the same time, a process of mutual individual – even if, looking at the develop- learning so as to cope with the challenges the ments in the national social states, one needs social state is faced with due to its demo- not necessarily be convinced of their shaping graphic developments and due to internation- power. And above all, to come full circle: Is alisation. In the task of achieving the former, the social state, as a result, not at the same the European integration process serves as a time crucially weakened by European social way to form, by way of consolidation, one en- policy? tity that may facilitate the joint tackling of the Firstly, no unidirectional influence on the consequences of globalisation. part of the European Union is discernible. Socio-political reform measures are obviously Internationalisation actuated via discourses at national and Euro- pean level. In many cases, however, it cannot There are two characteristics that impart par- be determined as to which players play the ticular significance to European Union law: decisive roles in this regard. Sometimes the its direct applicability, including the direct European process of coordination has an ac- bestowal of subjective rights to its citizens, celerative effect, at other times it creates im- and its higher rank in relation to national law pulses, yet it is never the sole determining – even if, in this regard, a fundamental limi- factor. Secondly, the soft coordination pro- tation due to national constitutional provisos cess, by which the European bodies are seek- still cannot be ruled out. Only few other re- ing to advance common objectives in social gional international organisations represent policy, leaves the member states the relevant political communities, or even unions based scope for implementation. The decision of on law that might be comparably assertive. what tasks to assume is left with the member And most of them restrict themselves to is- states. As regards the institutional arrange- sues regarding transnational activities. The

16 I. INTRODUCTION

rules on free movement are incomplete. So- for allocation are to be generated despite the cio-political approaches are largely non-exist- fact that the effective contributory factors ent (cf. II.1.6.). The regional organisation of may get lost due to transnational movement. social protection is thus still left to the na- Therefore, it is necessary to set up regula- tional level, and even its coordination remains tions which make clear specifications on the fragmentary. International law alone contin- delimitation, reciprocal openness and linking ues to come into consideration as a source for of national systems of social protection, and regulations that transcend national law; its which are to provide clarification to a far implementation, however, depends on imple- greater extent than anything the conflict of mentation decisions made on the part of the social systems (e.g. regarding migrant work- national bodies. Globally, too, a closer coordi- ers) has so far accomplished. The objective nation and cooperation, seen by many scien- must be to ensure the setup and maintenance tists already as a process of constitutionalisa- of mutually open systems of social protection tion, can only rely on this legal instrument. worldwide. Such regulations will also be re- True, the human rights are to help overcome quired at international level. The internation- the traditional limitations to cross-national al community must increasingly provide a legal relationships inherent to international value and regulation framework which is to law; however, their effectiveness in practice keep normative provisions on the setup and is, today, not less jeopardised than in the past. maintenance of a social system available both For this reason, too, deliberations regarding a for the respective states and for transnational world social order in a wider sense continue actors. In the end the question will also be as to be relevant (1). Yet, since there will be no to how such a world social order relates to such thing as a "superstate", and as sover- wealth disparities. The question is an obvious eignty has proven volatile on the international one for the sheer fact that these disparities level, any international regulatory approaches set limits to the mutual opening up of nation- will, in the future, have to remain closely al systems of social protection. Besides, glo- linked to national law and any related devel- balisation of social protection is unimagin- opments. They will only have a stabilising ef- able without the principles behind it (such as fect if they are at the same time open enough social justice, solidarity, participation, secu- to absorb these developments (2). rity, self-responsibility and subsidiarity) find- ing worldwide recognition as well. As regards (1) Globalisation means that life processes research, an actual beginning can, for a start, that previously took place within a national be made by looking at the aforementioned context are meanwhile to the largest extent human rights, at the existing instruments for taking place on a transnational level. This is the regulation of social protection at interna- also and particularly true for those processes tional level, but above all by addressing the that, insofar as they take place within a na- rudiments of social law systems at the respec- tional context, are in some way or other ac- tive national level as well as their conditions companied by measures of social protection, for development. as is the case in many countries (gainful em- ployment, demand fulfilment, establishment (2) The International Labour Organisation of and provision for family units/associations, (ILO) and the setting of standards initiated etc.). No less does it hold true for processes by it in the field of social security therefore which change the conditions for those par- continues to deserve attention – and particu- ticular socially relevant life processes (such as lar attention at that, since its role to contrib- the establishment or the operation of busi- ute on a worldwide basis to the setting of so- nesses, the flow of capital and so on). This cial norms is and continues to be a precarious increase in transnationality in regard to so- one in view of the dissimilar paces of devel- cially relevant processes places too great a opment at national level on one side and at demand on the national social states. Interna- international level on the other side. If it tional interaction weakens their territorial re- wants to exert its influence, it must not be sponsibility. Social protection is to be granted overtaken by the developments of the nation- increasingly to persons whose lives are no al social benefits systems. Of particular inter- longer firmly attached to a state, its economy est in this context are the efforts to undertake or to the cultural and societal particularities a fundamental reform of ILO Convention of its citizens. The financial means required No. 102 concerning Minimum Standards of

17 REPORT 2008 – 2009

Social Security, dating from 1952. They were legislation adopted in the 1880s during the rather tentative and have lost momentum Bismarck era, and the extension of the wel- again. This is a cause for concern, since the fare state particularly between the 1950s and impulses for reform come from two very dif- the 1970s, the task is now to adjust to the ferent directions: on one side, from devel- change in the labour markets brought about oped states which are pushing for these min- by growing internationalisation, as well as to imum norms to be brought into line with the the societal transformations influenced by modernisation of their social security systems demographic change. Both quite obviously that were extended in the course of the 20th result in a greater division of labour between century; on the other side, from the develop- the state and society and thus also in struc- ing states that wish to see novel social secu- tural reforms of the social benefits systems. rity arrangements acknowledged at an inter- national level. In this regard, there is some It should be noted here that Germany had indication that the existing international min- early on lost its pioneering role as regards imum standards do not so much stipulate a the establishment of social security systems. state of development generally worth striving German social insurance is based on em- for or a universally valid normative basis, as ployment; the only exceptions include a few they do in fact require an overhaul. This is categories of self-employed persons and non- what the ISSISS project (International Stand- employed persons deemed in need of protec- ard Setting and Innovation in Social Security) tion. Germany thus failed to take the step of is to investigate (II.1.7.). It compiles facts on introducing universal coverage or of at least the various developments in social benefits extending social insurance to include the en- systems observable worldwide, correlates tire working population – a step many other them with the international standards and European countries had already taken in the examines the actual need for reform against course of the 20th century – some before and the theoretical background of challenges and some after the Second World War. It was not opportunities regarding global standard set- until 2009 that health insurance protection ting. became obligatory for the entire population. At the same time, however, the concept of the continental European social insurance 1.3. Modernisation of Developed Social was developed further in Germany by way of Benefits Systems introducing long-term care insurance – not for the purpose of establishing new responsi- The fact that the welfare state is undergoing bilities on the part of the social state, but, a phase of change has already been empha- and insofar quite in line with the tendencies sised (cf. above, 1.1.). This phase marks the of the general development, for the purpose third stage of a development: Following the of a more efficient performance of present seminal achievements of social insurance welfare state tasks.

18 I. INTRODUCTION

Flagging or absent economic growth and, in tration as well as new modes of outward ac- particular, demographic developments re- tion: the latter pertain to contractual agree- flected in an aging and declining population ments, which as such are of course nothing have caused distributional margins to shrink. new, but which until a few years ago were Although social protection systems are ac- scarcely used in the field of social benefits knowledged to fulfil an important function law – at least not in the relationship between by integrating and stabilising political com- the administration and the citizen. In the pe- munities – a fact which is also increasingly riod under review, these developments also recognised within the European Union – it is constituted the subject matter of an interdis- likewise acknowledged that these systems, ciplinary and comparative project on activa- and any state intervention associated with tion and employment promotion in various them, must be newly justified and adapted. developed states, which was concluded with Notwithstanding the above-outlined Euro- the publication of the respective findings peanisation and internationalisation of social (II.2.1.). These findings are of significance policy, decision-making as regards the con- particularly with regard to social policy. They figuration and, hence, the restructuring of have also led to the realisation that the legal social benefits systems must largely remain configuration of the activation strategy in the confined to the national level. In view of labour market policy still requires an assess- similarly embedded problems in other coun- ment that is based on a genuinely legal per- tries, the need for comparative studies is spective (also cf. above, 1.1.). However, now great indeed. For it helps to find out more that any comparison will be restricted to se- about other potential solutions – always on lected EU member states, common assess- condition that comparisons take account of ment criteria are available due to the evolv- basic structures and yet address all relevant ing European principle of the rule of law and details, as otherwise nothing can be said the European fundamental rights. about the transferability of individual reform measures. (2) The heightened reform pressure of recent years has driven endeavours to improve the New Forms of Regulation and Activation effectiveness and efficiency of social bene- fits. The underlying, at all times valid, ac- (1) The origins of activation as a central knowledgement is that state redistribution theme for the configuration of social security measures are only legitimate if they are ac- date from the U.S. labour market policy tually used to pursue a legally recognised adopted in the 1970s, but can also be found objective. For reasons of political economy, in Germany's newly amended employment such dependencies are often not observed in promotion legislation. As a comprehensive well-established welfare states until the fi- strategy (workfare), activation is associated nancial resources available for distribution with the Clinton administration. Starting in run short. Only in the past few years have the United States, Australia and the United efforts been stepped up perceptibly to en- Kingdom, activation has meanwhile reached sure the quality and enhance the efficiency all member states of the European Union of social benefits. For this reason the Insti- and is found accordingly in the employment tute has within the context of a conference policy guidelines aiming at a harmonisation addressed the matter of quality assurance in of European social policy. The aim of activa- long-term care (II.2.2.), a topic that is still in tion is to prompt changes in attitude on the its infancy in Germany. Further information part of both beneficiaries and the benefit- can be gathered from a comparison with the awarding institutions. In practice, however, situation in England, which is the subject of it is very closely connected to the more re- a doctoral project (III.3.3.). The task to as- cent tendency to reinforce the personal re- sure economic efficiency and quality is pre- sponsibility of individuals faced with social carious above all in benefits systems where risks. And in the field of labour market poli- independent third parties are called upon to cy, as has been shown by the creation of SGB render the benefits, meaning that in most II in Germany, growing importance is attrib- countries they are mainly found in the health uted not only to sanctions for the infringe- care and long-term care sector and, contrary ment of cooperation duties, but also to new to widespread opinion, sometimes even in regulatory instruments within the adminis- countries that provide a national health sys-

19 REPORT 2008 – 2009

tem. This sector is characterised by multiple Structural Reforms of Organisation and legal relationships: benefits awarded by vir- Benefits tue of the legal bond between the funding institution and the beneficiary (so-called so- In view of the broad lines of development de- cial benefit relationship or, respectively, pro- scribed at the outset, the current social law vision relationship or insurance relationship) reforms tend to go beyond mere adjustments are delivered by service providers (e.g. physi- to existing systems. They impact fundamen- cian or hospital) and thus based on a "per- tal aspects of structuring social benefits sys- formance relationship" between these pro- tems, notably as regards persons entitled to viders and the beneficiary. The reciprocity protection, promotion and support, as well between both legal relationships makes it as the level of benefits and, hence, the func- necessary to regulate the relationship be- tion of benefits systems as a whole. This like- tween providers and funding institutions, wise affects the organisation of these systems which may be regarded as a procurement as reflected, say, in the interplay of their di- and provision relationship. Accordingly, such verse forms such as private and public insur- regulations govern matters ranging from the ance. Thus, in Germany the statutory pen- inclusion of providers (by way of either au- sion insurance reform entailed elements of thorisation or contract), the securing of ben- partial privatisation, while the latest health efit delivery and provider remuneration, to insurance reform sought to intensify compe- quality and efficiency controls. General tition between private and statutory health questions regarding this form of "guarantee" insurers. But even within Germany's social and the multi-dimensionality of the benefit insurance branches numerous organisational delivery relationship as a whole are being ad- changes have recently taken place. Apart dressed by a doctoral group established at from the incorporation of new steering in- the end of 2007 (III.2.). Competition as struments within the labour market adminis- a specific steering instrument repeatedly tration, such changes involve the centralisa- served as a subject of Institute research in tion of self-administration in pension, health the past years. One such project entitled and accident insurance. "Choice and Competition in Hospital Health Care" (II.2.3.) has meanwhile been conclud- (1) Seizing upon the various reforms of social ed with a German publication. The changes security systems, the goal of Institute re- effected by the US health reform are yet to search was, on the one hand, to place the be incorporated into the scheduled English above lines of development in a comparative publication. law perspective. To that end, the Institute especially came to draw on its own expertise (3) Judicial law enforcement was another during the period under review. Resulting subject of our research activity in the report- from this were several publications that ing period. This was reflected in the conclu- made visible the transformations taking place sion of the project on "Mediation in Social in the social benefits systems of various Jurisdiction" launched at the beginning of countries: first and foremost in Sweden 2007, with a publication reporting on the (II.2.5.), which is of particular interest due Bavarian model project (II.2.4.). The focus to the fact that it also touches upon the char- here was on a new field of application of fa- acteristics of the Scandinavian welfare state; miliar forms of action, namely amicable dis- or in Turkey (II.2.6.), where efforts have pute settlement that is "built into" a judicial been made to build up, by way of combining procedure. The project clarifies the legal content and organisation, a more compre- framework of mediation in social court pro- hensive social protection system; and further, ceedings and, evidenced by a survey among in Italy (II.2.7.). the involved judges and parties inclusive of their representatives, provides information (2) On the other hand, the developments on the conditions and constellations in which were examined quite selectively with a view mediation may serve as a helpful instrument to several specific social security systems. to improve the pacification function and the Occupational pension schemes (II.2.8.) de- efficiency of judicial proceedings without serve particular attention for the fact that detracting from the assurance of adequate they are, in a multiple pillar model of old age legal protection by virtue of state authority. security, assigned a special function for the

20 I. INTRODUCTION

protection of individually attained living approach is followed up in the project on the standards. In this regard, the focus was on social security status of persons with disabil- the question as to which arrangements are ities in Europe and Asia (II.2.11.), which made in the various European states in order was continued during the period under re- to ensure security for the granting of benefits view and which yielded findings that have in the face of capital market crises in general, been published in one issue of the Institute and of the current financial crisis in particu- publication series. lar. With respect to old age security for civil servants (II.2.9.) the question was examined Family and Social Security whether this type of security scheme is, also in countries other than Germany, subject to The aforementioned reforms in social secu- specific principles arising from the particu- rity systems are expressive of an altered al- larities an entrustment with sovereignty en- location of societal and state responsibility tails, and what the consequences are for the with regard to social security. In this context, respective principles ensuing from the re- family – still – plays a special role. Here forms of the general old age security systems comes to mind the interdependency be- already effected in many states. tween maintenance law, social law and tax law that had been emphasised by Kahn- The Institute has furthermore started to put Freund (Comparative Law as an Academic increasing focus on social security in view of Subject, 1965, p. 22). It presupposes the co- the potential need for long-term care, ini- existence of relationships pertaining to fam- tially within the scope of various individual ily law and social law where a connection projects and within the framework of a new may exist on the supposition that social law postgraduate research group. Beyond that, assumes obligations to meet claims estab- examinations shall be carried out to reveal in lished under public law. Yet, the connections which ways the welfare state reacts to the are at the same time, and beyond that, of a particular needs of people requiring long- more fundamental kind. A family is a com- term care: How is the situation of need as munity of maintenance, even though in civil such defined and accounted for? What bene- society its effective range is – unlike Hegel fits or services are provided through which still presumed – no longer "so comprehen- systems? And how can a suitable infrastruc- sive" (Elements of the Philosophy of Right, ture be created? In view of the demographic 1821, Sec. 238). Where social institutions changes, these questions are gaining particu- can provide for the necessary protection, lar significance. The macro-approach hereby state assistance only takes on a subsidiary pursued is to provide an initial overview (on function – in any event this can be a free- some overall studies in this regard, cf. above, dom-oriented basic assumption. 1.1. – Consequences for the Methodology and Validity of Legal Comparison). Particu- However, the welfare state can no longer rely larly due to the very fact that comprehensive on the protective function to be provided and specific benefits systems for the provi- solely by the family. It intervenes in various sion of long-term care benefits and services forms right up to pedagogical assistance, and do not exist in every country, and also since supports the commitment to children, not the performance of such services usually in- least in order to secure its own existence in volves private persons, this overview will response to societal changes. In doing so, it have to be effected in terms of a cross-sys- has to take account of changing family struc- tem approach; in any case, it will provide fur- tures and roles. This refers to the recognition ther information on the complexity of social of new forms of cohabitation, and particu- benefits systems. larly to the significance of independent rights of children. Social law and family law are to (3) After all, as has been emphasised in pre- be coordinated in this matter. The basis re- vious reports, highly useful insights may be quired for this is a horizontal comparison be- gained, especially in connection with mod- tween both legal areas. ernising efforts, from comparisons with de- Against this background, the Institute has in veloped states whose legal systems have been the reporting period continued to examine shaped by cultural features that distinguish this project of many years on the conse- them from the European corpus of law. This quences of changing roles in the family and

21 REPORT 2008 – 2009

of changing family structures (II.2.12. and notably the family, causing these to be re- II.2.13.). It remains an important aim to ana- placed either by other collective arrange- lyse the interplay between family and social ments or by protection schemes under the law – an aspect which has often been ne- responsibility and administration of the glected on account of the separation of these state. two jurisprudential disciplines. Other publi- cations (II.2.14. and Commentary on the (1) The mere supposition that the indicated Federal Parenting Benefit and Parental Leave fundamental relationships might be univer- Act (BEEG), cf. V.2.) examined the parent- sally valid does not per se yield a simple evo- ing benefits that have been introduced in lutionary theory of the social benefits state. Germany, because their configuration does This is suggested by the mere fact that the not only raise various constitutional ques- development of particular social benefits tions, but – linked to the previously men- systems features national particularities, that tioned issues – because they are expressive it is owed to special circumstances and back- of a new political objective concerning the grounds and that it is expressive of certain family and the labour market, partly mod- values whose universality cannot be taken elled on foreign examples, with the objective for granted. To be mentioned in this context of engaging more women in the labour are the beginnings of social insurance in Eu- force. rope, whose emergence was substantially characterised by political objectives and no- tions of state philosophy. The same holds 1.4. Establishment of New Social Benefits true for its further development. The history Systems in Threshold Countries of social security is moreover marked by phases that were conducive to such develop- In threshold countries, characterised by a ment. But even if the relevant parallels could rapid pace of economic growth and mount- be drawn in an international comparison, the ing social inequality, the development of so- concrete choice of configurative elements, cial security systems is vitally important as the mix of private and state components, the an instrument of societal integration and sta- degree of legally prescribed solidarity and the bilisation. In the context of general moderni- level of protection would ultimately depend sation theories, one could hypothesise that on national particularities or political deci- industrialisation and increasingly differenti- sions unrelated to social protection. That ex- ated work processes diminish the signifi- plains why uniform concepts for the layout cance of societal forms of social protection, of social protection partly meet with rejec-

22 I. INTRODUCTION

tion and, in the event of their implementa- (3) The second focus is dedicated to the right tion, often come up against practical difficul- to health. Is there such a right? What is it spe- ties. In this context, too, it should once more cifically targeted at, and how can it be imple- be mentioned that the setting of universally mented? These questions are of core interest, laid out provisions according to international because on the one hand the realisation that law will not only have to comprise different health is one of the basic requirements for stages of development, but also include vari- humane living conditions has been universally ous configurations of social security systems acknowledged, yet on the other hand there (see above, 1.2. – Internationalisation). are doubts both at international and national

Quite obviously, the lack of resources and bureaucratic infrastructures in develop- ing countries limits the pos- sibilities of the latter for building up adequate social protection systems in the short range. Yet, even where economic power is growing and where precisely this fast pace of growth is heighten- ing social inequalities and risks, thus representing a possibility and need for state intervention, there are many reasons why the mere adop- tion of certain models will not readily meet with success. One impor- level as to whether there is such a thing as a tant reason is the existence of a large infor- corresponding subjective right. The reason for mal sector, the significance of which was il- this is the discrepancy existing in many coun- luminated for South Africa in the volume tries between the endeavour to provide the entitled "Access to Social Security" pub- best possible medical care and actual avail- lished during the reporting period (ed. by ability of services to a (major) part of the popu- Ulrich Becker and Marius Olivier). In regard lation, but also the difficulties regarding the to the respective particularities it still holds long-term financing of comprehensive health true that it is of utmost importance for care provision. Thus, depending on the devel- threshold countries to view their respective opment stage of the respective states respon- developments in mutual comparison. sible for the granting of health services, the setup of the required institutional provisions (2) In regard to the transformation of social and the consideration of social and medical benefits systems in threshold countries, the developments are coming to the fore. And a Institute focused on two areas during the re- right to health in this context always repre- porting period: One deals with the develop- sents a matter of key concern and of urgency ment of social law in China. The currently which may contribute to the implementation still unfinished legislative projects, particu- of a comprehensive health care system, yet larly those in the field of social insurance, which will at the same time be laden with leave important issues open in this regard, those difficulties that are always and neces- for instance regarding the question whether sarily connected with a postulation of social a national pension insurance system is to be rights. In view of this, it is remarkable that in aimed at (II.3.2.). It is painfully obvious that several Latin American countries the courts the disparities between urban and rural se- have awarded individuals with rights to par- curity will, at least in the foreseeable future, ticular treatment benefits that were directly not be overcome. This also becomes clear derived from their respective constitutions. when looking at the new measures taken for Such decisions are no isolated cases and the improvement of health care services (cf. are not restricted to the supreme courts; in II.3.1.). Brazil, for instance, every year thousands of

23 REPORT 2008 – 2009

such decisions are made. This entails serious dates who are engaged in specific dissertation socio-political consequences, because here projects within the overall frame of a more or the health care system is at risk of losing itself less broad principal topic. The aim of such in individual cases. Of course this also raises cooperation in the context of a doctoral group constitutional questions: questions regarding is to create an intensive exchange of views on the importance of social rights and the role of common methodological foundations as well the courts, with the recognition in principle as on issues relating to academic work proce- of the division of powers. A comparison be- dures and individual thematic problems. tween Latin American countries and Germa- The work of a new doctoral group is launched ny is also of particular legal interest in light of in a brief retreat of one or two days. Regular the strong response that German legal doc- meetings at the Institute are organised in or- trine receives, for instance, in Brazilian juris- der for the group members to keep in touch. diction and legal theory (cf. II.3.3.). These activities are rounded off by their par- ticipation in conferences, organised by them- selves or by other institutions, with doctoral students from other universities for the pur- 2. Promotion of Junior pose of discussing their theses within a larger Researchers circle of junior researchers, thus also becom- ing familiar with other work styles. Two The promotion of junior researchers is as- workshops were, beyond that, organised by signed a special rank among the activities of the members of the doctoral group dealing the Institute. This applies both to university with the "Triangular Benefit Delivery Rela- teaching and to the mentoring of doctoral tionship in Social Law": one workshop in a candidates, who are furnished with excellent peaceful location in order to make an interim working conditions at the Institute. assessment of their own work together with their supervisor; a second one in order to ex- Mentoring of Doctoral Candidates change expert opinions with other profes- sors. Doctoral students who are engaged in In the years 2008 and 2009, two doctoral individual dissertation projects (cf. III.3.) are groups existed at the Institute. A doctoral asked to join a doctoral group that fits in with group is a group of four or five doctoral candi- the timeframe of their dissertation.

Iris Meeßen, Daniela Schweigler, Magdalena Neueder, Markus Schön, Michael Schlegelmilch, Kyung Choi, Ilona Vilaclara, Nikola Wilman (left to right) and Prof. Dr. Ulrich Becker.

24 I. INTRODUCTION

Seminar "Sport und 60 Jahre Grundgesetz", summer term 2009, Abtei Frauenwörth, Frauenchiemsee.

The projects conducted by the first group on Lectures and Courses the "Impact of Constitutional Law and Inter- national Law on the Configuration of Social In the period under review the director's Security" (cf. III.1.) have, as regards con- teaching activities were characterised mainly tents, been largely completed. Since some by the introduction of the main focus areas parts will still have to be revised, and due to and the university part of the First State the duration of the doctoral examination pro- Exam in Law. He conducted the social law cedures, they will only be brought to a close courses (together with assistant lecturer in the course of the year 2010. At the begin- Prof. Dr. Jürgen Kruse) offered in the context ning of 2008, the project on the "Triangular of main focus area 5, business and corporate Benefit Delivery Relationship in Social Law" law: labour and social law. For the lecture (cf. III.2.) was launched. The doctoral group "Introduction to Social Insurance Law", involved in this topic has been examining the course examinations were offered which different branches of social benefits provi- formed part of the University Exam in Law. sion or, respectively, care sectors, starting The director was, furthermore, one of the from the subject of pharmaceuticals and examiners for the oral examinations of the medical devices in health insurance law, via First State Exam in Law as part of the First rehabilitation benefits and services for dis- Examination in Law. abled persons, benefits pertaining to child Members of the Institute staff were also en- and youth services, right through to further gaged as lecturers abroad (cf. VI.2.): within education programmes. Intensive discus- the frame of regular courses at the universi- sions and various meetings have helped form ties of Leuven (Becker), Strasbourg, Rennes, a cross-sectoral understanding of the benefit Poitiers (Kaufmann) and Kempten University delivery relationship, which is a basic re- of Applied Sciences (Knecht), as well as quirement for the development and exami- within the frame of individual guest lectures nation of a whole range of issues. at different universities (Becker, Darimont).

25 REPORT 2008 – 2009

3. Development of the new research staff has been to seek experts on national social law regimes which are of Institute particular significance to developmental and reform processes (cf. above, 1.1.). Worth not- 3.1. Tasks, History and Structure of the ing in this context is that country-specific Institute investigations by no means become obsolete through processes of Europeanisation and in- According to its statute, the Institute is de- ternationalisation. This is because social law voted to research in the field of foreign and is characterised to a much lesser extent than international social law. Following a sugges- other fields of law by unitarisation tenden- tion made in 1972 by the former president of cies. It goes without saying that the Institute- the German Federal Social Court, Prof. Dr. based knowledge of foreign law is augmented Georg Wannagat, to establish a Max Planck by including scholars from abroad in individ- Institute focusing on international social law, ual projects or by conducting projects with the Max Planck Society decided two years foreign cooperation partners. later to launch a project group for internation- al and comparative social law in Munich. This project group commenced its activities in 3.2. Staff Changes 1976 under the leadership of Prof. Dr. Dr. h.c. mult. Hans F. Zacher. To begin with, it em- As in every Institute Report, staff changes ployed a staff of five, later six researchers. can also be reported for the year 2008 and Ahead of schedule, that is, prior to the end of 2009. Yet, in the period under review, unlike the originally planned term, the group's con- in the previous reporting period, these chang- version into the Max Planck Institute for For- es did not relate to any leadership positions in eign and International Social Law was resolved the individual fields of work at the Institute. and subsequently carried through in 1980. Heartfelt thanks must be extended to librar- ians Melanie Jackenkroll and Kathrin Merker, From 1 January 1980, the Institute was under who left the Institute during the reporting the direction of its founder, Hans F. Zacher, period. In years of dedicated work Ms Jack- who in 1990 assumed the office of president enkroll rendered outstanding services to the of the Max Planck Society while continuing Institute library; she is now employed at the his directorship on a temporary basis. He was German Patent Office. New employees in succeeded as Institute director on 1 February the library are Stefan Götz (as of July 2009), 1992 by Prof. Dr. Bernd Baron von Maydell. Nadja Rudoba (as of August 2009) and ap- With the latter acquiring emeritus status on prentice Alexandra Müller (as of September 31 July 2002, the direction passed on to 2008). Esther Ihle left her position with the Prof. Dr. Ulrich Becker, LL.M., who took translation service. Her position at the Insti- full-time office as scientific member and tute has been filled by Christina McAllister. managing director from 1 September 2002. Ms Mareike Kiy was put in charge of looking after our guests. The administration team, The Institute research staff observe and ana- who are also responsible for the Max Planck lyse developments in social law and social Digital Library, were joined by Andrea Then policy in a number of European and non-Eu- (in July 2009), Annemarie Huber (in August ropean countries. This country-based struc- 2009) and apprentice Adriana Exner (in Sep- ture is supplemented by responsibilities for tember 2008). specific subjects and the observation of inter- national organisations. This division of tasks Departures from the research staff were: Dr. was and is basically upheld, because social Markus Sichert (as of 31 December 2007), law is and will continue to be shaped prima- who now works with the Federal Social In- rily by national factors. Country-specific so- surance Office; Dr. Matthias Knecht (as of cietal, economic and cultural backgrounds 31 December 2008), who accepted a posi- are therefore essential to the understanding tion with the Stuttgart Region Economic De- of law, and it is in this sense that the expertise velopment Corporation [Wirtschaftsförderung acquired by all staff of the Institute in the Region Stuttgart GmbH]; Dr. Christina Walser course of their longstanding activities can be (as of 28 February 2009), who is presently brought to fruition. A chief policy in engaging employed with the state parliamentary fac-

26 I. INTRODUCTION

tion of the Free Voters [Landtagsfraktion der New doctoral students engaged for the doc- Freien Wähler]; and Dr. Friso Ross (as of 30 toral group focusing on the "Triangular Bene- June 2009), who was awarded a professor- fit Delivery Relationship in Social Law" are ship of social work law [Recht der Sozialen Iris Meeßen (as of January 2008) and Michael Arbeit] at Erfurt University of Applied Sci- Schlegelmilch (as of March 2008). In Octo- ences. New among the research staff are ber 2008, Kyung A. Choi started her com- Nikola Wilman (as of August 2008), whose parative dissertation project on legal issues work focuses on health (insurance) law and regarding the social insurance contribution social law in the USA and Canada, as well as in Germany and Korea. In November 2008, Lorena Ossio (as of September 2008), who Daniela Schweigler started her dissertation devotes herself to the topic of social law in project on the theoretical and practical sig- the Latin American countries and to the so- nificance of the request of claimants to hear cial dimension of regional integration. a specific physician in social court practice (Section 109 SGG). This project is spon- In the years 2008 and 2009, too, there was sored by third-party funds from crime victim considerable fluctuation among the other aid organisation Weißer Ring. academic and student staff employed short- time for individual projects (cf. VIII.1.). 3.3. The Institute as a Research and On behalf of the many, a few shall be named: Meeting Place Doreen Knöfel changed from the Institute, where she was part of the academic staff, to Work Facilities the Bavarian State Ministry for Labour and Social Affairs, Family and Women. Upon The Institute has its own specialised library, completion of her doctoral thesis, Nikola whose collection has again grown during the Friedrich, too, took up a position at that min- reporting period (cf. VIII.3.). The books and istry. Melanie Schmidt (now Hack) has re- periodicals cover, above all, the social law of ceived a scholarship to do her doctorate at the international organisations, the European Oslo University. All staff involved within the Union, Germany and selected European and reporting period are to be thanked for their non-European states. The holdings also in- committed support of the Institute's work. clude publications on social policy, the social sciences and economics, as well as funda-

Our student staff: Alexandra Dietzen, Ellen Buschuew, Markus Vordermayer, Sara Michalelis, Katharina Mayer, Katharina Huber, Annemarie Aumann, Stefan Stegner, Si Liu (left to right) and Prof. Dr. Ulrich Becker.

27 REPORT 2008 – 2009

mental works of legal history and legal phil- bour Relations in the European Community osophy, and general treatises on constitu- (IAAEG, Trier), it publishes the Zeitschrift tional, administrative, civil and labour law. für ausländisches und internationales Arbeits- Further information can be accessed via da- und Sozialrecht (ZIAS). In addition, the In- tabases and internet publications. At the be- stitute puts out two serials entitled Studien ginning of 2008, library use was significantly aus dem Max-Planck-Institut für ausländisches simplified, and thus improved, by the imple- und internationales Sozialrecht and Schriften- mentation of an RFID system and, in the reihe für internationales und vergleichendes summer of 2008, by the installation of scan- Sozialrecht; seven new issues of the former ners. In 2009, a W-LAN hotspot was installed were published in the period under review. A in order to be able to offer internet access to series of working papers (MPISoc Working guests also via their own computers. Papers) deals mainly with narrower, highly In this way, the Institute enables scholars to topical subjects or addresses specific circles. conduct social law and social policy research This low-budget publication is also distrib- in a first-rate environment whose resources uted via the internet. In the period under are unrivalled inside and outside Germany. review, one issue appeared on the model These work facilities as well as the expertise project entitled "Mediation in Bavarian So- of its staff have made the Institute an inter- cial Jurisdiction" (Mediation in der bayer- nationally recognised centre for social law ischen Sozialgerichtsbarkeit). Lastly, the di- studies. This again attracted many guest rector edits the series Schriften zum deutschen scholars from Germany and abroad in the und europäischen Sozialrecht (Nomos Verlag, period under review – some of whom were Baden-Baden), of which two new volumes funded by the Institute, while most had were released in 2008 and 2009. come to carry on differently timed studies sponsored by other institutions (cf. VII). Applied Research

The promotion of visiting scholars as well as Besides conducting its own research projects the organisation of guest lectures, workshops and promoting junior researchers, the Insti- and conferences (cf. IV) foster both interna- tute also strives to communicate its findings tional and interdisciplinary exchange. It is in on German, European and international so- this sense that the Institute also serves as a cial law at home and abroad, especially by meeting place for researchers interested in participating in diverse conferences, work- social law and social policy. This is certainly shops and lecture events (cf. VI.1. and 2.). important, not least because the size of the This very often also involves exchanges with Institute does not permit the latter to carry experts from practice working at ministries, out observations on the entirety of social law associations and social benefits institutions, systems on an equal scale all by itself. And as well as with politicians. In this way, the this is also why cooperation with foreign Institute seeks to not only perform advisory partners forms such an important pillar of its tasks, but to also enable its staff to take prac- activities. These relationships are extended tice-related issues as an opportunity for fur- also by enlisting young social law scholars ther in-depth study or for the reassessment from abroad as well as researchers active in of hypotheses. the field of social policy. Like most of the legal Max Planck institutes, the Institute for Social Law also delivers ex- Publications pert opinions on behalf of courts in matters of foreign law (cf. VIII.7.). In 2008 and 2009, As a publicly funded academic establish- this task played only a minor role and was ment, the Institute considers it a core task to performed in addition to the aforementioned make its basic research results available to research activities. other institutions and the general public. Ulrich Becker The findings of scholars employed by the In- stitute are not only published in German and foreign research journals (cf. V.2.); the Insti- tute also offers its own channels for social law publications (cf. V.1.). In collaboration with the Institute for Labour Law and La-

28 II. Research REPORT 2008 – 2009

1. Europeanisation and Unit Europe and Social Security (RUESS) of the Catholic University of Leuven, confines Internationalisation itself to the guiding principles of the national social security systems. It focuses on legal 1.1. General Principles of Social Security principles, since the strong juridification of Law in Europe the social – and with it the dominance of the European constitutions in regard to the eco- For some time now, Europe's social security nomic, social and legal order, as well as its systems have been in a phase of change. impact on the structure of the social frame- What can be observed in this regard is par- work – has been noticeable in all European ticularly the ongoing, or in any case intended, states. institutional change of social security within the individual states. Within the respective The project is dedicated to those guiding legal national discourse, the reasons given for this principles that are expected to yield general change are the fiscal and socio-political statements on the commonalities in the social guidelines. In this regard, the aspect of the security law of the European states. A func- basic institutional conditions for social secu- tional aspect serves as a starting point in this rity systems is often not duly recognised. It is context: social security law aims at the spe- therefore not unusual for conflicts to arise cial protection of persons in specific situa- between economically and/or socio-political- tions of need and against specific risks. This ly sensible reforms and the national law, par- basic function is reflected in the principles to ticularly constitutional law. The institutional be examined through individually varying guidelines also limit the possibility of impli- forms: The collective dimension of social se- citly transferring successful reforms to an- curity law refers to reciprocity and the need to other country. In order to tackle future chal- accept mutual responsibility (solidarity). The lenges in Europe, it will be necessary to deal individual dimension is aimed at personal with the common foundations in the social responsibility and at co-participation (self- security systems in a comparative way. responsibility). The paternalistic dimension is reflected in mandatory regulations aiming to If, accordingly, the understanding of Europe's secure the individual (protection). And finally, socio-economic challenges and their institu- the temporal dimension embraces the entire tional framework conditions is to be promot- system of social security law in that it assumes ed, focus will have to be especially on the le- protective functions and provides guarantees gal bases and principles of the national social for specific periods of time (security). security systems. Admittedly, the European Union is increasingly devoting its efforts to The research project is devoted to the exami- social policy. Yet, the main responsibility re- nation of the principles of solidarity, self- garding socio-political action continues to lie responsibility, protection and security. The aim with the member states. On the one hand, is to trace the mentioned principles for the they respond to social matters in different respective national legal systems and to indi- ways in terms of structure and legal norms. vidually analyse the national findings with On the other hand, it cannot be overlooked regard to each of the four principles. In add- that reforms in social security systems are ition to this comparative legal analysis, a cen- taking place under mutual influence and ob- tral focus is the identification of convergences servation and are thus incorporated in the that allow the distillation of the principles of process of European integration. It therefore social security law in Europe. seems necessary to define the convergences in the institutional framework conditions for The Project and the Principle of Security social security and to promote in this way the understanding of the "social" as an independ- Research on the principle of security was ent value. completed within the reporting period. By means of questionnaires, the legal systems of Starting Point and Procedure 25 European countries were examined by national correspondents. The final analysis The project, initiated by the Institute and exe- was based on 14 country reports (Belgium, cuted in collaboration with the Research Germany, Greece, Great Britain, Ireland,

30 II. RESEARCH

Iceland, Italy, Luxembourg, the Netherlands, be unanimously revoked. The principle is Sweden, Switzerland, Slovenia, Spain and limited, however, where the legislator is at the Czech Republic). These country reports, the same time obliged to maintain the re- an introduction to the overall project and its spective social security systems for the bene- individual parts, as well as two analyses ori- fit of the citizen and thus to effect reforms. ented by different topical aspects (legisla- In this context, proportional, non-arbitrary tion/administration) will flow into the publi- and thus objective criteria are to be con- cation of a collection of essays in the English sidered, which must above all comply with language (Becker/Pieters/Ross/Schoukens, Se- the respective transitional measures and curity: A General Principle of Social Security regulations. Here too, as with the mainten- Law in Europe, 2010). ance of the systems, the principle of equality is of considerable significance in all coun- The principle of security refers to legal pro- tries, both for the benefit of the individual tection functions within the individual social and for the benefit of comparable groups. In security systems and guarantees these func- this respect the temporal element of the tions for a specified period. In taking this ap- principle becomes particularly evident: tran- proach, that is, in excluding a certain body sitional arrangements may entail temporary and scope of social rights from any changes, inequalities for the benefit of the individual, the principle of security facilitates a differen- yet in the long run equality must be estab- tiation between two forms of national action: lished for the benefit of the other parties. the enactment of social security "legislation" on the one hand, and the "administration" To a certain extent, however, the protective and thus direct awarding of social benefits mechanisms of the principle of security are on the other. In both areas, notable con- clearly and very closely connected to other vergences were identified with a view to the protective mechanisms, such as the protec- examined European states. tion of property or the protection of entitle- ments. On closer inspection it therefore be- The Principle of Security and Social comes apparent that constitutional provisions Legislation or other higher-ranking laws (may) protect the positions of the individual – at least tem- To begin with, it can be said that legislation porarily – against legislative action, but that in all countries is explicitly or implicitly, the sole orientation by higher-ranking laws by way of constitutional regulations, called and by legislation would narrow the perspec- upon to establish and maintain social secu- tive on the principle of security: for a mere rity systems for the benefit of its citizens. focus on the former would disregard the fact These regulations range from differentiated that the "lex in actu" is effected mainly specifications to simple distinctions, such as through administrative action, and that con- the requirement to establish social welfare fidence is therefore developed mainly in that systems as well as social security systems. In very area. The citizen must not only be able any case, no legislator may shirk the respon- to rely on legislation as regards his arrange- sibility to do something with regard to social security systems.

Secondly, it can be seen that, once estab- lished, rights pertaining to social security cannot be revoked by implication. Through- out Europe the continuous development of particular rights conferring prospective en- titlement, if not property rights, has been noticed; on the whole, these rights mediate particular protection. Thus, the principle of security ranges among further principles per- taining to the rule of law, such as legal secu- rity or proportionality. Whoever seeks to cur- tail social rights or social benefits by law has to make sure that existing regulations cannot Dr. Friso Ross.

31 REPORT 2008 – 2009

ments for the present or the future; he will for instance, advantageous norms may be ap- also particularly seek to find reliability in any plied to old issues in accordance with the administrative action pertaining to the exe- "benefit of the doubt" principle, it even re- cution of laws. This is particularly true for flects favourably on the distinctive features social security and any benefits related to it. of European social security law, since the po- sition of the citizen is strengthened here. The Principle of Security and Social Administration The principle of security manifests itself par- ticularly well in a core area of the protection The relationship between the social adminis- of legal validity under social administrative tration and the citizen in European countries law, namely in the retrospective revocation is characterised by the validity of adminis- or mutability of decisions. Here, too, it does trative actions and decisions. This means not matter that – with respect to the ques- that the citizen can plan ahead, since he can tion as to what degree of binding effect a trust in the continued legal validity of a deci- wrong decision as to affiliation may have – no sion or action. This legal validity is prede- homogenous picture can be provided; after fined by the letter of the law. The confidence all, affiliation to the respective system is resulting from the interaction between the merely a facet. Much more substantial is the social administration and the citizen is le- result that, in regard to the issue of the bind- gally constitutive. Both parties, yet especially ing effect of an advantageous, yet unlawful the citizen, place their trust in continued le- payment of benefits, the latter cannot simply gal validity and confidence; the protection of be revoked, and this applies to nearly all legal these values is indispensible due to the fact systems that have been examined. In this re- that the individual cannot negotiate the con- gard, it is especially the protection of legal ditions of the respective social security sys- validity that acts as a basis for the principle tem. The protection of legal validity and con- of security. Finally, mention is to be given to fidence arises from the actual situation in the fact that in the examined legal systems which the citizen is confronted with the so- the duty to provide information to their citi- cial administration. Any administrative deci- zens is stipulated, and that any breach there- sion resulting from it will form the basis for of will have consequences, be it in the form the establishment of legal validity and confi- of compensations or in the form of revoca- dence. The latter will benefit from the – tions of the respective decisions. To con- time-related – immutability of the respective clude, the comparison illustrates that, with decision. It is this immutability, as well as respect to the relationship between the citi- the predictability, of decisions that shape the zen and the social insurance or welfare ad- protection of the citizen's interests. ministration, security is a principle of social administrative law that has become valid all In this regard, the trans-European principle over Europe. can, with respect to administrative action, Friso Ross only communicate itself via the stipulation that any decisions to be made be consistent, reliable and predictable. To this extent, the 1.2. European Coordination Law first findings showing that the estimation of the actual nature of discretionary power dif- As in previous years, EU rules coordinating fers in the various legal systems are not over- social security formed a core area of the Insti- ly relevant. Of greater significance, however, tute's work on European Union law during is the fact that similar mechanisms to limit the period under review, this time to mark a discretionary power are effective and have special occasion: On 1 May 2010, Basic Reg- been applied in the examined legal systems. ulation (EC) No. 883/2004 and Implement- All this serves to facilitate the continued va- ing Regulation (EC) No. 987/2009 will re- lidity of the citizen's legal positions, while place the secondary legal instruments of leaving the administration a certain scope for European coordination law that had, since action. It is therefore also of great impor- 1 January 1973, been effective in the form of tance that new laws enacted in the European Regulations (EEC) No. 1408/71 and No. countries have, on principle, no influence on 574/72. With respect to social security, these previously made decisions. In cases where, regulations ("European laws") are to guaran-

32 II. RESEARCH

tee the free movement of insured persons of EU mem- ber states who, in addition to national citizenship, hold a European legal status due to Union citizenship which, among other things, certifies the right of free movement. Initially, this right applied to the six countries forming the European Coal and Steel Community (1951), as well as – later – to the European Economic Community and the Atomic Energy Commu- nity (1958). Today, it applies to the 27 member states of the European Union, to the non-EU member states of the European Economic Area, namely Iceland, Liech- tenstein and Norway, as well as to Switzer- European Commission as the initiator and land, which is bilaterally associated with the "engine" of the reform process certainly must European Union and its member states. be credited the fact that it has undertaken efforts to bring to the table scientists and Reform of European Coordination Law hands-on experts in coordination law, as well as their protagonists, in order to speed up Regulations (EEC) No. 1408/71 and No. implementation of the reform. The author of 574/72 on the coordination of social security this article participated in this process: systems to the benefit of employed persons, self-employed persons, students and families ƒby way of conducting advanced training of the former were in the past subject to mul- courses for staff members of the minister- tiple and manifold amendments and updates ial bureaucracy, of the social benefit agen- in order to account for changing legal regula- cies and of benefit and service providers in tions at national and European level, for the Germany, Austria, Romania and Estonia, enlargement of the EU to include new mem- as well as ber states, as well as to comply with the rele- vant judicature of the European Court of ƒby way of participating in conferences and Justice. research seminars initiated by the Euro- By way of enacting Regulation (EC) No. pean Commission in 987/09 as an Implementing Regulation with regard to Basic Regulation (EC) No. 883/04 – Prague, contributing with a presenta- and publishing it in the Official Journal of tion regarding the application of coordi- the European Union on 30 October 2009, nation regulations to measures of active the years of planning to reform European co- labour market policy, ordination law have found their legislative foundation. In this regard, the declared goals – Ghent, contributing with a presentation of the reform – simplification and moderni- regarding the problems of applying the sation – have, from a scientific perspective, new coordination regulations to health only been reached to a certain extent in view services and benefits, as well as in of the necessity (not least due to the prin- ciple of unanimity, which was applicable – Stockholm, for the evaluation of semi- until the Lisbon Treaty entered into force nars carried out on the part of the Euro- and modified the EC Treaty) to find a com- pean Commission on the various promise on numerous individual issues branches of social security covered by among today's 27 EU member states. The the coordination regulations (illness in-

33 REPORT 2008 – 2009

cluding long-term care needs, mother- 1.3. Transnational Health Care Provision hood/fatherhood, old age, invalidity and in Europe provision for dependants, unemploy- ment, family benefits, benefits in the Since the insights gained by the European event of accidents at work or occupa- Court of Justice (ECJ) in the year 1998 tional illnesses) – with a view to regula- through the "Decker/Kohll" judgements on tory gaps that are to be filled preferably the cross-border provision and use of health by the latest upon commencement of care benefits and services, meanwhile con- the new regulations on 1 May 2010 and cretised and specified in nearly a dozen ECJ to ambiguities related to these legal in- judgements, it has also been fixed by the Eu- struments, as well as with respect to ropean Supreme Court that the fundamental existing implementation problems in economic freedoms of the common market, the member states. especially the freedom to provide services, are also applicable in the area of social secu- This kind of "participant observation" of the rity and health care. Consequently, service European legislative process is an important providers, e.g. physicians, have the right not step towards a "European" interpretation of only to set themselves up in other member the respective EU legislation. states, but also to offer their services on a cross-border basis. In turn, patients and in- Social Protection Within the EU Against sured persons are entitled to use medical the Risk of Social Long-Term Care Needs services also in other EU member states.

At European level efforts have been intensi- Since the so-called Services Directive of the fied to provide solutions for social protection year 2006 had excluded health and social against the risk of social long-term care needs. services from its relevant material scope of Endeavours to firmly fix the conditions on application due to their specifics and signifi- benefits in the case of long-term care needs cance for the health of the population, the in Regulation (EC) No. 883/04 on social se- European Commission submitted a "Propos- curity in a separate chapter have so far been al for a Directive on Patients' Rights in unsuccessful. However, the European Court Cross-Border Healthcare" on 2 July 2008. of Justice (leading case: the German case of Among other things, this legislative initiative "Molenaar v Allgemeine Ortskrankenkasse was intended to codify the relevant judica- Baden-Württemberg") has qualified social ture of the European Court of Justice. The long-term care benefits and services as sick- realisation of this proposal would have meant ness benefits within the meaning of Euro- that, in the light of the jurisdiction of the Eu- pean coordination law and thus also given ropean Court of Justice, a further pathway – impetus for the new Regulation (EC) No. under secondary law – to transnational provi- 883/04 to contain a provision (Article 34) which coordinates the combination of mon- etary care benefits and care benefits in kind originating from different member states.

As regards social protection against the so- cial risk of requiring long-term care benefits and services, Germany has, since the intro- duction of social long-term care insurance in the mid-1990s, taken a leading role at the international level. After all, corresponding regulations in Belgium (Flemish Communi- ty), Luxembourg, the Netherlands, Spain and also Japan owe their implementation to a considerable extent to the German model. Researchers of the Institute (Becker, Rein- hard, Schulte) were actively involved as me- diators in the process. Bernd Schulte

34 II. RESEARCH

sion of health care would have opened up in the failed Treaty establishing a Constitution addition to the already existing pathways for Europe. The European Community has leading via the aforementioned coordination merged institutionally into the European regulations on the social security of "migrat- Union, the Treaty on European Union and ing" EU citizens and via European primary the Treaty on the Foundation of the Euro- law concerning the freedom to provide ser- pean Community have been amended, the vices. Such a new pathway would certainly latter having been renamed "Treaty on the not have contributed to the standardisation Functioning of the European Union" (FEU and simplification of European health care. Treaty), and finally the Charter of Funda- As this proposal for directive could not be mental Rights of the European Union has passed during the Swedish EU presidency in become legally binding. The "principle of the second half of 2009, this problem – fundamental rights protection" (including which is of particular significance for Ger- the fundamental social rights) of the Euro- many, since it has a health care system that is pean Association of States [Europäischer attractive also to Union citizens from other Staatenverbund] has since been in keeping member states, as well as differentiated and with that of a modern constitutional state. efficient – will in the future continue to fac- tor as an important module for a European What is furthermore remarkable in terms of health care system in nuce. social policy and social law is the fact that the principle of social market economy has This "Europeanisation" process has also been now been explicitly entrenched in the EU supported by various judgements of the Euro- Treaty (Art. 3 Para. 3) and that the welfare pean Court of Justice on European competi- state – still the responsibility of the member tion law (e.g. its – negative – decision on the states – has been strengthened against the entrepreneurial capacity of the German em- economic fundamental freedoms as well as ployers' liability insurance associations [Be- against the rules of competition of the com- rufsgenossenschaften] and thus at the same mon European market. In this way, the Eu- time on the inapplicability of EU competition ropean Social Model has also been given law to an "oligopoly" of social insurance agen- certain normative features. cies), including decisions regarding European state aid law (e.g. with regard to German hos- The FEU Treaty has in Art. 48 (ex Art. 42 EC) pital financing), as well as recent decisions introduced the majority principle – furnished regarding European public procurement law with a national right of veto as an "emergency (with respect to the procurement of medical brake", as it were – for law-making purposes devices through sickness funds). This process in the area of European coordination law, a is to lead to the establishment of more effec- principle that is to simplify law-making in this tive and more efficient health care systems in area in the future. the European Union by way of more competi- tion, international division of labour and re- European Jurisdiction ciprocal learning (for instance within the con- text of the political strategy termed Open "50 Jahre EU – 50 Jahre Rechtsprechung des Method of Coordination (OMC)) in the fields Europäischen Gerichtshofs" [The EU turns 50 of health care and social long-term care. – 50 years of jurisdiction by the European Bernd Schulte Court of Justice] was the title of a conference and its appurtenant publication dedicated to the role of the European Court of Justice in 1.4. New Developments in European Law the areas of freedom of movement, coordina- tion rules governing social security, labour law, The Lisbon Treaty protection of labour and gender equality, as well as anti-discrimination for reasons other Upon entry into force of the Lisbon Treaty on than gender (Müntefering/Becker, 2008). 1 December 2009, the Constitution of the European Union has, even without a formal The European Court of Justice has made re- constitutional document, in a material sense markable contributions particularly to the received a new legal foundation correspond- coordination of social law and related judicial ing, as regards contents, to a large extent to matters through meanwhile about 500

35 REPORT 2008 – 2009

decisions that have strongly characterised this than 60 participants from ministries, associa- field of law. In the recent past it has been de- tions, judiciary, social services administration cisions on Union citizenship, on the funda- and the advocacy had the opportunity to ob- mental economic freedoms as well as on com- tain first-hand information from experts from petition law (including state aid law) and science and practice on the issue of posting public procurement law that have contributed workers and to put their own questions up to the Europeanisation of social law. Today for discussion. there are approaches not only for a descriptive but also for a normatively understood Euro- pean social model that is to be conceived in terms of a guideline for the future develop- ment of the welfare, respectively social state principle in Europe, and this fact is owed largely to the endeavours of the European Court of Justice. The conference of the Euro- pean Institute of Social Security held in Ber- lin in September 2008 to mark 50 years of European coordination law ["50 Jahre Euro- päische Sozialrechtskoordinierung in Europa"], the results of which were resumed in a final contribution by a member of the Institute (Schulte), served as a forum which provided Nikola Wilman. the opportunity to give an account of this de- velopment. To begin with, the legal situation in the field Bernd Schulte of application of European Community law was described in order to introduce the topic (Schulte). The aim of the regulations regard- 1.5. Posting Workers in the European ing social security passed on the basis of Art. Union – Problems Experienced in 42 of the EC Treaty – i.e. Regulation (EEC) the Practice of Social Law No. 1408/71 and Regulation (EEC) No. 574/72 (soon to be Regulation (EC) No. In these times of increased mobility the trans- 883/04 and Regulation (EC) No. 987/2009) national posting of workers is growing in im- – is to coordinate, not harmonise, the social portance. Given the sometimes huge differ- security systems of the member states. The ences between the various national legal member states are to decide themselves on systems numerous problems arise, including the configuration of their social security sys- – among other things – the difficulty in le- tems. The free movement of workers as one gally assessing the facts relevant to the post- of the four European fundamental economic ing of a worker with respect to social security freedoms can only be guaranteed, however, if issues. Once a person takes up work abroad, the relevant gainful activity in another EU it must be clarified which social insurance member state does not entail adverse condi- legislation becomes applicable to the respec- tions as regards the social security status of tive case. This must not lead to the acciden- the worker. Community law identified this tal circumstance that the worker is insured problem early on and thus set up certain cri- in both countries or in neither country. On teria by which the applicable national legal 20 April 2009 the Institute organised a con- system is to be determined. Thus, according ference in cooperation with the Bavarian to Art. 13 II of Regulation (EEC) 1408/71, Higher Social Court and headed by Ulrich both employed and self-employed workers Becker that sought to display and discuss the fall under the host country principle or, re- most crucial practice-relevant problems from spectively, the country-of-employment prin- a socio-legal perspective. Particular focus ciple, meaning that they are covered by was given to issues pertaining to European the social insurance scheme of the member law in the context of Regulation (EEC) No. state in which they actually work. An excep- 1408/71, as well as to questions relating to tion thereof is effected by Art. 14 I lit. a of liability law in the light of the relevant juris- Regulation (EEC) No. 1408/71 for cases re- diction of the Federal Court of Justice. More garding the posting of workers. Accordingly,

36 II. RESEARCH

a worker employed in the territory of a mem- shall retain his social security status in the ber state by an undertaking to which he is country of origin for the duration of his stay normally attached who is posted by that un- abroad. The application of German social dertaking to the territory of another member law in the event of posting a worker from state to perform work there for that under- Germany to another country first and fore- taking shall continue to be subject to the leg- most implies an existing employment rela- islation of the first member state, provided tionship in Germany which is to continue that the anticipated duration of that work after the worker's return from abroad. In this does not exceed twelve months and that he is context, the speaker explained in more detail not sent to replace another worker who has the comprehensive jurisdiction of the Ger- completed his term of posting. The new Reg- man Federal Social Court on the local alloca- ulation (EC) No. 883/04 provides for a one- tion of employment. He also referred to em- time posting period of now 24 months. Ac- ployee-employer agreements regarding the cording to the speaker, problems were caused temporary "suspension" of an employment in particularly by the lack of definite criteria Germany, which would "kill" the employee's characterising the "employment relationship" posted worker status. The accordance of Sec- in the sending state, as well as the different tion 4 SGB IV regarding the application of methods of posting applied in practice by the German law abroad with Section 5 SGB IV individual member states. Furthermore, he regarding the application of foreign law in advocated for better coordination, or even Germany has repeatedly been postulated, harmonisation, of the elements regarding the particularly by the Federal Social Court, posting of workers in labour law, social law meaning that the posting of German workers and tax law. abroad and the reception of foreign workers in Germany are to be handled on an equal Subsequently, the regulation on the posting basis. However, criticism has been raised of workers in German law was explained, against the factual tendency in the jurisdic- along with the applicable jurisdiction of the tion of the Federal Social Court to assume Federal Social Court (Rittweger). In the Ger- that, in the majority of cases, German social man legal system, Sections 3 to 6 of Social security law is applied, meaning that the ap- Code Book (SGB) IV contain conflict rules plication of foreign social law in Germany is for the determination of the social security expected only rarely. status. However, the posted workers' rules of SGB IV are only applied if Regulation (EEC) Subsequently, the problem of posting work- No. 1408/71 is not applicable as a suprana- ers to non-European countries was illustrat- tional conflict rule under European law, or if ed by reference to the case of Australia there is no social security agreement be- (Jansen). The social security agreement con- tween Germany and the respective non-EU cluded on 13 December 2000 between Ger- country (e.g. South Africa, Brazil). In the manner of European Union social law, German law, too, stipulates that any person who works in Germany must also pay social insurance contribu- tions in Germany, meaning that in regard to social insur- ance the place-of-employ- ment principle strictly ap- plies (Sec. 3 No. 1 SGB IV). German law also contains an exception (Sections 4 and 5 SGB IV) regarding the posting of foreign workers to Germany and German work- Dr. Monika Jansen (City Administration of Augsburg), ers to other countries, which Dr. Bernd Schulte and Stephan Rittweger (judge at the states that the posted worker Bavarian Higher Social Court).

37 REPORT 2008 – 2009

many and Australia coordinates the regula- forms, the deletion of data five years after tions on statutory pension funds applicable expiry of the validity period (not after data in the two countries. The agreement facili- entry), the stipulation of routine checks in tates the addition of German and Australian Section 150 SGB VI, the extension of assess- periods of coverage in order to retain the ment and risk criteria, as well as the integra- right to claim benefits, as well as the for- tion of the "basic file" installed in accordance warding of pension payments to the other with Section 28p VIII SGB IV. country (so-called export of benefits). In principle, however, the country-of-employ- The presentation was followed by a lecture ment principle applies, i.e. compulsory in- on liability issues with respect to the em- surance is based on the regulations of the ployment of foreigners from other EU mem- country in which the respective gainful activ- ber states in Germany (Pabst). In this con- ity is carried out. An exception from this text, focus was put on the principle stating principle can be made if the case involves that "the liability privilege depends on the the posting of a worker from Germany to an- relevant social security statute". As the start- other country or, respectively, if an applica- ing point in cases of liability, Art. 93 Para. 2 tion is made for compulsory insurance to Regulation (EEC) No. 1408/71 was pre- continue in Germany. Through the supple- sented: The liability privilege follows the mentary agreement of 9 February 2007, the rules of the applicable social security statute requirements for the posting of workers were if the basic liability law (tort statute) and the harmonised, and a standardised posting pe- social security statute diverge. Consequent- riod of 48 months was specified. ly, Sections 104 to 106 SGB VII also become National regulations still apply to health and applicable with regard to the foreign tort accident insurance, since they do not form statute, yet not in cases where persons cov- part of bilateral agreements. Posted workers ered by foreign social security systems have face problems especially in cases where the an accident in Germany. Although Art. 93 legal posting periods of the two countries Para. 2 Regulation (EEC) No. 1408/71 has, vary (as a rule, this period amounts to six for more than 50 years, not been subject to months in Australia, yet up to eight years ac- factual changes, there are, for practical rea- cording to German law), with workers run- sons, only two decisions that the Federal ning the risk of being covered by "double in- Court of Justice made on the issue, namely surance". the so-called tractor case and the "Börde- heimfahrerfall", yet no decisions have been The second part of the conference started made in this regard by the European Court with a presentation on the "practical prob- of Justice. The question of how the liability lems regarding the posting of workers within privilege is to be applied is relevant also be- the EU, especially with a view to electronic cause liability privileges in the EC/EEA/ processing" (Kraus). The basic idea of the Switzerland differ as regards their range of German pension insurance database, which validity. Contrary to the early years of the centrally registers all issued E 101 posting conflict rules, the former basic model of forms for Germany, is to battle against the the liability privilege has in the 27 member abuse of the free movement of services. The states of the European Union become an ex- registration of the forms via the data records ception. This means that any worker who of the pension insurance agencies (DSRV) in has had an accident in Germany and who is Würzburg is based on Section 150 III, V covered by a foreign social security system SGB VI: it provides an automated retrieval without liability privilege under EC/EEA/ procedure for supervisory authorities and Swiss law, may sue his German employer for serves as a device for the transmission of data damages at German civil and labour courts, to the social security agencies. Furthermore, whereas German employers do not enjoy the it facilitates the comparison of data and the protection of Sections 104 to 106 SGB VII gathering of evidence for potential abuse due due to Art. 93 Para. 2 Regulation (EEC) No. to the possibility of analysing particular crite- 1408/71. The fact that such cases have, so ria. Suspicious cases can be viewed, case far, been very rare can be put down to practi- notes and findings can be added. Further cal reasons, but not legal ones. proposals suggest the extension of the data- Nikola Wilman/Iris Meeßen base to encompass the entirety of E 101

38 II. RESEARCH

1.6. The Social Dimension of Integration expanding trade, but rather to support the de- Processes in Latin American velopment of economically weaker member Countries states. The present members of the alliance are Bolivia, Peru, Ecuador and Colombia. Starting Point MERCOSUR, founded in 1991 as an eco- The vision of continental unity in the region nomic association between Argentina, Brazil, of South America developed during the times Uruguay and Paraguay, and with Bolivia and of the independence movements and goes Chile as associated states, represents an in- back to the freedom fighter Simón Bolívar. ternal market with the primary objective of Over the past centuries, various regional and economic integration. By way of the declara- subregional international organisations have tion of 1998, Declaración Socio-Laboral del been founded and bilateral and multilateral MERCOSUR, MERCOSUR has provided international agreements have been conclud- for a harmonisation of the respective national ed for the purpose of political integration. labour codes. However, the member states The objectives of these organisations and are not legally bound to this declaration, their implementation mechanisms vary. The since MERCOSUR does not contain any integration efforts have social objectives in supranational elements. common, yet of varying prioritisation. Quite unlike the institutional configuration Founded in the context of the Montevideo of the Andean Community (CAN) with its Agreement, the Asociación Latinoamericana nationally dependent Court of Justice of the de Integración, ALADI, which is superordi- Andean Community, whose directivas have nate to the Comunidad Andina de Naciones, direct legal force. The Secretaría General as CAN (Andean Community) and to the Mer- the political body of CAN takes its decisions cado Común del Sur, MERCOSUR (Southern by a majority vote of the member states, Common Market) is, as the legal successor to meaning that state competences are actually the Latin American free trade zone, an organi- transferred to an international body. The sation geared towards economic cooperation Andean Community (CAN) follows the ex- and the creation of a common market. ample of the European Union. It has effected a range of regulations regarding the social di- The Andean Community (CAN) was estab- mension. However, the respective national lished in 1969 by means of an agreement be- systems lack enforcement mechanisms. tween Bolivia, Peru, Ecuador, Colombia, Chile and Venezuela. The primary objective is The research objective against this back- not to effect economic integration by way of ground is to examine the social dimension of

39 REPORT 2008 – 2009

MERCOSUR and the Andean Community (CAN). The social dimension of an integra- tion process refers to regulations pertaining to social protection, but also to social securi- ty, that are binding for the member states. The examination particularly focuses on the situation in the respective countries and on the way these regulations have been received. Transnational freedom of movement is also to be included in the examination, since eco- nomic integration must be coupled with so- cial integration. Both integration processes are based on the equal treatment of the mem- ber state citizens.

For this purpose, it is necessary to analyse the new Ibero-American Multilateral Conven- tion on Social Security of 2009, ratified by Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, El Salvador, Spain, Paraguay, Peru, Portugal, Uruguay and Vene- zuela, and implemented in 2010 in El Salva- dor, Ecuador, Chile, Brazil, Spain, Uruguay Furthermore, the global discourse on the and Venezuela; after all, it represents an in- role of social policy in integration processes novative international instrument containing in general is to be completed by a detailed common rules. regional discourse on the Latin American integration process in particular, including Implementation the potential necessity for regulation of the latter. The impact of national, international and even supranational integration processes on In a second step, the involved subregional the national legal systems and on social se- systems shall serve as examples for the com- curity systems, as well as the interplay result- parison and analysis of the framework condi- ing from such an impact are rarely examined tions of the institutions, the relevant interna- from a legal perspective. The objective of the tional agreements and their enforcement research is therefore to analyse the various mechanisms purposing the development of a regional systems in Latin America along with "social dimension" within the context of the the relevant regulations pertaining to the Latin American integration process. In this transnational freedom of movement. regard, one must consider the fact that com- mon measures in the field of social security The research project focuses on subregional here meet with various specific, historically organisations, focusing in this context on the evolved social protection systems. Depend- Andean Community (Comunidad Andina de ing on the respective national understanding Naciones, CAN) and the Southern Common and national cultural tradition, expectations Market (Mercado Común del Sur, MERCO- may vary with respect to sovereign action in SUR). The relevant agreements on social se- the social field. curity for the entirety of Latin America, as Lorena Ossio well as their implications, shall be included in the examination. 1.7. International Standard Setting and The first step will be to systematise the exist- Innovation in Social Security ing social standards set by subregional or- ganisations with regard to the exercise of the The project on "International Standard right to free movement within the Latin Setting and Innovation in Social Security" American integration process. (ISSISS) is to discuss possible inconsistencies between international standards on the one

40 II. RESEARCH

hand and innovative approaches in national Developing Countries and Minimum legislation on the other hand. In this context, Social Security Standards we start from the assumption that innovative approaches exist in both highly developed and At the Workshop entitled "International Set- rudimentary social security systems. However, ting of Standards and Innovation in Social innovations may be appraised differently in Protection in Low Income Countries", which industrial and developing countries. Some in- took place from 14 to 16 October 2009, the novations may even take up earlier ideas, innovative approach was to investigate the which is why post-industrial as well as devel- ideas of developing countries regarding mini- oping countries shall be under investigation. mum social security standards and to find out Due to the differing starting situations and whether the ILO standards were actually problems, investigations are to be carried out compatible with the respective situations of in two workshops. The first one dealt with the these countries. most recent social security developments in countries with a low per-capita income. A se- Many developing countries do not feature cond workshop, scheduled for May 2011, will the social structures once valid for Europe. look into the situation and innovative trends in Especially the triparity among trade unions, the developed countries. The big issue is employers and governments is a concept un- whether universal minimum standards for so- familiar to many developing countries that is cial security do in fact exist. These universal also coming to be questioned in the devel- standards are basically set out by the Interna- oped world. In developing countries people tional Labour Organisation (ILO) in the form are often employed in the informal labour of conventions which are to be ratified by the market without enjoying any social protec- individual countries, and therefore they con- tion. It is therefore doubtful whether social stitute the main focus of research. minimum standards can be applied to devel- oping countries at all. It is in this very context The ILO conventions on social minimum that the ILO has been accused of not sup- standards, and especially Social Security porting the struggle against poverty. That is (Minimum Standards) Convention No. 102 why the more recent ILO policy includes of 1952, are regarded as obsolete in various projects and activities such as the Campaign aspects as they were set up at a time when on Decent Work. Furthermore, it must be politics focused on the labour question. Along discussed whether the struggle against pov- with the general criticism of linking the re- erty should be made a legal obligation and ceipt of social insurance benefits to an em- whether conventions should be set up by the ployment relationship and of the wording, ILO that match the developing countries' which is in some parts discriminating under needs. Irrespective of the ILO, the question the aspect of gender equality, it is also the arises as to what further international norms organisational structure of the ILO in general and what further institutions may be taken that has become the subject of complaints. into consideration in order to establish mini- In addition, the ILO conventions are criti- mum social security standards. In this re- cised for concentrating on traditional social spect, especially experts from the developing risks, yet leaving new social risks – such as countries shall get a chance to speak, as the HIV/AIDS – aside. HIV/AIDS is a new risk, discussion has so far primarily been led by as it is not only a disease whose risk factors the Western countries. This bottom-up ap- might possibly be compensated through a proach constitutes the academic challenge health care system, but also a pandemic that the first workshop will have to face. can orphan children across entire regions by killing off their providers. Poverty is not cov- In developing countries, research is basically ered by the ILO conventions either. Neither conducted in the field of social policy, since responsibility-sharing between the state and social benefits law in these countries still its citizens, nor funding issues nor problems tends to lack differentiation. For this reason, regarding privatisation are covered by the ILO the workshop was arranged in an interdis- conventions. Some of the criteria have al- ciplinary manner, thus allowing renowned ready been discussed with respect to Europe; researchers from developing countries to however, there are, as yet, no scientific find- take part in the discussion. Unlike in socio- ings with regard to the developing countries. political, sociological and economic re-

41 REPORT 2008 – 2009

Dr. Barbara Darimont, Prof. Dr. Angel Guillermo Ruiz Moreno (University of Guadalajara), Lorena Ossio and Dr. Yasemin Körtek, Prof. Dr. Edwell Kaseke (University of the Witwa- tersrand) and Maria Korda (Tilburg University), Lorena Ossio, Prof. Dr. Frans Pennings (Utrecht University) and Prof. Dr. Ulrich Becker (top left to bottom right).

search, however, issues of social security pre- builds on existing systems of self-help and dominated, with legally binding conventions civil initiatives and follows a bottom-up ap- being the object of the investigation – con- proach. Existing networks of informal social ventions defining the common consensus on security are to be reinforced specifically by minimum social security standards. However, means of tax money. The advantage of such a difficulty arising in this regard was the fact systems lies in the fact that they are not tied that many developing countries engage in to formal employment relationships, which achieving international standards only to a most persons simply do not have in develop- very limited extent, since they are mainly ing countries. Indeed, these persons could be concerned with finding solutions to their own covered by voluntary insurance schemes; yet, national problems. Yet, the question arises the low wages of those employed in the infor- whether it is rather distinct systems of social mal labour market sector impede such a de- security that will form in the developing velopment. Concepts of informal social secu- countries due to the fact that their national rity are, in fact, also based on contributions; issues are vastly different from issues troub- however, the latter can also be made in the ling the Western world. form of personal involvement, for instance. It must be emphasised, however, that such con- In the developing countries efforts have been cepts are limited in their effectiveness, since made to integrate informal social security they can cover risks only on a very small scale. systems into the formal, i.e. public, systems. This is due, on the one hand, to the meagre A further approach is microinsurance, which financial means available, but on the other has been used as an experimental feature hand also to the fact that urbanisation has particularly in the health care sector. eroded these systems. After all, the systems at issue lack sufficient control mechanisms, Informal Social Security and therefore they are prone to mismanage- ment and corruption. Informal social security is understood in terms of support systems within the family, On the whole, it can be assumed that infor- among neighbours or in the form of civil self- mal social security will probably only ever help. The concept of informal social security serve as a supplement to the formal systems

42 II. RESEARCH

and can at best be combined with the exist- nomic development and the reduction of ing public systems of formal social security. poverty and inequality. In this context the question arises as to what we – i.e. the global Microinsurance community – expect from international social standards. Microinsurance is a new concept implement- Barbara Darimont ed in the context of health care provision in order to fight poverty. The idea behind it is to create low-budget insurance schemes that 2. Changes in Developed provide access to basic health services and op- erate on a small community level. Over the Countries last few years, various schemes of this sort have been tested. They differ in terms of size, Regulatory Instruments and Forms organisation, involvement of public actors, ad- of Action ministration, service provision and control, as well as in terms of involvement of private in- 2.1. Activation and Employment Promotion surers. The fundamental principle is the in- clusion of the poor. The results differ greatly, In a joint and interdisciplinary research with one of the biggest problems still being project, the Institute for Employment Re- the meagre financial resources. Furthermore, search (IAB) based in Nuremberg, the Insti- health care provision in poor countries lacks tute for the Study of Labour (IZA) in Bonn infrastructure. Commercial insurers are rather and the Max Planck Institute for Foreign and unwilling to invest in such regions, since they International Social Law compared at interna- do not expect any profits from such insurance tional level the labour market policy measures schemes; thus, they do not take serious inter- of "activation", as well as the implementation est in building up some sort of infrastructure. of new approaches for the (re)integration of unemployed persons and jobseekers (cf. Re- Many such systems have shown to link up port 2006 – 2007, pp. 39 – 41). The project with the public systems in the long term. was concluded successfully with a publication Therefore they represent some sort of interim which presents the various aspects and objec- solution for the expansion of the public sys- tives of activation measures in an interdiscipli- tems. The workshop did not clarify whether or nary way. not they actually fulfil this function. It seems appropriate to organise a separate workshop Compared against other labour market re- solely devoted to the topic of microinsurance search projects that focus on labour market in order to examine these questions. policy and employment policy inclusive of unemployment insurance, the project on Future Project Work "activation" differs both in regard to its re- search topic and to its methodical imple- In a second workshop, the results from the mentation: the examination of the respective first workshop on developing countries shall "activation fields" is made from a legal and a be presented. New legal instruments shall be socio-economic perspective at the same investigated that are acceptable to all coun- time. tries and that will provide a higher level of social security for everyone. In the context of Apart from the various socio-economic as- examining the industrial countries, issues like pects and legal norms regarding the fight long-term care insurance, privatisation in so- against unemployment, the impact of inter- cial security, but also measures of activation national law and EU law on employment pro- in social security, are to be examined. motion, as well as the measures for reintegra- The present deficits in existing ILO instru- tion into the labour market, were illustrated ments are generated by the lack of possibili- by way of eight country reports (Denmark, ties for all people to gain access to minimum Germany, France, Netherlands, Sweden, social security benefits, as about half of the Switzerland, USA, United Kingdom). Fur- world's population is not covered by any so- thermore, the constitutional provisions of the cial security system. That is why standards countries involved in the comparison were must be established that promote both eco- analysed in cases where they did not only

43 REPORT 2008 – 2009

take on superior, but also menting instruments. By practical significance for way of law-making in ac- the object of study, i.e. for cordance with the political activation as a means to guidelines, activation re- promote employment. The ceives its specific configu- country reports are preced- ration, which again is influ- ed by an introduction pre- enced by regulatory senting the fundamental measures. Finally, the com- principles of the examina- parison led to the finding tion. The concluding chap- that all countries examined ter is devoted to transna- featured systems that were tional comparisons. not only based on activation per se, but also on accom- It can be established that panying obligatory or volun- the socio-political notion of tary measures in the fore- "activation" is not ascribed front of unemployment. to one generally valid defi- nition. Even at national level, "activation" Based upon the findings of this first study, a can be configured in various ways. The mod- follow-on project was initiated within the re- els designed for this purpose are of interest porting period (Becker, Kaufmann). This particularly from a sociological perspective. project primarily aims at an analysis of the Among the different concepts relevant also legal aspects pertaining to the regulation of from a legal point of view, it is, for one thing, "activation". the "liberal model" that is to be emphasised: Otto Kaufmann it is characterised by a narrowly limited range of social services that features rather strict and rigid performance qualifications. For an- 2.2. Quality Assurance in Long-Term Care other thing, some sort of "compensation model" between society and the individual is The Institute devoted a conference to the propagated: this model is characterised by a topic of quality assurance in long-term care less restrictive awarding of benefits and a ["Qualitätssicherung in der Pflege"]; it was stronger positive involvement of the state in held on 12 and 13 June 2008 and was headed employment promotion. Against this back- by Ulrich Becker. It was organised in cooper- ground it must be underlined that an accept- ation with Gerhard Igl from the Institute for able approach for comparative work could be Social Law and Social Policy in Europe at found, an approach that was compatible with Kiel University. The event was held on the the interdisciplinary mode of operation. occasion of the commencement of the Act on the Further Development of Long-Term Care From a legal point of view, the result of the [Pflege-Weiterentwicklungsgesetz] on 1 July activation measures seems to take precedence 2008, which contains regulations pertaining over the stipulation of the respective model, to the development and application of expert meaning that the decisive factor is the deter- standards and which – due to the obligation mination as to which legal norms are to bene- to publish audit reports in comprehensible fit which type of employment promotion, and form – aims at greater transparency. Approxi- how reintegration is to be realised. The term mately 50 participants from science and "activation" becomes valid for jurists via the practice engaged in lively discussions on legal norms that are specified for the attain- these topics, with the main focus being the ment of the predefined objectives. Law al- preparation and practical implementation of ways depends on political, i.e. societal guide- quality standards. lines. The comparison has shown that despite the individual national concepts, there are The conference was opened by Gerhard Igl, transnational commonalities or, respectively, who introduced the audience to the legal convergence tendencies with regard to the framework conditions of quality assurance in general objective to introduce activation Germany. The focus of his presentation was measures and to determine the target groups, the question as to how quality standards as well as with a view to the utilised imple- could become binding, for instance through

44 II. RESEARCH

employment law or social benefits law. He the Medical Service. Ingrid Hendlmeier from also expanded on the supervision of stand- the Central Institute of Mental Health [Zen- ards through the state, the social benefit in- tralinstitut für seelische Gesundheit] in Mann- stitutions or the professional associations. heim gave an account of the difficulties aris- Subsequently, Bernd Schulte presented the ing in the context of developing quality European guidelines for quality assurance, standards. Her report was supplemented by particularly Regulation (EEC) No. 1408/71 Mona Frommelt, director of Hans-Weinberg- and Regulation (EC) No. 883/04. In many er-Akademie der AWO e.V. [Workers' Wel- member states quality assurance in long-term fare Association], who elaborated on the im- care has not been established yet; the guiding plementation of quality standards in long-term principles for the selection of indicators and care institutions for the elderly. She made statistics might be of help in this regard. clear that successful implementation de- Friso Ross, Christina Walser and Martin Lan- pended not only on structural requirements, dauer then explained the systems of quality but above all also on the relevant resources assurance in Austria, the Netherlands and and on the readiness of the management to England. Regulations in Austria focus on adapt to the respective conditions. In a con- nursing allowance and continue to be domi- cluding presentation Harry Fuchs (Düssel- nated by guidelines on structural quality, dorf) reminded his audience that it is not the while in the Netherlands they are based on a administrative regulations, but the interests rather subjective approach reflected particu- of the persons involved that should be the fo- larly in a personal budget. In England, too, cus of quality assurance. structural quality is a core aspect; however, it is increasingly supplemented by elements re- The event has made clear that the legal regu- garding the process and outcome quality. lation and practical implementation of qual- ity assurance have been finalised neither in The second group of topics was dedicated to Germany nor at European level, and that re- the methodology and practice of quality as- search in this regard will continue to be an surance. Thomas Klie from the Protestant urgent requirement also in the future. University of Applied Sciences in Freiburg Christina Walser elaborated on the development of standards for quality assurance, and particularly on the national expert standards, quality levels and 2.3. Choice and Competition in Hospital other quality requirements. Following this, Health Care Peter Pick from the Medical Service of the Central Federal Association of Health Insur- "The health care system is ailing." In Europe, ance Funds [Medizinischer Dienst der Spitzen- we are accustomed to the multitudinous verbände der Krankenkassen] emphasised the chants of this sort. The songs of praise to the necessity to revaluate the investigative role of healing powers of competition nevertheless tend to differ in their intensity, but are in any case accompanied by modern instruments. Competition, as well as choice, serve as steer- ing instruments in the health care system on a transnational basis, and are to achieve allo- cation effects based on the principles of the welfare state and to counteract the continu- ing rise in medical costs. However, the under- standing of competition varies greatly, and so do the type and scope of competitive ele- ments and the steering mechanisms intended for them. At the same time, competition for its part is subject to normative steering. It conflicts with state intervention and regula- tion, which are bound to the provision of needs-based services on the basis of solidarity and which characterise the common statutory Racing for the green light in quality assurance. security systems.

45 REPORT 2008 – 2009

Starting Point and Procedure

The project, initiated by the Institute and carried out in cooperation with the Institute of Government and Public Affairs of Illinois University, focuses on a particularly cost- ly field of health care: the hospital sector. Apart from it being subject to high costs, its quality management is also attested to be often poorly configured. Low investment results in deficient budgets, and sector divisions between the ambulatory care phase, the inpatient acute phase and rehabilitation Choice and Competition in Germany phases hamper integral care flows. Evidence- based reform standards are rare, however. Competition in hospital health care, regu- Since repeated and barely available financial lated to a particular extent in the course of injections cannot guarantee a cure to this di- the most recent reforms, has turned out to lemma, new pathways will have to be opened be, first and foremost, a "competition for up. The main path to be opened up in this structural advantages in the regulated sys- regard is competition: competition will pro- tem". It is especially in the triangular legal gressively open up choices and configuration relationship (in social insurance law) that options that are specifically predefined in or- competition-based relationships must be ar- der to engage the parties involved in competi- ranged in a multipolar way. tion to the benefit of economic efficiency and quality in hospital health care. The direct competition of hospitals (service providers) stands out from the list of market The project was completed during the period segments in the mixed system based on regu- under review (Becker/Ross/Sichert, Wahlmög- lation and competition. Competition law, lichkeiten und Wettbewerb in der Kranken- broadly applicable in this relationship ac- hausversorgung: Steuerungsinstrumente in cording to substantial socio-legal examina- Deutschland, den Niederlanden, der Schweiz tion, as well as the here restrictively exer- und den USA im Rechtsvergleich, 2010). The cised medical professional law, contribute to comparative legal studies, supplemented by the protection of the growing number of economic comments, focus on the normative competitive relationships. The competitive incentives and steering mechanisms utilised pressure exerted by social law and hospital in Germany, the Netherlands, Switzerland law leads to the circumstance that competi- and the USA. It is the functions allocated to tion law is increasingly given a new effective competition in social care systems, above all range. This circumstance is less pronounced the guaranteed provision of basic health care as regards the relationships between sick- through economic efficiency and quality, that ness funds. serve as assessment criteria. The findings re- The hospital health care market is a market garding the welfare-promoting steering poten- area driven by patient demand; however, tial of instruments used in competition shed from a strictly legal perspective, patients do light on the way how competition is or could not have any adequate right of choice. A de- be enshrined in health care as a genuine cisive parameter in competition is the quality structural feature. In this context, every coun- of treatment, and this is sometimes connect- try examined displayed a particular interrela- ed to specific financing through the sickness tion between competition and regulation. funds. Massive restrictions in pricing law lead to concentration and specialisation, as well as to the restructuring of hospitals and

46 II. RESEARCH

of service provision. Apart from the frequent- plicable competition law. It is the result of ly exercised "targeted referral", competitive pruning back the previously dominant regu- advantages outside planning-based provision lation through the state, on which the origi- are often aimed for by way of "innovative nal assumption was based that hospitals models" (privatisation of services) beyond could not compete with each other. plan-regulated health care provision. Market-conform structures in the hospital Competition through managed care does sector have come to exist due to the corres- not simply mean competition for contracts ponding further development of medical with sickness funds, but also competition care structures. This dimension of managed within the "internal cooperation" of service care, which was in the Netherlands estab- providers for efficient networking, and con- lished earlier than in Germany, integrates centration processes that partly entail sig- above all general practitioner care and – un- nificant problems regarding broad availabil- like in Germany – hospital-based medical ity of health care and emergency health care specialist care in order to open up profitabil- provision. ity reserves. Decisive as regards competition Planning and competition can block each is the fact that in this context a contract other; likewise, there is competition for in- competition has been established with a clusion in structure planning among the par- view to appropriate agreements with the ties involved. In keeping with the exclusion sickness funds. of investment, dual financing tends to have Furthermore, what is significant with re- the same distortive effect on competition as spect to steering is the partial authorisation local loss relief and diagnosis related groups, of price competition. It is based on the find- DRGs (which do not allow for genuine price ing that even steering through DRGs does competition anyhow); the latter, after com- not necessarily have to be strictly regulatory, pletion of the convergence phase, have but that the evaluation unit per billing unit turned out to be uniform (only) in the federal may also be freely negotiable regardless of a states. It becomes clear in this context that potentially fixed relative weighting of treat- normative steering purposes may occasion- ment cases. An orientation partially based ally thwart each other. It is particularly in on price competition is effected by means of this regard that Germany must, as a conse- authorising 10% of listed DRGs for tariff ne- quence of the most recent health reform of gotiation. 2007, reorganise the regulatory framework of Altogether it can be said that the formation hospital financing. of market-conform structures is accompa- nied by that type of competitive control Choice and Competition in the which seeks to take account of the condi- Netherlands tions of incomplete health care markets in a particular way to the benefit of a general pro- Competitive instruments are also on the in- vision of health care. In the light of the flexi- crease in the Netherlands amid persisting bility and interaction discernible in this con- tensions between competition and regula- text, real regulatory competition is rare. tion. These new structures, providing more leeway for choice and individual behaviour, Choice and Competition in Switzerland are nevertheless characterized – depending on the market segment and the respective The relationship of the insured person with actors involved – by a kind of gradual and the hospital, particularly his right to opt for a instrumentally disparate "market conformi- hospital of his choice, is very closely linked ty" or perfection. Shaped by the most recent with the guidelines for guaranteed health health reform, the market for insurance ser- care provision within the canton. Due to vices, for instance, has already grown signifi- this, an insured person is not permitted to go cantly; in this area, new supervisory struc- to a non-cantonal hospital unless absolutely tures, among other things, have become necessary for medical reasons, even if it is effective, especially to monitor the – in this located only few kilometres from his place of sense regulated – basic conditions. residence. These ordre public provisions un- It is only very recently that hospital competi- necessarily narrow down the right of choice tion, too, has become subject to control virtually and legally. As for health insurance, through competition rules in the form of ap- insured persons have a wide range to choose

47 REPORT 2008 – 2009

from within the obligatory system provided like EMTALA (Emergency Medical Treat- through the Health Insurance Act (KVG). ment and Active Labor Act) or HIPAA The range of choice for insured persons and (Health Insurance Portability and Accounti- the obligation to contract on the part of the bility Act) characterise the hospital system insurers are core elements for the organisa- and result in the fact that also the seemingly tion of socially acceptable competition. exclusive private sector is significantly af- The relationship among hospitals is also fected thereby. characterised by ordre public provisions, The relationship of the insured person to- which in turn aim at the preservation of the wards the hospital is further characterised by public hospitals. However, it turns out that the fact that the former is restricted in his numerous private hospitals have not only options to choose a hospital. Examples in managed to stand their ground without any this context are insurance contracts conclud- state subsidies, but that they have also found ed by employers which narrow down the their niches by way of specialisation. The choice of a hospital, or the managed care pro- clear preference of public hospitals has not grammes in general, whose very aim is to led to the elimination of private hospitals; guarantee high quality by means of coordina- rather, the public hospitals have decreased tion and thus also to restrict the range of ser- in number more noticeably. vice providers to choose from. On the other The relationship between hospitals and in- hand, EMTALA at least laid the foundations surers is characterised by great freedom of for the requirement that, in an emergency, arrangement as regards the collective agree- hospitals receiving any Medicare revenue ments. The provisions of the Health Insur- must treat the respective patient. The same ance Act do not exclude new impulses, such holds true for the relationship between in- as SwissDRG for instance, from being incor- sured persons and their insurances. Anyone porated in the system. In this context, the who is subject to Medicare or Medicaid has, rather anti-competitive element of horizon- by law, no actual choice as regards the re- tal collective agreements has proven benefi- spective conditions of his insurance scheme. cial to the basic conditions of competition. Yet also with respect to the employee benefit The relationship between the statutory in- plans there are restrictions by law. surers has been tarnished from the outset Furthermore, the relationship between the due to the fact that up to date not a single insurances, benefit plans or third payers and private enterprise has ever acted as a health the hospitals in general also shows that the insurer in accordance with the Health In- possibilities of free pricing and collective surance Act. The so-called competitive ele- wage arrangements are limited. Here too, ments can therefore not be sufficient, since this is due to the dominant position of Medi- it is only the old social funds that share the care and Medicaid, whose financial and or- market despite legislative intention to the ganisational impact often leads to pricing contrary. On the whole, the individual rela- and collective wages being arranged to their tionships and markets clearly outline the dif- benefit. However, the individual states have ferences as regards the various elements of been trying to constrain the power of Medi- competition. It can therefore be said that care and Medicaid, as well as of large em- competition in statutory health insurance ployee benefit plan providers, with the aid of plays a role already today and, above all, that antitrust laws in order to prevent the forma- it also fulfils significant functions. tion of monopolies in the context of pricing and collective wage arrangements. Choice and Competition in the USA Altogether, the individual market structures show – regardless of the question whether Competition in the hospital sector appears they originate from relationships under pri- to be characterised fully by competitive ele- vate law or rather from governmental health ments. Only a closer look reveals that regula- programmes – that the competitive elements tive aspects are of great importance and that of the US American health care system are areas predefined by the state leave little linked to state regulation and restriction, scope for action – not least due to statutory thus representing a conflict between free measures at federal and individual state lev- choice und statutory insurance, albeit to a el. The de facto dominance of Medicare and slightly different extent than in European Medicaid, yet also individual legislative acts countries.

48 II. RESEARCH

Choice and Competition as Structural the USA, for which the research project has Features of Health Law been able to show a significant deal of regu- lation, as well as to outline the influence of Choice and competition in the individual governmental programmes on managed care. states show that, legally, health care systems The de facto existing markets in the health are combinations of competition and regu- sector are therefore tightly regulated. This lation. A question of less importance is applies to both the hospital market and the whether existing competition (organised un- insurance market. der private law) is (strongly) superimposed by regulations, or whether provisions per- The exact degree of choice and competition taining to social law adopt system-specific to be implemented will have to be deter- elements of competition. The universal char- mined in a conceptual framework. A certain acteristic of a "health competition law" is conflict regarding the various concepts will rather its material and institutional-organisa- continue to exist, not least because decision- tional duality. The shaping of these struc- making for the benefit of further reform tures is accompanied by a "gain" in entrepre- takes place within a framework of regularisa- neurial character for both (public and tion and "interwoven regulations", with poli- non-profit) hospitals and (social) sickness cy-makers being the federation, the cantons, funds. It has led to the establishment of indi- states and federal states. The combination of vidual control structures. This material dual- extending the general obligation to insure ity, or tripartite structure to be exact in the with the obligation to contract and to admit case of Switzerland, is illustrated, for exam- new members, as well as the measures taken ple, by the Dutch insurers involved in the against risk selection can be regarded as suc- basic and the supplementary insurance mar- cessful implementations to the benefit of the ket, as well as by the Swiss social sickness objective of competition in terms of its social funds acting on the mandatory and the sup- function, i.e. to the benefit of the patient or, plementary insurance market, which are in respectively, the insured person. As the con- this respect subject to different regimes or sumer, he or she can benefit from particular rules respectively. This development is ac- hospital-based insurance services. However, companied by a partial convergence of sys- even though importance will continue to be tems, by an enrichment of social elements attached to the demand for health care pro- (basic insurance, basic rate) in private insur- vision services in a particular hospital, the ance law, as well as by the enrichment of ele- systemic steering potential is limited due to ments of competition like optional rates and planning restrictions and limitations through cost sharing (Switzerland, Germany) in so- managed care, as well as due to the fact that cial insurance law, which requires the appli- priority is given to regulatory quality assur- cation of the principle of solidarity. ance. We could well do with less intensified The mentioned duality is, at the same time, competition; however, for the benefit of the expressive of ambiguity and friction. Hospi- social we could never do without regulation. tals, i.e. businesses, the fusion of which is Friso Ross/Markus Sichert subject to antitrust control and whose man- agement capacities are competitively incor- porated into the market by means of man- 2.4. Mediation in Bavarian Social aged care authorisations and integrated care, Jurisdiction – Findings of a Model stand in competition for market access, the Project latter of which is regulated in accordance with planning aspects; in this context, medi- Mediation is a procedure implemented to ate or immediate price competition is regu- solve conflicts. It aims at a solution for all larised or even excluded. The right of the parties involved in a conflict by means of pro- consumer to opt for a hospital of his choice viding a mediator. The latter is to help the is also based on multiple legal planning parties involved to find solutions, but does requirements. Competition in health care not make any decisions. A particular form of therefore is and indefinitely continues to be mediation is court-based mediation, which in a "steered", "planned" or "incomplete" com- a way combines the court proceedings with a petition or, respectively, will only be "realised mediation procedure. It deals with conflicts in parts". This statement also holds true for that are already pending before a court, but

49 REPORT 2008 – 2009

in addition to the court proceedings regulated citizen and an administrative authority, and through procedural law it tries to effect a so- the respective social judge usually has to de- lution that is acceptable to all interests in- cide on whether or not to grant social welfare volved; the solution itself is to be found by benefits to the citizen. For the purpose of the parties and negotiated among them. testing the suitability of court-based media- tion in social jurisdiction, a model project 40 termed "Mediation in Social Jurisdiction" was launched on 1 September 2006. It was 30 promoted by the Bavarian State Ministry of Labour and Social Affairs, Family and Wom- 20 en, and has received scientific support from the Institute since 1 January 2007 (cf. Report

10 2006 – 2007, p. 41 f.). This model project Number of Procedures was concluded within the period under review. The findings have been published 0 4th quarter 2nd quarter 4th quarter 2nd quarter (Becker/Friedrich, Mediation in der baye- 2006 2007 2007 2008 rischen Sozialgerichtsbarkeit, Abschlussbe- 1st quarter 3rd quarter 1st quarter richt zur Evaluation eines Modellprojekts, 2007 2007 2008 MPISoc Working Paper, vol. 3, 2009; Bayer- Total number of mediation procedures. isches Staatsministerium für Arbeit und Sozial- ordnung, Familie und Frauen, Mediation in Court-based mediation is therefore funda- der Sozialgerichtsbarkeit, Ergebnisse eines mentally different from a court settlement. Modellprojektes, 2009). Mediation is also conducted by judges, but – according to the definition in Directive Mediation in matters relating to social bene- 2008/52/EC of the European Parliament and fits aims at two things: for one thing, it seeks of the Council on certain aspects of media- to improve the conditions for a consensual tion in civil and commercial matters of 21 and permanent conflict resolution; for anoth- May 2008 – it is judges who are not "respon- er, it intends to simplify and speed up court sible for any judicial proceedings concerning proceedings. From 2006 to 2008, the model the dispute in question". The mediating project "Mediation in Social Jurisdiction" judge acts as a go-between, but not as a deci- served as an instrument to examine the ques- sion maker. The definition given at the 67th tion as to whether and how these objectives German Jurists Forum summarises the par- could be accomplished. It was conducted at ticularities of court-based mediation as fol- the Munich Social Court [Sozialgericht] and lows: it is conducted in pending proceedings at the Bavarian Higher Social Court in at court and by judges who are trained me- Munich [Landessozialgericht]. The Bavarian diators. Higher Social Court offered mediation also for proceedings pending in the social courts of Court-based mediation has also been increas- Nuremberg, Landshut, Bayreuth, Regensburg, ingly put to the test in Germany. It was ini- Augsburg and Würzburg, thus facilitating me- tially offered at common courts, but has for diation procedures throughout Bavar ia. some years now also been conducted by the administrative and social courts. However, Questionnaires Received the introduction of court-based mediation has been met with no inconsiderable scepti- Claimants and defendants 135 cism by some critics. For one thing, a clear Authorised representatives 60 division between court proceedings and out- Recipients of a summons of-court procedures is preferred by some in and third parties assisting 13 order to make sure that the various functions in the mediation of the relevant procedures are not mixed and Statutory judges 45 that, as a result, their specific advantages are Mediators 80 preserved. For another thing, mediation is re- garded as hardly suitable especially with a Total 333 view to social court proceedings, since in this The data set is based on a total of 333 context it is mostly about conflicts between a questionnaires.

50 II. RESEARCH

60 The parties involved were highly satisfied 50 with both the mediation procedures and with the respective concluding result. 40

30 Court-based mediation may resolve existing Percent 20 conflicts more efficiently. With the aid of me- diation, quick solutions could be found for 10 proceedings and costly hearing of evidence 0 could be avoided. Very dissatisfi ed Rather contented than dissatisfi ed Rather dissatisfi ed Very contented There is much evidence to support the as- than contented sumption that mediation may contribute to Main participants' degree of satisfaction with permanent solutions and to the prevention of the procedures. future conflicts. Court-based mediation con- tributed to a more effective improvement of The aim of the accompanying scientific re- conflict resolutions and in this sense to a search at the Institute was to analyse and as- change in the culture of conflict management sess the mediation procedures conducted in in issues pertaining to social law. In one case, the context of the model project, and to develop it effected an agreement between social bene- and refine the criteria governing their suitabil- fits institutions on permanent conflict man- ity for mediation. To that end, standardised agement. Opposing parties who experienced written surveys were conducted, and media- court-based mediation stated that they would tion as well as court files were evalu ated. consider resorting to this type of conflict management procedure again in the event of The model has proved successful: the empiri- similar conflicts, or that they would try to set- cal results of the accompanying scientific re- tle conflicts themselves by way of consensual search show that the objectives pursued with efforts to come to an agreement. the aid of court-based mediation could be achieved. This applies to both the suitability In numerous cases, the particular situation of of mediation as an alternative to resolve con- the claimant was highlighted or previous be- flicts that can be embedded in court proceed- haviour on the part of the respective authority ings, and to the simplification of conflict reso- was discussed. Court-based mediation thus lution in general. contributes in a special way to the peaceful settlement of a conflict and to legal peace as Within the framework of the model project, a such. success rate as high as 80% could be achieved. In this context, one must consider the fact As regards the suitability of conflicts for court- that also very complex cases or cases involving based mediation, only little can be said due to great difficulties as regards the relationship the variety of selection mechanisms and the between the opposing parties were referred to relatively small number of cases available. mediation. In many cases, mediation lead to Mediation within social courts is particularly comprehensive conflict management and a promising in matters pertaining to health in- conflict resolution in the interests of all par- surance, accident insurance and pension in- ties involved, one that was sustainable and surance. It is especially used as an instrument permanent, and that went beyond the initial to settle conflicts regarding social benefits subject matter of dispute. and reimbursement issues.

No Probably No Probably Yes Yes Future Confl ict Management n%n%n%n% Confl ict management without third 14 11.3 29 23.4 48 38.7 33 26.6 parties (n = 124) Out-of-court confl ict management 58 46.0 33 26.2 22 17.5 13 10.3 (n = 126) Court-based mediation (n = 130) 12 9.2 22 16.9 58 44.6 38 29.2 Court proceedings (n = 127) 36 28.3 56 44.1 19 15.0 16 12.6 Survey results regarding the tendencies for future conflict management.

51 REPORT 2008 – 2009

Agreement Concluded Field Yes No Total Health insurance 33 3 36 SHI-accredited physicians/dentists 101 Long-term care insurance 4 3 7 Accident insurance 29 5 34 Pension insurance 12 3 15 Federal Employment Agency 5 1 6 Child (raising) allowance 0 1 1 Benefits law and compensation law 0 1 1 Matters pertaining to Social Code Book (SGB) XII 8 5 13 Matters pertaining to Social Code Book (SGB) II 5 2 7 Total 97 24 121 Fields of procedures referred to mediation and concluded agreements.

Court-based mediation seems to be particu- search at the Institute. The "universalistic" larly suitable in cases where a permanent approach of the social legislation in these (business) relationship exists between the countries to guarantee social security for all opposing parties or where future cooperation citizens via general tax revenues has made is necessary or intended. the inclusion of Denmark and Norway into various research projects – e.g. the project Within the framework of the model project, on the "Comparison of Old Age Security court-based mediation has proven an effec- Schemes for Civil Servants" – particularly tive and powerful alternative to the settlement interesting. The examination of the legal of conflicts pertaining to social law through configuration of the "Swedish Model" and of substantive judicial decisions. It remains to its changes was effected by way of repeatedly be seen what effects are to be expected of me- including it in other Institute projects and by diation in the event that it is offered through- an independent analysis of important factors out Germany; it essentially depends on the of change, such as the pension reform of the future configuration of mediation procedures year 2000, for instance. and their linking with social court proceed- ings. It is therefore advisable to continue The classification of Sweden as a "social dem- court-based mediation in social jurisdiction ocratic" welfare state or as a "social demo- and to extend it step by step in consideration cratic and unionised consensus democracy", of further evaluations. The experiences gath- a common view that is still widely and un- ered in the model project support the claim critically accepted outside Sweden, finally that comprehensive information on mediation seems to have become outdated – at least is to be provided both to the judges in general since the most recent major reforms took and to the parties involved in actual proce- place. Universalism and uniformity of social dures; further, that conditions for judges act- benefits no longer characterise the legal regu- ing as mediators are to be improved. lations and even less do they depict the legal Ulrich Becker/Nikola Friedrich reality. Since such changes do not come to pass at one specific time in history, the legal analysis of the Swedish welfare state had to Structural Reforms in Social Benefits take into account processes developing over a Systems longer period of time. It is especially the more traditional institutions of a social state that, 2.5. The "Swedish Model" in the Context depending on their respective configuration, of the Nordic Welfare States – an need very specific reform due to new types of Analysis of Socio-Legal Processes contemporary challenges. Having observed of Change the history (of law) of the Swedish way to- wards "folkhemmet" [the people's home], the The welfare states of the European North task was then to understand that the legislator had early on constituted a focal area of re- indeed tackles specific reforms that are in

52 II. RESEARCH

conformity with the system first, but that Sweden (and also Denmark) in the context of these efforts alone usually fail to provide suf- the "activation" project in international and ficiently effective solutions to complex issues, interdisciplinary cooperation with sociolo- especially since the issues involved might, in gists, political scientists and economists from the course of such minute reform steps, in the two Nordic countries. turn change once more. However, by way of a sweeping reform of its statutory pension in- Latest Findings surance, Sweden has demonstrated in a way unprecedented in Europe that, despite the Naturally, the focus was on the analysis of the internationally well-known inertia exhibited years of preparatory work for the sweeping by established institutions, fundamental pension reform enacted in 2000, its legisla- changes, e.g. the reform of an entire system of tively highly innovative opening of obligatory social security, are politically feasible and can pension to the capital market, and on the ob- be realised in a rational way by the legislator servation of the new law being put to its first in the course of democratic processes. test in the current financial crisis (cf. Köhler, Die neue Alterssicherung Schwedens in der As holds true for the comparative description globalen Finanzkrise – bedingt krisenfest?, of legal regulations in other countries in gen- DRV 2010, No. 1, pp. 102-118). The Swed- eral, here, too, the rule applies that an ab- ish attempt to create a future-proof old age stractly evaluative overview can only obtain security system that virtually regulates its le- scientific validity through knowledge of the gal orientation automatically in accordance multifarious differences in legal detail. The with economic and demographic changes at extension of the scope necessary for this aim this stage already reveals the following two was first and foremost effected by way of in- things: problems arising at national level can, tegrating Swedish law into the majority of in this way, indeed be counterbalanced with- research projects carried out by the Institute, out the legislator repeatedly having to effect in addition to the continuous observation and amendments; however, it is hardly possible description of the law pertaining to the "classi- for a legislator of an individual country to ef- cal" social risks (loss of income due to illness, fect complete immunisation against global accidents at work, invalidity, old age). In this crises that might hit the country from outside. way, the particularities of Swedish disability The changes in numerous details (not only) of law became apparent: the fact that munici- social law have produced two more research palities are assigned the task to implement in practice the rights of disabled persons that are centrally defined by the legislator; and that ad- ministrative sanctions are imposed specifically to make sure these rights are effec- tively enforced. Several stud- ies examined the progress regarding gender main- streaming in social law; this was supplemented by de- tailed analyses of existing la- bour regulations (part-time work) and family law (con- figuration of parental allow- ance and parental leave, le- gal status of children). A broader illustration of labour law, protection against dis- missal, employment promo- tion and placement services was provided with regard to

53 REPORT 2008 – 2009

results: for one thing, the fact that by way of Reform Process Sweden's accession to the EU, the "Swedish Model" has lost a multitude of particularities The Turkish social security system has been related to labour and social law, but not its under reform for years. One result of this re- general singularity; for another, that Sweden form process has come in the form of Amend- in its current state within a long process of ing Law No. 4447 of 25 August 1999. The change no longer primarily represents the so- socio-political significance of this law lies, cial democratic "middle course", but – by for one thing, in the circumstance that the having enshrined equality for women in fam- age for entitlement to retirement benefits ily law – a model formed by social change. has gradually been raised to 58 for women Peter A. Köhler and to 60 for men in order to guarantee sus- tainable pension funding – and that unem- ployment insurance has been introduced for 2.6. Harmonisation and Extension of the first time. For another thing, the state Coverage in Turkish Social Insurance has for the first time been obligated to par- Law ticipate in the financing of unemployment insurance by way of state contributions to In the past years, significant legislative social insurance – in addition to governmen- projects in the field of social security were tal transfer payments to cover the deficits in initiated by the Turkish legislator. The re- social insurances. cently implemented new Social Insurance and General Health Insurance Act No. 5510 A further important result in this progressing of 31 May 2006 has served to restructure reform process is Social Insurance and Gen- Turkish social insurance law and to intro- eral Health Insurance Act No. 5510, which duce a general health insurance. Changes to provided the social security system with a the systems of social welfare and the social new legal basis. The Turkish social insurance services remain to be effected. The relevant system had previously been regulated via five draft laws have already been formulated. different social insurance systems that would grant their respective insurees and depend- Apart from reforms in the social security sys- ants of the latter social security benefits in tem, the focus has increasingly been on the the event of accidents at work or occupation- fight against unemployment and on employ- al diseases, in cases of illness, maternity, in- ment promotion. Legislative measures in this validity, old age or death. Social insurance field, particularly the lowering of the em- was introduced for employees by way of So- ployer's share of social security contribu- cial Insurance Act No. 506 dating from 1964. tions, have ameliorated the conditions for Employed persons in agriculture belonged to employers. the group of persons insured in accordance

Dr. Yasemin Körtek and Prof. Dr. Ulrich Becker.

54 II. RESEARCH

with Social Insurance Act No. 2925 dating regulations on social security valid for the dif- from 1983. Social Insurance for self-em- ferent occupational categories were com- ployed persons was introduced in 1971 by bined in one body of laws and harmonised way of Social Insurance Act No. 1479, for accordingly to the greatest possible extent. self-employed persons working in agriculture Its legal scope is applicable to insured per- it was introduced in 1983 by way of Social sons who are employed, self-employed and Insurance Act No. 2926. Finally, civil ser- persons employed in the public service. As a vants and other persons employed in the consequence, a major part of the regulations public service were entitled to social security found in Acts numbered 506, 2925, 1479, benefits on the basis of the regulations of 2926 and 5434 has been abolished. Certain Pension Insurance Act No. 5434 dating from regulations contained in the mentioned acts the year 1949. continue to be in force, not least due to the Further, the respective social insurance sys- legal principles pertaining to the protection tem for the occupational category of em- of confidence and the exclusion of retroactive ployed persons, self-employed persons and effects. The regulations of Act No. 5510 re- of persons employed in the public service garding pension benefits, for instance, shall provided for different social insurance agen- apply to persons employed in the public ser- cies each that were to see to the implemen- vice if their compulsory insurance first com- tation and enforcement of the respectively menced after the effective date of the act. applicable social insurance laws. The most important, and at the same time The new Social Insurance and General most difficult part of the present reforms, not Health Insurance Act No. 5510, adopted by yet concluded but repeatedly criticised, is the the Turkish Parliament on 31 May 2006, reorganisation of health care: in this context, came into effect on 1 October 2008. Act No. a general health insurance in the form of a 5502 of 16 May 2006 facilitated the estab- statutory insurance liable to contributions is lishment of one Social Security Institution to be introduced, which is to guarantee health (Sosyal Güvenlik Kurumu) which is now re- insurance coverage for the entire population. sponsible for the implementation and appli- The most important changes include the in- cation of the new law in place of the previ- troduction of a referral system (sevk zinciri) ously existing social insurance agencies; any that is to be strictly complied with: it consists assignments and competences of the latter of three (treatment/care) levels and is con- have been transferred to this new Social Se- nected to the practitioner-centred model. curity Institution. With the aid of the new The act introduces a new service provision Social Insurance and General Health Insur- law that obliges the insurer to guarantee fi- ance Act, the previously existing variety of nancial feasibility with respect to the intend-

PD Dr. Hediye Ergin (Marmara University, Istanbul), Prof. Dr. Andreas Hänlein (University of Kassel) and Prof. Dr. Tankut Centel (Koç University, Istanbul).

55 REPORT 2008 – 2009

ed health care services. The actual health gal research in this field. The conference also care services are provided via third parties, served to provide an insight into Turkish in- i.e. the service providers, either on the basis heritance law, since issues relating to inherit- of a contractual relationship with the Social ance law may become particularly relevant Security Institution or without such a con- for social law in cases where people become tract. Any insured person requiring health dependent on social welfare. Given the high care services will have to comply with the number of migrants of Turkish origin in Ger- conditions of the predefined referral system many, knowledge of Turkish inheritance law and, consequently, first have to seek treat- will gain in importance. ment with a service provider at care level I. General practitioners who have a correspond- Measures to Fight Unemployment and ing agreement with the Ministry of Health Promote Employment belong to the category of service providers at care level I, along with the medical centres The Turkish labour market is characterised and private health facilities for the ambula- by high unemployment and a huge number of tory treatment of insured persons. Hospitals workers whose gainful activity is not regis- are the primary service providers at care level tered with the Social Security Institute. Ac- II, while university clinics are at care level III cording to the latest figures of 15 January in the referral system. For another thing, the 2010 (last updated: November 2009) provid- insured person must make sure that the pub- ed by the Turkish Statistical Institute, the la- lic or private service provider selected by him bour force participation rate is at 48.8%; the has contractual relationships with his insur- proportion of workers who are not registered ance. Otherwise the treatment costs will not with social insurance amounts to 44.5%. be borne by his insurance, except in cases of emergency. In cases of illness, insured per- These alarming labour market figures sons will receive benefits in kind from the prompted the Turkish government to in- general health insurance. By contrast, mone- crease their statutory and administrative tary social security benefits will be granted by measures in order to fight unemployment those insurance branches related to short- and illicit employment. One thing common term insurance (kısa vadeli sigorta kolları), to all legislative efforts in recent years is the such as accident insurance, health insurance circumstance that employer obligations re- (statutory sick pay), and maternity insurance, lated to the employment of workers have as well as by branches related to long-term been relaxed and financial burdens mini- insurance (uzun vadeli sigorta kolları), such mised. According to the Turkish legislator, as invalidity insurance, pension insurance the high rates of unemployment and of illicit and survivors' insurance. work are, above all, due to high staff costs, a claim that has also been brought forward by In its progress report of 2008, the European employers and their lobbies. The contribu- Commission placed positive emphasis on tions to be paid for insurance branches re- the restructuring of the social security sys- lated to long-term services, i.e. invalidity, old tem of Turkey, a candidate for joining the age and survivors' insurance, amount to 20% EC; against this background, the Institute of the relevant income of the insured person, organised a conference in cooperation with with 11% to be borne by the employer and the German-Turkish Lawyers Association 9% by the employee. Benefits relating to ma- [Deutsch-Türkische Juristenvereinigung e.V.], ternity insurance and cash benefits in cases which took place on 30 and 31 October of incapacity for work due to illness, as well 2009, focusing on the topic of German and as benefits in the event of accidents at work Turkish social law and inheritance law. Apart or occupational illness, belong to the insur- from the description of the new social insur- ance branch related to short-term benefits. ance law in Turkey, including the introduc- The contribution rate for this insurance tion of the general health insurance, the branch varies, depending on the risk category most recent developments in German social of the respective company, from 1% to 6.5% law were illustrated in order to form a basis and is to be borne solely by the employer. for comparison. The lively discussion follow- Contributions to unemployment insurance ing the presentations made obvious that to be paid by employees amount to a rate of there is demand for further comparative le- 1%, by employers to a rate of 2% and by the

56 II. RESEARCH

state to a rate of 1% of the gross income rele- The fight against unemployment, as well as vant for the calculation of social insurance employment promotion in Turkey in the light contributions. The contribution rate to be of the present economic framework condi- paid to general health insurance amounts to tions were addressed in a lecture that took 12.5%. In this context, employees are to pay place at the Institute on 18 December 2009, 7.5%, while employers are to pay 5%. where one expert for Turkish social and la- bour law from each Dokuz Eylül University An example of legal measures enacted in re- in Izmir (Sözer) and Koç University in Istan- cent years for the purpose of employment bul (Centel) were invited to speak. The promotion that deserves particular mention measures implemented by the Turkish legis- is Act No. 5763 of 15 May 2008, the so- lator to fight unemployment and promote called employment package (istihdam paketi), employment were explained and assessed by way of which amendments in labour and with respect to social insurance and labour unemployment law, among others, were ef- law. On the whole, it can be noted that the fected; it focuses on the limitations of the numerous legislative efforts seem to be only employer's duties to give work laid down in of limited success. Instead of creating fur- labour law, and on the incentives created in ther benefits for employers and of financing this context for employers in the private sec- employer's contributions in existing social tor. The Labour Act of Turkey, Law No. 4857, insurance funds like the Unemployment In- obligates private and public employers to em- surance Fund, the Turkish legislator is re- ploy handicapped persons in jobs appropriate quired to develop an employment strategy. for their professions and physical and psy- For this purpose, the economic and struc- chological statutes at businesses where they tural reasons factoring in unemployment will employ 50 or more workers. The total ratio of first have to be explored. workers to be employed in this scope has now Yasemin Körtek been statutorily fixed at 3%. Furthermore, the contributions to social insurance that used to be imposed on the employer for each 2.7. Developments Regarding Old Age handicapped employee are, as of now, paid by Pensions in Italy the state. Beyond that, benefits have been created for employers who employ handi- Within Europe, Italy long belonged to those capped workers without being statutorily countries that boasted a seemingly generous obliged to do so, or who exceed the standard- old age security system, which in the course ised mandatory percentage of handicapped of time was extended gradually to cover the workers to be employed. In these cases the whole working population including the self- state bears 50% of the employer's contribu- employed. Since the 1990s, the Italian pen- tions to the social insurance scheme that are sion system has been undergoing continuous to be paid for these employees. In order to reform. The reason for this is the enormous keep employer's contributions low despite burden of pension payments that has been the employment of additional workers, and added to the social security expenditures. In especially in order to promote the profession- 2006, the relevant costs amounted to 14% of al integration of women, a regulation similar the gross domestic product – almost twice to the one applicable in the field of labour the OECD average (7.2%). law has been introduced in unemployment insurance law: In cases where workers be- Two aspects of this reform process were tween the age of 18 and 29, as well as women examined as part of Institute projects in the of 18 years and older are in actual fact em- period under review: for one thing, the inte- ployed, the employer's contributions to be gration of the public service and of special paid to social insurance are progressively schemes for civil servants into the general borne by the Turkish Unemployment Insur- reforms of old age pensions, for another the ance Fund for a period of five years if the em- extension of occupational supplementary ployment was taken up within one year of the provision for those employed in the private commencement of the respective regulation sector, for which, as of 2007, new legal bases and if the relevant employees had been un- have come into force. employed for a minimum of six months on the effective date of the regulation.

57 REPORT 2008 – 2009

Pension Schemes for Civil Servants with regard to pension law, especially con- cerning pension eligibility criteria and benefit Old age security for the public service is ad- calculation. Some special regulations have ministratively organised as a separate social been retained, e.g. higher pensionable ages insurance system. The regulations pertaining for judges and university professors. to substantive law were, in the course of a comprehensive harmonisation process, large- The gradual abolition of pension privileges in ly adjusted to the regulations valid for the the public service, and the convergence of private sector. This does not only apply to old age pension systems in Italy was a sig- those public servants whose employment re- nificant argument for the general pension lationship is today anyhow regulated under reforms to be accepted, particularly since private law, but fundamentally also to the the latter were accompanied by major cuts to small circle of government employees who the statutory pension scheme. are subject to a particular public service law (essentially judges and public prosecutors, Development of Occupational Pension the police service, the armed forces and uni- Schemes in Italy versity professors). Italy is a latecomer as regards the extension of Until the beginning of the 1990s, pension its pension system through supplementary, conditions were much more favourable for capital-funded pension schemes. Contrary to persons employed in the public service than other European countries, supplementary in- for those employed in the private sector. This surance in Italy is almost entirely financed was true both for the requirements for pen- from the employees' personal savings and sion to become payable and for the amount of capital. As part of the reform process negoti- benefits paid. Taking the example of 40 years ated between the government and social part- of gainful employment, the income replace- ners, the second pillar of old age security, i.e. ment rate in the private sector was at nearly the previdenza complementare, was to be ex- 80% of a person's last income, while govern- tended in order to counterbalance any benefit ment employees could receive a little over losses in the statutory pension insurance. Un- 94%, and employees of the local authorities til now, participation in the supplementary could even receive up to 100% of their last pension systems of the second pillar has been income. The options regarding early retire- voluntary for persons employed in the private ment were particularly generous. Contrary to sector; however, tacit consent has recently persons employed in the private sector, who, been introduced in this regard: anyone who after 35 years, were entitled to a so-called does not explicitly object within a period of six seniority pension (regardless of age), employ- months, automatically accumulates capital in ees of the local authorities were entitled to a supplementary pension fund. seniority pension already after 25 years, and government employees were entitled even af- Supplementary provision for old age includes ter only 20 years of gainful employment. For various forms of provision systems which aim mothers to qualify for this form of pension, at topping up the statutory pension insur- the minimum working period required was ance benefits by way of additional benefits. once again reduced by another five years. Both collective forms (closed pension funds; The most noticeable privileges to the public yet also collective participation in open pen- service were already being reduced at the be- sion funds) and individual forms (individual ginning of the reform phase, as early as 1992 participation in an open pension fund or in- and 1993. In this context, reductions in pen- dividual life insurance contracts with an in- sion payments were for the first time intro- surer) are provided. On the whole, the col- duced, varying in accordance with the miss- lectively agreed closed pension funds play a ing years of service. By way of the pension prominent role. Supplementary provision reform of 1995, a further core reform issue has been extended particularly in sectors was implemented: the gradual harmonisation linked to strong social partners. of the old age pension systems, including the public service. Harmonisation in this context In January 2007, new legal bases for the rein- did not mean the complete equalisation of forcement of occupational and individual systems, but the adoption of basic principles supplementary insurance became effective.

58 II. RESEARCH

In this context, the respective control and payments from the saved capital, e.g. for protection regulations were extended in order health expenditures or urgent housing re- to accommodate the special purpose of these quirements. In exceptional cases, accelerat- instruments to guarantee appropriate pension ed maturity (early payment) can be effected, benefits. As an incentive in addition to the meaning the disbursement of: 50% of the possibility of tax deductions, a special financ- capital in the event of long-term unemploy- ing mechanism has been established. The ment of more than twelve months, 100% of former mandatory compensation for a termi- the capital in the event of unemployment of nation of employment (so-called trattamento more than 48 months or of permanent inva- di fine rapporto) amounting to 6.91% of the lidity. annual gross pay has, since 2007, been trans- ferred into a supplementary pension fund, After a minimum of two years' membership except in cases where the employee has ex- with a supplementary pension scheme, the plicitly objected to these terms. If there is no insured person may transfer his/her entire closed pension fund available, the contribu- individual positions to a different supple- tions go into a new supplementary pension mentary pension scheme. A transfer of em- fund established especially for this purpose ployer's contributions is only possible, how- by the Italian national social security institute ever, if this has been provided for in the INPS. Meanwhile, approximately 22% of respective collective agreement. In sum, the gainfully employed persons (five million) par- reforms have indeed increased the coverage ticipate in supplementary pension schemes, of supplementary pension schemes. Yet, the 3.6 million of whom are employed in the pri- majority of gainfully employed persons face vate sector. However, there are still wide dif- uncertain prospects regarding appropriate ferences as regards the situation of men and pension payments in old age. Especially per- women, as well as the individual regions. The sons who are in particular need of protection average coverage rate of male employees is at and who are limited in their capacities to pay 25.14%, while that of female employees is at contributions – i.e. younger employees, per- 16.42%. In this respect, the partial privatisa- sons employed in atypical labour contracts, tion of the pension system certainly leads to and women – as well as residents of the aggravated gender-specific inequalities as re- southern regions of Italy run a very high risk gards income in old age. of old age poverty, unless supplementary pension schemes are supported by additional Contrary to some historical supplementary protective measures at regional level. To be pension funds, the more recent systems sure, in the face of the international financial belong to the type of supplementary pen- and economic crisis it is legitimate to ask sion that stipulates fixed contributions; the whether it would not make more sense to in- amount of pension payments are, in this con- vest these public funds in guaranteed mini- text, not dependent on an overall protection mum old age pension schemes. level defined in relation to previous salary, Eva Maria Hohnerlein but on the profit situation of the pension fund. In some cases, however, statutorily fixed capital guarantees are provided. Pen- 2.8. Occupational Pensions in Europe: sion benefits from supplementary pension Guaranteed Security? schemes are linked to the eligibility to receive statutory pension payments. The waiting pe- Nearly all European states and also many riod is five insurance years. The employee other countries have in recent years – and entitled to a pension has the option of either especially after the turn of the millennium – a life-long monthly pension, or a combination effected more or less extensive reforms in of a one-time capital payment to the amount order to consolidate their pension systems; of a maximum of 50% of his or her overall some systems have been changed fundamen- pension savings plus life-long monthly pay- tally. This was necessary, since especially de- ments from the remaining pension capital ac- mographic developments and the negative cumulated. labour market situation with its high rates of unemployment called for an adjustment of Under certain conditions, benefits can be the social security systems in general and of granted already before retirement as advance the pension systems in particular.

59 REPORT 2008 – 2009

For these reasons, but also due to delibera- consideration of international or, respectively, tions pertaining to management policy – for European law, organised, governed and se- occupational pensions have become a core cured in Germany, Sweden, Spain, Switzer- aspect of occupational social policy –, the land and Italy, and what the future perspec- percentage of occupational pensions and tives of occupational pensions might be. other supplementary old age insurance schemes in the overall provision for old age The global financial and economic crisis had, have increased in some countries. In actual already before the conference, made obvious fact, reform-based benefit cuts in statutory what kind of risks pensions may face as re- pensions, which some pension systems had gards sustainable security, and how impor- to cope with, are also absorbed by means of tant it is therefore to be able to rely on solid improved occupational pension funds. Sup- and obligatory control functions. Against the plementary occupational pensions can thus background of the financial crisis, the focus counterbalance deficits in statutory old age thus shifted towards subjects revolving security and expand its range of benefits. In around the control, and even governance, of this regard, it must be taken into considera- financing mechanisms, yet without funda- tion, however, that in countries like Germa- mentally deviating from the overall subject ny, where occupational provision for old age matter. For problems relating to control can- is not obligatory, a large proportion of em- not be limited to one area, but are to be ployees do not participate in additional col- viewed as a whole, because they touch upon lective pension schemes. And individually all aspects of occupational provision for old configured pension schemes are not made age. With regard to international develop- use of to the extent that they might counter- ments, the phrase "Guaranteed Security?" balance deficits in statutory pension insur- was added to the title of the conference, in ance. order to especially emphasise the signifi- cance of control at the financial level. The Based on a conference on "Occupational assessment of the stability of these systems Pensions in Europe", the findings of which in crises seemed to be advisable particularly were published in 2007 (Hennion-Moreau/ in view of the current financial crisis – and it Kaufmann, Betriebliche Altersversorgung in continues to be of significance. The full Europa, Europäisches Recht und Rechtsver- scope of the financial crisis with regard to gleichung, 2007), a further conference un- occupational pensions is far from assessable der the motto of "Governance of Occupa- yet, and it will doubtlessly continue to have tional Pensions in Europe: Guaranteed an impact on various occupational pension Security?" took place on 28 and 29 May schemes. The (financial) security of occupa- 2009. tional pensions and the question as to wheth- er and how it will be guaranteed therefore The international conference was organised continue to be highly current issues. jointly by the Max Planck Institute for For- eign and International Law, the Western In- stitute of Law and European Studies (IODE) of Rennes I University, Hans-Böckler-Stif- tung and Friedrich-Ebert-Stiftung. The In- stitute and IODE were in charge of the con- cept and content-related planning, while Hans-Böckler-Stiftung was responsible for organisational issues onsite. The aim of the conference was to examine the essential elements relevant for establish- ing and controlling occupational pension schemes based on the findings of the previ- ous conference, i.e. to compare them and analyse them from different perspectives. Ex- perts from science and practice exchanged opinions regarding the question as to how oc- cupational provision for old age is, in due Dr. Otto Kaufmann.

60 II. RESEARCH

The establishment, implementation and The individual subject areas and panel dis- control at all levels of the occupational pen- cussions were moderated by Heinz Stapf- sion systems entail numerous legal ques- Finé, Gabrielle Clotuche, Renate Hornung- tions, yet particularly with a view to the fi- Draus and Claude Blumann. Gert Nachtigal, nancing modalities and investment policy Heinz Stapf-Finé, Dominique Boucher and these questions also revolve around ethical Klaus Stiefermann defended the viewpoints aspects. In this regard, it is also of interest to of social partners and actors. examine and analyse the obligatory or merely voluntary interaction of social partners in or- The discussions demonstrated, among other der to find out what scopes for action exist things, that some pension systems show large and which control and decision-making deficits, a fact which has an impact on the powers are granted on each side. quality and scope of people's old age security. Yet, it has also become clear that occupation- The various subject areas selected in this al pension schemes do not face the same fi- overall context were treated as follows: nancial difficulties in the various countries. The main topic of the conference referring to The more pronounced the regulations on the the "Current Situation of Occupational Pen- respective forms of investment are, the more sions" was addressed and discussed in vari- secure the relevant occupational pensions ous ways: the challenges to occupational seem to be. However, risk investment also pension schemes were illustrated in a com- figures in the calculation, which may in turn parative overview (Kaufmann); the role of oc- decrease the level of security. This refers to cupational pensions was placed in the con- systems whose control mechanisms are given text of economic liberty (Hennion); further, too little importance, or to the fact that exist- the socio-economic governance (Döring) and ing rules and regulations prohibiting risk in- contractual guarantees of occupational pen- vestment are disregarded. As mentioned be- sions were explained (Pierre). fore, it is at this level that control functions Another focal area was the financial security take on crucial significance. of occupational pension schemes. The speak- ers reported on the financial security of the A publication containing the updated con- respective occupational pension schemes in ference presentations is currently being pre- Sweden (Köhler), as well as in Spain and pared. It will be edited by Otto Kaufmann Germany (Reinhard), Switzerland (Ross) and and Sylvie Hennion and published by Sprin- Italy (Hohnerlein). ger, Heidelberg. Otto Kaufmann The subject area of "Corporate Governance and Social Dialogue" was discussed by way of presentations on the governance options 2.9. Comparison of Old Age Security open to employers (Lutjens), the governance Schemes for Civil Servants options open to the employees' representa- tives (Kessler) and on employees' rights in The demographic, economic, social and po- occupational pension schemes (Reinhard). litical developments of the past years have This was followed by a presentation relating presented the European old age security sys- to the question whether International Ac- tems with great challenges and indicated counting Standards would guarantee a more that there is considerable need for reform. secure governance of occupational pensions The reforms of pension systems in the mem- (Jubé). By way of an overview, which includ- ber states of the European Union, aiming to ed the future perspectives for occupational guarantee appropriate pensions and financial pension schemes (Becker), the subject area sustainability, especially show a rise in retire- on "Governance Elements and Future De- ment age and the reduction of possibilities velopment of Occupational Pensions" was related to early retirement: higher life ex- concluded. pectancies particularly result in the require- Following this, the different actors involved ment to increase the employment rates of in occupational pension schemes and the older workers by means of creating incen- representatives of the social partners dis- tives for people to prolong their working lives cussed current developments. – for instance by way of linking the entitle- ment to benefits more closely to the amount

61 REPORT 2008 – 2009

of contributions paid. There are also exam- principles also exist in other countries select- ples where pay-as-you-go pension systems ed for comparison – namely France (Kauf- are supplemented by capital-funded pension mann), Italy (Hohnerlein), the Scandinavian systems in order to base the respective old countries of Denmark, Norway and Sweden age security system on several pillars. (Köhler), the Russian Federation (Chesalina), Switzerland (Ross), Slovenia (Strban), the Apart from the statutory pension systems, Czech Republic (Stefko) and the United which mostly cover employees and self-em- Kingdom (Landauer). The service law of the ployed persons in the private sector, there European Union (Knecht) and of the United are further basic security systems that guar- Nations (Köhler) has been included in the antee pension benefits to particular groups study, since European Union law is directly of persons or professions. A basic security related to the EU member states, and since system of this sort beyond statutory pension the internal regulations of the universal insurance is the pension system for civil ser- United Nations Organisation represent what vants. These old age security systems, too, is globally accepted as service law. It is fur- are affected by the demographic and eco- thermore of scientific importance to relate nomic developments. Increasing longevity, the experiences gained in the application of for instance, leads to higher pension expen- comparative law, inclusive of the constitu- ditures, while low birth rates strain the fi- tional guidelines for civil service pensions in nancial bases. In order to be able to guaran- Germany (Köhler). In their country reports tee sustainable pensions, reforms similar to the correspondents primarily examined the those effected in statutory pension insurance question whether employment with a particu- will be necessary. lar employer (government, international or supranational organisation) and for particular Since there is considerable scientific interest tasks (exercise of sovereign power) necessar- in the establishment and configuration of ily entails duties and privileges with regard to particular systems of old age security, the In- (public) service law, and whether these du- stitute has carried out a legal study of the ties and privileges related to service law form various pension plans for civil servants. the basis for a specific scope of social secu- rity in old age. In this context, the public ser- The objective of the comparative project vice and the duties and privileges of the civil dealing with the legal comparison of old age servant's status were described, with focus security schemes for civil servants and their on the general and – if applicable – particular relevant reforms is to find out whether there pension systems inclusive of the reforms are specific principles in German civil service of recent years. The comparative analysis law (Körtek) that might be of significance (Köhler) has shown, among other things, that with a view to old age security schemes for in the reference countries, unlike in Germa- civil servants (Becker), and whether such ny, the legal situation is not predominantly shaped by constitutional pro- visions or the jurisdiction of the Supreme Court. It has further demonstrated that constitutional guarantees for civil servants are exclusive to Germany.

Being a special system of so- cial security, civil service pensions in Germany are part of civil service law and represent, as distinct from statutory pension insurance, a comprehensive provision system for old age. Civil ser- vice pensions are subject to the institutional guarantees

62 II. RESEARCH

rated in the general pension system, meaning that the latter can particularly draw upon "state basic pension" as a form of basic insurance. Denmark has statutory regu- lations regarding pensions for civil servants employed by the state or the munici- palities. In Norway, pensions for civil servants employed by the state and for most civil servants employed by for civil servants according to Art. 33 Para. 5 the municipalities are statutorily standard- GG [Basic Law] – as an amendment to Art. ised through the Norwegian Public Service 33 Para. 4 GG – whereby the law of the pub- Pension Fund, a "state-guaranteed" fund for lic service is regulated and developed with covering pension costs. In Sweden, civil ser- due regard to the traditional principles of the vice pensions are defined by collective agree- professional civil service. The alimentation ment through the "Pension Agreement for principle as a traditional principle of the pro- Government Employees". The Russian Fed- fessional civil service obligates the employer eration has, since 2002, apart from the gen- to provide a civil servant – in turn for full eral contribution-based "work pension" also dedication to his or her office – with a liveli- had a tax-financed state pension for civil hood appropriate to the rank, importance servants. In Slovenia, as well as in the Czech and responsibility of the civil servant's office. Republic, civil servants are insured under The legislator has wide scope for action as the general statutory pension scheme. The regards the concretisation of his obligation to EU staff regulations are comparable to Ger- provide appropriate alimentation following man civil service law as regards the level of from Art. 33 Para. 5 GG, i.e. the legislator is regulatory detail and complexity, while the not precluded from adjusting civil service service law of the international civil servants pensions, as well as statutory pensions, to follows the provisions of the UN Charter. changing demographic and economic condi- tions. There are no constitutional objections The project has been successfully concluded to adjustments based on developments in and the research findings, inclusive of the statutory pension insurance, provided that various country reports, have been published the principles applicable to civil service pen- (Becker/Köhler/Körtek, Die Alterssicherung sions are observed. von Beamten und ihre Reformen im Rechts- vergleich, 2010). The study also revealed that not every coun- Yasemin Körtek/Peter A. Köhler try included in the comparison has a specific pension system for civil servants. In France, civil service pensions are provided through 2.10. Social Security and Long-Term Care special systems and borne directly by the Dependency state. Despite the fact that workers in public employment in Italy functionally hold a civil Social protection against the risk of long- servant-like status, this specific employment term care dependency has so far only fea- status is under Italian law no longer linked to tured sporadically in Institute research. Even the duties and privileges related to civil ser- though the Institute was involved in the vice pensions. In Switzerland, provision for drafting, introduction and further develop- old age for government employees is inte- ment of protection schemes against the risk grated in the 1st and 2nd pillar of the general of long-term care dependency in Japan, the pension plan. The regulations pertaining to activities and publications issued in this con- old age and survivors' insurance (1st pillar) do text to support the Japanese colleagues were not contain any provisions specific to govern- rather descriptive and primarily referred to ment employees. In the United Kingdom, the German law pertaining to long-term care pension plans for civil servants are incorpo- insurance. Furthermore, several studies on

63 REPORT 2008 – 2009

long-term care insurance arisen at the Insti- Although there has always been a general tute from this context were prepared by Japa- need for long-term care services, social pro- nese guest researchers with the aid of locally tection against the risk of long-term care de- provided resources. pendency does not count among the "classi- cal" measures taken such as those adopted to A current Institute project is specifically de- provide for old age security or medical care voted to the issue of social security for per- in the case of illness. Long-term care de- sons who provide long-term care to family pendency is, furthermore, no firmly defined members. In this context, additional infor- risk, since it can be based on various factors mation on the social protection of carers in and can have various implications. The line foreign legal systems was included where ap- dividing the risk of long-term care depend- plicable. Yet, the topic is narrowly restricted ency from the risk of illness, disability or the to one closely defined area and aims, similar general aging process is blurred, often pre- to the mentioned projects in Japan, at advi- cluding precise classification. True, the risk sory support within the framework of planned of becoming dependent on long-term care normative changes and improvements. increases with age; however, it is not limited to the elderly. In extreme cases, people may A further reason for the circumstance that be dependent on long-term care from birth, the issue of social protection against the risk or become dependent due to an accident of long-term care dependency has until now without them having suffered from any pre- rarely found its way into scientific research existing condition. may be the fact that legal implementation has only been effected recently and that the Meanwhile, several countries have included standard-setting process can by no means be social security schemes against the risk of regarded as finished. German long-term care long-term care dependency in their political insurance in its pioneering role has just agendas. Various other countries are consid- turned 15 years, but has already been subject ering the inclusion of such schemes. At Euro- to several amendments and reforms due to pean Union level, too, social security against deficiencies that could not be foreseen at the the risk of long-term care dependency has time of its introduction. It has also become become one of the big challenges to cope apparent that protection against the risk of with in the coming years, and it has even be- long-term care dependency is linked to a va- come part of the Open Method of Coordina- riety of other legal areas. To labour law, for tion. The problem appears to be more com- instance, when it comes to the issue of com- plex even than the issue of guaranteeing bining work and family life – a topic which sustainable old age security systems. For un- the new Federal Minister for Family Affairs like in pension insurance, it is not only finan- (Schröder) wishes to increasingly focus on in cial feasibility that is to be guaranteed, but the political discussion. also the provision of human resources. There is a shortage of qualified carers already today. A considerable proportion of care services is provided through unqualified carers, illegal immigrants or family members trying (and often failing) to cope with the situation. The issue of long-term care dependency is thus not only linked to social questions, but also touches upon questions pertaining to aliens law or, respectively, immigration law and to some originally non-juridical aspects like quality assurance and organisation. However, the last-mentioned areas, too, must be given a legally comprehensible and litigable form.

As far as could be determined, there is only little foreign literature on long-term care de- pendency that goes beyond the illustration of Prof. Dr. Hans-Joachim Reinhard. the most important relevant national norms

64 II. RESEARCH

(e.g. the Long-Term Care Act). It is therefore connected to previous employment or con- appropriate to examine the risks of long-term tributions, respectively premium payments. care dependency by way of a comparative This society-centred approach often goes analysis. An examination of this sort cannot hand in hand with tax-financed health care do without a description of the primary na- within the framework of a general health ser- tional norms implemented to insure against vice. Yet, this is not necessarily the case every- the risk of long-term care dependency, be- where (e.g. not in Austria). cause information on the legal status quo is to The new Spanish system that was introduced be gained first. It must, however, not confine in 2007 is included in the examination: for itself to a portrayal of the provisions stipulated one thing, a great deal of literature and mate- in social law regarding insurance against the rial on the topic had, already within the re- risk of long-term care dependency (in Ger- porting period, been collected for a publica- many that means to Social Code Book XI). tion (Reinhard, Die soziale Absicherung von Further fields of social law (e.g. pension law), pflegenden Familienangehörigen in Spanien, as well as the mentioned norms pertaining to 2009), resulting in sufficient data availability. labour law and aliens law, must be included. For another thing, the Spanish system follows an approach opposite to the one pursued by In order to make the comparison more effec- the German system. Long-term care in Spain tive, the task is not merely to compare the is deliberately not intended to be a task pri- respective regulations and to work out their marily carried out by the family, but by social commonalities and differences. The issue of services that are essentially tax-financed. insurance against the risk of long-term care dependency calls for a comparison of sys- Spain serves as an appropriate country for tems. comparison also for other reasons. Although matters in this regard have been regulated As with health care, the European Union has through national legislation, their execution two different implementation approaches. – and thus to some extent also financing – In some countries, social security is primarily rests at the regional level. Practice has shown linked to paid employment. Insurance against that long-term care is implemented in vari- the risk of long-term care dependency is, on ous ways, meaning that the actual provision principle, only granted to gainfully employed of care services is also organised in very dif- persons. Persons who are not economically ferent ways. There are similarly striking re- active are insured under derivative systems gional discrepancies in Germany, e.g. as re- (e.g. family insurance, voluntary insurance). gards the establishment of care bases. Other In any case, contributions are obligatory and, countries (e.g. Austria, Belgium, Italy) like- as a rule, a minimum contribution period wise provide for regional regulations as re- must be evidenced. This socio-political ap- gards protection against the risk of long-term proach views long-term care dependency as care dependency. an individual problem which is to be solved, first and foremost, at private level. Accord- Furthermore, cooperation was launched in ingly, this concept places great demands on the period under review (2009) within the the family of the person in need of long-term framework of a project conducted by Málaga care. Social protection against the risk of University. This cooperation was continued long-term care dependency is closely tied to at the end of March 2010 in the form of a the role of the family; in Germany, for in- joint seminar on social protection for mi- stance, this phenomenon is illustrated by the grants who require long-term care, i.e. pri- fact that childless persons have to pay higher marily citizens of the central and northern social security contributions. This is justified European countries who have become long- as a kind of family transfer payment. term residents in Spain. Other countries consider protection against the risk of long-term care dependency as a Regarding long-term care benefits in Euro- social task which the individual and his fam- pean law, even the new EU coordination law ily cannot cope with on their own. For this merely offers a rudimentary regulation (Art. reason, tax-funded support on the part of the 34 of Regulation (EC) 883/04) relating to state is required. This kind of support ties in sickness benefits. The necessity to couple with the status of legal citizenship, but is not tax-financed systems with insurance systems

65 REPORT 2008 – 2009

entails a range of practical implementation passing of Social Code Book IX (SGB IX) in problems; the examination of this issue will Germany, moved from its marginal position therefore take place within an EU legal to the centre of attention of both German framework. After all, it is to be examined social law in general and of scientific re- whether a coordination rule that was de- search. It has been demonstrated, not least signed for the provision of services for a limit- due to the implementation of the UN Con- ed period of time (illness) can also be applied vention on the Rights of Persons with Disa- to a provision of services that is nearly always bilities of 2006, which has been legally bind- intended for a longer period of time (long- ing in Germany since 26 March 2009, that term care) and thus has to satisfy completely today the rights of persons with disabilities different needs. are given worldwide attention and to an in- creasing extent also worldwide recognition. In terms of feasibility, the plan is to first start with an analysis of the Spanish system. Aus- The contracting parties to the Convention tria, the Netherlands and Belgium serve as explicitly emphasised the significance of in- further appropriate study regions, as well as ternational cooperation and the promotion of South Tyrol where an autonomous regional the latter for the support of national efforts to social security system against the risk of long- realise the goals of this legal instrument. This term care dependency was established in circumstance lent unpredicted relevance to 2008. It is worth considering whether the the project, unforeseeable at the time of its United Kingdom should not be included in conceptualisation in as early as 2001. the study due to the structural similarity of its social services with the Spanish servicios so- Initiated by Bernd Baron von Maydell, Bernd ciales. It is currently impossible to assess the Schulte and Rainer Pitschas (German Univer- suitability of the Netherlands as a country for sity of Administrative Sciences Speyer), who comparison, since it has just undergone ex- were later joined by Peter Pörtner (Centre for tensive reform. Any inclusion of further Japanese Studies at Ludwig Maximilian Uni- countries in the comparative study will re- versity Munich) and his expertise in the cul- quire internal or external country experts. tural sciences and on Asia, the project was Moreover, it must be examined whether EU originally conducted as a response to numer- funds will be available for this project within ous requests from Asian countries for infor- the framework of the PROGRESS Programme mation on the legal and political situation (Social Security and Social Integration). regarding persons with disabilities in Europe. Hans-Joachim Reinhard Today, this legal and political field bears a normative (i.e. humanitarian, human rights- and social law-related) reference. Its dimen- 2.11. The Law Concerning Persons with sion today is to an increasing extent due to Disabilities state regulations, but it is also a result of the successful protection and enforcement of in- The project on the "Law Concerning Persons terests on the part of persons involved, their with Disabilities in Europe and Asia", which families, representatives, as well as of particu- goes back to a cooperation between Institute lar social groups. This has not least been members (von Maydell/Schulte) and the Ger- demonstrated by the elaboration of the UN man University of Administrative Sciences Convention on the Rights of Persons with Speyer (cf. Report 2006 – 2007, p. 50) was Disabilities, which was to a considerable ex- continued in a workshop that took place in tent prepared "by those affected for those af- Munich from 20 to 24 October 2007; its fected". findings have been published (von Maydell/ Pitschas/Pörtner/Schulte, Politik und Recht Individual studies on the dimensions of disa- für Menschen mit Behinderungen in Europa bility law and disability policy pertaining to und Asien unter den Bedingungen des de- family matters, the education system, work- mografischen Wandels – kulturelle Voraus- ing life and the protection and enforcement setzungen und Erklärungshypothese, 2009). of political interests were utilised at the most recent workshop in order to cope, by way of The right of persons with disabilities to so- exemplary investigations, with the topical cial participation has, at the latest with the complexity – which as such requires a broad

66 II. RESEARCH

different connotations. In fact, decisions on the type and quality of disability law and pol- icy are not least made according to the re- spective underlying fundamental ideas, the conception of man presupposed by the rele- vant societies, the respective definition of "health", "normality" and also "disability", as well as to the prevailing notion of the term "decent living". Only if these widely varying conditions are taken into account, solutions might be found also at global level to prob- lems challenging persons with disabilities who, after all, equally share the same needs throughout the world.

Dr. Bernd Schulte. This suggests an intensification of efforts to promote the cultural dialogue and scientific, interdisciplinary approach. Naturally, this did and in particular legal, comparison between not exhaust the full research potential of European and Asian countries to a greater ex- the project; after all, new research questions tent than has so far been the case. It also cor- were formulated in the course of the project, responds with this aim to allow the research and these can be pursued in the future. At project, which has been discussed at confer- the same time, a summary of the findings ences in Speyer, Berlin and Munich, to be gained so far should be given: it is to be noted continued in Asia. In this context, Japan in in this regard that, for one thing, the demo- particular should be considered as a location graphic development and, for another, the for the research project: the relations between awareness process within our society con- Europe (and especially Germany) and Japan cerning the social problems and rights of per- show comparatively great similarities as re- sons with disabilities – a process that has gards their policies for persons with disabili- meanwhile also received a legal basis at inter- ties, and it is not mere coincidence that, also national level due to the normative provisions with respect to social protection against the of the mentioned UN Convention – seem to risk of social long-term care dependency, both suggest a convergent development of the countries have appropriate social protection rights and policies regarding persons with systems (with Germany's influence on Japa- disabilities in Europe and Asia. It must be nese long-term care insurance being obvious). considered, however – and this is a result of Furthermore, there are clear parallels between the deliberations on disability issues made Germany and Japan as regards legal support in the cultural sciences – that the common for adults in the form of guardianship law. In principles on disability policy expressed in this context, Germany has certainly taken on a the Convention can, for the most part, be de- pioneering role with a view to social benefits rived from European law and from European law, rehabilitation and social participation. At disability policy; they have thus ultimately the same time, it has a great deal of catching developed from both Council of Europe and up to do with respect to anti-discrimination European Union tradition, as well as occi- law, since it does not have its own specific dental tradition and, despite this common "anti-discrimination culture", and since the root, have retained very individual socio-cul- latter is imparted through European law. tural "dialogue forms" in the various coun- tries even within Europe. In light of this ex- Legal Protection for Persons with perience it seems appropriate to examine Disabilities and for Elderly Persons even more closely than before the basic deci- sions, fundamental concepts and basic views As regards guardianship law for adults, in- of the Asian and European reference coun- tensive cooperation has existed for years be- tries with their different cultural bases. After tween the "father" of Japanese guardianship all, different conceptions of the human being law and president of the Japanese Associa- have been formed and, accordingly, semanti- tion of Guardianship Law for Adults, Makoto cally identical terms may well take on quite Arai (University of Tsukuba, Japan) and our

67 REPORT 2008 – 2009

Institute (Schulte). This cooperation has During the period under review, the first been expressed in the form of research visits, project phase was completed with a publica- symposia and seminars in Germany, Japan, tion (edited by Institute members Eva Maria Australia, Great Britain and other countries Hohnerlein and Edda Blenk-Knocke) of the (Schulte), as well as, most recently, in the on- extensive documentation of the first confer- going joint efforts to devise the programme ence held in October 2007 and its scientific for the first World Congress on Guardian- evaluation (cf. BMFSFJ, Eigenverantwor- ship Law, which is to be hosted in Yokohama tung, private und öffentliche Solidarität – (Japan) in 2010. The aim of the Institute in Rollenleitbilder im Familien- und Sozialrecht this regard is, for one thing, to highlight the im europäischen Vergleich, 2008); this was interrelations between legal support and so- followed by the planning and execution of an cial guardianship and, accordingly, between international workshop for a more detailed a legal institution subject to private law and evaluation and continuation of the first con- social benefits law per se; for another thing, ference. This workshop termed "Gender Role to advance the German reform debate on Models in Europe: Legal, Economic and guardianship law both in an interdisciplinary Cultural Dimensions" took place at the Ger- and comparative way. man-Italian Centre in Villa Vigoni in Me- Bernd Schulte naggio, Italy, from 20 to 22 October 2008. The findings of this workshop, too, were eval- uated and published in a conference paper Family and Social Security put together by Institute members Eva Maria Hohnerlein and Edda Blenk-Knocke (cf. 2.12. Modernisation of Gender Role BMFSFJ, Rollenleitbilder und -realitäten in Models – a Challenge to Family Law Europa: Rechtliche, ökonomische und kul- and Social Law in Europe turelle Dimensionen, 2009). Subsequently, the third project phase began, starting with The years 2008 and 2009 saw the continua- the conceptual preparatory work for the for- tion of the long-term interdisciplinary cooper- mation of three autonomous research groups ation project between the Institute (project who were to discuss selected topics with the manager: Hohnerlein) and the Department ulterior goal of developing recommendations for Gender Equality based in the German for action for the German legislator. The Federal Ministry of Family Affairs, Senior group headed by Ulrich Becker dealing with Citizens, Women and Youth (BMFSFJ), the topic of social security for caregivers which examines in a comparative way and at ["Soziale Sicherung von Pflegepersonen"] and European level the changing gender role the group headed by Barbara Dauner-Lieb models for women and men in society and in (University of Cologne) focusing on marital social law and, respectively, family law (cf. property rights in relation to tax law ["Ehe- Report 2006 – 2007, pp. 57 – 60). güterrecht mit steuerrechtlichen Bezügen"] took up their research work during the last quarter of 2009. For the third research group dealing with female breadwinners ["Frauen als Ernährerinnen der Familie"] a workshop will be organised in May 2010. The members of the project (Hohnerlein, Blenk-Knocke) are also involved in the research groups.

Findings of the Workshop of 2008

The countries included in the European comparison were – apart from Germany, which represented the main focus of the workshop – Denmark, France, Belgium, Great Britain, Italy, the Netherlands, Swe- den, Switzerland and Spain. Dr. Edda Blenk-Knocke in conversation with The starting point was the modernisation of Prof. Dr. Ulrich Becker. gender role models with a view to independ-

68 II. RESEARCH

ent income security for women and the in- Male Role Models Under Change herent challenges to family law and social From the viewpoint of men's studies, today's law. It is especially the educational expansion gender role models in Germany are highly and the increase in economically active wom- differentiated: the traditional male role has en and mothers, but also the radical changes been overturned, and many men are now on in dependent gainful employment that con- the search for a new male identity. However, tributed to the changing reality of gender re- despite a noticeable change in attitude among lations, as seen in the shift away from the men, little change in behaviour has so far traditional male breadwinner model towards been registered. The readiness to assume re- new models, such as the dual earner model sponsibility for family care work also depends and the full-time/part-time employment com- on various structural criteria. Differences in bination (modified breadwinner model). Em- pay between men and women (gender pay pirical findings regarding Europe show a gap) are one significant obstacle, resulting in country-specific pluralism of gender arrange- the circumstance that the person with the ments, meaning that different constellations higher income usually stays in the job. exist for women and men with respect to their division of paid work and family work. Retraditionalisation of Task Allocation During Marriage Change and Continuity of Gender Role The fact that gender role models may persist Models in Germany for a long time is supported by a sociological long-term study carried out in Germany A first focus, which was mainly related to the which deals with the question as to which social sciences and their empirical findings, factors are decisive for labour division among was on the changing gender role models in married couples with regard to housework. Germany as viewed from various perspec- At the beginning of a marriage, about 50% of tives. couples share their housework fairly; after 14 years of marriage this percentage is down at The Historical Perspective only 13.7%. The most significant reason for Historical analysis has made clear that gender this striking retraditionalisation of task allo- role models are closely linked to historical cation during marriage turns out to be the events. It is particularly the two world wars that left ob- vious traces in the configura- tion of gender role models and, at the same time, in their changing rate or, re- spectively, their persistency. The strong position of the housewife and of the type of marriage where the woman stays at home both dominate the Weimar period, the time of National Socialism and the early years of the Federal Republic of Germany. The increase in female employ- ment, the provision of social security to mothers through social protection regimes, and the rise of the women's movement all factor in the change of traditional gender role models, a process that came to pass much more slowly in Germany than in other European countries.

69 REPORT 2008 – 2009

birth of the first child, irrespective of the Self-Responsibility and Solidarity educational level, extent of gainful activity or in the Case of Divorce income of either partner. The interplay of self-responsibility and soli- It is still a widely held view in numerous darity is of core significance particularly with countries, not only in Germany, that house- respect to marriages and partnerships with an work and educational work are defined as asymmetrical task allocation. The unequal di- female domains. Thus, double burden is pri- vision of family work and paid employment marily a problem of gainfully employed between men and women is a true reflection women, not of men. of the lives of many couples. In the event of a divorce it will have to be clarified who is to Female Breadwinners carry the burdens of such an asymmetrical One group extending this plurality of life- task allocation. Which consequences are to be styles which has only recently been given at- borne by the affected spouse (self-responsibil- tention in scientific research is the group of ity), and which are to be borne by the former women representing the sole or, respectively, marriage partner (private solidarity) and by the main breadwinners in their families. The pro- state (state solidarity)? Great Britain, for in- portion of female breadwinners in multi-per- stance, promotes the idea of private solidarity son households amounts to 20%. More than among partners in the case of divorce, while half of this group live in a partner relation- Sweden gives priority to state solidarity. ship; the remaining proportion of female The German maintenance law reform of breadwinners are single mothers. It is often 2008 blends in with the general tendencies difficult situations that make women take on in European family law. The reinforcement the role of the breadwinner, e.g. if her partner of self-responsibility among divorced couples is unemployed or in precarious employment. and the increase in endeavours to counter- The female breadwinner is, by a majority, not balance marriage-related disadvantages as a an equivalent to the male breadwinner. Her legitimate basis for post-marital maintenance lifestyle rather involves difficulties caused by correspond with the European trend. the double burden of paid employment and unpaid family work. Coherence of Property Law and Pension Law Gender Role Models in Family Law A further paper enlarged upon the issue re- garding the allocation of pension entitle- The second core topic of the workshop was ments as part of the statutory equalisation of dedicated to gender role models in family property rights in the case of divorce. The law in Europe. focus was on the coherence of property law and pension law in various European coun- Toward Equal Sharing in Marital tries. In this context, the main question was Property Law Across Europe whether and to what extent the configura- Various models pertaining to equal sharing in tion of the statutory property regime has an marital property law were compared from a impact on the sharing of pension rights in old legal perspective with a view to the question age security schemes. as to which model best suits which type of partnership arrangement. Solidarity between Child Support in Germany the spouses is regulated in these models in The differentiation in German child support different ways according to marital status law between cash alimony (usually referring (solidarity within the marriage or in the case to the father) and caregiver alimony (usually of divorce). In the Roman corpus of law, it is referring to the mother) is based on the tradi- the community of property acquired during tional male breadwinner model. The ques- marriage that defines the statutory property tion is whether this dichotomy of life reali- regime; by contrast, the Nordic and Ger- ties of divorced parents lives up to today's manic law systems mostly feature equal shar- pluralisation of lifestyle models. ing systems, which also include the statutory property regime in the community of accrued Gender Role Models in Social Law gains (separation of property with accrued gains being equalised on termination of the A third core topic was dedicated to the vari- marriage) that is applied in Germany. ous socio-political approaches to long-term

70 II. RESEARCH

care issues, with focus on the associated gen- the Spanish Social Security Act of 2006 stipu- der role models for the purpose of providing lates the priority of public institutions over social security to persons who offer long-term home care via family members in cases of care services to family members. After all, long-term care dependency. Women are not throughout Europe it is mainly women who to be kept from the labour market or forced provide care to their older family members. back into family work (orientation towards the adult worker model). However, due to Long-Term Care in Germany the lack of professional long-term care in- The core principle of long-term care benefits frastructure, the law is far from being trans- legislation applicable in Germany, i.e. "prior- lated. ity of home care over institutional care", im- In the Netherlands, the situation regarding plicitly places an obligation on women to be the reconciliation of employment and family involved in the long-term care of family mem- caregiving has been improved due to the in- bers, since this is the case at a rate of 75%. troduction of a personal budget for persons The underlying German gender role model requiring long-term care and the possibility connected to the provision of long-term care to conclude a contract with family members through family members is that of the tradi- on the provision of long-term care services. tional male breadwinner, which is based on Many women reduce their working hours the assumption that the spouse is not gain- and compensate income deficits by means of fully employed (or a low-income earner) yet cash benefits from the personal care budget. insured indirectly via her husband, and thus What is more, the Dutch basic state pension can do without an income of her own that – which is not means-tested – reduces the secures her livelihood, as well as without an risk of old age poverty. independent social security plan. This socio- legal configuration of family caregiving sup- Summary ports the traditional gender role structure along with the related deficits in independ- We live in a time of diverse gender arrange- ent income security for women. The growing ments which may, depending on the family participation of women in the labour market law and social law of the respective country, calls this currently existing structure into be linked to variable options for women to question, however, because its social precon- establish their own independent income se- ditions (wives without gainful employment curity. This is especially true for arrange- or with a low income) are breaking down. ments indicating an asymmetric division of gainful employment and family work. The Balancing Employment and Long- modernisation of gender role models poses Term Care great challenges to society: the combination The Home Care Act was effected in Germa- of gainful employment and childcare, as well ny in 2008 with the purpose of improving the as of gainful employment and long-term care conditions for balancing employment and to be provided to old and sick family mem- long-term care work. The legal provisions for bers must be guaranteed and, at the same the utilisation of long-term care time comply time, independent income security must be with the adult worker model. In reality, how- provided to those who assume these tasks. ever, it is more women than men who are Edda Blenk-Knocke likely to make use of long-term care time, not least due to the gender pay gap between men and women, as well as due to part-time work, 2.13. Institutional Framework Conditions which is particularly common with women. Regarding Solidarity Between Yet, measures to reconcile employment and Adults in Europe family caregiving should be available to both genders, and not lead to long-term withdraw- In two separately published studies, the legal al from the job market. embodiment of solidarity relationships in family law, maintenance law and social law Long-Term Care in Spain and the were examined; further, their normative ra- Netherlands tionale, as well as the correlations and coher- The legal configuration of long-term care in ence between the various legal materials Spain opposes the German model insofar as were investigated.

71 REPORT 2008 – 2009

Solidarity Relationships Between Adult The framework for the legally binding eco- Generations in Europe nomical relationships between generations is formed by statutory maintenance claims per- The first study compared the legal regulations taining to family law on the one hand and, on on maintenance obligations between adult the other, by the specific regulations pertain- generations in Germany and four further Eu- ing to social law regarding the obligation of ropean countries – France, Italy, Great Britain the family to meet claims. Both fields of law and Sweden (cf. Hohnerlein, Rechtliche Rah- are interrelated. In cases where claims under menbedingungen der Ausgestaltung interge- private law between adult generations have nerationaler Beziehungen im internationalen been abolished or restricted, the significance Vergleich. In: Kocka/Kohli/Streeck, Altern: of public social benefits gains even greater Familie, Zivilgesellschaft, Politik. 2009, p. weight. The availability of public social bene- 139-172). Moreover, an analysis was made of fits influences income levels in its own right, the extent to which social benefit institutions and thus also the need for maintenance un- can resort to maintenance claims under pri- der private law. vate law in order to pass on all or a part of the costs for subordinate social benefits and ser- It often becomes problematic in cases where vices – particularly with regard to inpatient public social benefit institutions enforce pri- long-term care – to adult family members. vate rights to maintenance by way of recourse The author of this study was supported in her claims against family members. This may research by the country correspondents re- generate tensions within the family. The ob- sponsible for France and Sweden. ligation of adult children towards their par- ents to meet claims (so-called parent main- In social reality there are manifold forms of tenance) often becomes an issue when assistance and of financial support that rela- parents require nursing care for a longer pe- tives provide to descendants and ascendants. riod of time. It is especially inpatient home Both the state and the legal system can rec- care for persons requiring long-term care ognise and support the – mostly voluntary – that is very costly. Often the persons involved provision of such services in different ways, do not have a sufficient income of their own. for instance within the scope of tax law. Fi- In such cases, they will be forced to cover nancial solidarity between adult generations remaining cost either by way of claiming is also enshrined as a legal obligation in most maintenance from their children or grand- legal systems. This particularly includes the children, or via social welfare. The parent maintenance obligations regulated under generation may also be forced to claim main- civil law (family law). tenance in cases where no long-term care is required, but where their age-related finan- Financial solidarity obligations between the cial demands cannot be met via old age pen- generations may play a role not only in direct sions from their provision systems for old relationships under private law, but also after age. The number of these cases of mainte- advance performances on the part of a social nance, which in former times mainly hit benefit institution. The European countries older women, can be reduced by way of cre- regularly provide for support of their citizens ating non-subsidiary minimum security sys- or inhabitants in particular situations of need. tems. This includes assistance schemes for needy persons who cannot maintain their own live- Parental claims of maintenance against adult lihood and who are not able to draw on other children in particular are disputed from the benefits either. These assistance benefits are point of view of legal policy. There are ten- typically subsidiary to other public benefits dencies to minimise this type of imposed and also to private maintenance rights. In or- solidarity at the expense of subsequent gen- der to avoid emergency situations that might erations. What is less disputed is the issue threaten a person's existence, the state may regarding the obligation of parent generations grant an advance payment, even if the person to provide financial assistance to their adult in need is entitled to claim maintenance from children, which may become applicable in relatives. In such cases the state may, under the case of permanent incapacity for work or certain circumstances, seek redress against reduced earning capacity on the part of the the family of the person in need. children.

72 II. RESEARCH

Within Europe (Germany, France, Italy, Eng- on the part of social benefit institutions there land, Sweden) there are vast differences as is also a reverse trend which aims to restrict regards the legal configuration of family or minimise the recourse to relatives in cases maintenance and of the regulations on finan- of maintenance obligations – which is ef- cial claims against family members in differ- fected partly via the legislator and partly via ent generations (particularly with a view to the courts. recourse), as well as regards the respective justification. England and Sweden show a fundamentally different approach. There, it is only minors The obligation between adult generations to or young people in training who can claim provide maintenance, as stipulated under maintenance under private law from their family law, can be found in the codifications parents, as well as spouses – and partners of both the German and the Roman law tra- who have the same rights as spouses – who dition. In Germany, France and Italy this ob- can claim maintenance from each other. By ligation has hardly been changed since its way of abolishing statutory obligations to first codification. The configuration of social provide maintenance, efforts were made to benefits systems, and particularly the intro- banish the fears on the part of the parent duction of non-subsidiary basic security sys- generation of becoming economically de- tems, has repercussions on the maintenance pendent in the long term. Furthermore, the obligations under private law, since poverty obligation to provide maintenance was abol- tends to be prevented by such measures. ished with the aim of promoting a certain readiness between the generations to make Apart from that, it is up to the courts to voluntary financial contributions to a limited put the obligation to pay maintenance in extent. Health and long-term care services concrete terms. Direct maintenance claims are, if required, made available to the needy among relatives are rare. Yet, the existence of at no charge in the form of universal public such obligations plays a role as regards the services. These legal systems do not expect granting of particular social welfare benefits family members to assume incalculable fi- or social services. Various methods are ap- nancial risks in order to cover long-term care plied in Germany, France and Italy in order expenses for independent adult children or, to impose financial solidarity between adult conversely, aged parents. generations publicly, i.e. through the social benefit institutions. In this context, complex Comparison of Property Law and of the connections are established between regula- Allocation of Accrued Pension Rights tions pertaining to civil law and regulations in Europe pertaining to social (welfare) law. There are many indications that locally responsible so- The second study was developed in the con- cial benefit institutions are increasingly un- text of the multi-phase project dealing with der pressure to provide for refinancing and the question of what was to follow the bread- that altogether there is a growing tendency to winner model ["Was kommt nach dem make use of family-related solidarity bene- Ernährermodell?"], which has been conduct- fits. In Germany, the rights of recourse under ed since 2006 by the Institute in cooperation social law were changed for this purpose to with the German Federal Ministry of Family the effect that maintenance claims are now Affairs, Senior Citizens, Women and Youth automatically assigned by law (cessio legis) (BMFSFJ). The focus of this study was on – both in the case of social welfare benefits solidarity relationships in marriages that and in the case of the new basic insurance were based on the division of labour and the for jobseekers – instead of by notification on related interplay of property law and old age the part of the social welfare institution re- security (cf. Hohnerlein, Güterrechtlicher garding the transfer of the maintenance Vermögensausgleich und Aufteilung von claim, as used to be the case in the past. In Rentenanrechten im Scheidungsfall – zum France, the "intensity of calls for payment" Zusammenspiel von Güter- und Sozialrecht effected by social welfare authorities has in- in Europa. In: BMFSFJ (ed.), Rollenleit- creased even without changes in legislation bilder und -realitäten in Europa: Rechtliche, due to changes in administrative practice. ökonomische und kulturelle Dimensionen, Despite this increase in refinancing pressure 2009, pp. 126-141).

73 REPORT 2008 – 2009

The division of work between men and wom- of a divorce, and which consequences could en has, despite the profound changes in the be expected for old age security from the so- working world as well as in family structures, called Errungenschaftsgemeinschaft [com- until today had a significant impact on the munity of property acquired during mar- scope of financial independence in old age. riage] which, different from the German After the numerous reforms pertaining to the Zugewinngemeinschaft [separation of prop- reduction of statutory old age pensions in erty with accrued gains being equalised on many countries of the European Union, the termination of the marriage], refers to an prevention of old age poverty and social ex- equal sharing of property acquired during clusion in old age is once again becoming a marriage. significant political objective at European level. In general, it is particularly women The interplay of matrimonial property law who are hit by poverty in old age, since in and social law does not follow any uniform most countries it is still them who carry out pattern as regards the sharing of the part- unpaid family work and who are less inte- ner's pension rights in the event of divorce. grated in the labour market than men. In in- The type and scope of such a sharing of pen- come-based security systems they therefore sion rights seem to be less influenced by a have fewer chances than men to receive full particular statutory property regime than by pension entitlements and thus to have a suf- the configuration of the respective old age ficient pension that is guaranteed to them security system. independent of their partner's income. The extent of gaps in social security correlates, on No affirmation has been made on the general the one hand, with the structure of the re- assumption that the forms of community of spective social security systems, but on the property are to a greater extent than other other hand also with the consequences of a property regimes linked to a financial equali- gender-specific allocation of roles. sation between the two spouses as regards the build-up of provident provision for old Deficits are particularly evident in contri- age. With a view to the configuration of statu- bution-based pension systems which also tory property regimes that belong to the type provide, apart from a basic pension, pension of community of property acquired during payments based on "earned income". This marriage, for instance, pension entitlements raises the question to what extent the indi- acquired during marriage are either regarded vidual risk of insufficient income-based pen- de jure as personal rights which do not come sions can be minimised beyond social wel- under property that is to be allocated, or they fare, if it is the consequence of a divorce of are excluded de facto, as the Italian example a marriage that was based on the division of illustrates. In fact, in terms of the statutory labour. In this context, it makes sense from the viewpoint of equal opportunity policy to also justify – in addition to collective com- pensation mechanisms (e.g. recognition of childrearing periods) – a certain individual responsibility of the partner for the financial consequences of a divorce in the event of an asymmetric allocation of roles during the marriage. This has been effected by the Ger- man legislator by means of the pension rights adjustment.

The core aspect of the multi-country study was the question whether and to what ex- tent the statutory matrimonial property schemes in the relevant European countries (Denmark, France, Great Britain, Italy, the Netherlands, Sweden and Switzerland) in- cluded accrued pension rights in the appor- tionment of assets and liabilities in the event Dr. Eva Maria Hohnerlein.

74 II. RESEARCH

property regime in the Netherlands, the even 2.14. Family Policy as an Economic Policy: more comprehensive community of property On the Introduction of Parental was introduced, along with a pension rights Allowance in Germany adjustment. Yet, this pension rights adjust- ment does not refer to the statutory pension In the year 2008, the second phase of the pertaining to the first pillar of old age secu- interdisciplinary research collaboration on rity, for this basic non-income-based pension family policy with Tsukuba University was is available to all citizens who have complet- continued in Tokyo in the context of a fur- ed the required residence period, irrespec- ther expert meeting and subsequent sympo- tive of actual contributions made. Since pro- sium on family policy in Germany and Japan vision for basic needs in old age is defined as [in German entitled "Familienpolitik in a collective task, a redistribution of pension Deutschland und Japan"]. This time, the fo- rights among spouses is not necessary for cus was on concepts regarding family policy this first pillar. The old age pension plan in in terms of economic and social policy in Denmark [folkepension], too, guarantees a Germany and Japan. Two scientific members minimum provision for basic needs, irrespec- of the Institute (von Maydell, Hohnerlein) tive of a distribution of property rights in the participated in this expert meeting, while system of the deferred community of prop- one doctoral candidate of the Institute erty. A very differentiated solution is found in (Schön) took part in the preceding workshop, Swiss law: here, the modified community of where Japanese and German junior research- property acquired during marriage comes in ers had the opportunity to introduce their the form of participation in acquired proper- research work on family policy. The respec- ty, in regard to which social law on principle tive papers were published in Japanese (Mo- facilitates the acquisition of rights on the tozawa/von Maydell, 家族のための総合政 part of economically inactive spouses for the 策II -市民社会における家族政策 [Family first pillar of old age security, as long as the Policy in Society], 2009). gainfully employed spouse has made a cer- tain amount of contributions. Since the end of 2002, a profound paradig- matic change has taken place in Germany's An automatic equal splitting of pension family policy. After decades of family affairs rights is, as a rule, not provided for the first having been regarded essentially as some sort pension pillar in other countries than Ger- of private matter, it has now become an indis- many. If ever, the allocation of pension en- pensable key player for the economy and for titlements plays a role with regard to the society. Services and benefits pertaining to second and third pillar of old age security. family policy are increasingly viewed and jus- Yet, even in this constellation the allocation tified in terms of their benefit to the economy. under property law is no typical feature of a Regarding the dialogue between Germany community of property acquired during mar- and Japan it is particularly interesting to see riage. If pension rights are included in com- that the support of a family-friendly work and pensation systems under property law, flexi- business culture is deemed to be a crucial ble allocation modalities are preferred in part of a sustainable family policy, and that in most cases which allow for a fair solution many cities strategic alliances between poli- beyond the strict 50/50 division. tics, the economy, trade unions and welfare associations have been established (Local Al- In view of the complexity of lifestyles it is, liances for the Family, Lokale Bündnisse für however, not surprising that the pathways to Familie). A further novelty in German family a consistent setup of social law and family policy is the linking of family and gender pol- law are extremely rocky, particularly as re- icy, which also played a role in the drafting of gards the changing gender role models, and the new parental allowance [Elterngeld]. that the conflicting objectives between the equal opportunity policy and a pension poli- During the reporting period, the German- cy aiming at the development of poverty- Japanese dialogue was provided with a first proof pensions are not so easy to reconcile. assessment of the new parental allowance in Eva Maria Hohnerlein Germany in terms of its economic implica- tions. The results were published in the Jap- anese conference proceedings.

75 REPORT 2008 – 2009

The new parental allowance is a tax-financed new concepts promoting the compatibility of monetary benefit granted to parents of ba- family and working life, which are character- bies born after 2006. It is to prevent loss ised by a transition from the sequential three- of income (income replacement function), phase-model (education and first work ex- open up effective options for mothers and perience, "baby break", return to work, with fathers with a view to their share of child- phases not overlapping) to a parallel model raising periods, and promote the economic with the aim of keeping career breaks as short independence of both parents as well as pro- as possible during the infancy phase. This vide appropriate compensation for their new approach enables the caretaking parent (missed) opportunity costs. to maintain his or her professional qualifica- tion and thus helps avoid child and family Both the social aspect and the labour-related poverty, which are often consequences of aspect of this allowance pursue objectives long career breaks or failed marriages. Sup- pertaining to family policy. The aim is to offer porting women in their wish to work instead mothers and fathers the chance to stay at of promoting long career breaks ultimately home and take care of their newborn child also reduces the risk of old age poverty in themselves during its first phase of life, with- women and relieves the public funds as re- out them having to fulfil the requirements of gards the financing of benefits guaranteeing a the working world at the same time. These basic social minimum. family policy objectives are also to effect posi- tive results for the overall economy. Political The new parental allowance supports these and economic goals can, since 2007, not only objectives by way of be detected in the context of labour law in the granting of certain "rights to time off", but ƒa shortened eligibility period for this social more so than before also in the social support benefit (down to twelve months for one benefit known as parental allowance. The aim parent), as compared with 24 months is to increase the proportion of working moth- granted in the case of the former child- ers and to give qualified young women the op- raising allowance portunity to achieve their full workforce po- tential. Accordingly, incentives are given to ƒthe introduction of two extra months for keep career breaks after giving birth as short the partner's share in child-raising (daddy as possible, and in the context of parental months) leave special protection against dismissal is granted in the form of a specific employment ƒpayments configured as a (limited) salary guarantee which enables the respective par- substitute (with an upper ceiling) instead ent to return to his or her old place of work. of a means-tested social assistance benefit.

However, efforts to reach the economic and By way of extended options regarding the political aims have also been made by way of switch from full-time to part-time work, the

Ute Lysk (Roland Berger Strategy Consultants GmbH), Dr. Jan Schröder (Service Office of "Lokale Bündnisse für Familien"), Dr. Eva Maria Hohnerlein, Prof. Dr. Toshihiko Hara (Sapporo University), Prof. Dr. Yoko Tanaka (University of Tsukuba) and Prof. Dr. Bernd Baron von Maydell (left to right).

76 II. RESEARCH

labour law regulations on parental leave have 3. Transformation in created incentives for women to take shorter employment breaks. Special protection is Threshold Countries granted against dismissal. 3.1. Health Reforms in China In sum, even though the reform has not man- aged to effect a rise in birth rates, it has indeed The deficiencies in China's health care sys- extended coverage in relation to the previously tem have in recent years been intensively granted child-raising allowance. Today, nearly and publicly discussed in the People's Re- 100% of persons interested are covered by the public for the fact that every citizen is af- allowance, while this percentage was at only fected by them. In 2008, eight different pro- 77% before the introduction of parental allow- posals for reform were submitted to the ance. 50% of families experience a stabilisation Chinese central government, none of which or even increase of income after the birth of a gained acceptance. This makes obvious that child. Empirical findings disprove the common the health care system does need reform, but myth that parental allowance was, first and also that no uniform concept or consensus foremost, an instrument for well-paid female has been found so far. Thus, the subject re- academics. The proportion of working mothers mains relevant to the Chinese discussion. has increased: due to the general limitation of The following part outlines the legal situa- the benefit period to 14 months at the most for tion with regard to health insurance, as well both partners, the proportion of working moth- as the possibilities for reform. ers has risen since the introduction of parental allowance. Empirical findings evidence an ear- Like all branches of social security in China, lier return to work not only with respect to health care is divided into a rural and an ur- women who were employed before taking pa- ban part. According to the Labour Law of rental leave. Also women who were not em- 1994 and the Labour Contract Law of 2007, ployed before the birth of their child are more employees in the cities obligatorily partici- likely to take up employment one and a half pate in urban social insurance. In rural areas years later. Mothers who resume employment participation in the new collective health unintentionally late claim that this is due to care scheme is voluntary. lacking and/or overly expensive childcare facili- ties, as well as to a lack of part-time jobs. Urban Health Care There has also been a rise in paternity leave: the proportion of fathers who receive paren- Until the economic reforms, urban health tal allowance has risen to a national average care used to be exclusively financed by the of 16% and has thus increased fivefold. How- public enterprises. After some provinces had ever, most fathers (57.5%) stay at home only experimented with various projects since the for the minimum period of two months. 20% early 1990s, the State Council passed the decide to take a paternity leave of three to "Resolution to Establish a Basic Health In- eleven months, and 14% make use of the surance System for Urban Employees" on 14 maximum period of twelve (respectively 14) December 1998. months. Most fathers opt for part-time child- care, while the proportion of full-time fathers The health insurance system for employees amounts to 8.5%. has been conceived according to a concept elaborated by the World Bank which provides These results show that the new parental al- for a solidarity fund along with an individual lowance has been configured to have a great account for each person insured. The latter impact on politics and the economy. In rela- pays a certain percentage of his income into tion to this, the socio-political efforts, i.e. the his individual account, which is kept for him support of parents who are not integrated in by the respective human resources and social the labour market, are rather humble. While security bureau. Treatment costs above the support for this target group has not been cut 10% limit of the average local income are entirely, its scope has nevertheless been sig- covered by the solidarity fund. If treatment nificantly reduced. costs remain below the 10% limit of the local Eva Maria Hohnerlein average income, they have to be financed from the individual accounts or by the pa-

77 REPORT 2008 – 2009

tients themselves. As the maintenance of must be provided in hospitals or by physicians individual accounts and solidarity funds in- who have concluded an appropriate contract volves great administrative efforts, some poor- with the Human Resources and Social Secu- er provinces are allowed to operate exclusively rity Bureau. The lack of proper state regula- with solidarity funds. On the whole, the cost- tion of hospital services is currently being intensive individual health insurance ac- criticized, with reference being made to hos- counts will probably be abolished in the near pitals which provide medical treatment that is future. These accounts were originally con- not covered by state health insurance or ceived to build up old age reserves in the which charge fees for preliminary examina- health insurance fund, since older people tions that are not included in health insur- merely pay low contributions, but require ance either. These services include medical medical treatment more often. For an aging checkups, treatment and hospital stays. Bene- society like in the People's Republic of China fits in kind are pharmaceuticals which the it is necessary to build up such reserves. In insured persons may obtain from pharmacies practice, however, the administrative expens- contracted by the human resources and social es for keeping the accounts turn out to be security bureau. The costs of these pharma- quite high, because benefits have to be con- ceuticals are paid back if they appear on the stantly reassessed and reapproved. This is dif- list of refundable drugs. The lists are drawn ferent with respect to pension insurance, as up by the national Ministry of Human Re- pension benefits are only assessed once, i.e. sources and Social Security. when retirement age has been reached, and When implementing the resolution on urban are then paid out on a monthly basis. Finan- health insurance, it became apparent that, by cial profit can rarely be made from the low way of covering employees only, a large part amounts invested in the individual health in- of the population was not included in this surance accounts. type of insurance at all. Under the planned economy, entire families and their children The actual contribution of employers to the had received health care by state enterprises, individual health insurance of their employ- meaning that on principle the entire urban ees is currently at 6% of the total monthly population had been covered by sickness in- payroll of the respective enterprise. 30% of surance. Now, new systems of health care this amount goes to the employees' individual need to be created for groups of persons like accounts that are maintained by the respec- children, students or elderly persons without tive human resources and social security bu- insurance coverage. Hence, along with the reau for each person insured, while the rest obligatory basic health insurance for urban of the amount is accumulated in the solidar- employees, a basic health insurance for ur- ity fund. Employees contribute 2% of their ban citizens has been created, allowing non- wages; this proportion goes entirely to the re- employed urban residents, students and chil- spective individual accounts. Basic health dren to take out such insurance on a voluntary insurance is exclusively financed by employer basis. and employee contributions and by interest accruing from accumulated capital; as yet, no Rural Health Care state subsidies have been granted to health insurance. In the countryside, the former cooperative health care system set up in 1968 collapsed In the event of illness, persons covered by ba- with the economic reforms, as collectives and sic health insurance receive medical treat- also local authorities turned out to be no long- ment and benefits in kind mostly against er responsible for health care. Illness has be- prepayment, with costs being refunded retro- come a poverty risk for the rural population. spectively. There is, however, great uncertain- According to investigations made in 2003, in- ty on the part of the insured as to whether and habitants of rural areas paid an average to what extent expenses will be refunded. Of amount of 7,051 RMB for the medical treat- course, there are tables and lists specifying ment of a severe illness, while the average per the basic, refundable benefits and services, capita annual income in rural areas amounted but these guidelines include a scope of dis- to 2,622 RMB that very year. An illness re- cretion on the part of the authority. On princi- quiring intensive medical treatment may ple, this type of reimbursable medical services therefore plunge entire families into poverty.

78 II. RESEARCH

A new cooperative medical care system was launched in July 2003 in order to cope with this problem. Rural in- habitants can join this insur- ance scheme on a voluntary basis – hence the insurance is not an obligatory state in- surance. If a rural inhabitant participates in the system, he or she will have to con- tribute 20 RMB annually to this health insurance, while the central and the respec- tive local government each contribute a further 40 RMB per person annually. Partici- pants in this insurance are reimbursed the treatment costs for serious illnesses, e.g. illnesses that involve in- Dongmei Liu, guests Yifan Yang (Southwest University of patient hospital treatment. Finance and Economics, Chongqing) and Dr. Quan Lu According to an ambitious (Renmin University, Beijing), Dr. Barbara Darimont political target, this health (left to right). insurance scheme is intend- ed to cover 90% of the rural population by the out any other insurance coverage. Moreover, year 2011. It remains to be seen whether this so-called medical assistance systems have type of insurance will still be taken out on a been established for both the rural and the voluntary basis on that condition. urban population. These systems, financed through state funds, provide basic medical In 2003, the Ministries of Civil Affairs, of Fi- care to persons in need. nance and of Health published their resolu- tions on the implementation of rural health The Chinese government seeks to establish care assistance. This supplementary system access to "health care for all" and is thereby grants financial support to needy inhabitants reacting to the problems posed by the present, of rural areas, allowing them to participate in hopelessly fragmented system. The success of the new cooperative medical care system. In this endeavour will ultimately depend on the regions where this system has not yet been relations between the provincial governments established, persons in need are paid their and the central government. Especially in the medical treatment of serious illnesses. How- field of social law there exists some sort of ever, benefits are only granted upon request, "quasi-federalism" which is, however, neither which means that the treatment of acute dis- regulated in the Constitution nor in any other eases has to be paid for in advance by the in- national regulations. For this reason, future sured person. This rural health care assist- Institute research will concentrate on indi- ance is supported by aid funds established by vidual areas in order to identify the problems the local governments; the funds are mainly resulting from this erratic regulatory pattern financed by the local governments them- that prevent legal enforcement, i.e. problems selves. In the poor central and western regions which are most likely to be resolved only by of China the local governments receive finan- way of a clear distribution of competences. It cial support from the central government. remains questionable, however, whether Chi- na will be able to revert its decentralisation The plan is to harmonise the three insurance course taken so far. Yet, a reversion will be systems, i.e. the basic health insurance sys- crucial for China's objective to eventually tem for urban employees, the cooperative have a uniform health insurance system, as medical care system for the rural population well as a harmonised social legislation. and urban health insurance for persons with- Barbara Darimont

79 REPORT 2008 – 2009

3.2. Pension Insurance in China as a for 2010. Potential coordination rules are be- Constitutional Task ing considered in this context. Yet, it is still unclear whether the administration of the On 27 and 28 April 2009, the 9th symposium pension insurance, and particularly of the of the Chinese-German Dialogue on the Rule funds of the latter, are to be effected cen- of Law, with focus on pension insurance law trally or at decentralised level. The central in the constitutional state ["Das Recht der state and the growing discrepancies in in- Rentenversicherung im Rechtsstaat"], took comes between urban and rural areas require place in Shenzhen, P. R. China. It was organ- a standardisation if their inhabitants are to ised by the State Council of China in coop- be kept from venting their displeasure on so- eration with the German Federal Ministry of cial injustice. The decentralisation that has Justice, with assistance in the preparation been initiated and led to some sort of "quasi- provided by the Max Planck Institute for For- federalism" thwarts political efforts to stand- eign and International Social Law. The Chi- ardise the pension insurance system. nese-German Dialogue on the Rule of Law was initiated in the year 2000. Until now, the A further core topic of the discussion was the focus has mainly been on topics pertaining to way in which the respective laws might be administrative law. The 9th symposium con- enforced; in this context, the lack of legal centrated on issues regarding a basic struc- protection in social insurance law was high- ture, financing, the administrative structure lighted. The Chinese and the German side and benefits granted in the Chinese and Ger- held different views regarding the question man pension insurance systems. whether a separate jurisdiction should be es- tablished for social disputes, or whether the Individual questions regarding comparative existing jurisdictions in China were suffi- law were discussed in work groups. One of cient. The Chinese participants argued that a the greatest problems in China is the huge separate jurisdiction would require the setup discrepancy between urban and rural condi- of an enormous administrative structure with tions, which is also reflected in the pension nearly 30,000 new lawyers and approximately insurance system; this problem is to be 1,200 social courts, which was hardly possi- solved by way of implementing one uniform ble under the present circumstances. pension insurance scheme. The framework conditions for this purpose were stipulated On the whole, the German-Chinese exchange in the draft of the Social Insurance Act of on issues pertaining to social law has mean- 2008. The exact details are to be laid down while become a tradition. Many a Chinese by the respective provincial governments af- norm related to social law has been modelled ter the adoption of the Act, which is expected on the German legal framework. At present,

80 II. RESEARCH

however, the Chinese experts must also ac- Given the limited resources in a specific knowledge the dissimilar starting conditions public health system, a conflict arises be- which oppose the adoption of German laws. tween the financing of the enforcement of It is for this reason that the German-Chinese individual rights to health and the means exchange on social law continues to be re- available for the maintenance of the collec- garded as indispensable by both countries. tive health system, particularly with a view to Barbara Darimont the fact that half of the population does not have any access to health care services.

3.3. The Right to Health in Latin America The Configuration of the Right to – Appropriate and Effective Access to Health Through Jurisdiction Health Care Services In contrast to corresponding provisions in European constitutions, most Latin Ameri- Topics can constitutions seek to understand the right to health not merely in terms of a pure- The Right to Health ly objective legal or programmatic guiding The right to health is entrenched in a series principle, but as a way to directly impart a of international treaties as well as numerous legal right to access to health care services. national constitutions. The General Com- Developments in these legal systems have ment on Art. 12 of the "International Cove- reached a new dimension in the context of nant on Economic, Social and Cultural the jurisdictions of the Constitutional Court Rights" (ICESCR) adopted in the year 2000 of Colombia and the Brazilian Supreme delivers crucial insights into the conceptual Court regarding the enforcement of the right specification of the right to health. It shows to health. The number of decisions of the that the right to health cannot be equated Colombian Constitutional Court related to with the right to be healthy. Rather, in for- the claiming of medical benefits and services mulating the aim of enabling individuals to has remarkably increased between 1998 and enjoy the highest attainable standard of 2008. The same development has been ob- health, a twofold condition is put forward: served in Brazil. for one thing, the right to health is reliant on the biological and socio-economic circum- Latin America seeks to bridge the gap be- stances of the individual and, for another, on tween the normative requirement and the the financial resources of the government. practical applicability of social rights partially by way of creating specific legal protection While the classical liberal fundamental rights instruments. Both by way of the legal remedy are designed to protect the sphere of indi- termed acción de tutela or – as in the case of vidual freedom against state intervention, Brazil – the tutela anticipada, the rights to fundamental social rights are directed at ac- medical treatment services are derived di- tive assistance on the part of the state. As rectly from the Constitution. One of the core regards the right to health, the state is to pro- points of discussion in the project is this in- vide such active assistance by way of creat- dividual realisation of the right to health ing the legal and financial preconditions for a through such a legal remedy. functioning health system. The Relationship Between the The Conflict Between Individual Rights Executive and Judicial Branches and the Collective Right to Health with Respect to the Enforcement The right to health is programmatic in the of the Right to Health sense that it is geared to creating a function- Apart from tensions existing in Latin Ameri- ing health system and that it therefore first ca between the collective and the individual needs to be developed through intensive ef- right to health, conflict has also arisen be- forts on the part of the state and individuals. tween the executive and the judicial govern- However, especially in Latin America there ance of the health system. This conflict re- are legal systems which go beyond this pro- sults directly from the scarcity of resources grammatic nature of the fundamental social in the health care system that individuals are right to health by granting certain persons faced with in their efforts to legally enforce subjective public rights to health. their subjective right to health.

81 REPORT 2008 – 2009

How is the Right to Health Configured? The main focus of this examination is on the definition of the right to health. It is about the fundamental question whether there ac- tually exists a right to health and what it is precisely aimed at. Both in Colombia and Brazil, significant court decisions on health law have been made re- cently, and these should be analysed in greater detail. It must be clarified which subjective rights to health do in fact exist and how far the validity of the collective right to health ex- tends. In this context, the efficiency of the health care system shall also be examined.

What are the Interrelations Between the Right to Collective Health and the Right to Individual Health? The conflicting relationship ensuing from the scarcity of resources in the health care sys- tem between collective rights and individual rights is to be illustrated by way of legal com- While the executive branch tries to adminis- parison; in this regard, the "human rights" ter the deficiencies in the health care sys- debate shall be examined with respect to its tem, the judicative branch grants rights to function to show a way out of this quandary. individuals which further aggravate the con- ditions for financing general health care. How can these Subjective Rights be Implemented in a Procedural Way? The growing tendency in Latin America to The growing number of court decisions in enforce the right to health through court pro- Latin America is to be closely examined with cedures has become relevant especially with a view to the legal remedies for effective le- a view to the various national legal systems. gal protection. Common to all Latin Ameri- Furthermore, it is important to examine the can legal systems with respect to the config- role of the judiciary branch in the substantia- uration of these legal remedies is the actual tion of the obligation to render services in the effectiveness of the legal enforcement of health care system, particularly with regard rights in a specific case. A good example is to its function as a "distributor of welfare". the case of Colombia, whose Constitutional Initially, governmental control of the health Court grants nearly 70% of claims to indi- care system was to be effected through legis- vidual health care services. Furthermore, it lation, while the respective health care policy is to be clarified what implications the actual was to be implemented by the executive access to constitutional jurisdiction may branch. It is particularly areas under special have and what consequences ensue from an jurisdiction that may significantly contribute either diffuse or concentrated configuration to the substantiation of benefit rights; yet, of the constitutional jurisdiction. they are not to replace the function of legisla- tion. This, however, is exactly what is hap- What Kind of Correlation Exists Be- pening to some extent in several Latin Ameri- tween the Executive Administration can countries, and therefore the ensuing of the Health Care System and the questions regarding the division of powers Judicial Protection of a Subjective necessitate a more detailed analysis. Right to Health? Against the background of the remaining re- Research Questions search questions it is to be clarified to what extent the judicialisation of administrative The following research questions are to be decisions in the health care system leads to a articulated more clearly and answered in the "reduction" of executive governance of the course of this project: health care system. In this context, the dis-

82 II. RESEARCH

cussion shall also include questions relating of the Max Planck Society by way of expan- to the democratic legitimisation of govern- sion into this new field of law which had, due ment decisions. Taking the health care sys- to the evolvement of the social – or welfare – tem as an example, the study is to give quin- state, quickly become a life-determining tessential answers to fundamental issues force; for another thing, it was aimed at serv- regarding the development of the relation be- ing as a disciplinary contribution in the legal tween the executive and the judicial branch. tradition of the Kaiser Wilhelm / Max Planck Society to a scientific solution of social, re- Method and Implementation spectively welfare state issues pertaining to humaneness, society and politics. And it is in In order to answer the abovementioned re- this very sense that the project group, and search questions, the focus will be on Brazil soon afterwards (as of 1980) the Max Planck and Colombia. The legal situation of these Institute for Foreign and International Social two countries is to be examined by way of a Law, was to enter unchartered territory. comparison. This will enable, for one thing, the portrayal of "Comparative Law" two different legal systems in Latin America, The young group had to search for exemplary contrasting the federal system of Brazil with models, and the latter were discovered main- the unitarian system of Colombia, and show- ly in comparative private law. The paradigm ing the specific configuration of jurisdiction in developed in this field, namely the pre-legal each country. For another thing, the verifica- problem formulation, was to also serve as a tion of theoretical assumptions also has to in- key to a method of comparing social law. This volve German legal doctrine as a major factor, paradigm is governed by the realisation that since in the countries mentioned the latter the comparison of law per se only reveals im- has been adopted to an impressive extent and mediate equalities and inequalities, that it holds a special status in legal comparison. does not, however, deduce the meaning of In the context of the project, two conferences these equalities and inequalities. This mean- shall be organised by scientists from Latin ing emerges from the challenges that the law America and Europe, which will address and responds to, or should, respectively could, re- critically evaluate the various aspects of the spond to. These challenges constitute the access to health care services ensuing from very pre-legal problem by means of which the the right to health. The project shall be con- legal problem solutions can be compared. cluded by way of a book publication and, if applicable, entail further publications in legal The process leading to the formulation of the journals. pre-legal problem starts with the expertise- Lorena Ossio and experience-based assumption that there are similarities between several problem so- lutions that are indicative of a common or similar problem. The comparison concen- 4. Multi-Focus Research trates on problem solutions related to differ- ent national legal systems, while the respec- 4.1. Emeritus Workplace Hans F. Zacher: tive problem to be tackled is essentially the Theory of Comparative Social Law same in all countries concerned. To identify this essential common denominator despite The Difficulty of a Beginning the elementary dissimilarity of systems is one crucial precondition for a comparison of laws In 1973, the Max Planck Society decided to to be successful: this is to be effected through launch a project group dedicated to interna- the formulation of the pre-legal problem. To tional and comparative social law. The re- accomplish this feat specifically for "social search work of this project group was to ena- law" and to introduce this method to the mat- ble the competent Boards of the Max Planck ter of social law was the essentially new task Society to form a judgement on whether it that the project group had to perform. was useful to found a Max Planck Institute in the mentioned field. The project was aimed at "Social Law"? a dual purpose: for one thing at the further What common feature is implied by the term development of the established legal potential "social law"? In the most general sense, "so-

83 REPORT 2008 – 2009

cial" means any kind of connection to society. their political configurations – and to be able This would render every kind of law "social". to evaluate these factors in a better way. Yet, The term "social law" would, in this sense, not in a world of manifold and intensive exchange be limited in its meaning. (The Anglo-Saxon – exchange of information, of value judge- conception of language and thinking places so ments, of economic goods and of individual much emphasis on this most extended sense experience due to migration etc. – where of "social" that the term "social law" still large- commonalities have to be organised in various ly meets with objection, if not incomprehen- ways, knowledge, understanding and evalua- sion). In a more specific sense, "social" means tion of the respective foreign circumstances the very orientation towards the common weal have gained similar and no less importance: it or towards societal commonalities, the nega- is a matter of knowing, understanding and tion of which is condemned as "anti-social". evaluating the commonalities and differences In this sense, too, "social" would not bear a in the myriad fields of social encounter and meaning specific to one particular area. joint organisation. Nevertheless, two purpos- es are emphasised in this context. This differs from the critical normative, politi- cal notion of "social", which postulates "more ƒOne is the clarification of the functionali- equality" in societal relations and opposes in- ty of specific problem solutions, as well as appropriate inequalities in living conditions, if more detailed knowledge of the modes of such inequalities are attributed to economic action. This is important for the develop- causes or have economic impacts. To be more ment of the individual solutions. It is also precise: inequalities are to be prevented, min- important for the configuration and devel- imised or counterbalanced. This conception opment of cross-border solutions, be they of "social" was a product of the European unilateral, bilateral or multilateral in na- modern era and an answer to the omnipresent ture. potential risk of extreme inequality resulting from the expansion of freedom. This concep- ƒThe other purpose is to identify the "best" tion of "social", too, is a mandate to law in its solution. Such a solution is particularly entirety. However, there are areas of law that popular. Yet, it is also particularly prob- are based on this "social" purpose as an under- lematic. What are the criteria to distin- lying principle – legal areas that are signifi- guish the "best" solution from "better" or cantly characterised by this "social" purpose. "worse" solutions? The multiplicity of Legal areas that had previously not existed in compared solutions may serve as food for the law, which thus essentially owe their exist- thought. Yet, they require their own justifi- ence to the "social": the law of "social bene- cation. And what impact do the specific fits". In its very nature, it is a canon of state- national factors in the development and organised benefits which is to supplement the effectiveness of a solution have with re- generally prevailing potential resources of life spect to the application of these criteria? to the effect that all or as many contingencies as possible be provided with sufficient cap- The Objective acity to meet requirements. In German law, The project group and the Institute thus these benefits have been codified by the So- were, and still are, confronted with the task cial Code. Internationally, they are mostly of developing "social benefits" schemes that found under the collective term of "social se- are to provide the various manifestations to curity" or "social protection". be considered in a certain comparative frame- work with structures capable of integrating Apprehending, Understanding, the different systems and reorganising them Evaluating in their turn. What is the ultimate purpose of compari-son? The classical goal of all comparative re- Research Progress search is, among other things, to improve the knowledge and understanding of individual Topoi of Comparative Social Law specificities – i.e. of one's own laws in the The three and a half decades following the context of legal comparison, or of one's own founding of the research group were charac- circumstances and policies in the context of terised by ample research in the mentioned comparing particular social conditions and areas:

84 II. RESEARCH

Research work

ƒthat was based on individual "social situa- tions"; on particular categories of persons to be protected; on benefits and services; on the various processes of benefit deliv- ery; on service/benefit providers;

ƒthat dealt with cost coverage and the re- distribution of financial burdens; with the relationship between service providers and beneficiaries; with the overall context of similar benefits systems (such as provi- sion, compensation, assistance and sup- port systems);

ƒthat examined national social law systems Prof. Dr. Dr. h.c. mult. Hans F. Zacher. as a whole; or even – in an exemplary or general way – the various kinds of national such. In historical terms, the Institute was social law systems (e.g. in "socialist" founded at the end of the "golden age of the states, developing countries, transition welfare state", which had begun with the post countries), subcontinental or continental World War II recovery phase and which, in similarities; the mid-1970s, transitioned into a phase characterised by resistance movements and ƒthat investigated the dependency of na- reorientation, but also by regression. Soon af- tional social law on the respective institu- terwards, the collapse of the dualism between tions and on the fundamental rights-based the liberal social state and the "socialistic" or programmatic guidelines of national state changed the scene. Globalisation be- constitutional law; came a downright reality. With previously un- imaginable radicalism, comparative law in- ƒthat studied the permeability and correla- creasingly turned into a question of law "in tion of various national social law systems itself": a question of the sum of globally ap- with regard to national or international plied law. And comparative social law turned conflicts of laws and the harmonisation of into a question of social law "in itself": a ques- legislation; tion of the sum of globally applied social law.

ƒand, not least, the manifold research work True, since "social law" only ever represents a produced on the contribution of interna- subset of overall law, this question only makes tional law and international organisations sense in the context of the consideration of to the contents and the functionality of what the sum of social law can mean and ac- national, transnational or international so- tually does mean under the extremely varied cial law. conditions of other forms of law. In parallel with all these developments, the European All these problems are reflected in a highly Union, too, has gained momentum. As a rule, complex way in European law – both in the comparative social law among member states, law and the institutions related to the Europe and to a great extent also in relation to third of the European Council and – if no longer countries, only makes sense if it is under- comparable due to its unique character – in stood in the European context. the supranational system of the European Community/Union – and thus in the abun- Increase and Intensification of dance of research work on "European" topics. Information and Research An essential change regarding Institute re- Changing Circumstances search in comparative law has finally come Research at the Institute also became in- about due to the fact that comparative "social" volved in new factual political and legal devel- research has broadened and deepened during opments. This held true for the "social" as the period since the founding of the project

85 REPORT 2008 – 2009

group, both within Germany and outside – at ƒthe policy of the common weal is of es- national, continental, regional and worldwide sential significance in the definition of the level, due to the establishment of governmen- "social" and in the design of "social bene- tal, societal, transnational and international fits"; further, that institutions, in the course of independent and earmarked research or due to a pragmatically ƒthey are governed by the respectively ap- informative or argumentative purpose. On the plicable law. whole, projects dealing with comparative law are the exception in this context. Accordingly, "social law" is law that is, in this sense, essentially characterised by its social The material collected and examined in this purpose. context is abundant. What is confusing, how- ever, is the abundance of disciplinary ap- Common terms like "social security" or so- proaches, the multitude of purposes pursued, cial protection" are pragmatic indicators of the parallelism of independent science and what is deemed characteristic of accordingly interest-driven information, the differences summarised regulations. Whenever these in reliability as regards previous research terms are used within the meaning of "social findings and, not least, the wide scope grant- benefits", a certain extent of inaccuracy is al- ed to the processing of acquired information. lowed for the sake of emphasis. One factor is of particular significance for the Institute: the fact that the multitude of fac- Structures of the Social – Primary tual or – somehow or other – socio-scientifi- "Normality" Versus Secondary "Social cally designed material might replace or elim- Correction" inate the legal and jurisprudential approach "Social benefits" per se are never sufficient to the matter. to establish "social conditions". However, they are necessary in order to establish living Situation Analysis: "Social Law" and conditions which are regarded as "socially Structures of the Social adequate", in combination with a primary system that produces and ensures livelihood On these grounds the obvious thing to do is in general (i.e. a system that also factors in to review the theoretical approach in Insti- needs, demand fulfilment capabilities and tute research. demand fulfilment).

Social Law = Law of "Social Bene- The issue as to how "social" the respective fits and Services" as the Objective of living conditions are in a certain polity and to Comparative Social Law which extent these conditions can be termed All "social benefits" are characterised by the "social", always depends on the configuration fact that of the primary system of living conditions and its mode of operation. Nevertheless, the qual- ƒthey serve, by way of monetary benefits or ity of the "social" no less depends on how the services and benefits in kind, to guarantee secondary system of "social benefits" is con- sufficient and appropriate coverage for in- figured, how it functions and how both sys- dividual needs; tems complement each other. The common opinion held in the social sciences that the ƒthey complement a primary system of de- "social" quality of a polity can be deduced mand fulfilment capability and of demand from the scope or proportion of "social bene- fulfilment – meaning that they are of a fits" granted is quite wrong. If "social" is to secondary nature; mean "more equality", a polity whose primary system of living conditions favours "more ƒthe former is effected in the name of a equality" may, even at a lower proportion of critical-normative principle which expli- social benefits granted, be "more social" than citly refers, by means of the term "social", a polity whose primary system demonstrates to the respective movement of the Euro- a higher proportion of social benefits granted, pean modern era or, under a different but which favours inequality. The deficits of name – particularly "welfare" – to its idea- disparate living conditions cannot be adjust- tional potential; ed at will by means of "social benefits".

86 II. RESEARCH

This can also be explained as follows: "Social aimed at balancing out inequalities that come benefits" bring about "more equality" by way into consideration as actions immanent in of preventing, reducing or balancing out inap- society, e.g. financial support or active help propriate inequality. "Equality", however, is (provided by the extended family, neighbours, not simply brought about by merely "balanc- friends, self-help groups, cooperative societies ing out inequalities". Rather, "equality" is to etc.), alms, donations, service offers, bene- be effected primarily in terms of "equality ficial associations, foundations, but also insur- through universal standards". Failure to cre- ances, only to name a few. On the whole, the ate "equality through universal standards" social quality of living conditions is thus the re- cannot be compensated at will by way of "bal- sult of a double dialectic: of a dialectic between ancing out inequalities". The most significant the primary living conditions and a secondary example is universal access to education. In "social" correction, as well as of a dialectic be- the legal context it is elementary for equality tween society and the state. to be effected, first and foremost and indis- pensably, by means of the universality of law: Desideratum: The Role of Law – the the universality of legislation; the universality Necessary Issue of Legal Doctrine of the independent, incorruptible judge bound to this universal legislation; the universality of Amidst the abundance of "social" phenome- the incorruptible administration bound to na, their being as such and their develop- universal legislation, and so on. Deficits in ments, one aspect has been pushed into the the law failing to bring about "equality through background: the significance of law for the universal standards" cannot be compensated "social"; the issue of law and its potential as a by way of "social benefits". To the contrary: control tool and a tool to impart values; and Such a deficiency will also result in the failure the matter of the various manifestations and of the attempt to establish "equality through of the perceptibility of law. One substantial the compensation of inequalities". (Multiple reason for neglecting law as a configurative evidence of this is provided in development element of the "social" is the multitude of dif- aid policy). "Equality through universal stand- ferences in national legal cultures and media ards" is therefore a crucial element of the "so- through which the national configuration of cial". However, "equality through universal the "social" is essentially portrayed and pro- standards" belongs to the system of universal jected. Information on two different countries living conditions – or else it does not exist. and their effective practices of providing "so- This is sound evidence of the fact that the cial benefits" can be offered by way of de- creation of "social conditions" is a synthesis of scriptions that comply with "the letter of the the primary system of universal living condi- law"; it can be obtained by way of descrip- tions and the secondary system of corrective tions which may be slightly based on positive "social benefits". And it is evidence of the law; and it can be obtained by way of descrip- great extent to which the creation of "social tions that are unconcerned with positive law conditions" depends on both systems – i.e. on or lack reference to the latter entirely. And of- the thesis of the primary system and on the ten there is no choice between one way or the antithesis of the secondary system. other. And yet, positive law is a versatile and pivotal configurative element of the "social". Double Dialectic: Normality Versus The subject position of those involved in legal Correction – Society Versus State matters depends on law and on the efficiency The secondary system of "social benefits" as a of law; it is at the same time the most elemen- corrective to inequality essentially depends on tary precondition for "social benefits and ser- the polity for its configuration and guaranteed vices" to effect "more equality". provision. This, however, does not mean that the dialectic between the normality of univer- The very discipline of legal science that inves- sal living conditions and its correction through tigates the entirety of applicable law – the "social benefits" is restricted to affairs gov- positive and the practised norm, as well as the erned by the polity. Wherever autonomous verification of their mutual compliance; the social life is possible, it is not only the normal- individual norm and the context in which it is ity of living conditions that is essentially also a applied, as well as the significance of this cor- phenomenon of autonomous social life. It is relation for the meaning of each single norm; also corrective measures and institutions maybe even the previous history of a norm,

87 REPORT 2008 – 2009

the reasons for its specific form, the scopes Based on the deliberations regarding legal for a new interpretation or the consequences comparison, the knowledge gained and diffi- of an explicit amendment – , is the very sci- culties encountered in the context of compar- ence of legal doctrine. Thus, the very disci- ative socio-legal doctrine were described. Fi- pline to be introduced to social law is legal nally, conclusions with regard to legal doctrine doctrine. Only with the aid of legal doctrine were drawn from the legal comparison; for will social law become accessible in such a this purpose, the presenter introduced the way that it can be applied in country com- various approaches to a comparative socio- parisons. And it is only on this understanding legal doctrine and, in this context, particularly that a comparison can be made of the actual emphasised the significance of differentiating impact of law for the "social" in the individu- legal relationships according to benefits sys- ally examined polities. tems and persons involved. Hans F. Zacher Rainer Pitschas introduced the topic of the pro- vision relationship ["Das Vorsorgeverhältnis"] 4.2. Legal Doctrine and Legal Comparison and in his lecture pursued the issue of social in Social Law security through provision. Based on constitu- tional principles, he elaborated, among other On the occasion of Hans F. Zacher's 80th things, on the impact and content of provision birthday, the Institute hosted a symposium on relationships and expanded on the distribution 3 and 4 July 2008 regarding legal doctrine and of responsibility between the state and private legal comparison in social law ["Rechtsdogma- providers, in order to demonstrate existing tik und Rechtsvergleich im Sozialrecht"], here- shortcomings in provision. Furthermore, he by referring to a topic the jubilarian had fo- outlined the modernisation process of conven- cused on in numerous scientific papers. The tional provision systems, using the example of four main topics were discussed in one key- the statutory health and pension insurance; in note address for each topic and two further this context, he illustrated the change in the lectures commenting and complementing statutory health insurance system brought each address. In their lectures, the speakers about by the 2007 health reform, as well as the elaborated on prevailing socio-legal condi- conceptual approaches to a modernisation of tions and on the impact of the family in social the statutory pension insurance system. Em- law. phasising the growing significance of responsi- bility for private provision, he presented the After a welcome by the general secretary of structural and functional change in the provi- the Max Planck Society (Bludau), Ulrich sion relationship under public law, including Becker delivered a lecture containing funda- the inherent responsibility of the state to ab- mental deliberations on the topic of legal doc- sorb risks and to perform supervisory tasks. In trine and legal comparison. He started his a comparative context, he finally addressed the lecture by examining the question as to what issue of social provision. was to be understood by the term "legal doc- Following this, Ingwer Ebsen explained the trine", whose objective was, after all, to ex- function of social provision. He delineated the plain the functioning of law. For one thing, the provision relationship as a legal category from systematisation of the law was emphasised as other legal relationships pertaining to social the essential tool for gaining dogmatic conclu- provision. sions, with dogmatics, i.e. doctrine, not merely Raising the legal issue of assessing the term meaning systematisation as such, but also sys- "provision" in the context of legal comparison, tem utilisation and system formation. For an- Peter A. Köhler subsequently provided a his- other thing, the relation between positive law torical overview of the evolution of the provi- and legal doctrine was analysed. Against the sion principle, including – for reasons of com- background of these fundamental delibera- parison – the concept of provision in Swedish tions on legal doctrine the question was pur- law. sued whether legal comparison (i.e. the com- The discussion dealt with the significance of parison of different legal systems) could be systematisations, the impact of demographic utilised for gaining doctrinal knowledge. In and economic change, the relationship be- this context, emphasis was put on the method tween public and private security systems, and evaluation of comparative law analysis. and terminology in social law.

88 II. RESEARCH

Prof. Dr. Dr. h.c. mult. Hans F. Zacher in conversation with Dr. Felix Schmid (St. Gallen), Prof. Dr. Herbert Szurgacz (Wroclaw University), Advisory Board member Prof. Dr. Dagmar Coester-Waltjen (Göttingen University) and chairman of the Scientific Advisory Board Prof. Dr. Franz Ruland (Munich), Prof. Dr. Bernd Baron von Maydell and Prof. Dr. Dr. h.c. Heinrich Scholler (Munich University), Prof. Dr. Maximilian Fuchs (University of Eichstätt-Ingolstadt), Prof. Dr. Pasquale Sandulli (University of Rome) and Prof. Dr. Maximilian Wallerath (Greifswald University), Dr. Edda Blenk-Knocke, Prof. Dr. Friedrich Buttler (Pommelsbrunn), Prof. Dr. Ingwer Ebsen (University of Frankfurt/Main) and wife, Prof. Dr. Peter Udsching (presiding judge at the Federal Social Court and chairman of DSRV), Prof. Dr. Heinrich Reiter (president of the Federal Social Court, retired), Advisory Board member Prof. Dr. Petr Tröster (Prague University), Prof. Dr. Ulrich Becker, Prof. Dr. Dr. h.c. Eberhard Eichenhofer (Jena University) (top left to bottom right).

The second subject area focused on the so- transformation from "welfare" to "workfare", cial benefit relationship within promotion by analysing the provision of social security and assistance schemes ["Das Leistungsver- to persons capable of work, particularly per- hältnis in Förderungs- und Hilfesystemen"]. sons who are permanently unemployed, In his comparative lecture, Karl-Jürgen Bie- through means-tested, subsidiary benefits back presented the development of social as- that secure the livelihood of these persons in sistance, often viewed under the aspect of a Germany, France and the United Kingdom.

89 REPORT 2008 – 2009

Prof. Dr. Dr. h.c. mult. Hans F. Zacher and Dr. Barbara Bludau (general secretary of the Max Planck Society), Prof. Dr. Dagmar Coester-Waltjen (Göttingen University), Prof. Dr. Theodor Tomandl (University of Vienna), Prof. Dr. Ferdinand Kirchhof (vice president of the Federal Constitutional Court), Prof. Dr. Gerhard Igl (Kiel University), Prof. Dr. Franz Ruland (Munich), Prof. Dr. Jef van Langendonck (Leuven University) (top left to bottom right).

To complement the elaborations of Karl- with respect to the action sociale in France, Jürgen Bieback, Gerhard Igl portrayed the emphasis was placed on the fact that the rela- topic of social assistance and social pro- tionship between law and the implementation grammes in the context of the action sociale in of law was of importance as a specific catego- France, pointing out that the French concept ry for comparative social law, yet that it had of action sociale did not exist in German social not been comprehensively examined in the policy. German system of social law so far. Bernd Schulte dedicated his comparative lec- ture to the topic of activation in the labour Maximilian Fuchs introduced the topic of the markets of Germany and Great Britain, with a "benefit delivery relationship" [Das Leistungs- historical account of social security in the two erbringungsverhältnis], giving a survey of the countries. current situation of the in-kind benefits and The subsequent discussion first exposed the cost reimbursement principle in statutory problem of the legal nature of the "integration health insurance. Based on the finding that agreement" [Eingliederungsvereinbarung] un- the legislator regards the in-kind benefit der German law. Later on, the changing jus- model and the cost reimbursement model as tice paradigm, among other things, was ad- alternatives of equal value as regards benefit dressed; further, to complement the com- delivery, Maximilian Fuchs explained in de- parative examination of the development of tail the purposes and functions of the in-kind social assistance in Germany, France and the benefit and cost reimbursement principle United Kingdom, the workfare approaches in and drew a legal comparison with the cost Australia and the USA were described and, reimbursement system in France.

90 II. RESEARCH

The personal budget as a new means of bene- fits provision was a topic addressed by Peter Trenk-Hinterberger. By referring to Art. 17 Para. 2 – 6 SGB IX [Social Code Book IX], he explained the legal relationships between budget recipients and funding agencies, be- tween budget recipients and benefit provid- ers, and between funding agencies and bene- fit providers. With respect to comparative law, he demonstrated that the paragons of the per- sonal budget model can be found in the Neth- erlands, in Great Britain and in Sweden. With reference to Maximilian Fuchs' lecture, Andreas Hänlein examined the issue pertain- ing to the codification of service provision law in the Social Code; in this regard, he found out that it was necessary to improve codifica- tion in the field of service provision law. The following discussion dealt with the sig- nificance and function of social law doctrine, the different aspects of cost reimbursement and of the personal budget, as well as with the codification of the principles of service provision law.

In a lecture related to the topic of social bene- fits and services and the family ["Sozialleis- tungen und Familie"], Eberhard Eichenhofer portrayed the modes of family support and the related transformation in social law. He emphasised that family support through the state was not to entail any pressure for fami- lies to conform; rather, any mode of family life whatsoever was to be accepted and thus also to be supported according to the principles of social law. Based on the functional understanding of so- cial law, Alexander Graser subsequently pre- sented, in his lecture on family within the framework of solidarity groups, an approach by which the role of the family might be exam- ined in terms of comparative social law. In this context he elaborated, among other things, on the position of the family in social law and drew a comparison with US American law. Ursula Köbl's presentation focused on the topic of easing the burden of the social state through greater family solidarity. She ana- lysed, inter alia, existing maintenance obliga- tions between parents and children, and showed up changes in inheritance law which aim at contributing to the containment of public expenses. According to the presenter, the call for strict neutrality on the part of the state was quite unrealistic, given the wide range of practised or aspired family models.

91 REPORT 2008 – 2009

The subsequent discussion mainly focused on the functions and perspectives of social benefits as family support, and on the ambi- guities of the sociological empirical structure of what is understood by the term "family", as well as on the interrelation of family law and social law.

The closing remarks to the symposium were given by the jubilarian himself. The collection of lectures, inclusive of the respective discus- sion reports on each topic, were compiled in the conference proceedings and have been published (Becker (ed.), Rechtsdogmatik und Rechtsvergleich im Sozialrecht I, 2010). Yasemin Körtek Prof. Dr. Dr. h.c. mult. Gerhard A. Ritter.

4.3. The German Welfare State – Structure, Differentiation and The subsequent retrospect on the formation Further Development and development of the welfare state em- phasised the political, social and cultural On the occasion of Gerhard A. Ritter's 80th workings of the latter. Each section em- birthday, a celebratory colloquium on the Ger- braced a dimension of interactions between man welfare state ["Der deutsche Sozialstaat"] the welfare state and other forces in the field was organised in collaboration with the De- of politics and society. partment of History of Ludwig Maximilian University Munich. This interdisciplinary col- Constructing the Welfare State laboration particularly suited the research spir- it of Gerhard A. Ritter who, as a welfare state Welfare state regulations are not to be under- historian, had not only worked on numerous stood as simple reactions to particular social publications pertaining to social law, but also problems. Between problems and their so- cooperated with members of our very Institute cio-political solutions there exists a process on many occasions. He continues to have cor- of societal cognition, interpretation and ac- dial relations with Hans F. Zacher, emeritus tion that is necessary to serve as the very director of the Institute and former president catalyser for certain problems to be put on of the Max Planck Society, who therefore took the political agenda and for the political pro- upon himself the honour of delivering the cess to be set in motion. This was explained laudatory speech courtesy of Gerhard A. Ritter. in this section by Ulrike Haerendel who took the first Pension Insurance Law of 1889 and Following Hans Zacher's laudatory speech, its gender-related configurations as an exam- Hans Günter Hockerts delivered a keynote ple, and by Friederike Föcking who showed speech on the challenges put to the welfare in another example that the Federal Social state by demographic change, which in turn Welfare Act of 1961 was subject to particu- was followed by the related debate regarding larly strong influences from welfare associa- intergenerational justice. To exemplify this tions. debate he quoted the so-called Riester pen- Hans-Jürgen Puhle modified the concept of a sion, which had in fact been introduced "construction" of the welfare state, however, against any probability; after all, in the previ- by using the example of transnational learn- ous history of pension insurance, path de- ing processes and transfers. He quoted that pendency had proved dominant. But just as welfare states had not usually been "con- the loss of pension insurance capital after structed", but had been formed by way of the war had compelled a conversion to the partial incorporation and selective adoption pay-as-you-go system, a "renaissance of capi- of individual elements from older welfare tal funding from the spirit of demography" state models, with the result being mixed had taken place through the Riester reform. welfare regimes.

92 II. RESEARCH

Dr. Christiane Reuter-Boysen (Bundeswehr University, Munich), Dr. Ulrike Haerendel (Evan- gelische Akademie Tutzing), Prof. Dr. Dr. h.c. mult. Gerhard A. Ritter and his wife Gisela, Prof. Dr. Lothar Gall (Historisches Kolleg).

The Welfare State and its "Clients" for integrating the self-employed (that are not covered by insurance through any profes- The evolvement of the German welfare state sional organisations) in statutory pension in- was characterised by the circumstance that surance. Their need for social protection, until about the 1970s it continued to cover comparable to that of employees, was the more and more risks and thus also increas- most decisive factor. In these times of fewer ingly more sections of the population. The standard employment relationships the wel- second part was dedicated to the client rela- fare state should, by all means, extend its tionships of the welfare state and to the issue coverage in this context; he argued, however, as to how they determined the further con- that there were no grounds for turning away figuration of social policy. Winfried Süß ex- from the specific civil service pensions. plained this by using the example of the pov- erty debates which, in the form of a discussion Welfare State and Participation on the "new social question", shaped the so- cial policy of the 1970s, while Wilfried Rud- Participation in the sense of self-determined loff, by using the example of disability policy, activities with the aim to influence decisions outlined the organisation of interests among at various levels of the political and, likewise, involved persons in the socio-political arena. socio-political systems requires the modern Finally, Franz Ruland aired a few concerns on welfare state to be based on the rule of law the federal German welfare state and its ca- and democracy. This also includes the possi- pacity to reform, as well as on its potential to bility to participate in socio-political practice. extend its coverage to new groups of clients. By commenting on former pre- and non- He underlined that there were valid reasons democratic conditions, the papers of this sec- tion made obvious that the above require- ments were not always fulfilled. The fact that, for instance, the opportunity for citizens of the GDR to submit petitions to their state leadership merely served to give an illusion of political participation was illustrated by Christiane Reuter-Boysen in her example of the pension discussion in the former GDR with regard to the content of petitions sub- mitted by women. Yet, in the long or longer term, it was probably the potential of protest contained in the petitions that led to im- provements, if unsatisfactory ones, in matters pertaining to social policy. In his perspective paper, Jürgen Kocka ex- panded on the conflicting relationship be- Prof. Dr. Ulrich Becker. tween civil society and the social state. In this

93 REPORT 2008 – 2009

(1) The European integration process has resulted in a wide gap between market- oriented, competitive policies at Euro- pean level on the one hand, and socially oriented policies at national level on the other. (2) Thus, it is particularly the international challenges posed to the welfare state that must be tackled within the member states, and with regard to the European Social Model. (3) Accordingly, despite all socio-political path dependencies and related national traditions, more and more common solu- tions have been found to deal with these challenges. Prof. Dr. Hans Günter Hockerts. (4) The European Social Model is becoming a reality that has increasing normative context, he argued, the welfare state was value in its function as a socio-political often accused of crowding out, i.e. of stif- guideline. ling individual initiative. In contrast, Kocka stressed that it was precisely this German Following this genetic derivation of the Eu- welfare state model that facilitated the inclu- ropean Social Model, Ulrich Becker elabo- sion of forms of civil society, with it being cor- rated on current issues and challenges in his poratist to some extent and less state-based perspective paper. He explained the exten- than, for instance, the British or the French sion of traditional national social rights with model. Social security through the welfare a view to territory, persons involved and mar- state was, in some cases, even a requirement kets to be explored. While this process was for social commitment on the part of civil so- well advanced in economic law and in em- ciety or volunteers, e.g. as regards the involve- ployment structures, it was still a crucial is- ment of older persons in childcare or in their sue with regard to social assistance and sup- support of children. port systems. The concept of the welfare state could not be understood in terms of a Welfare State and Nation State static system, however, but as a reciprocal learning process that was directed towards The last section was dedicated to the classical convergence by way of instruments like the welfare state in its national orientation and Open Method of Coordination. the challenges it has encountered through transnational and global developments that render a purely national orientation impos- sible. In this section, focus was therefore mainly placed on foreign countries. Peter A. Köhler presented the Swedish con- cept of "the people's home/folkhemmet". He concluded that folkhemmet had, both in terms of its symbolic significance and in its actual configuration particularly through Swedish social democracy become part of the national identity of Sweden. He stated that this spe- cific model was to explore new strategies in the face of challenges such as Sweden's ac- cession to the EU or ongoing demographic change, but that it was indeed sustainable.

Bernd Schulte's analysis of the "European Social Model" revealed the following: Prof. Dr. Klaus Tenfelde.

94 II. RESEARCH

4.4. The Social History of Pension Insurance in the German Empire: 1871 – 1914

Starting Point

The historical research project on the "Social History of Pension Insurance in the German Empire: 1871 – 1914" is closely related to the social sciences and particularly to social law research. The project was developed in cooperation with the Max Planck Institute for European Legal History (Stolleis). It was carried out by a historian at our Institute (Haerendel). During the research period, fur- ther cooperation has developed, particularly with the junior research group focusing on "Age and Law" at the Max Planck Institute for European Legal History.

Dr. Peter A. Köhler and Dr. Bernd Schulte. Findings

Gerhard A. Ritter's closing words concluded Previous research has strongly concentrated this very intensive and productive confer- on legislation or, respectively, the political ence. He thanked the organisers and speak- process regarding the first Pension Insurance ers, but also expressed his great appreciation Law of 1889. In contrast, the project exam- to the Association for the Promotion of Sci- ined the relationship between this insurance ences and Humanities in Germany [Stif- legislation regarding provision for old age and terverband für die Deutsche Wissenschaft] for the directly or indirectly affected population their generous support of the conference and groups. First publications, for instance, related issues. Publication of the conference showed the impact of female employment proceedings by Dietz Verlag (Berlin): Becker/ and of the social discourse about gender role Hockerts/Tenfelde, Sozialstaat Deutschland. models on the specific configuration of stat- Geschichte und Gegenwart, 2010. utory pension insurance. It also became a Ulrike Haerendel tangible subject in the debate on appropriate retirement age limits for women and men.

Pension insurance card dating from the German Empire (1912).

95 REPORT 2008 – 2009

This topic was discussed with colleagues at a to financial incentives. Although FIFA has research colloquium organised by the junior for years made the activities of players' agents research group focusing on "Age and Law" contingent on holding a license, there are far and was elaborated on in a subsequent pub- more agents bustling around the football lication. A separate publication was dedicat- grounds than licenses have been issued. Li- ed to the question as to how contemporary censing requirement is frequently and effort- notions of justice were reflected in the de- lessly avoided by involving a lawyer for whom bates of the Reichstag in 1888/1889 regard- a license requirement does not exist. More- ing the first Pension Insurance Law. Ex- over, a player's marriage partner, parents and amples show that efforts had been made to brothers or sisters are also exempted from li- integrate some sort of social compensation in censing requirements as their activities do the insurance scheme to match the longing not lie within the competencies of FIFA, the for justice. German Football Association (DFB) or the German Football League (DFL). Current Research Projects In an attempt to counter this state of affairs, The abovementioned project has been com- FIFA adopted a new set of regulations for pleted. The person in charge left the Insti- players' agents at the close of 2007. A re- tute on 1 March 2009. She has published quirement that players' agents hold a special several parts of her research findings and is license remains the key component of FIFA's currently working on a historical overview of regulations in this area. The DFL constituted the history of German pension insurance a working group on the development of play- from its very beginnings up to 1945. This ers' agents regulations in order to meet with overview, too, is based on research work car- FIFA's aim of implementing such regulations ried out at the Institute. It will be published at the national level. Finally even the Euro- in a new edition of the guide to statutory pean Commission has been involved with pension insurance ["Handbuch der gesetzli- the activities of players' agents. In its White chen Rentenversicherung"] commissioned by Paper on Sport the EU Commission goes the German Federal Pension Fund [Deutsche into the problems caused by the transfer of Rentenversicherung Bund]. players in professional sports and stresses Ulrike Haerendel the need for action regarding a uniform, ef- fective legal framework.

4.5. The Activities of Players' Agents in In his introductory presentation Reinhard National and International Sports Law Zimmermann addressed the major legal issues that are raised along with political and ethical The successful symposium on the "Reform of questions. FIFA and the DFB or DFL are pri- the World Anti-Doping Code (WADC)" held vate law organisations that act as "law-making at the MPI for Comparative and Internation- bodies". One must consequently ask where al Private Law in Hamburg in 2007 was fol- the regulations are to be classified in the lowed by a further joint symposium on sports scheme of existing law and how far their reach law in Hamburg on 8 December 2008 organ- of application is. Standing at odds here are ised by the above-mentioned MPI, the Fo- the constitutionally protected autonomy af- rum on International Sports Law and the forded associations and the law-making func- MPI for Foreign and International Social tions reserved to the state. Furthermore, the Law. The focus was on national and interna- FIFA regulations feature the peculiarity that tional regulations and the regulations on the its provisions – through the license require- activities of players' agents adopted by the ments – could also impact players' agents sports associations. who are not members of the association. This throws up new questions. How much autono- Public opinion, the officials of the associa- my do sports associations enjoy? What is the tions and the player representatives often relationship shared by international and na- take a very sceptical attitude toward players' tional sports association regulations and state agents. Players' agents have been criticised law? Do the new regulations conflict with Eu- particularly for neglecting players' rights and ropean and national law? How can this prob- for frequent dubious business conduct due lem be resolved?

96 II. RESEARCH

new FIFA regulations for players' agents of 2007. These regulations have been supplemented by the imple- mentation rules elaborated by the DFB and DFL. Here, two problems arise: For one thing, according to the regu- lations, only those players' agents can act for players and clubs who hold a FIFA license. This means that the FIFA regulations set higher requirements for the trans- fer of football players than national law, which makes no licensing requirement. The restriction was regarded Prof. Dr. Ulrich Becker and Prof. Dr. Dr. h.c. mult. Reinhard as legitimate considering the Zimmermann (MPI for Comparative and International Private freedom of contract. If the Law, Hamburg). freedom of contract permits clubs to exclusively negoti- The keynote address was delivered by Johan- ate player contracts with players' agents nes Wertenbruch (Philipps-Universität Mar- holding a license, this can also be stipulated burg), who dealt with the legal framework by regulations adopted by institutions like regarding the activities of players' agents. He FIFA or the DFB who have a higher-ranking began with a look at the social law concept of position in the association hierarchy. As labour placement and explained that the FIFA regulations in the case of an infringe- German Social Code (SGB III) does not set ment only impose sanctions against players licensing requirements for the transfer of and clubs, the regulations do not directly ad- players. Yet, negotiating a player's contract dress the players' agents, who are not mem- with the club, which forms an essential part bers of the association. Here, antitrust law of a players' agent's activity, comes under the remains applicable. With respect to antitrust Legal Services Act (RDG). Since the Bosman law, the admissibility of the FIFA regulations case there has been an upward tendency to followed the ECJ's appraisal of the Piau extend the duration of player contracts, thus judgement. For another thing, the question also leading to more demand for legal advice. was asked as to whether FIFA's regulations Consequently, it must be assumed that ad- were compatible with national law and in vising a player during contract negotiations particular with the provisions of the RDG ac- also includes legal services and cannot only cording to which contract negotiations in- be regarded as a mere application of the volve legal services. Art. 2, No. 1, Sent. 3 of laws. In this context opinions differ on the regulations contains a clause in favour of whether the model contract provided by the national laws indicating that a possible con- DFL involves legal advice or only a mere ap- flict of a national law with the regulations be plication of the laws. The model contract of- solved for the benefit of the national law. A fers a standard agreement, which points to a FIFA license does therefore not release a simple application of the laws. When negoti- players' agent from observing the RDG. ating a contract it is, however, necessary to Hence FIFA regulations do not conflict with explore and harness the full legal scope in national law. order to draw up contracts that are to the Finally, Johannes Wertenbruch elaborated on players' best advantage. Therefore it was re- the cross-national transfer of players. Accord- tained that even in the case of a standard ing to the "principles of the country of desti- contract legal advice is to be involved and nation" the RDG (Section 15) also applies to not just a mere application of the laws. foreign players' agents who are in charge of a When transferring a football player, the play- transfer of players in Germany. Even if a for- ers' agent is subject to the provisions of the eign players' agent is free to negotiate con-

97 REPORT 2008 – 2009

tracts according to the law of his home coun- ed, was accused of misrepresenting the ac- try due to there being no regulation similar to tual situation with a whole profession coming the RDG, the application of the RDG to for- under general suspicion (Reiter). eign players' agents does not violate the EU Emphasis was put on the fact that especially Services Directive. Offering legal advice does young players or players who do not belong to not come under the Services Directive but the regular team members of their clubs, de- under the Lawyers Directive. According to pend on players' agents (Hain). The players this directive, persons who offer legal advice place great trust in their advisors and agents. in a foreign member state must, with a few Hence, reliability and fairness must be en- exceptions, have similar qualifications. sured, a stipulation which is only to some ex- tent guaranteed by the FIFA regulations (Hain). The clubs are highly inter- ested in establishing solid contractual relationships with their players through re- liable cooperation with the players' agents and lawyers (Hieronymus). Short-term contracts and the possibility for players of opting for a quick change are of no avail to football clubs, as this might significantly affect their season schedules. Reg- ulating the activities of play- ers' agents is of major impor- Dr. Matthias Knecht with Florian Bruder and Dominik Moser tance for the clubs. In the (both from the MPI for Comparative and International Private 2008 transfer period the Law, Hamburg). clubs paid commission amounting to 40 million Following the key presentation, representa- euros to players' agents for their activities tives from the respective interest groups, as- (Hieronymus). Tax authorities do not apply sociations and institutions commented on uniform standards as to the issue who is the legal issues: Gregor Reiter, executive director recipient of such commission payments and of the German Football Agents Association thus has to pay the tax. Even if commission (DFVV), Mathias Hain, member of the Play- has been paid by the club, some tax authori- ers' Council of the German Union of Con- ties consider the payments to have been made tracted Footballers (VDV) and goalkeeper of in favour of the player, who will thus have re- FC St. Pauli 1910 e.V., as well as Holger Hi- ceived a pecuniary advantage (Hieronymus). eronymus, chief executive officer of the The national implementation rules supple- DFL. menting the FIFA regulations must aim for an A point of criticism was the exception FIFA integration of players' agents into the associa- regulations make for lawyers (Reiter). If uni- tion hierarchy. form quality standards are to be assured, law- yers must likewise be subjected to a licensing During the subsequent discussion chaired by examination. Moreover, quality cannot be as- Ulrich Becker the above issues were a matter sured by reissuing a license every five years; of considerable debate. They were enlarged further, fault on the part of the players' agent upon and additional aspects were addressed. is not to be assumed and would represent an One of the questions raised was why football excessively stringent requirement if it is the clubs needed players' agents at all despite player who breaches his contract when being heavy scouting. Moreover, some participants transferred (Art. 22 No. 2, FIFA regulations). declared that there was a lack of reciprocity Finally, the White Paper on Sport, after the regarding the high commissions paid by the publication of which the DFVV and an inter- clubs, and expressed their ethical and legal national lobby of players' agents were found- concerns about the activities of players' agents.

98 II. RESEARCH

These concerns were, however, countered manager of Borussia Dortmund GmbH, with the postulation that the activities of play- Christian Müller, board member of both the ers' agents should not be condemned in gen- German Football League (DFL) and the Ger- eral, but that regulations had to be created man Football Association (DFB), and Jan and systematically implemented to exclude Räker, counsel for Hamburg SV. The most the black sheep from the market (Reiter). prominent critic of the "50+1 rule" who Matthias Knecht spearheaded the dispute about the abroga- tion of the rule was Martin Kind, president of the Bundesliga team Hannover 96. He point- 4.6. The Ban on Majority Ownership: ed to the restrictions the rule imposed in German Football's "50 + 1 Rule" Under practice in his view. Ulrich Becker held the National and International Law chair of the concluding discussion.

The comment in the German weekly news- The introductory paper (Verse) first dealt with paper Die Zeit that football "moves millions" the origin and content of the "50+1 rule". (Zeit online 26 January 2007), did not allude The rule was included in the German Foot- to the millions of enthralled spectators, but ball League's (DFL) statute as Sec. 8 Para. 2 rather to the many millions of euros that flow in 1998 and stipulates that a club which has through the highest echelons of the sport. It spun off its professional team to form a stock is an accepted fact that professional sport has company must retain majority voting rights to meanwhile become an important branch of allow the company to obtain a license for the the economy, with many teams being run as first and second division of the German Bun- businesses. What is not clear, however, is desliga (Lizenzliga). An exception to the rule where the boundaries lie in the governing law is the so-called "Lex Leverkusen" (Sec. 8 – the extent to which the laws of the market Para. 5 and 6). According to this rule, excep- or the laws of sport should apply where the tions to a club's majority ownership only ap- two perspectives collide. This question forms ply in cases where the football club had been the background of a discussion regarding ma- substantially supported by a company for jority ownership of football clubs, a topic over 20 years before January 1, 1999. To this which has resurfaced recently in Germany. At day, the only two clubs complying with the the centre of the debate was Germany's "50 requirements of this exemption have been +1 rule", which prohibits majority ownership Bayer Leverkusen and VfL Wolfsburg. by investors rather than the clubs themselves In a second step, Verse addressed the assess- in the professional sector. ment standards that have to be considered. First, the compatibility of the "50+1 rule" The complex and difficult, as well as very with antitrust law (Art. 101, 102 TFEU) has current, legal questions relating to the "50+1 to be considered. Furthermore, the assess- rule" were dealt with in the 2009 symposium ment standards also apply to the freedom of on sports law held on 30 November 2009 in establishment (Art. 49 TFEU) and the free Hamburg and organised by the Forum on In- movement of capital (Art. 63 TFEU), with ternational Sports Law, the Hamburg-based free movement of capital coming after the MPI for Comparative and International Pri- freedom of establishment when controlling vate Law and this Institute. shares are concerned. Consequently, excep- tions such as the "Lex Leverkusen" must be In his introductory presentation, Dirk Verse, examined with a special view to the principle head of the chair of civil law, corporate and of equality. commercial law, business law and compara- The legal assessment mainly focussed on the tive law at the University of Osnabrück, re- justification of the above-stated limitations to ported on the "50+1 rule" and its compatibil- Art. 101, 102, and 49 TFEU. To this end the ity with national and European law, while the goals pursued by the "50+1 rule" were deter- commentators particularly focussed on legal mined and the question was dealt with as to policy issues. whether the "50+1 rule" was appropriate, nec- Dirk Verse's presentation was commented on essary and adequate to achieve these goals. In by Tobias Kollmann, economist and manager a further step it was discussed whether there of the BSC, who reviewed the topic from an was sufficient reason for a differentiating ap- economic perspective, Hans-Joachim Watzke, proach in the case of "Lex Leverkusen".

99 REPORT 2008 – 2009

According to Verse's paper, the "50+1 rule" goals it pursues – and investment by inves- has two primary goals. The first one is to tors being not completely prohibited. guarantee equal opportunities and equality under the licensing process, and the second Dirk Verse found that the unequal treatment one is to protect sporting interests as against between those clubs to whom the exceptions merely commercial interests. Guaranteeing of "Lex Leverkusen" apply and all the other equality is legitimate as otherwise the gap clubs was not sufficiently justifiable. Both between rich and poor Bundesliga teams Bayer and Volkswagen could have continued would increase even more, a fact which is their commitment while observing the "50+1 also in accord with the concept of the ECJ rule". As a result it is, however, not the "50+1 and the European Commission. One of the rule" that is to be contested but rather the reasons why the second aim can be recog- exceptional rule that should either comply nised as legitimate is that the values of sport with the principle of equality or be com- and its social function have meanwhile also pletely dispensed with. been introduced into Art. 165 TFEU. Dirk Verse deemed the "50+1 rule" appropri- The commentaries and the discussion fol- ate to both goals. While the relevant litera- lowing Verse's presentation primarily concen- ture accuses the rule of solidifying the exist- trated on legal policy issues. It was empha- ing "three-class society", the majority of the sised that football clubs were meanwhile run clubs put forward that its abrogation would like commercial enterprises with the capital open the gap still further, and would aggra- market wielding such an influence on them vate the current situation in practice. This that limiting shares on a percentage basis assessment could also be seen as appropriate had become absurd. The abrogation of the if one considered the "assessment preroga- "50+1 rule" would notably lead to a more tive" of the league association. Moreover equal playing field on the international level the rule is adequate to protect the clubs' (Kollmann). This point was, however, heavily sporting interests as the mandatory majority contested with respect to the extremely un- voting rights the clubs have to retain make it equal income from television rights. As long considerably more difficult to pursue merely as in other countries much larger amounts of commercial interests – with Hoffenheim be- money were being paid to the leading clubs, ing an exception to the rule. German top teams would hardly be able to Regarding the necessity, Verse concluded clear their backlog even if the "50+1 rule" that there are no equally effective measures was abolished (Watzke, Räker). to achieve the above-mentioned goals. Salary caps, for example, would involve a number of Alongside the international level, the atten- additional, far-reaching restrictions. Delegat- tion was yet concentrated on national com- ing the responsibility for the decision to the parison. On the one hand it was argued that individual clubs has been rejected, for this opening up the clubs entirely to investor in- might lead to a "domino effect", whereby the volvement would lead to a more equal playing clubs would finally be forced to place them- field on the national level and would offer the selves in the hands of investors in order to clubs greater opportunities to develop. Ac- remain competitive. According to the speak- cordingly, Hannover 96 was, for instance, not er, the proposed Statement of Requirements able to compete and develop because no (SOR) applicable to investors with a majority profits could be made. To retain the "50+1 ownership (Kind) is not similarly effective rule" would mean to exclusively administer either. An SOR would require various indi- the status quo, which is not satisfactory from vidual corrections offering less reliable pro- a business perspective (Kind). On the other tection than a preventive control which re- hand it was argued that the "50+1 rule" did mains in the hands of the clubs. In summary, not prohibit external fundraising activities. observing the "50+1 rule" is easier than im- Registered societies were indeed capable of plementing an SOR which, in addition, does raising third-party funds, and with a bit of not sufficiently allow for the protection of li- luck and by doing a good job every club would censing equality and hence ensure the ac- be able to develop (Räker). The suggestion ceptance of the fans. that capital should be raised through bonds The rule is also appropriate with the meas- or loans was rejected on the grounds that this ures taken being not disproportionate to the would be capital at risk and would lack secu-

100 II. RESEARCH

rity (Kind). This was, how- ever, countered with the argument that external fund- ing could be secured via company agreements, a fact which made clear that shares only constitute one of many different ways to make it possible for investors to wield influence (Müller). Opinions were divided over the argument that the abro- gation of the "50+1 rule" would possibly create a domino effect. Bearing in mind the differences in in- frastructure and in the clubs' investment suitability, such Prof. Dr. Tobias Kollmann (University of Duisburg-Essen), Prof. an effect was disputed (Koll- Dr. Dirk A. Verse (University of Osnabrück ), Prof. Dr. Ulrich mann). However, in the ma- Becker, Prof. Dr. Dr. h.c. mult. Reinhard Zimmermann (MPI jority of cases, the commen- for Comparative and International Private Law, Hamburg) and tators agreed with the above Martin Kind (president of Hannover 96). argument. The creation of a domino effect would even lead to a solidifi- the problem be solved by the football sector cation of the existing "three-class society" itself, and that going to court could not be a because investors would show a favourable satisfactory solution for the parties involved attitude towards success-oriented clubs (Kollmann, Kind). As to the content it was (Watzke). Admitting majority ownerships suggested that a compromise be agreed on in would lead to an arms race between the order to be able to account for the peculiari- clubs, thus aggravating the current situation ties of the football sector (Kollmann). Unfor- (Müller). tunately, the first opportunity to work out Moreover, the commentators repeated time such a compromise model was passed up and again that, in German society, the impor- when the DFL voted on a consensus for the tance of football should not be underesti- first time at its general meeting on 10 No- mated. One of the arguments against the re- vember 2009. But there should be a second moval of the "50+1 rule" was that the fans chance to come to a compromise with a me- – as clients – just did not want an abrogation diator being of help in the context of an ex- which would lead to a heavy loss of identifi- trajudicial procedure (Kind). However, the cation (Watzke) – for the existing rule backs so-called "Lex Leverkusen" would certainly the fact that football, which is almost a pub- not withstand a judicial review with respect lic good, is well established in society to the date that was arbitrarily chosen. It was (Müller). Compared to other European also countered that elaborating a special leagues the soul of German football is still SOR for the investors would not solve the intact. This is why other countries look upon problem in terms of content because this Germany where solidarity-based, economic model was not mature enough yet (Räker). competitiveness still exists (Räker). But it was also argued that foreign regulations must In conclusion, it was emphasised that the not necessarily be inferior to German regula- Bundesliga had to unanimously support the tions as it was not conceivable that other majority decision taken, and that a judicial countries got things wrong while Germany assessment would put an end to solidarity always got things right (Kind). (Watzke). After all, the overwhelming voting results had proved the appropriateness of Moreover the question was raised during the the "50+1 rule" (Räker). discussion as to how the commentators Katharina Liebe would resolve the dispute about the abroga- tion of the "50+1 rule". It was advocated that

101 REPORT 2008 – 2009

102 III. Promotion of Junior Researchers REPORT 2008 – 2009

1. Doctoral Group: "Impact economic recovery and of seemingly inexora- bly progressing globalisation, the objective of of Constitutional Law the doctoral group was to contribute to a bet- and International Law ter understanding of the normative princi- on the Configuration of ples by way of examining the latter. Social Security" The members of the doctoral group were Viktória Fülöp, Anna Olechna, Dongmei Liu and Quirin Vergho. The countries examined The formation of the doctoral group focusing by the doctoral group with regard to the re- on the "Impact of Constitutional Law and search topic were Hungary (Fülöp), Poland International Law on the Configuration of (Olechna), the People's Republic of China Social Security" at the beginning of 2006 (Liu) and Portugal (Vergho). was based on two core considerations. For one thing, increased focus was to be put on Following its launch, the doctoral group met countries whose social law systems had, as for an initial retreat in February 2006 in order yet, not been intensively examined in Insti- to first elaborate common methodological and tute research. It was therefore particularly subject-related foundations. The group then the transition countries that were to form met for doctoral discussions at least once a one main focus. The second relevant consid- month and was joined by Ulrich Becker on eration in regard to the formation of the doc- these occasions; this start-up phase lasted un- toral group was the realisation that, as re- til about the end of 2006. The second phase gards research, the normative principles of involved the presentation of the group mem- the systems of social security are often un- bers' first research findings in the form of lec- dervalued and thus also neglected, since it is tures; these presentations were first held and their socio-economic parameters, whose sig- discussed at the Institute. Within the context nificance appears to be manifest, that are in of a workshop in May 2007, organised in co- the centre of the discussions. Already at the operation with Ingwer Ebsen (University of time of its launch, i.e. at a time of worldwide Frankfurt) and his doctoral students, the

Daniela Schweigler, Ilona Vilaclara, Magdalena Neueder, Kyung A Choi (front left to right), Michael Schlegelmilch, Markus Schön, Luise Lauerer, Iris Meeßen and Nikola Wilman (background left to right).

104 III. PROMOTION OF JUNIOR RESEARCHERS members of our doctoral group finally had the The first part therefore begins with a defini- opportunity to present their concepts and tion and a systematisation of the term "social general ideas to a larger external audience. security"; in doing so, the term is abstracted Following this workshop, there were further from the solutions offered by the Portuguese monthly doctoral discussions until, as of system. These fundamental considerations about mid-2008, the individual and final revi- and the portrayal of historical, as well as socio- sions of the respective dissertations gained economic parameters serve as a basis for the centre stage. One dissertation has meanwhile actual analysis of the system. The analysis been completed and is about to be published. starts by portraying the system's institutional Two further dissertations are also likely to be and financial structures, and then gives de- finished in the near future and shall be pub- tailed descriptions of its component parts. In lished shortly afterwards. accordance with the abovementioned system- Quirin Vergho atisation, a distinction is made between the various provision systems which, apart from the dominant general regime (regime geral), 1.1. Social Security in Portugal and its also and particularly comprise the alternative Constitutional Principles or supplementary regimes (for civil servants and bank employees, among others), the non- The examination of social security and its contributory, yet risk-specific schemes (non- constitutional principles in Portugal follows contributory system and the health service, two objectives of a priori equal importance: among others), the family protection system for one thing, the systematic assessment and and the social assistance regime (providing organisation of Portuguese social law in the so-called reintegration income). German language and, for another, the analy- sis of constitutional influence on this system. The second part starts with some fundamental Portugal was selected as an object of exami- points on the concept and structure of the nation particularly because the Portuguese Constitution, supplemented by several obser- Constitution contains a detailed catalogue of vations on the constitutional norms relevant fundamental social rights, and since Portugal for social security and on the concept of the has a constitutional court that is entrusted fundamental social rights. This is followed by with the appropriate competences. Hence, a an analysis of the Portuguese Constitution as profound pervasion of social law by these the basis for the system of social security, with constitutional aspects could be expected. initial reference made also here to the histori- Furthermore, historical developments and cal context; a detailed description of the Con- the socio-economic framework conditions stitution is given thereafter. The focus of the suggested that certain changes regarding so- second part is on the examination of the inter- cial security would become noticeable. The relation between the Constitution on the one Carnation Revolution (25 April 1974), Portu- hand and the configuration of social security gal's accession to the European Union and its on the other hand. In this regard, two essential delayed economic development since the be- levels of influence, i.e. norm-setting and judi- ginning of the millennium are key reference cial review, are distinguished and investigated points in this context. Methodologically, this in terms of their functionality. Finally, the spe- study is a form of foreign law study; yet, it cific influence of the Constitution on social required systematic groundwork in order to security is traced on the basis of various legisla- provide the German reader with a basis for tive measures and constitutional procedures. comparison with his or her own legal system. The concluding part of the study presents the The objectives of the study are also reflected essential findings of the investigation in a in the structure of the study. While the first transverse order, thus subsuming them by the main part deals with the analysis of social se- use of other distinction criteria in a form dif- curity in Portugal, the second part of the fering from the systematisation of the two study is dedicated to the constitutional prin- main parts. One of the core findings of this ciples of social security. For methodological study is the fact that the influence of the reasons, the two main parts were each pre- Constitution is noticeable almost exclusively ceded by an elementary part which examines at judicial review level, except in matters re- the essential terms of the study. garding the establishment of the health ser-

105 REPORT 2008 – 2009

vice. This, in turn, leads to the conclusion is under particular investigation, since it that any constitutional influence on social se- plays a remarkable role in the field of the curity can only be ensured by means of a fully aforementioned principles and of the funda- functioning, independent constitutional court mental social rights. The Polish Constitu- that is endowed with the necessary compe- tional Court has, for instance, derived fur- tences. The study closes with an outlook on ther principles on pension entitlements from the further development of the social security the principle of social justice. The largely system and the future significance of the Por- controversial health reform was also exam- tuguese Constitution. ined by the Constitutional Court, a proce- Quirin Vergho dure which subsequently put the entire re- form into question. The principle of equal treatment, too, arising in the context of the 1.2. The Influence of Constitutional regulation of social security, was repeatedly Law on the Configuration of Social subject to interpretation by the Constitu- Security in the Republic of Poland tional Court. Further formative decisions on the part of the Constitutional Court include This dissertation deals with the influence of decisions on the recently introduced bridg- constitutional law and international law on ing pensions, on social insurance contribu- the configuration of social security in the Re- tions, on family benefits, as well as on wel- public of Poland. The investigation of this fare benefits and institutions providing social topic raises a very wide range of legal ques- services. Finally, mention must also be made tions due to numerous fundamental reforms of the fundamental jurisdiction of the Con- and to relevant changes in Polish jurisdiction. stitutional Court regarding the systematisa- The first part of the dissertation provides a tion and the scope of protection of the right detailed account and discussion of the Polish to social security. social security system. Due to the transforma- Apart from the jurisdiction of the Constitu- tion, many decisive reforms were carried out, tional Court, law-making on the part of parlia- some of which have not yet been completed. ment is included in the study with regard to Worth particular mention in this context are the influence of principles and fundamental the big reforms regarding pension insurance social rights on the system of social security. (transition to the three pillar model) and The study also investigates the fundamental health insurance, as well as reforms pertain- social rights established by international or- ing to family benefits, unemployment allow- ganisations, particularly by the ILO, the UNO ance and social assistance. The scattered le- and the Council of Europe, and examines gislative provisions of social security in the their influence on the configuration of the Republic of Poland are systematically merged system of social security. in this process. The objective of the dissertation is thus, on the The second part focuses on the Constitution one hand, to contribute to the systematisation of the Republic of Poland, which entered of social law and, on the other hand, to illus- into force in 1997. First, a brief introduction trate and assess the impact of constitutional to the constitutional system is provided, and international law on the configuration of along with a historical overview. The core social security in the Republic of Poland. topics of the second part are the principles of Anna Karina Olechna social justice (Art. 2 of the Polish Constitu- tion) and of equal treatment (Art. 32, 33 of the Polish Constitution), as well as the fun- 1.3. The Impact of Constitutional Law damental social rights that are explicitly and International Law on the mentioned in the Polish Constitution: the Configuration of the Social Security right to social security (Art. 67), the right to System in Hungary the protection of health (Art. 68), as well as the right to the protection of the family (Art. Even though the changeover of the social se- 71). The configuration of these social rights curity system in Hungary to the new econom- by means of law-making and jurisdiction is ic order has, twenty years after the political extensively examined. In this regard, the ju- turnaround, not yet been entirely completed, risdiction of the Polish Constitutional Court long-term goals have become discernible af-

106 III. PROMOTION OF JUNIOR RESEARCHERS ter decades of scientific and political debates ily benefits. In other areas, only superficial on the configuration of social security. The "cosmetic" procedures have been carried picture of a caring, yet less generous state is out, as the necessary structural change could, becoming established. unfortunately, not be implemented political- The gradually introduced reforms have, in ly. A good example of this is the failed health some areas, resulted in structural changes, insurance reform of 2008. e.g. in the areas of pension insurance or fam-

20 – 21 June 2008 Doctoral Seminar held by Deutscher Sozialrechtsverband e.V. Friedrich Schiller University, Jena.

Markus Schön: Systeme der Leistungserbringung individueller Hilfen und allgemeiner Förderung der Entwicklung junger Menschen in Deutschland und Österreich [Benefit schemes for the provision of individual assistance and for the general advancement of young people in Germany and Austria] Magdalena Neueder: Das Leistungserbringungsverhältnis bei der beruflichen Rehabilitation Behinderter in Deutschland und der Schweiz im Rechtsvergleich [The benefit delivery relationship in the occupational rehabilitation of persons with disabilities in Germany and Switzerland in a legal comparison] Angela Smessaert: Das Selbstbeschaffungsrecht – einzig wirkungsvoller Ausweg bei Un- tätigkeit der Behörden nach Anträgen auf Sozialleistungen? [Is self-provision the only effective alternative if authorities fail to act upon a social benefits application?] Heike Krüger: Rechtsmissbrauch im Sozialrecht [The abuse of legal rights in social law] Jan Martin Horn: Entsendung im Binnenmarkt: Zusammenwirken von Arbeits- und Sozialrecht [Posting workers in the single market: The interaction of labour law and social law] Andreas Jenak: Rechtsstellung von Teilnehmern an Arbeitsgelegenheiten (§ 16 Abs. 3 S. 2 SGB II) [The legal status of persons taking up employment opportunities according to Art. 16 Para. 3 Sent. 2 of Social Code Book (SGB) II] Sven Wolf: Solidarität, Eigenverantwortlichkeit und moralisches Risiko nach dem GKV-WSG [Solidarity, self-responsibility and moral risk according to the Act to Strengthen Competition in Statutory Health Insurance (GKV-WSG)] Kathrin Heldt: Tarifwahlmöglichkeiten in der deutschen Krankenversicherung – das Gesundheitssystem auf dem Weg zur Konvergenz von gesetzlicher und privater Krankenversicherung? [Optional rates in German health insurance – Health care on its way towards a convergence of statutory and private health insurance?] Andreas Ludwig: Die Wirtschaftlichkeitsprüfung beim Vertragsarzt im System der gesetzlichen Krankenversicherung [Efficiency audit concerning SHI-accredited physicians in statutory health insurance] Annegret Litz: Der Off-Label-Use von Arzneimitteln – von der Produkt- zur Dienst- leistungssicherheit? [Off-label use of drugs – From product security to service provision security?] Michael Schlegelmilch: Das Leistungserbringungsverhältnis in der Arzneimittelversorgung in der deutschen gesetzlichen Krankenversicherung und im spanischen Gesundheits- system, dem Sistema Nacional de Salud – ein Rechtsvergleich [The benefit delivery relationship regarding the supply of drugs in German statutory health insurance and in the Spanish Sistema Nacional de Salud (SNS) – A legal comparison] Ingo Seitz: Die Erbringung ambulanter Leistungen durch Krankenhäuser [The provision of hospital-based ambulatory services] Ilona Vilaclara: Das Leistungserbringungsverhältnis im Recht der gesetzlichen Kranken- versicherung – eine rechtsvergleichende Untersuchung der Versorgung mit medizi- nischen Sachmitteln in Deutschland und Frankreich [The benefit delivery relationship in statutory health insurance law – A comparative investigation into the provision of medical devices in Germany and France]

107 REPORT 2008 – 2009

The objective of the study is to find out tion of equal treatment is crucial. Occasion- which roles were played by the highest-rank- ally, specific decisions by the Constitutional ing legal norms, the Constitution and inter- Court are cited in the minutes of the meet- national law in regard to the development of ings (e.g. regarding the obligation for entre- these reforms. The impact of the fundamen- preneurs to pay contributions after dividend tal social rights is of particular interest, since declared), which in several cases facilitates they were, as a legacy of socialism, retained the documentation of constitutional court in the Constitution after the turnaround. decisions retroacting on legislation. Within the context of investigating the im- The first part of the dissertation provides a pact on judicial decisions created by consti- detailed analysis of the Hungarian system of tutional and international law, the decisions social security. Great emphasis is put on the of the Hungarian Constitutional Court are definition of the term "social security" and analysed. In numerous decisions, the Court on a systematisation that corresponds with intensively concentrated on the question as the objective target. The analysis emphasises to which legal requirements could be derived the possibilities an individual is offered by from the fundamental social rights and what the state if the former finds himself in a par- impact the protection of human dignity, the ticular life situation where social law may prohibition of discrimination, the constitu- become relevant, such as old age, illness, in- tional demand for equal opportunities and validity or the like. Findings show that after the right to property had on the individual the political turnaround the diversity of so- areas of social security. The following exam- cial benefits was retained, and despite the ples may provide some insight: The Consti- fact that the "escape from unemployment" tutional Court stated that the obligatory could not be entirely excluded as a basis for character of social insurance did not infringe applications for particular family and health the right to social security stipulated in sec- insurance benefits, these cases were in the tion 70/E of the Constitution, since with re- past years limited through the legislator to spect to social insurance neither any volun- the greatest possible extent. A further gen- tary nor obligatory character could be derived eral problem is the low level of benefit pay- from the wording. As regards the stipulation ments that can be observed both with pen- of social insurance contributions, the Court sions and social assistance. held that it was unconstitutional only in cas- es where it contained discriminating regula- The second part examines the influence ex- tions and where contributions were so ex- erted on the Hungarian system of social se- ceedingly high that this obvious exaggeration curity by constitutional and international law. already per se represented a qualitative cat- This part, too, deals with relevant concepts egory, namely exorbitance. On the occasion such as constitutional and international law. of the reform of family benefits, the Consti- Following this, the influence of these highest tutional Court explained that – despite the norms on the legislative procedure and on ju- fact that, in view of the economic situation dicial decisions is examined. of the country, the state had significant pow- In view of the legislative procedure the legal ers as regards the transformation and re- text, its explanatory memorandum and the structuring of social benefits, these powers minuted statements by the legislative bodies were not unrestrictable. The social rights (parliamentary committees, plenary sessions) only played a role in regard to the require- are analysed. The examined legal texts usu- ment that the entirety of social benefits was ally contain – at least in the preamble – a not to fall below a minimum level. Further- general reference to higher standards. In the more, the constitutionality of the transfor- explanatory memoranda and minutes these mations also depended on the question to references to connecting factors pertaining to which extent these changes offended against constitutional and international law are fur- other constitutional principles or fundamen- ther explained. Accordingly, a significant role tal rights. Neither the benefits nor the enti- in the development of pension benefits, for tlements connected to them were to be instance, is played by the preservation of the changed fundamentally from one day to the principle of equal treatment and of the right next without constitutional justification. to property. In view of employment promo- Viktória Fülöp tion and unemployment benefits, the protec-

108 III. PROMOTION OF JUNIOR RESEARCHERS

14 December 2009 Scientific Dialogue on the Principles of Service Provision Law Max Planck Institute for Foreign and International Social Law, Munich.

Ulrich Becker: Introduction Iris Meeßen, Magdalena Neueder, Michael Schlegelmilch, Markus Schön, Ingo Seitz, Ilona Vilaclara, Nikola Wilman: Grundstrukturen der Einbindung Dritter bei der Erbringung von Sozialleistungen und der dabei relevanten Fragen der Qualitätssicherung und Finanzierung [Basic structures concerning the involvement of third parties in the provision of social benefits and services and relevant issues of quality assurance and financing] Stephan Rixen: Grundstrukturen, Prinzipien und Defizite des deutschen Leistungs- erbringungsrechts [Basic structures, principles and deficits of German service provision law] Thorsten Kingreen: Commentary

1.4. Influence of the International The study examines international organisa- Institutions on the Configuration tions, their standards and regulations, as well of Social Security in P. R. China as their activities regarding the fulfilment of tasks and attainment of goals. It is mainly the The principle of the sovereignty of states, United Nations Organisation (UNO), the which has since the 17th century been insti- International Labour Organisation (ILO) tutionalised through the Westphalian Sys- and the World Bank that are described along tem, has since the end of World War II been with their agreements as well as their activi- increasingly supplemented and weakened ties, since they have been influencing Chi- due to the foundation of international institu- na's practical policy-making in the fields of tions – particularly the United Nations. This social policy and social law by means of their tendency is reinforced through economic glo- modes of action – starting from the elabora- balisation. The international institutions and tion of legal regulations and political deci- organisations intervene in various ways in the sions through to pilot projects in particular shaping of internal state policy by way of areas, as well as technical cooperation. norm-setting and particular activities and also play a significant role in regard to the en- Special focus is given to the ratification and hancement of interdependence among the implementation of norms and regulations relevant states. In the field of social security enacted by the UNO and the ILO since the they have been exerting equally great influ- end of World War I, as well as to the funda- ence on the political decisions and legislative mental principles of social security. Due to measures of the member states. the international norms pertaining to social law, various activities are carried out by the The transformation of the Chinese system of international organisations. This issue also social security, starting in the 1980s in paral- takes centre stage in this research paper. lel with the implementation of the opening- up policy, was during that period influenced Potential incompatibilities of Chinese stand- by external factors. In this process, the inter- ards with international law are identified and national organisations played a very active changes in Chinese law attributable to inter- role as norm-setters and as a platform for national law are delineated. The difficulty knowledge transfer and cooperation. Since lies in finding out whether these changes the description and analysis of the influence have truly been brought about by internation- exerted by the international institutions re- al factors or whether they were actually quire an understanding of the current Chi- caused by internal factors; further, whether nese system and of its development, this study they genuinely comply with the current inter- discusses the questions as to how and to what national system or whether they merely rep- extent the Chinese system of social security is resent a superficial concession in response to influenced by the international institutions. international pressure. A further problem is the instability of the Chinese system. The

109 REPORT 2008 – 2009

Iris Meeßen, Ilona Vilaclara, Michael Schlegelmilch and Prof. Dr. Stephan Rixen at the Scientific Dialogue on 14 December 2009.

system of social security has since the 1980s the high performance level of social stand- changed rapidly and constantly, and this ards. On the other hand, cooperation at po- transformation process has still not come to litical and technical level has been crowned an end. At this stage, it is impossible to say with success. Despite the fact that conflict- precisely which of the imported doctrines, ing opinions are as yet inevitable in such co- concepts and measures will eventually take operation, it is a positive experience for both root in the Chinese system, and which will be sides to promote through dialogue, common deemed unsuitable and be discarded. Ac- research projects and knowledge transfer the cordingly, it is difficult to specify the scope mutual approach between the two cultures. and extent of international influence. The international organisations have come up with different approaches regarding the The examination shows that cooperation be- configuration of social security. They have tween the Chinese government and the in- developed various primary areas of responsi- ternational organisations is determined by bility and models for China. Their former China's foreign policy and by changes in in- main areas of work can essentially be distin- ternational relations. It is also closely linked guished, yet it is hard to say which provisions to governmental development plans and to are more successful in China. The accept- the strategic goals of the international organ- ance of particular models or approaches isations. Due to historical, cultural and ideo- stands in direct connection with governmen- logical differences, however, conflicting in- tal development targets and strategies, which terests and enormous differences still exist in turn are continuously adjusted in accord- between the two sides. The implementation ance with economic and societal changes. In of conventions on human rights and of social the 1980s and 1990s, a liberal economic standards has so far been limited to a super- policy used to be the main tendency in Chi- ficial level. The understanding of the human na; accordingly, the government then fa- rights concept shows a clash of values be- voured the three pillar pension insurance tween the Chinese and the international sys- model advertised by the World Bank. The tem; problems in regard to the ratification of market-oriented health reform was also ILO conventions, however, are mainly due to strongly influenced by liberal ideas. Yet,

110 III. PROMOTION OF JUNIOR RESEARCHERS these reforms encountered difficulties and gelmilch, Markus Schön and Ilona Vilaclara, resulted in a number of social problems. who started their research work at the Insti- Hence, the "people-oriented" development tute between October 2007 and March 2008. strategies played by the UNO and the ideas They are engaged in various areas of social of the ILO on the expansion of social secu- benefit provision that cover both provident rity, as well as the promotion of employment provision systems as well as relief and support attracted a great deal of interest in China in systems. The comparative law projects re- the first decade of the 21st century. spectively use Germany as a basis for com- Dongmei Liu parison with the European countries Sweden (Meeßen), Switzerland (Neueder), Spain (Schlegelmilch), Austria (Schön), and France 2. Doctoral Group: "The (Vilaclara). In regular monthly group meetings, the doc- Triangular Benefit toral students developed fundamental con- Delivery Relationship cepts and the methodology, and clarified individual issues. These meetings were sup- in Social Law" plemented by intensive seminars, where the current status of each project was presented The second doctoral group is devoted to the and related topics could be discussed. topic of "The Triangular Benefit Delivery Re- lationship in Social Law". A multiple legal The startup of the doctoral group was marked relationship of this sort is formed in cases by a several days' retreat that took place in where third parties are included in the deliv- Gerating near Traunstein in January 2008 in ery of services or benefits in kind that are not order to define the fundamental require- delivered by the public funding agency. The ments for the dissertations, as well as to dis- involvement of third parties raises questions cuss the methodology for the legal compari- and issues, which are examined by the doc- sons and to specify the individual research toral group from various perspectives. topics. Two doctoral students (Neueder, Vila- clara) took part in the PhD Workshop for The inclusion of the provider is effected in Young Researches on the topic of "Compari- several phases. The general provision of ser- son of Social Protection" offered by the Eu- vices through the provider is followed by the ropean Institute of Social Security in Graz. actual provision of services, as well as a phase At the doctoral seminar of Deutscher Sozial- of control and of potential liability in the rechtsverband e.V. [the German association event of deficient provision. In the selection for social law], held in Jena in June 2008 and procedure, governmental influence can be organised by Ulrich Becker and Eberhard exerted during the various phases of service Eichenhofer (Jena University), as well as at provision on cost control and quality assur- two further doctoral seminars held in Bene- ance, and thus also on economic efficiency. diktbeuren in February 2009 and at Frauen- This is effected by way of unilaterally sover- chiemsee in July 2009, the members of the eign instruments such as administrative acts doctoral group were, together with the re- or common recommendations, as well as co- maining doctoral students of the Institute, operative instruments like framework con- given the opportunity to present the current tracts, provision contracts and individual status of their dissertations and to discuss contracts. These issues are discussed via fundamental questions. On this occasion the group work and by means of combining the idea was formed to join the preliminary find- individual findings from the different indi- ings and to discuss them in dialogue with vidual projects; further, overarching struc- scientific experts from the field of service tures and principles of service provision law provision law. Such a dialogue was held are elaborated in regard to social law. The with Stephan Rixen (Kassel University) and project also explores the question to what ex- Thorsten Kingreen (Regensburg University) tent the knowledge acquired through this on 14 December 2009. The findings gath- research can be utilized for current discus- ered in the preparatory phase and in the dia- sions concerning general administrative law. logue shall be published shortly in a joint ar- The members of the doctoral group are Iris ticle. Meeßen, Magdalena Neueder, Michael Schle- Ilona Vilaclara

111 REPORT 2008 – 2009

Swedish law on the basis of a factual starting position. This starting position is made up of two components: the first refers to an em- ployee, i.e. a person who is able to work, who has re- ceived initial training, yet who is unemployed or at risk of becoming unemployed or who wishes to improve his or her occupational status. In order to solve this prob- lem, or to change the situa- tion, he/she will participate in a further education pro- gramme. The second part of this basic situation in- volves the inclusion of a third party in the provision of such a further education programme. Further edu- cation programmes can in principle be provided by Michael Schlegelmilch, Magdalena Neueder, Ilona Vilaclara tertiary institutions, voca- and Kyung A Choi (front), Markus Schön, Nikola Wilman, Iris tional colleges, adult educa- Meeßen, Dongmei Liu (back) and Prof. Dr. Ulrich Becker during tion centres, associations, the doctoral seminar at Abtei Frauenwörth (29 – 31 July 2009). private third parties, local authorities or by employers. 2.1. The Provision of Further Education However, the comparison merely considers Programmes for Employment programmes that are provided on an external Promotion Through Third Parties basis, i.e. by third parties as opposed to a funding and financing governmental agency. Both in politics and in the involved areas of the humanities, the importance of being able This second part of the basic situation results to boast a good education has been repeat- in a triangular benefit delivery relationship, edly emphasised; further, it has been prog- since there are three (main) actors involved in nosticated that educational law will develop the programme: The participant, the govern- further – it remains questionable, however, if mental (financing, funding) agency and the this is the case. A particularly ignored area in provider of the further education programme. this context is further education. Its signifi- In the area of (further) education law there cance is not only justified in the light of tech- are not only tripartite legal relationships as nological progress, the latter of which renders regards the regulation and promotion of fur- the further training of employees necessary ther education programmes, but to a great in regard to software programs even in non- extent also bipartite legal relationships, for in- technical professions. Demographic develop- stance in the context of subsidies granted for ments, too, result in the requirement to focus the mere financial support of further educa- on retaining the employability of individuals tion programmes. Yet, in such cases, too, a by means of further training. This is aggra- purely factual tripartite relationship exists be- vated by the fact that in the industrialised tween the provider, the participant and the countries the economic and socio-cultural state or, respectively, the intermediary agency. development requires people to demonstrate The latter could be the Federal Employment more and more competencies, particularly in Agency (Bundesagentur für Arbeit) in the case working life. of employment promotion law or, if subsidies Methodically, the dissertation draws a func- are involved, the respective funding founda- tional comparison between German and tion or agency.

112 III. PROMOTION OF JUNIOR RESEARCHERS

The dissertation describes the regulation net- State regulation is required if third parties are work typifying the provision of such further involved in the performance of public tasks: education programmes, focusing on the main formally, in regard to the cooperation between aspects of benefit and service delivery (ac- administration and private providers, the reg- cess/inclusion, financing, quality assurance). ulation of the allocation of responsibilities Thus, a "tool box" is generated for the regula- between the state and third parties and in re- tion options available to the state. Against gard to governmental selection decisions; this background, it can be assumed that in substantively, in regard to the assurance of the course of a general political advance to- the objectives aimed at by means of the gov- wards a liberalisation of steering instruments, ernmental measures. Public welfare is thus and thus towards an enabling state, the self- ensured by way of regulation, i.e. by creating regulating capabilities of society and/or the a normative framework for the involvement of market are utilized, in order to extend the third parties. It can be assumed that the ex- scopes of action of the parties involved. The posed position of the disabled citizen who is Swedish system is to be compared to ours entitled to benefits – exposed through the along the same lines: Swedish law is charac- right of self-determination, which was up- terised by a different legal culture, meaning graded only through the 2006 UN Disability that the degree of regulation is lower than in Convention – plays a relevant role in this or- Germany. Taking thus an overall look at the ganisation of social benefit delivery. When regulatory instruments, the retention of norms delivering state benefits via third parties, the must also be seen as a steering tool; a compre- state or, respectively, administrative entities hensive legal superimposition as is common that have become independent and who are in Germany is not mandatory. Sweden is also responsible for the delivery of social benefits, particularly interesting as a comparative coun- entrust(s) private agencies with responsibili- try, because further education measures are ties. Consequently, it makes sure that the po- to a much greater extent than in Germany in- sition of the disabled person as a recipient of corporated in an overall educational system benefits is not affected in a negative way. Self- and are also evaluated and operated accord- determination also implies the necessity for ingly as part of an overall concept. choice, both in regard to the measure and to Iris Meeßen the provider. For one thing, particular regula- tions can thus be expected in the examination of the legal framework, and for another, areas 2.2. Occupational Rehabilitation of of conflict may be assumed where the right of Persons with Disabilities. Normative self-determination – despite or precisely be- Framework and Significance of the cause of these standardisations of the right of Right to Self-Determination in the self-determination – stand in the way of the Delivery of Social Services via Third general social welfare interest, of cost stability Parties – A Comparison of Laws in and cost cutting, of legitimisation, effective- Germany and Switzerland ness or of the efficiency of measures.

At the end of 2007, there were 6.9 million se- The dissertation is to contribute to the under- verely disabled persons living in Germany. As standing of the legal system in regard to Ger- of May 2003, only 2.2 million out of the 8.4 man service provision law. For one thing, it million disabled persons were part of the reviews the largely untapped field of service working population. This is also to be viewed provision in German Social Code Book IX against the general unemployment rate which (SGB IX) by putting it into the context of gen- rose from 5.3% in the year 1991 to 8.3% in eral issues regarding the involvement of third 2007. Social welfare expenditures spent on parties in the provision of social benefits, thus the inclusion of disabled persons amounted to describing this field in a comprehensive and 11.9 billion euros in 2007. Moreover, all those systematic way. For another thing, it explores persons are excluded from the statistics who the particularities of service provision in re- are disabled, yet not severely disabled, and gard to disabled persons with a view to self- those at risk of unemployment, who are in the determination and the plurality of benefits context of the prevention of unemployment systems. Beyond this independent aim of pro- often included in the group of recipients of viding a systematisation, i.e. of identifying benefits for occupational rehabilitation. principles in specific legal matters that can be

113 REPORT 2008 – 2009

distinguished especially in terms of their ob- sioners terminating their insurance contracts, jectives, the dissertation seeks to draw con- the focus is, above all, on occupational inte- clusions within the meaning of legal doctrine gration and thus on the implementation of the for the delivery of benefits under social law in principle termed 'integration before pension' Social Code Book IX (SGB IX). [Eingliederung vor Rente]. Magdalena Neueder Reflections on the judicial system are typically marked by comparative studies, and thus the matter is approached within the framework of 2.3. Pricing Regulation for Pharma- comparative law. Auxiliaries utilised for the ceuticals and Legal Limits – A systematisation and organisation of the Ger- Comparison of the Legal Situation man legal system are the comparison of differ- in Germany and Spain ent legal regulations reacting to the same task posed by the realities of life, as well as the The provision of medication is one of the core principles that are to be filtered out in this re- tasks of every health system. However, med- gard. In this process, the functionally compa- ical provision is becoming more and more rable legal norms are identified by way of expensive. This development is not solely putting them into relation with the social cir- restricted to the German statutory health in- cumstances, i.e. the lack of integration into surance. The national legislators and social the labour market or the impending loss of a benefit institutions therefore undertake con- job on the one hand, and disability on the stant efforts to effect, by means of relevant other. First, there is the issue of measures on measures, a decrease in or, respectively, stabili- the part of the state with respect to the occu- sation of medical expenditures in the health pational rehabilitation of disabled persons and systems. A central approach is pricing regula- their disability-specific requirements. This is- tion for pharmaceuticals through the state or sue is linked to the question concerning the public agencies. The conceptual meaning of involvement of a private provider in the provi- pricing regulation for pharmaceuticals forming sion of social services for the occupational re- the basis of the examination includes measures habilitation of disabled persons. In this regard, on the part of public agencies which exert spe- the question is how the law responds to a po- cific influence on the price formation of recov- litical decision facilitating the involvement of erable pharmaceuticals borne by the health private providers in the fulfilment of public system. If the production, distribution and dis- tasks. The next step discusses the actual ser- pensing of pharmaceutical products is carried vice provision in regard to the occupational out by private third parties, as is the case with rehabilitation of disabled persons. the legal systems of the countries in question, the following drug prices are to be distin- Switzerland represents an appropriate country guished at the various points of the distribu- for comparison, since on the one hand the tion chain for pharmaceutical products: the common roots in administrative law give rise manufacturer's price, the price of the whole- to the assumption that organisational princi- sale traders and the pharmacy retail price. ples concerning the involvement of third par- ties can be identified relatively easily, but also The aim of the study is to describe the instru- that the differences that are to be expected ments used in the pricing regulation of phar- will yield findings relevant for German princi- maceuticals in Germany and Spain, and to ples pertaining to service provision law. On measure their limitations on the basis of the the other hand, since the inclusion of an anti- provisions defined by national constitutional discrimination norm in the Swiss Constitution law and Community law. In this context, find- and the commencement of the Act on Equal- ings are to be gathered on the question to what ity for People with Disabilities (BehiG) in extent the actual contributions of pharmaceu- 2002, which introduced the concept of disa- tical entrepreneurs, wholesale traders and bility into the Swiss legal system for the first pharmacists – who all participate in the provi- time, an increasingly important role has also sion of pharmaceuticals as a social benefit – been played by issues regarding disability pol- represent an administrative activity carried icy. In view of the constantly rising expenses out by private agencies, and how these contri- for disability pensions on the part of disability butions are to be qualified in terms of doc- insurers, and due to the unlikelihood of pen- trines of social law and administrative law.

114 III. PROMOTION OF JUNIOR RESEARCHERS

Spain has been selected for the legal com- following aspects: compatibility of price regu- parison, because Spanish law contains a var- lation instruments with Community law, or- iety of instruments of direct or indirect price ganisation of drug supply and infringement of regulation. Unlike in Germany, for instance, the rights of manufacturers, wholesale traders the manufacturers' selling prices for pharma- and pharmacists involved. The dissertation ceuticals are in Spain predefined by the state. also explores the question as to what extent However, there are also fixed price controls particular regulatory instruments are system- and a sales regulation effected by the manu- specific. facturers. The Spanish health service oper- Michael Schlegelmilch ates at (regional) state level and has, so far, not often been the subject of investigations in comparative law. In view of the countries se- 2.4. Individual Cooperation for Young lected for the comparison, the supranational People – Service Provision Law in the level of European law must be included in Area of Child and Youth Services in the study. Germany and Austria

The general part of the dissertation elabo- Governmental action that contributes to the rates on fundamental concepts, as well as on successful raising of children and young peo- the various forms and functions of drug sup- ple has in recent years received increased ply and of pricing regulation of pharmaceuti- public attention again. Within the triad of cal products. In this regard, the study ex- measures pertaining to family policy (mone- plores the role of the entrepreneurs and tary benefits, infrastructural services, time wholesale traders, as well as that of the phar- policy), particular focus currently lies on the macists, in the context of their service provi- provision of infrastructure facilities, which is sion in the field of drug supply. Pricing regu- illustrated particularly well by the massive lation is to be included in the concept of expansion of daycare facilities for children. social benefit delivery via third parties. Fur- ther, it is vital to address the economic con- From a functional perspective, these estab- texts of the pharmaceutical market. lishments count among the services under public responsibility which support, apart By means of the investigation framework de- from the family and the educational system, fined in the general part, the country reports the development of the young person into an provide an analysis of national price regula- independent and socially competent person- tion instruments and their constitutional ality, and which can be summarised in terms limitations, particularly in regard to the af- of their entirety of general funding pro- fected fundamental rights held by the indi- grammes and individual assistance under the vidual elements in the distribution chain for heading of child and youth services. pharmaceutical products. In order to evalu- ate these limits, the relevant aspects are Due to their varying objectives ranging from examined, for instance the relationship be- family supplementation and support schemes tween the claim to social benefits and pricing to family replacement schemes, youth wel- regulations, or the ways for pharmaceutical fare services vary in the quality of their legis- businesses, wholesale traders and pharma- lation between objective legal responsibili- cists to access the health market. It can be ties and individual legal claims, and yet they noted that price control regulations are mul- are linked via overarching structures and tifunctional. The intended purposes are not principles in terms of their actual service de- restricted solely to the health system and its livery. This is shown by a comparison of the financial stability. There are instruments, for legal systems of Germany and Austria, which instance the German regulation of uniform brings out and analyses these structures and pharmacy retail prices, that are (beyond the principles, focusing on the particularly cost- confines of social benefits law) aimed at the intensive establishments of child daycare, maintenance of an extensive supply infra- centre-based educational support, and of structure. centre-based open youth work.

The comparative part examines the found so- Traditionally, these establishments are in lutions, among other things, in terms of the both countries largely operated by non-profit

115 REPORT 2008 – 2009

agencies (associations of voluntary welfare, forms of cooperative action can be found. churches, self-help initiatives etc.). But also While these cooperative instruments were the public funding institutions (mostly local standardised in Germany in the 1990s with authorities) often provide their own estab- the introduction of Social Code Book (SGB) lishments and thus act as funding bodies VIII and due to some amendments to the lat- taking responsibility both for the fulfilment ter, they are presently only gradually making and guarantee of services, which may lead to their way into Austrian legislation. The intro- certain tensions as regards the inclusion of duction of the support plan is therefore one private providers. However, this arrangement of the main objectives of a currently sched- between the state and specific social actors uled revision of the Austrian youth welfare is about to be dissolved. After all, more and law, which in this process is to be renamed to more private commercial providers are par- "Child and Youth Welfare Act" – thus repre- ticipating in "market developments" pertain- senting an interesting example of legal im- ing to child and youth services, rendering the port; this import can be determined in the financial privileges of non-profit agencies in- comparative part of the study at hand. creasingly questionable especially in the light of European economic and competition law, Contracts under public law have up to date which serves as the normative benchmark in not been subjected to any positive-legal stand- the two reference countries. ardisation in Austrian general administrative law, a fact attributable also to the highly for- Furthermore, it can be prognosticated that malistic instrument of legal protection against traditional subsidy funding for private pro- administrative action. Even though, at first viders will decline to the benefit of financing glance, there appear to be great similarities methods based on reciprocal service con- between the two countries, the differences tracts. It is not only European state aid law concerning the details of legal doctrine starkly that acts as a cog in this development cycle, stand out, a fact that is rooted in the different but also quality disputes currently held administrative traditions. mainly for reasons of child protection. Markus Schön

Moreover, in times of deficient municipal budgets, economic considerations factor in 2.5. Steering Mechanisms Regarding the obligation for cost-cutting financing strat- the Efficiency of Medical Devices egies. Such measures are limited where they Provision – A Comparison of Laws inadmissibly restrict the rights of choice on in Germany and France the part of the beneficiaries, as well as the imperative to facilitate a plurality of funding Due to changes in demography, the provision agencies on the provider side. Both originate of medical devices for health insured persons in the so-called individualisation principle has in recent years become more and more pertaining to child and youth services, which important in the European health systems, is based on the assumption that the care and because the number of chronically ill indi- education of young people is to be effected viduals dependent on medical devices has on a highly individual basis. Accordingly tar- been growing. Benefits for medical devices geted personal services are characterised by in statutory health insurance are therefore of the fact that beneficiaries serve as co-produc- great significance, to an increasing extent ers of these services. Therefore, the concept also in financial terms. Technical innovations of cooperation is particularly emphasised in and further developments are also bound child and youth services. The cooperation to lead to a sharp rise in costs in the field of principle connected to youth welfare law pro- medical devices provision in statutory health vides that all actors involved in the service insurance. However, the expenses of the delivery process cooperate voluntarily and on statutory health insurances must be limited equal terms; that is why both in the service due to restricted financial means. In this re- provision relationship between the funding gard, it is important to prevent cost savings at agency and the beneficiary (support plan), the expense of service quality. This area of and in the procurement relationship between tension between cost pressure and quality the service provider and the funding agency assurance must be kept in balance via gov- (provision and service contracts) various ernmental regulation.

116 III. PROMOTION OF JUNIOR RESEARCHERS

Doctoral Seminars

10 – 12 January 2008 Introductory Seminar to the doctoral group on the "Triangular Benefit Delivery Relationship in Social Law", Gerating near Traunstein. Ulrich Becker, Martin Landauer, Iris Meeßen, Magdalena Neueder, Michael Schlegelmilch, Markus Schön, Ilona Vilaclara The introductory seminar concentrated on the basic dissertation requirements, the precise definition of the topics, the methodology of comparative law analysis, as well as on the concept of the "benefit delivery relationship".

9 – 11 February 2009 Doctoral Seminar, Kloster Benediktbeuern. Ulrich Becker, Kyung A Choi, Iris Meeßen, Magdalena Neueder, Michael Schlegelmilch, Markus Schön, Daniela Schweigler

29 – 31 July 2009 Doctoral Seminar, Abtei Frauenwörth, Frauenchiemsee. Ulrich Becker, Kyung A Choi, Dongmei Liu, Iris Meeßen, Magdalena Neueder, Michael Schlegelmilch, Markus Schön, Daniela Schweigler, Ilona Vilaclara, Nikola Wilman The main focus of both seminars was on the presentation and discussion of the progress of the individual dissertation projects.

In order to raise the efficiency of medical de- ity and financial feasibility in the provision of vices provision in German statutory health medical devices in statutory health insurance, insurance, the year 2007 saw a significant le- with findings based on the most recent chang- gal amendment. With the Act to Strengthen es in German Medical Devices Law. This is to Competition in Statutory Health Insurance be effected by way of comparing German and (GKV-WSG) entering into force on 1 April French service provision law. 2007, the approval procedure for service pro- viders was abolished and replaced by a mean- Contrary to German Medical Devices Law, while exclusively contract-based system. its French counterpart is characterised by a Sickness funds in Germany can now call for uniformly sovereign and centralised system tenders and conclude selective contracts of regulations. The reimbursement tariffs with the best bidders. The legislator justified for medical devices are negotiated between this reform stating that it wanted to promote a central committee, i.e. the Economic contract competition and price competition. Committee for Health Products (Comité In order to prevent savings from being detri- économique des produits de santé – CEPS), mental to the quality of medical devices and and the manufacturer or trader of a product, services, it has been stipulated as an expedi- and subsequently fixed by ministerial order. ency requirement for the conclusion of con- Contrary to the competitively organised and tracts that the provision of medical devices decentralised selective German system, the must be qualitatively guaranteed. French medical devices system is organised in terms of sovereign, centralised and integrative However, the issue regarding this conflict be- structures. The comparison of these contrast- tween quality and efficiency is not a specifi- ing systems shall provide information on the cally German problem. Due to limited re- question as to which legal steering instru- sources, many European health systems are ments are utilised in order to influence the faced with the problem of having to cut costs costs and quality of the respective service. and observe sufficient quality standards at the Ilona Vilaclara same time. The objective of this dissertation is to describe and compare the steering mech- anisms intended for ensuring sufficient qual-

117 REPORT 2008 – 2009

3. Individual Dissertation tion in this area is remarkable. Beyond that, it needs to be clarified whether it is constitu- Projects tional to make such a configuration along the lines of social security contributions. 3.1. Social Security Contributions Furthermore, the protection of the claim to social security benefits is to be discussed. In Many changes in today's society, for instance Korean pension insurance, the individual the increase in life expectancy and globalisa- claims to social security benefits can be limit- tion, raise the question as to how long the ed under certain circumstances. concept of the welfare state can be main- Pension payments are to be restricted or fully tained. Most states are trying to find solutions cut, for instance, if the income of the person to the issue as to how to gradually improve claiming benefits exceeds a certain limit. their national systems of social security and to Even though this compensation option can counteract financially adverse effects. One be regarded as a necessary way out from the potential solution could be to make the re- momentary threat of financial adversity, it quirements for claims to social security bene- will have to be decided from a constitutional fits more stringent and to lower the level of perspective whether pension payments can social security benefits. With this in mind, be reduced for this purpose. If this is the the national (statutory) pension insurance in case, the question is how the nature of social the Republic of Korea has recently been limit- insurance and social security contributions ed to basic pension, and further steps have limits these restrictions. been taken in order to reduce individual What is more, pension payments are reduced claims to social benefits. in accordance with the Government Em- ployee's Pension Act if a (former) govern- As for basic pension, the question arises ment employee has received at least one cus- whether the redistribution function of the todial sentence during his period in office. pension insurance should deserve more atten- However, reductions can only be effected for tion. If national (statutory) pension insurance the part of the pension contributed to by the only assures a basic pension, meaning that state. Therefore, the essential differences further provision is to be ensured individually, are to be determined between the part solely the estimation could be correct that national formed by way of state contributions and pension insurance should focus more on that which is generated by pension contribu- the redistribution function. There is also the tions on the part of the individual govern- question whether social security contribu- ment employee. tions could be calculated on a progressive Since there is no corresponding restrictive basis. A decisive factor in this regard is the regulation in the National Pension Act, it question whether the redistribution function may be interesting to investigate the signifi- can be defined as an essential objective and cant discrepancies concerning employer-re- criterion of social insurance. Furthermore, an lated contributions between the National answer to the constitutional limits of such Pension Act and the Government Employ- redistribution through social security contri- ee's Pension Act. In this context, the ques- butions is to be found, because this redistri- tion as to the constitutional limits, restric- bution consequently leads to an interference tions and the protection of property guarantee with the fundamental rights of the party obli- should be resolved. gated to pay redistributed contributions. The question of the redistribution function The dissertation shows the mentioned prob- of social security contributions also arises in lem areas in the context of a comparison be- connection with the calculation method for tween the legal systems of Germany and Ko- health insurance contributions, which also rea. A comparison of these two legal systems requires constitutional justification. Due to is appropriate, because German social insur- the principle of benefits in kind and the prin- ance had served as a model for the establish- ciple of services, all persons insured with the ment of the Korean social insurance system. Korean health insurance will, without excep- At the same time, an attempt shall be made tion, be granted the same services; contribu- to transfer to Korean law the legal solutions tions are, however, to be paid according to offered by German social law. income. That is why the redistribution func- Kyung A Choi

118 III. PROMOTION OF JUNIOR RESEARCHERS

3.2. The Rationing of Public Health a range of ethical and legal issues and puts a Services from a Legal Perspective strain on the mutual trust between physi- with Regard to the English and cians and their patients. The political debate German Health Care Systems on health issues in Germany has so far fo- cused on the revenue side, on corresponding In view of the shortage of resources every so- changes in financing structures and on the ciety must make fundamental decisions re- activation of profitability reserves (rationali- garding the question as to which funds it in- sation). There is, however, much indication tends to make available to the system of that these measures may delay the necessity public health care and how these funds are of (explicit) rationing, but that the latter can- to be implemented within the system. In not be prevented on a permanent basis. these times of demographic change and of Based on this premise, it is imperative to dis- continuous medical and technological cuss potential criteria and limits in regard to progress this need for decisions is becoming a prioritisation of health services in statutory all the more urgent. Although the impact of health insurance and to service limitations developments in demography and medical (rationing) necessarily associated therewith. technology on the cost structure of the Ger- In this regard, it must be determined which man statutory health insurance (GKV) is, as services are to be made available primarily yet, largely unclear, it can be assumed that and which measures are to be eliminated al- not all things that are medically sensible and together from the service catalogue of statu- feasible can also be financed through soli- tory health insurance. However, apart from darity-based contributions in an aging so- these subject-related criteria relating to ra- ciety, unless compulsory public health care tioning decisions, formal criteria in terms of contributions were to be inflated. The statu- decision procedures and competences must tory sickness funds have announced further also be determined. levies to be paid by the insured already as of 2010. At the 112th German Medical Assem- Against this background, the dissertation bly the President of the German Medical As- provides an analysis of potential rationing sociation [Bundesärztekammer] initiated a criteria and assesses them from a juridical debate on the necessity of explicit prioritisa- perspective. To that end, the rationing crite- tion (in terms of a – time-based – ranking of ria (e.g. medical urgency, cost-benefit ratio illnesses and treatment options as a basis for etc.) developed in the different disciplines allocation decisions) and rationing (in terms (ethics, medicine, economics) are described of a restriction of medically necessary or use- systematically in a theoretical part at the be- ful health services for financial reasons) of ginning of the dissertation. Furthermore, this health services in German statutory health part investigates which rationing criteria fol- insurance. This debate has been present in low from (constitutional) law itself. other countries and in science, particularly in health economics and health ethics, since Apart from the rationing criteria, the differ- the 1980s. In Germany, no health-political ent types (e.g. explicit versus implicit) and discussion on the topic of explicit rationing methods of rationing (guidelines based on in statutory health insurance, i.e. of rationing benefits evaluation, waiting lists, "gatekeep- according to explicitly stipulated, generally ing", budgeting etc.) are also commented on. binding criteria on a level higher than the On the basis of two country reports, a com- doctor-patient-relationship, has so far taken parative analysis is provided of the English place due to it (understandably) being politi- National Health Service (NHS) and of the cally unpopular. This unpopularity also stems German statutory health insurance. Ration- from the possibility of private acquisitions of ing is an omnipresent feature in the English medical care leading to a generally feared NHS, and it comes in multifarious types and "two-tier medical system". The alternative, forms. However, in Germany too, rationing in i.e. hidden limitations of services and bene- the statutory health insurance system is be- fits, where any necessary allocation decisions coming an increasingly discussed topic. The are left to the respective physician due to a country reports are to systematically describe, shortage of resources, is to some extent al- where applicable, the rationing criteria, ready considered to be a reality in the Ger- methods and procedures in the English NHS man health system. Implicit rationing raises and in German statutory health insurance.

119 REPORT 2008 – 2009

Subsequently, it shall be determined to what These developments are taken as a starting extent these criteria and methods comply point in this dissertation to examine the more with the legal provisions in Germany and general issue regarding the question which whether measures of (explicit) rationing, instruments public authorities use to exert which in the NHS are already generally ap- influence on inpatient long-term care, thus plied, can already be noticed in the system of assuming responsibility for this area. These the German statutory health insurance, too, measures initiated by public bodies are sys- or respectively, whether they can be trans- tematised in the dissertation and classified ferred to that system. with a view to their legal mechanisms. For one thing, they concern the ways to access The objective of the dissertation is to deter- inpatient long-term care services, i.e. through mine by means of the analysis, classification the relevant social benefits regimes, as well and legal evaluation of the individual ration- as through infrastructure measures in gener- ing criteria and methods based on the coun- al. For another thing, they refer to those gov- try reports what scope the German legislator ernmental instruments that are used in the has in regard to a rationing of services/bene- effort to create a regulatory impact on service fits in statutory health insurance. Particular provision for the purpose of improvements in focus in this context is to be given to the re- quality. spective decision-making competences and To begin with, a detailed description of these procedures. measures is provided with relevance to the Nikola Wilman English legal system, to be followed by an evaluative legal comparison to the instru- ments applied in Germany. The focus of the 3.3. State Responsibility for Inpatient dissertation is on the identification, descrip- Long-Term Care Services – A tion, analysis and classification of the differ- Comparative Legal Analysis ent regulatory instruments in order to dem- Between England and Germany onstrate in what way the state assumes responsibility in the area of inpatient long- The aging of society anticipated for the mem- term care and which responsibilities it in ber states of the European Union will in the turn leaves to the respective private actors, decades to come lead to a significant in- i.e. particularly to the service providers and crease in demand for long-term care servic- persons in need of care. es. Despite all efforts to find other appropri- ate forms of accommodation, inpatient care Given the historical differences in social services will, in view of the expected increase benefits regimes that provide for inpatient particularly in very old long-term care pa- long-term care services, different service tients, continue to play a significant role. provision systems, too, have developed in the two jurisdictions. Against this background, The responses to current and future chal- differences are also found in the instruments lenges in inpatient long-term care are multi- used in governmental attempts to create a faceted. Germany has, by means of the most regulatory impact on the inpatient long-term recent amendments to Social Code Book XI, care sector. Especially in England, where the at federal level enshrined in service provision task of quality steering has been centralised law the development and implementation of and entrusted to a national regulatory body, so-called expert standards for quality assur- traditional and hierarchical command & con- ance. At state level, the legislative compe- trol approaches to regulation seem to be tences transferred through the reform of fed- dominant. The dissertation shows, however, eralism give rise to new supervisory care home that for one thing these sovereign regulation regulations, with often innovative approaches approaches are limited where it is no longer regarding the exertion of influence on the merely the structural requirements of service quality of care. In England, too, efforts have provision that are to be regulated, but where recently been increased to assure the quality aspects regarding the process and outcome of long-term care, and for this purpose a new of care services are also increasingly focused central regulatory authority – the Care Quality on in governmental steering efforts. For an- Commission – has been created. other thing, the dissertation shows that the hierarchical command & control instruments

120 III. PROMOTION OF JUNIOR RESEARCHERS are supplemented through a multitude of examined in this comparative legal study via measures that are based on completely dif- country reports on two important immigration ferent impact mechanisms. countries within the EU, namely Germany and Spain. As regards the topic of irregular The comparison with the German legal sys- immigration in Europe, these two member tem finally shows that particularly the supple- states differ especially in terms of their im- mentation of command & control instruments, migration policies. While Germany was for instance through information-related or known in the 1950s and 1960s as a recruit- competition-based approaches to influence ment country for foreign labour particularly the long-term care sector, is very common in from Southern Europe and Turkey, Spain has Germany, too. The analysis of steering instru- in more recent times evolved from an emigra- ments shows at the same time that the so- tion country to the most important immigra- called "enabling state" is not restricted in a tion country in the entire EU. According to particular way as regards the regulatory impact Eurostat, at last count at the end of 2009, the on the private sector, but that it uses a highly percentage of foreigners among the Spanish complex package of measures in order to at- population was at 11.6%; ten years earlier the tain its objectives. respective percentage was at a mere 1.9%. By Since the dissertation describes and analyses contrast, the percentage of foreign citizens in the legal configuration of the regulatory im- Germany has remained relatively stable for pact on the inpatient long-term care sector, it years. In both member states the issue of ir- follows a primarily normative approach. This, regular migration poses new challenges espe- however, is not possible without at the same cially for the social benefits systems. time drawing on the findings of empirically operating related disciplines, such as socio- Particularly in two important areas of this logical research in particular, or the health study, namely in European law and interna- care sciences. tional law, new insights have been gained. By Martin Landauer means of the Amsterdam Treaty of 1999 new competences were created in the field of im- migration and asylum policy within the EU, 3.4. Social Security Status of Migrants which specifically respond to rising migra- with Irregular Resident Status in tion to Southern European countries. These Germany and Spain – A Comparison new legislative competences are still limited. with Regard to Aspects of Yet, particularly with respect to the group of International and European Law migrants with irregular resident status and their claims to social security, it is remark- One central aim of the study is to find out able that this group has been considered only whether migrants with irregular resident sta- to a small extent by the directives in this har- tus in two EU member states are essentially monisation process. As regards migration, entitled to claim social benefits and to what the new competences merely facilitate the extent they can make use of this right. Claim- Council to enact minimum standards for the ing benefits can often pose practical prob- reception of asylum seekers, as well as for lems to beneficiaries, because the latter are the recognition of refugees and their social required to file an application with the com- protection. Rights to social benefits are, if at petent authority. This, however, may result in all, derived from Council Directive 2002/90/ their being reported to the foreigners' regis- EC defining the facilitation of unauthorised tration office, which in turn may lead to their entry, transit and residence, as well as from expulsion; therefore, contact with public au- Council Directive 2004/81/EC on human thorities is often avoided. Although many traffic victims. Minimum rights can also be migrants with irregular resident status are granted to some extent until the actual date entitled to benefits, they do not avail them- of expulsion in compliance with Directive selves of their rights – a contradiction which 2008/115/EC on returning illegally staying results in a "de facto lawlessness". third-country nationals. This is the first di- rective to stipulate regulations on the provi- These interrelations between aliens law and sion of medical emergency treatment and social law and their effects on the social secu- strictly necessary treatment to ill migrants rity status of irregularly residing migrants are with irregular resident status.

121 REPORT 2008 – 2009

Beyond that, there now exist internationally ried out between procedures where claimants recognised minimum standards which are used their right to hear a physician of their also known as "everyman's rights." The study choice and obtained an expert opinion from includes particular treaties pertaining to in- the latter, and procedures where no such ex- ternational law that deal with the question pert opinion was requested by the claimant. whether the state is only obliged to fulfil its In this context it will be interesting to see if negative obligations towards persons with ir- or, respectively, how the right to hear a spe- regular resident status, e.g. in the form of cific physician actually affects the duration of protection against deportation, or whether the proceedings, the result or the acceptabil- such persons are also entitled to positive ob- ity of a negative result in the proceedings on ligations in accordance with these contracts, the part of the claimant. The part of the dis- for instance to basic medical care. In this re- sertation pertaining to legal doctrine and the gard, the Grand Chamber of the ECHR has findings of the empirical study are to yield an in its decision on case N. vs United Kingdom, answer to the question as to what extent the more than ten years after its judgment on right to hear a specific physician in social case D vs United Kingdom, once more con- court practice promotes the attainment of firmed its negative stance on the matter. goals pursued by it.

In sum, it can be said that competence in the After defining a structure for the empirical field of social protection still lies primarily examination, questionnaires were designed with the national legislator. for judges and claimants representatives. Eve- Janire Mimentza ry social court in the German Federal Repub- lic was then introduced to the research project and at the same time asked for support. The 3.5. The Right to Hear a Specific courts play a major role in the success of the Physician (Section 109 SGG) in survey. For reasons of anonymity, the courts Social Court Practice have sole authority to select random proce- dures on which judges and representatives of The dissertation project, initiated and funded claimants are questioned. Beyond that, the by crime victim organisation Weißer Ring e.V. task of distributing the questionnaires also is to make a contribution to the debate on the lies with the courts. At the end of 2009, the sense and purpose, as well as the practical sig- pretest at the Social Court in Munich was nificance, of the right to hear a specific physi- completed. On the whole, the results give cian in social court procedures. This right has reason to expect the survey to be successful been established in Section 109 of the law nationwide. The survey will take place in the concerning social security tribunals and their first half of 2010. procedure (SGG). Since its introduction in Daniela Schweigler the year 1911, this procedural instrument has been under constant discussion regarding its sense and purpose. The abolition of Section 109 SGG has also been repeatedly urged. One part of the study, which deals with legal doctrine, examines which purposes are pur- sued by the right to hear a specific physician and how these purposes correlate. An empiri- cal investigation of the implementation and impact in social court practice is to show to what extent the right of application fulfils its objectives. In this regard, descriptive statisti- cal methods are applied and hypotheses are tested. Thus, it shall be examined how per- sons involved rate the quality and evidentiary value of expert opinions according to Section 109 SGG on the one hand, and of officially commissioned expert opinions on the other. Furthermore, a range of comparisons is car- Daniela Schweigler.

122 III. PROMOTION OF JUNIOR RESEARCHERS

3.6. Mediation in Social Jurisdiction

The pilot project "Mediation in Social Jurisdiction" in Bavaria, which started on 1 September 2006, relates to a new conflict manage- ment procedure that has been introduced into social court proceedings. Alongside judicial conciliation negotia- tions and litigation negotia- tions, there now also exist court-based mediation pro- cedures that deal with the solving of conflicts in dis- putes pertaining to social law. Due to the great success of the pilot project,mediation continues to be offered at Bavarian social courts. In Nikola Friedrich, state secretary Markus Sackmann and Prof. other German states, too, Dr. Ulrich Becker (front), together with 20 judges who trained mediation procedures are as mediators, at the Bavarian State Ministry of Labour and carried out at social courts. Social Affairs, Family and Women in order to present the Court-based mediation as- evaluation report on mediation (23 March 2009). sists the amicable resolution of conflicts in social court proceedings. is the appropriate measure in the actual case. Therefore, the dissertation does not only fo- If state legal protection is extended by a fur- cus on the question how mediation within ther conflict management procedure, it must the court can be integrated into the legal pro- be made sure that the constitutionally grant- cedure system and which conditions apply in ed protective rights are not illegitimately this regard, but also on the development of a limited. This also raises the question con- reference system. The reference system lays cerning the (future) configuration of media- down the reference criteria by which the tion within social courts. One reason namely, suitability for mediation of a specific conflict why mediation within German courts has so can be assessed, and determines the way far only been offered in the context of they are to be applied. projects is due to the fact that no legal frame- work conditions have been created yet by the The determination of the reference criteria is federal legislator. based on a conflict theory which facilitates a look at the conflict phenomenon not exclu- The dissertation examines mediation within sively under the aspect of a particular settle- social courts with respect to its constitution- ment procedure, for instance the court pro- al and procedural significance and deter- cedure and its conflict matter (e.g. a pension mines its need for regulation within the law claim). The conflict history, for instance, is concerning social security tribunals and their also included, as well as the stages of conflict procedure (SGG). For one thing, the media- awareness on the part of the conflicting par- tion procedure itself must be regulated, i.e. ties and the objectives pursued by them. for instance as regards the interplay of me- However, it is not only findings concerning diation procedures and court proceedings. the theory of conflict that are incorporated in For another thing, it needs to be examined the examination of the reference criteria. In how specific pending proceedings can be re- addition, findings from the empirical studies ferred to court-based mediation. After all, on the pilot projects regarding court-based mediation procedures can only lead to an ef- mediation are also used. The reference crite- fective settlement of a conflict if mediation ria are introduced in the form of a list of

123 REPORT 2008 – 2009

questions, by means of which the legally 4. Doctorates competent judge can determine the suitabil- ity of court proceedings for mediation. Supervision: Ulrich BECKER At the end of the dissertation, a personal le- gislative proposal suggests the integration of 2008: Dimitrios KREMALIS, "Die neueste court-based mediation in SGG; this proposal Rechtsprechung des EuGH zur grenzüber- is, above all, based on the developed refer- schreitenden Inanspruchnahme von Ge- ence system. The creation of an explicitly de- sundheitsleistungen", Ludwig Maximilian fined legal basis for mediation within the so- University (LMU), Munich. cial courts may help reinforce the aspect of conciliation in social court proceedings. 2008: Benno QUADE, "Das Grundrecht Nikola Friedrich auf Gewährleistung der Vertraulichkeit und Integrität informationstechnischer Systeme – Genese, Inhalt und Schranken", University of Regensburg.

2009: Maria GRIENBERGER-ZINGERLE, "Die Gewährung des sozio-kulturellen Exis- tenzminimums durch die Regelleistung im SGB II und den Regelsatz im SGB VII", Ludwig Maximilian University (LMU), Mu- nich.

5. Professorships

2009: Dr. Friso ROSS accepted a professor- ship of "Recht der Sozialen Arbeit" [social work law] at the University of Applied Sci- ences, Erfurt, Faculty of Social Studies.

124 IV. Events Organised by the Institute REPORT 2008 – 2009

1. Symposia, Conferences Peter Pick: Qualitätssicherung in der Pflege aus medizinischer Perspektive and Workshops [Quality assurance in long-term care from a medical perspective] 8 May 2008: Ingrid Hendlmeier: Beispiele anhand Information meeting: "Fördermöglichkei- der Qualitätsniveaus der BUKO-QS ten im 7. EU Forschungsrahmenpro- [Examples referring to the quality level gramm und Europäischer Forschungs- of BUKO-QS] rat" [Possibilities of Research Promotion Mona Frommelt: Implementierung von within the 7th Research Framework Pro- Qualitätsstandards in Einrichtungen gramme and the European Research Coun- der Altenpflege [Implementing quality cil], Max Planck Institute for Foreign and standards in elder care institutions] International Social Law, Munich. Harry Fuchs: Qualitätssicherung in der Pflege – kritisch reflektiert (Quality Ulrich Becker: Welcome address assurance in long-term care – A critical Werner Klotzbücher: Research and appraisal] scholarships funded by "Brussels" Ulrich Becker, Gerhard Igl: Conclu- Christiane Wehle: Der Europäische sion Forschungsrat [The European Research Council] Reinhard Kienberger: ERC Starting 30 June – 1 July 2008: Grants: Personal account Austrian-German seminar: "Sozialrechts- koordination in der Europäischen Union" [The European Coordination of 12 – 13 June 2008: Social Security Legislation] (trESS seminar Conference: "Qualitätssicherung in der 2008), Bernd Schulte in cooperation with Pflege" [Quality Assurance in Long-Term the University of Salzburg, Salzburg. Care], in cooperation with the Institute of Social Law and Social Policy in Europe of Jörg Tagger, Rob Cornelissen: Jüngste Christian Albrecht University (CAU) Kiel, Entwicklungen im Bereich der Verord- Max Planck Institute for Foreign and Inter- nung 883/2004 einschließlich neuer national Social Law, Munich. Gesetzesvorhaben [Recent develop- ments in the realm of the provisions of Ulrich Becker: Welcome and Regulation (EC) No. 883/2004 includ- introduction ing the latest legislative projects] Gerhard Igl: Rechtlicher Rahmen für Bernd Schulte: Aktuelle Rechtspre- die Qualitätssicherung in Deutschland chung des EuGH zum Europäischen [Legal framework for quality assurance koordinierenden Sozialrecht und zu in Germany] verwandten Rechtsfragen [The current Bernd Schulte: Europäische Vorgaben jurisdiction of the European Court of für die Qualitätssicherung [European Justice concerning European social provisions for quality assurance] security coordination law and related Friso Ross: Qualitätssicherung und legal questions. Pflegegeld in Österreich [Quality assur- Rolf Schuler: Aktuelle Rechtspre- ance and care allowance in Austria] chung Deutschland [Current jurisdic- Christina Walser: Qualitätssicherung tion in Germany] und persönliches Budget in den Nie- Walter J. Pfeil: Österreichische Ju- derlanden [Quality assurance and per- dikatur zur VO (EWG) 1408/71 [Aus- sonal budget in the Netherlands] trian case law relating to Regulation Martin Landauer: Zentralisierungs- (EEC) No. 1408/71] tendenzen in der Qualitätssicherung in Bernhard Spiegel: trESS European England [The trend towards centralisa- report 2007 – Überblick über einige tion of quality assurance in England] Querschnittsprobleme und ausgewählte Thomas Klie: Entwicklungen von Anwendungsfragen [The trESS Euro- Standards für die Qualitätssicherung pean report 2007 – An overview of [Developing quality assurance standards] several cross-section problems and

126 IV. EVENTS ORGANISED BY THE INSTITUTE

selected questions regarding implemen- Peter A. Köhler: Das Vorsorgeverhältnis tation] – die richtige Frage für einen Rechts- Stamatia Devetzi: Koordinationsrecht- vergleich? [The provision relationship liche Fragen bei Familienleistungen aus – The right question for a comparative deutscher Sicht [Problems of coordina- law approach?] tion law with regard to family benefits from a German perspective] Das Leistungsverhältnis in Förderungs- Silvia Holzmann-Windhofer: Koordi- und Hilfesystemen [The social benefit nationsrechtliche Probleme bei Famili- relationship in promotion and assist- enleistungen aus österreichischer Sicht ance schemes] [Problems of coordination law with Karl-Jürgen Bieback: Die Entwicklung regard to family benefits from an Aus- der "social assistance" in Deutschland, trian perspective] Frankreich und im Vereinigten König- Anne Lenze: Koordinationsrechtliche reich – von den "armen Armen" zu den Probleme bei Pflegebedürftigkeit aus "berechtigten Armen" [The develop- deutscher Sicht [Problems of coordina- ment of "social assistance" in Germany, tion law with regard to long-term care France and the UK – From the "poorest needs from a German perspective] poor" to the "legitimate poor"] Walter J. Pfeil: Koordinationsrechtliche Gerhard Igl: Soziale Hilfe und soziale Probleme bei Pflegebedürftigkeit aus Förderung in Frankreich im Rahmen österreichischer Sicht [Problems of der "action sociale" [Social assistance coordination law with regard to long- and social advancement in France in term care needs from an Austrian per- terms of the "action sociale"] spective] Bernd Schulte: "Fördern und For- dern" – Aktivierung am Arbeitsmarkt in Deutschland und Großbritannien 3 – 4 July 2008: ["Promoting and demanding" – Labour Symposium: "Rechtsdogmatik und market activation in Germany and the Rechtsvergleich im Sozialrecht" [Legal United Kingdom] Doctrine and Legal Comparison in Social Law] on the occasion of Hans F. Zacher's Das Leistungserbringungsverhältnis 80th birthday, Kardinal-Wendel-Haus, Mu- [The benefit delivery relationship] nich. Maximilian Fuchs: Sachleistungs- und Kostenerstattungsprinzip – eine Barbara Bludau: Welcome address aktuelle Bestandsaufnahme [In-kind benefits and cost reimbursement prin- Introduction: ciple – A current appraisal] Ulrich Becker: Rechtsdogmatik und Peter Trenk-Hinterberger: Das Persön- Rechtsvergleich im Sozialrecht [Legal liche Budget – eine neue Leistungs- doctrine and legal comparison in social form [The personal budget – A new law] form of benefits] Andreas Hänlein: Leistungser- Das Vorsorgeverhältnis [The provision bringungsrecht als Kodifikations- relationship] problem [Service provision law as Rainer Pitschas: Soziale Sicherheit a problem of codification] durch Vorsorge – Sicherheit als Ver- fassungsprinzip des Sozialstaats und Sozialleistungen und Familie [Social das "Vorsorgeverhältnis" als rechtliches benefits and services and the family] Gehäuse ihrer Vorsorgestandards [So- Eberhard Eichenhofer: Sozialleistun- cial security via provision – Security as gen und Familie [Social benefits and a constitutional principle of the social services and the family] state with the "provision relationship" Ursula Köbl: Sozialstaatsentlastung setting the legal framework for provi- durch mehr Familiensolidarität [Re- dent provision standards] lieving the social state through greater Ingwer Ebsen: Soziale Vorsorge als Funk- family solidarity] tion [The function of social provision] Alexander Graser: Die Familie im Ge-

127 REPORT 2008 – 2009

füge der Solidargemeinschaften – ein Europe: Legal, Economic, and Cultural Ansatz soziologisch orientierter Rechts- Dimensions], in cooperation with the vergleichung [The family within the German Federal Ministry of Family Affairs, framework of solidarity groups – A soci- Senior Citizens, Women and Youth, Centro ology-based comparative law approach] Italo-Tedesco Villa Vigoni, Loveno di Menaggio/Como, Italy. Bernd Baron von Maydell: Laudatory speech Ulrich Becker, Eva Maria Welskop- Franz Ruland: Dinner speech Deffaa: Welcome addresses Hans F. Zacher: Concluding words – vote of thanks Keynote Speeches: Martina Kessel: Historische Dimensio- nen der Persistenz von Geschlechter- 12 – 13 September 2008: rollen und -leitbildern [Persistence of Alumni Meeting, Max Planck Institute gender role models – historical dimen- for Foreign and International Social Law, sions] Munich. Paul Zulehner: Männerrollen im Wandel – Ergebnisse einer aktuellen Ulrich Becker: Welcome address; report wissenschaftlichen Untersuchung on the most recent developments of the 1998/2008 [Male role models under Institute and its current research projects change – Current findings of research Bernd Baron von Maydell: Interna- 1998/2008] tionale Kooperationen des Max-Planck- Instituts für Sozialrecht [International I. Auswertung der Konferenz "Eigen- collaboration of the Max Planck Insti- verantwortung, private und öffentliche tute for Social Law] Solidarität – Rollenleitbilder im Fami- Hans F. Zacher: Entwicklung der Max- lien- und Sozialrecht im europäischen Planck-Gesellschaft [Development of Vergleich" (2007) [Evaluation of the con- the Max Planck Society] ference on "Self-Responsibility, Private and Public Solidarity – A Comparative Maria Grienberger-Zingerle: Vom View of Gender Role Models in Family MPI in die Ministerialverwaltung – die Law and Social Law in Europe" (2007)] Tätigkeit einer juristischen Referentin [From the Max Planck Institute to Eva Maria Hohnerlein, Edda Blenk- ministerial administration – The Knocke: Ergebnisse des europäischen activities of a legal advisor] Vergleichs aus rechtlicher und sozio- Angelika Schmidt: Vom MPI zum logischer Perspektive [Legal and so- Sozialgericht – berufliche Praxis einer ciological findings from a comparative Richterin [From the Max Planck Insti- European perspective] tute to the social court – The practical Dieter Martiny: Eigenverantwortung experience of a judge] und Solidarität im Scheidungsunter- Alpay Hekimler: Forschungspraxis an haltsrecht: Familienrechtliche Ergeb- einer türkischen Universität [Research nisse und Best-Practice-Beispiele aus practice at a Turkish university] Europa [Self-responsibility and solidar- Gerhard Gross: Guided tour of the ity in maintenance law after divorce: exhibition "city / building / plan [stadt Conclusions from a comparative fam- / bau / plan] – 850 years of urban de- ily law perspective – Best practices in velopment in Munich", followed by a Europe] guided walk through the city centre Ulrich Becker: Chair of discussion

II. Vertiefung und Ergänzung aus- 20 – 22 October 2008: gewählter Themen der Konferenz 2007 Interdisciplinary workshop: "Rollenleit- [Focusing on selected topics of the bilder und -realitäten in Europa: Recht- conference of 2007] liche, ökonomische und kulturelle Di- mensionen" [Gender Role Models in

128 IV. EVENTS ORGANISED BY THE INSTITUTE

1. Rollenleitbilder im Ehegüterrecht 3. Rollenleitbilder in der Pflege: [Gender role models in marital property Sozialrechtliche und ökonomische law] Perspektiven [Gender role models and Walter Pintens: Unterschiedliche long-term care: Socio-legal and eco- Modelle der Teilhabe im Ehegüterrecht nomic perspectives] in Europa – Entwicklungen und Re- Ursula Rust: Rollenleitbilder bei der formdiskussion [Towards equal sharing Pflege durch Angehörige und naheste- in marital property law across Europe hende Personen in Deutschland [Gender – Trends and reform discussions] role models and long-term care provision Stephan Meder: Eigenverantwortung through family caregivers in Germany] und Solidarität im deutschen Ehegüter- Jeanne Fagnani, Trudie Knijn: Rollen- recht [Self-responsibility and solidarity leitbilder in der häuslichen Pflege durch in German marital property law] Angehörige und nahestehende Personen Ulrich Becker: Chair of discussion in Europa: Sozialpolitische und ökonomi- sche Perspektiven (Kurzbeiträge) [Gen- 2. Rollenleitbilder in der sozialen Rea- der role models and family caregiving in lität und im Recht [Gender role models Europe: Social policy approach and eco- in social reality and law] nomic perspectives (short reports)] Hans-Peter Blossfeld: Die Entwicklung Margarete Schuler-Harms: Chair of der Aufgabenteilung im Eheverlauf in discussion Deutschland [Changes in task alloca- tion during marriage in Germany] III. Abschlussworkshop: Parallele Ute Klammer: Weibliche Familiener- Arbeitsgruppen zur Erarbeitung von nährerinnen in West- und Ostdeutsch- Handlungserfordernissen und Präsen- land – Wunschmodell oder neue Pre- tation der Empfehlungen aus den Ar- karität? [Female breadwinners in West beitsgruppen [Final workshop: Parallel and East Germany – A desired model or elaboration of required actions in work- new precarity?] ing groups – Presentation of recommen- Kirsten Scheiwe: Einer zahlt und eine dations prepared by the working groups] betreut? Rollenleitbilder im Kindesun- terhaltsrecht und ihre Geschlechterdi- Group 1 mensionen [The "payer" and the "carer" Reform des Ehegüterrechts: Können – Asymmetrical gender role assump- Erfahrungen aus dem Ausland für tions in German child support law] Deutschland nutzbar gemacht werden? Marianne Heimbach-Steins: Chair of [Marital property law reform: What can discussion Germany learn from other European countries?] Podiumsdiskussion "Eigenverantwor- Dieter Martiny: Chair tung von Frauen und Männern wäh- Group 2 rend und nach einer Ehe/Partnerschaft Die Rolle des "Ernährers" im Familien- mit asymmetrischer Arbeitsteilung – recht – Rechtslage und Lebensrealitä- Recht und Realität" [Panel discussion: ten [The role of the "breadwinner" in "Self-responsibility of men and women the context of family law: Legal frame- during and after marriage/partnership work versus social reality] marked by asymmetrical task allocation: Kirsten Schweiwe, Christina Klenner: Law and reality"] Chair Heinz Hausheer, Trudi Knijn, Jens Group 3 M. Scherpe: Panel Überlegungen zur aktiven Förderung Eva Maria Welskop-Deffaa: Chair einer eigenständigen Existenzsicherung im Alter von Männern und Frauen Fireside chat with members of the [How can financial autonomy in old German Parliament age be actively promoted for men and Hermann Kues: Chair women?] Reinhold Thiede: Chair Eva Maria Welskop-Deffaa, Eva Maria Hohnerlein: Closing of the conference

129 REPORT 2008 – 2009

4 December 2008: 20 April 2009: Expert meeting: "Project on General Prin- Conference: "Entsendung von Arbeit- ciples of Social Security Law in Europe nehmern in der Europäischen Union – (GPSoc)", co-organised with Bertelsmann Probleme aus der sozialrechtlichen Stiftung, Max Planck Institute for Foreign Praxis" [Posting of Employees in the Euro- and International Social Law, Munich. pean Union – Problems Experienced in the Practice of Social Law], in collaboration Ulrich Becker: Welcome and introduc- with the Bavarian Higher Social Court, Max tion Planck Institute for Foreign and Interna- Friso Ross: Project presentation tional Social Law, Munich. Ulrich Becker, Jörg Habich, Matthias Knecht, Oliver Liedtke, Friso Ross, Ulrich Becker: Welcome and introduc- Nikola Wilman: Future opportunities tion to cooperate with Bertelsmann Stiftung Bernd Schulte: Die Entsendung von Arbeitnehmern nach Europäischem Gemeinschaftsrecht – VO 1408/71 und 8 December 2008: VO 883/04 [The posting of workers and Symposium: "Die Tätigkeit von Spieler- European Community law – Regulation vermittlern im nationalen und interna- (EEC) No. 1408/71 and Regulation tionalen Sportrecht" [The Activities of (EC) No. 883/04] Players' Agents in National and Internation- Stephan Rittweger: Die Entsendung al Sports Law], co-organised with the Max von Arbeitnehmern nach deutschem Planck Institute for Comparative and Inter- Recht [The posting of workers under national Private Law and the Forum on German law] International Sports Law, Hamburg. Monika Jansen: Probleme der Arbeit- nehmerentsendung in nichteuropäische Reinhard Zimmermann: Welcome and Länder am Beispiel von Australien introduction [Problems of posting employees to non- Johannes Wertenbruch: Die Tätigkeit European countries, taking Australia as von Spielervermittlern im nationalen an example] und internationalen Sportrecht [The Ulrike Kraus: Praktische Probleme mit activites of players' agents in national der EU-Entsendung, insbesondere die and international sports law] elektronische Abwicklung [Practical Gregor Reiter: Commentary: "Rechts- problems regarding the posting of em- fragen der Spielervermittlung aus der ployees within the EU, especially with Sicht der Deutschen Fußballspieler- regard to electronic processing] Vermittler Vereinigung" [Legal issues Bernhard Pabst: "Das Haftungsprivileg regarding the transfer of players – The folgt dem Sozialversicherungsstatut" perspective of the German Football – Haftungsfragen bei der Beschäftigung Agents Association (DFVV)] von EG-Ausländern im Inland ["The Mathias Hain: Commentary: "Spieler- liability privilege depends on the rele- vermittlung aus der Sicht eines Sport- vant social security statute" – Problems lers und Spielervertreters" [The transfer of liability regarding the employment of of players from the perspective of a non-German EU citizens in Germany] sportsman and player representative] Christian Lahnstein: Überlegungen Holger Hieronymus: Commentary: zum Haftungsprivileg aus deutscher "Rechtliche Fragen des Handelns von und internationaler Sicht [Reflections Spielervermittlern aus der Sicht der on the liability privilege – The German Deutschen Fußball-Liga" [Legal ques- and the international perspective] tions concerning the actions of players' Stephan Rittweger: Closing of the agents from the perspective of the Ger- conference man Football League (DFL)] Ulrich Becker: Chair of discussion

130 IV. EVENTS ORGANISED BY THE INSTITUTE

23 – 24 April 2009: 1970s and 1980s on the future of the Research colloquium: "Der deutsche So- welfare states] zialstaat: Konstruktion, Ausdifferen- zierung und Weiterentwicklung" [The II. Der Sozialstaat und seine "Klienten" German Welfare State: Structure, Differenti- [The welfare state and its "clients"] ation and Further Development] held on the Gerhard A. Ritter: Introduction and occasion of Gerhard A. Ritter's 80th birthday chair of section in collaboration with the Department of His- Winfried Süß: Die vielen Gesichter der tory of Ludwig Maximilian University (LMU) Bedürftigkeit – Perspektiven auf die Ge- Munich, Historisches Kolleg, Munich schichte der Armut in der Bundesrepu- blik [The many faces of need – Viewing Lothar Gall: Welcome address on be- the history of poverty in Germany] half of Historisches Kolleg Wilfried Rudloff: Akteurssysteme, Klaus Tenfelde: Welcome address on organisierte Betroffeneninteressen behalf of former students und sozialpolitische Innovationspfade: Hans F. Zacher: Formal address Modelle aus der Behindertenpolitik Hans Günter Hockerts: Neue Heraus- [Actors' systems, the organisation of forderungen des Sozialstaats: Demogra- interests of the people concerned and phie und "Generationengerechtigkeit" the paths to socio-political innovation: [New challenges to the welfare state: Models in disability policy] Demographic aspects and "intergenera- Ulrike Lindner: Gesundheitssysteme tional justice"] und Geschlecht: Die Versorgung von Patientinnen und Patienten in Groß- I. "Konstruktion" des Sozialstaats: Die britannien und der Bundesrepublik Deutung sozialer Problemlagen und die Deutschland [Health care systems and Antworten der Sozialpolitik [The "con- gender: Health care provision for pa- struction" of the welfare state: Analysis tients in the UK and in the FRG] of social problems and answers offered Franz Ruland: Perspektive: Soll die by social policy] Rentenversicherung zur allgemeinen Margit Szöllösi-Janze: Introduction Erwerbstätigenversicherung ausgebaut and chair of section werden? [Perspective: Is pension Ulrike Haerendel: "Gender Roles" insurance to be extended to become und die Konstruktion der Rentenver- a general employees insurance?] sicherung im Kaiserreich ["Gender roles" and the structure of pension III. Sozialstaat und Partizipation insurance in the German Empire] [Welfare state and participation] Friederike Föcking: Expertenwissen, Merith Niehuss: Introduction and chair Politikberatung und die Entstehung of section des Bundessozialhilfegesetzes [Expert Wolfgang Ayaß: Arbeiterbewegung und knowledge, policy advice and the devel- Sozialversicherung bis zur Jahrhundert- opment of the German Federal Social wende [Labour movement and social Assistance Act] insurance until 1900] Hans-Jürgen Puhle: Die "Konstruk- Klaus Tenfelde: Arbeiterschaft, Unter- tion" neuer Sozialstaaten in der Aus- nehmer und Mitbestimmung in der einandersetzung mit alten Modellen: Weimarer Republik [Workforce, em- "Pfadabhängigkeiten", Entscheidungen ployers and co-determination in the und Lernprozesse ["Constructing" Weimar Republic] new welfare states by looking into Christiane Reuter-Boysen: Die Renten- old models: "Path dependencies", diskussion in der frühen DDR und decisions, learning processes] die Artikulation von Fraueninteressen Martin Geyer: Perspektive: Im Zeichen [Pension debate in the early years of the wirtschaftlicher Rezessionen: Debatten GDR and the articulation of women's um die Zukunft der Wohlfahrtsstaaten interests] in den 1970er und 1980er Jahren [Per- Jürgen Kocka: Perspektive: Zivilgesell- spective: Under the banner of econom- schaft und Sozialstaat [Perspective: ic recessions: Debates conducted in the Civil society and the welfare state]

131 REPORT 2008 – 2009

IV. Sozialstaat und Nationalstaat Philippe Pierre: Die vertraglich be- [Welfare state and nation state] gründeten Garantien in der betrieb- Hartmut Kaelble: Introduction and lichen Altersversorgung [Contractual chair of section guarantees in occupational pensions] Johannes Paulmann: Jenseits der Peter A. Köhler: Die finanzielle Sicher- Grenzen des deutschen Sozialstaats: heit der betrieblichen Altersversorgung Entwicklung – Hilfe – Solidarität in Schweden: Vorbild für Europa? [The [Beyond the boundaries of the German financial security of occupational pen- welfare state: Development – support sion schemes in Sweden: A model for – solidarity] Europe?] Peter A. Köhler: Das Ende des schwe- dischen "Volksheims"? [The Swedish Die finanzielle Sicherheit an Beispielen "people's home" at its end?] [Financial security explained by way of Bernd Schulte: Das "europäische selected examples] Sozialmodell" vor neuen Heraus- Hans-Joachim Reinhard: Spain, forderungen [New challenges for the Germany "European Social Model"] Friso Ross: Switzerland Ulrich Becker: Perspektive: Der Eva Maria Hohnerlein: Italy Sozialstaat in der Europäischen Union [Perspective: The welfare state in the Steuerungsformen und -Steuerungs- European Union] elemente, sozialer Dialog und Entwick- lung der betrieblichen Altersversorgung Gerhard A. Ritter: Final remarks [Forms and elements of governance, Ulrike Haerendel, Christiane Reuter- the social dialogue and the develop- Boysen: Farewell ment of occupational pension schemes] Renate Hornung-Draus: Chair Erik Lutjens: Die Steuerungsmöglich- 28 – 29 May 2009: keiten des Arbeitgebers in der betrieb- Conference: "Steuerung der betrieb- lichen Altersversorgung [Governance lichen Altersversorgung in Europa: options open to employers regarding garantierte Sicherheit?" [Governance of occupational pensions] Occupational Pensions in Europe: Guaran- Francis Kessler: Die Steuerungsmög- teed Security?] in collaboration with Hans- lichkeiten der Arbeitnehmervertreter Böckler-Stiftung, the Western Institute of in der betrieblichen Altersversorgung Law and European Studies (IODE) of the [Governance options open to employ- University of Rennes I and Friedrich-Ebert- ees' representatives regarding occupa- Stiftung, Berlin. tional pensions] Hans-Joachim Reinhard: Die Rechte Bedeutung der betrieblichen Altersver- der Arbeitnehmer in der betrieblichen sorgung [Significance of occupational Altersversorgung [Employees' rights in pension schemes] occupational pension schemes] Gabrielle Clotuche: Chair Samuel Jubé: Internationale Buchungs- Otto Kaufmann: Herausforderun- standards: Beitrag zu sicherer Steue- gen an die betrieblichen Altersver- rung betrieblicher Altersversorgung? sorgungssysteme: vergleichender [International Accounting Standards: Ansatz [Challenges faced by occupa- Contributing to a more secure govern- tional pension schemes – A compara- ance of occupational pensions?] tive approach] Ulrich Becker: Perspektiven für die Sylvie Hennion: Betriebliche Alters- betriebliche Altersversorgung [Perspec- versorgung und wirtschaftliche Freiheit tives on occupational pension schemes] [Occupational pensions and economic liberty] Panel discussion: Betriebliche Alters- Dieter Döring: Sozioökonomische versorgung aus der Sicht der Akteure Steuerung der betrieblichen Altersver- [Occupational pensions from the ac- sorgung [The socio-economic govern- tors' perspective] ance of occupational pension schemes] Gert Nachtigall, Heinz Stapf-Finé,

132 IV. EVENTS ORGANISED BY THE INSTITUTE

Dominique Boucher, Klaus Stiefer- Felician Tungaraza: Experiences with mann: Panel micro-insurance in the health sector in Jean-Philippe Lhernoud: Chair Tanzania

III. Methods and tools 5 June 2009: Lutz Leisering: Social cash transfers in trESS seminar: "Die gemeinschaftsrechtli- the developing world che Koordinierung der Systeme der so- Edwell Kaseke: Basic pension system zialen Sicherheit in der Europäischen in South Africa Union" [The Coordination of Social Security Lorena Ossio: Flat pension system in Systems under EC Law in the European Un- Bolivia ion], Bernd Schulte in collaboration with the German Federal Ministry of Health, Berlin. IV. Perspectives Ulrich Becker, Frans Pennings: Compatibility of existing up-to-date 14 – 16 October 2009: ILO social security standards with Workshop: "International Setting of new social policy trends Standards and Innovation in Social Protection in Low Income Countries", Abtei Frauenwörth, Frauenchiemsee. 19 – 20 October 2009: Working group: "Soziale Sicherung von Ulrich Becker, Frans Pennings: Intro- pflegenden Angehörigen" [Social Securi- duction ty for Family Caregivers], Max Planck Insti- Laura Pautassi: Human rights and tute for Foreign and International Social social security Law, Munich.

I. New and uncovered risks 1. Uncovered risks 30 – 31 October 2009: James Midgley: Poverty policy of devel- Conference: "Deutsch-türkisches Sozial- oping countries recht und Erbrecht" [German and Turkish Kari Tapiola: The fight against poverty Social Law and Inheritance Law] in collabo- in the policy of the ILO ration with Deutsch-Türkische Juristenv- 2. New risks ereinigung e.V. [German-Turkish Lawyers Ockert Dupper: Need for the integra- Association], Max Planck Institute for For- tion of migrants into social security eign and International Social Law, Munich. systems: South Africa Ling Li: Migration and health services Ulrich Becker, Tankut Centel: Wel- in P. R. China come address Letlhokwa George Mpedi: HIV/Aids in Hediye Ergin: Die sozialversicherungs- South Africa: Towards comprehensive rechtliche Entwicklung in der Türkei social protection [Development of social insurance law Tulia Ackson: Disability benefits in Turkey] and workers with HIV/Aids: Coverage Andreas Hänlein: Die neuesten Ent- issues and challenges in the United wicklungen im deutschen Sozialrecht Republic of Tanzania [The most recent trends in German social law] II. Extending the coverage Yasemin Körtek: Die Einführung der Marius Olivier: The extension of social allgemeinen Krankenversicherung in protection to non-formal sector workers: der Türkei und aktuelle Entwicklungen Some developing country experiences in der deutschen Krankenversicherung Angel Guillermo Ruiz Moreno: Social [Introduction of general health insur- security for the informal sector: The ance in Turkey and current trends in case of Mexico German health insurance] Markus Loewe: The potential of micro- Rona Serozan: Die Besonderheiten des insurance schemes for social security in türkischen Erbrechts [Special features the informal sector of Turkish inheritance law]

133 REPORT 2008 – 2009

Rona Serozan: Verfügung von Todes 2. Guest Lectures wegen nach türkischem Recht (das Erbrecht der Ehegatten) [The testa- 23 January 2008: mentary disposition according to Prof. Dr. Lutz LEISERING, Faculty of Soci- Turkish law] ology, Bielefeld University: "Vom Wohlfahrts- Hilmar Krüger: Erbrechtliche Pro- staat zum Wohlfahrtsmarkt? Neue Tenden- bleme in den deutsch-türkischen zen sozialpolitischer Regulierung" [From the Beziehungen [Problems relating to welfare state to the welfare market? Recent inheritance law in German-Turkish regulatory tendencies in social policy]. relationships] 12 March 2008: Dr. Tulia ACKSON, University of Dar es 30 November 2009 Salaam, Tanzania: "Coordination of Social Symposium: "Das Verbot von Mehr- Security in the Southern African Develop- heitsbeteiligungen an Fußballklubs im ment Community (SADC) and the East nationalen und internationalen Recht" African Community (EAC)". [The Ban on Majority Ownership in Ger- man Football under National and Interna- 2 June 2008: tional Law], co-organised with the Max Prof. Dr. Günter NEUBAUER, Institut für Planck Institute for Comparative and Inter- Volkswirtschaftslehre [Institute of Macro- national Private Law and the Forum on economics], Bundeswehr University, Mu- International Sports Law, Hamburg. nich: "Choice and Competition in Hospital Health Care – eine gesundheitsökono- Reinhard Zimmermann: Welcome mische Sicht" [Choice and competition in Dirk Verse: Die "50+1 Regel" im Licht hospital health care from the perspective of des nationalen und europäischen health economics]. Rechts [The "50+1 rule" in the light of national and European law] 3 June 2008: Tobias Kollmann, Peter Peters, Martin Dr. Stefan RUPPERT, Max Planck Institute Kind, Hans-Joachim Watzke: Com- for European Legal History, Frankfurt am mentaries Main: "Lebensalter und Recht – zur Seg- Ulrich Becker: Chair of discussion mentierung des menschlichen Lebenslaufs im 19. Jahrhundert am Beispiel der Lebens- phase Jugend" [Age and law – On the seg- 18 December 2009: mentation of the human lifespan in the 19th Symposium: "Die Bekämpfung der Ar- century, exemplified by the age group of beitslosigkeit in der Türkei im Lichte adolescent people]. der gegenwärtigen wirtschaftlichen Rahmenbedingungen" [The Fight Against 18 June 2008: Unemployment in Turkey in the Context of Dr. Hans H. Th. SENDLER, European the Current Economic Conditions], Max Strategy Consulting, Berlin: "Europäische Planck Institute for Foreign and Interna- Sozialverfassung – der aktuelle Gestaltungs- tional Social Law, Munich. bedarf in der Wissenschaft im Spannung sfeld zwischen europäischem Binnenmarkt Ali Nazim Sözer: Maßnahmen zur und den Sozialmodellen der Mitgliedstaa- Bekämpfung der Arbeitslosigkeit: Eine ten" [The European Social Constitution – Bewertung aus sozialversicherungs- Current academic configuration require- rechtlicher Sicht [Measures to combat ments regarding the conflicting demands unemployment: An appraisal from the between the European single market and perspective of social insurance law] the social models of the EU member states]. Tankut Centel: Vorgaben des Arbeits- rechts zur Vermeidung von Arbeitslosig- 9 July 2008: keit und Beschäftigungsförderung [La- Justine LASSANSAA, Montesquieu Uni- bour law provisions for the prevention versity – Bordeaux IV, Pessac, France: "Die of unemployment and the promotion of Hinterbliebenenrente" [Surviving depend- employment] ants' pension].

134 IV. EVENTS ORGANISED BY THE INSTITUTE

24 July 2008: 19 May 2009: Dr. Peter HERRMANN, University College Prof. Dr. Gloria Inés SÁNCHEZ, University Cork, Ireland: "Grundfragen bei der Ent- of Antioquia, Medellín, Columbia: "The wicklung eines globalen Ansatzes zum Social Security System in Colombia: Bene- Sozialrecht – zwischen Relativismus und fits and Financing". deterministischem Modernismus" [Funda- mental questions as to developing a global 9 June 2009: approach to social law – Between relativism Susanne HENCK, Lehrstuhl für Öffent- and deterministic modernism]. liches Recht, Sozialrecht und Gesundheits- recht [Department of public law, social law 24 October 2008: and health care law], University of Regens- Prof. Dr. Carmelo MESA-LAGO, Univer- burg: "Kosten-Nutzen-Analyse in der gesetz- sity of Pittsburgh, USA: "Transformations lichen Krankenversicherung" [Cost-benefit of the Labor Market and Social Insurance analysis in statutory health insurance]. Coverage on Pensions and Health Care in Latin America". 7 July 2009: Prof. Neville HARRIS, University of Man- 18 November 2008: chester, UK: "Reducing Dependency? So- Dr. Ann-Christine HAMISCH, Munich: cial Security, Drug Addiction and Work". "Aktuelle Entwicklungen im Recht der be- trieblichen Altersversorgung" [Current de- 23 July 2009: velopments in occupational pensions law]. Prof. Jia LIN, Renmin University of China, Beijing, P. R. China: "Social Law Initiatives 18 November 2008: Taken by the P. R. China in these Times of Dr. Markus ROTH, Max Planck Institute Economic Crisis". for Comparative and International Private Law, Hamburg: "Private Altersvorsorge: 22 September 2008: Betriebsrentenrecht und das Recht der Eri KASAGI, Kyushu University, Fukuoka, individuellen Vorsorge aus rechtsverglei- Japan: "The Boundary of Social Health In- chender Sicht" [Private retirement provi- surance (assurance maladie complémen- sion: Occupational pensions law and the taire) in France". law relating to individual pension provision – A legal comparison]. 22 September 2008: Justine LASSANSAA, Montesquieu Univer- 19 November 2008: sity – Bordeaux IV, Pessac, France: "Diskus- Dr. Gerrit LINDBERG, Alexander von sion um den Familienleistungsausgleich im Humboldt-Stiftung, Bonn: "Mangel an französischen Alterssicherungssystem" [The Nachwuchs-Juristen in der Alexander von discussion about the equalisation of family Humboldt-Stiftung" [The lack of junior law benefits in French old age social security]. scholars at the Alexander von Humboldt Foundation]. 13 October 2009: Dr. Elsa Marina ÁLVAREZ GONZÁLEZ, 17 December 2008: Malaga University, Spain: "European Ob- Dr. Quan LU, Renmin University of China, servatory on Emigration of Elder People Beijing, P. R. China: "Intergovernmental (Gerontomigrations) – A Multidisciplinary Relationship in the Old Age Pension Reform Excellent Research Project by the Andalu- of China". sian Regional Government".

13 May 2009: 16 December 2009: Yifan YANG, Southwest University of Fi- Margit PALZENBERGER, Max Planck nance and Economics, Chongqing, P. R. Digital Library, Munich, and Hermann China: "Implementation of the National SCHIER, Max Planck Society (IVS-CPT), Social Security System for Rural China's Stuttgart (in cooperation with Henning Land-Expropriated Peasants". FRANKENBERGER): "Bibliometrie in der Forschungsevaluierung – kann man Wissen- schaft messen? Teil 1:Praxis und Erfahrun-

135 REPORT 2008 – 2009

gen aus den Naturwissenschaften" [Biblio- 21 October 2009: metrics in research evaluation – Is scientific Information meeting for a group of Japanese research measurable? Part 1: Practical expe- health insurance experts headed by Prof. rience gained from the natural sciences]. Mitsuya Ichien, Kansai University, Osaka. Support: Bernd Schulte.

2 – 5 November 2009: 3. Visitors and Delegations Information meeting on the German social insurance system for a Chinese delegation 8 February 2008: from the "National Audit Office of the Peo- Information meeting for the Managing ple's Republic of China". Board of the "Japan Adult Guardianship Support: Barbara Darimont, Ulrich Becker i.a. Law Association" and its president Prof. Dr. Makoto Arai, Tokyo, Japan. Support: Bernd Schulte.

9 May 2008: Information meeting for a delegation of the "Legal Advisory Committee (LAC)" from P. R. China. Support: Ulrich Becker, Barbara Darimont.

8 July 2008: Information meeting for thirty international students within the framework of the MUST (Munich University Summer Training) Pro- gramme of the Faculty of Law of Ludwig Maximilian University (LMU) Munich. Support: Eva Maria Hohnerlein, Melanie Jackenkroll.

12 – 13 January 2009: Elaboration of a visitors' programme on quality development in institutional day- care facilities for children for a delegation from the Japanese children's charity organi- sation "The Foundation for Children's Fu- ture", Tokyo, Japan. Support: Markus Schön, Eva Maria Hohnerlein.

23 July 2009: Information meeting for thirty international students within the framework of the MUST (Munich University Summer Training) Pro- gramme of the Faculty of Law of Ludwig Maximilian University (LMU) Munich. Support: Eva Maria Hohnerlein, Michael Schlegelmilch.

4 September 2009: Briefing with Prof. Lee One-Seok, Seoul, Ministry of Justice of the Republic of Korea, on the foundation of a research institute and the required administrative procedures. Support: Josef Kastner.

136 V. Publications REPORT 2008 – 2009

1. Publications of the – Vol. 3: Mediation in der bayerischen Sozialgerichtsbarkeit – Abschlussbericht Institute zur Evaluation eines Modellprojekts. Munich 2009. 133 p. Studien aus dem Max-Planck-Institut für ausländisches und internationales Zeitschrift für ausländisches und inter- Sozialrecht (Publication series by the nationales Arbeits- und Sozialrecht Max Planck Institute for Foreign and (ZIAS) (Journal for foreign and inter- International Social Law). Ed.: Max- national labour and social law). Ed.: Planck-Institut für ausländisches und inter- Max-Planck-Institut für ausländisches und nationales Sozialrecht. Baden-Baden 1984 – internationales Sozialrecht and Institut für Arbeitsrecht und Arbeitsbeziehungen in der – Vol. 41: Müntefering, Franz; Becker, Europäischen Gemeinschaft. Heidelberg Ulrich (eds.): 50 Jahre EU – 50 Jahre 1987 – Rechtsprechung des Europäischen Gerichtshofs zum Arbeits- und Sozial- Vol. 22. 2008. recht. Baden-Baden 2008. Vol. 23. 2009.

– Vol. 42: Matthäus, Claudia: Schadens- minderungspflichten im Haftpflicht- und Sozialrecht Deutschlands, Österreichs 2. Publications by the und der Schweiz. Baden-Baden 2008. Institute Staff

– Vol. 43: Becker, Ulrich; Nishimura, Keni- chiro; Walser, Christina (eds.): Perspekti- Ulrich BECKER ven der Unfallversicherung in Japan und Deutschland. Baden-Baden 2009. — Anmerkung zu EuGH, Urteil v. 3.4.2008 – C-346/06 Rüffert ./. Niedersachsen. – Vol. 44: von Maydell, Bernd, Pitschas, In: Juristenzeitung (JZ) 63 (2008) 18. Rainer; Pörtner, Peter; Schulte, Bernd pp. 891-893. (eds.): Politik und Recht für Menschen mit Behinderungen in Europa und Asien. — Entwicklung der Rechtsprechung des Baden-Baden 2009. EuGH zum Sozialrecht. In: Franz Münte- fering/Ulrich Becker (eds.), 50 Jahre EU – – Vol. 45: Quade, Benno: Verantwortung 50 Jahre Rechtsprechung des Europäischen und ihre Zuschreibung im Recht der Gerichtshofes zum Arbeits- und Sozialrecht. Arbeitsförderung. Baden-Baden 2009. Baden-Baden 2008. pp. 95-105.

– Vol. 46: Scholz, Olaf; Becker, Ulrich — Hans F. Zacher zum 80. Geburtstag. (eds.): Die Auswirkungen der Recht- In: Neue Juristische Wochenschrift (NJW) sprechung des Europäischen Gerichts- 61 (2008) 27. pp. 1932-1933. hofs auf das Arbeitsrecht der Mitglieds- staaten. Baden-Baden 2009. — Organisation und Selbstverwaltung der Sozialversicherung. In: Bernd von Maydell/ – Vol. 47: Grienberger-Zingerle, Maria: Franz Ruland/Ulrich Becker (eds.), Sozial- Kooperative Instrumente der Arbeitsver- rechtshandbuch. SRH. 4th ed. Baden-Baden waltungen in England und Deutschland. 2008. pp. 645-664. Baden-Baden 2009. — Sozialmodell und Menschenbild in der Hartz-IV-Gesetzgebung. In: Okko Behrends/ MPISoc Working Papers. Ed.: Max- Eva Schumann (eds.), Gesetzgebung, Planck-Institut für ausländisches und inter- Menschenbild und Sozialmodell im nationales Sozialrecht. Munich 2005 – Familien- und Sozialrecht. Berlin 2008. pp. 39-76.

138 V. PUBLICATIONS

— Verfassungsrechtliche Bindungen der —; Ruland, Franz: Einleitung. In: Ulrich Krankenkassen bei Kooperationsvereinba- Becker/Franz Ruland (eds.), Abhandlungen rungen. In: Wolfgang Voit (ed.), Gesund- zum Sozialrecht II. Heidelberg 2008. heitsreform 2007. Rechtliche Bewertung pp. 7-12. und Handlungsoptionen. 10. Symposium von Wissenschaft und Praxis. Baden-Baden Buchner, Herbert; — (eds.): Mutter- 2008. pp. 136-150. schutzgesetz und Bundeselterngeld- und Elternzeitgesetz. Kommentar. 8th ed. — §§ 39, 107-110, 112-118, 120-121a, Munich 2008. 135a, 137-137c, 306, 307 SGB V. In: Ulrich Becker/Thorsten Kingreen (eds.), SGB V. von Maydell, Bernd; Ruland, Franz; — Gesetzliche Krankenversicherung. (eds.): Sozialrechtshandbuch. SRH. 4th ed. Kommentar. Munich 2008. Baden-Baden 2008.

—; Heckmann, Dirk; Kempen, Bernhard; Müntefering, Franz; — (eds.): 50 Jahre EU Manssen, Gerrit: Klausurenbuch Öffent- – 50 Jahre Rechtsprechung des Europä- liches Recht in Bayern. Verfassungsrecht, ischen Gerichtshofes zum Arbeits- und Kommunalrecht, Polizei- und Sicherheits- Sozialrecht. Baden-Baden 2008. recht, Öffentliches Baurecht. 2nd ed. Munich 2008. •

—; Heckmann, Dirk; Kempen, Bernhard; — Anmerkung zu EuGH, Urteil v. Manssen, Gerrit: Öffentliches Recht in 18.11.2008. In: Zeitschrift für europäisches Bayern. Verfassungsrecht, Kommunalrecht, Sozial- und Arbeitsrecht (ZESAR) 8 (2009) Polizei- und Sicherheitsrecht, Öffentliches 5/6. pp. 233-236. Baurecht. 4th ed. Munich 2008. — Arbeitnehmerfreizügigkeit. In: Dirk —; Kingreen, Thorsten: Einführung. Ehlers (eds.), Europäische Grundrechte In: Ulrich Becker/Thorsten Kingreen und Grundfreiheiten. 3th ed. Berlin 2009. (eds.), SGB V. Recht des öffentlichen pp. 305-331. Gesundheitswesens. 15th ed. Munich 2008. pp. VII-XXXII. — Das neue Elterngeld. In: Jobst-Hubertus Bauer/Michael Kort/Thomas M. J. Möllers/ —; Kingreen, Thorsten (eds.): SGB V. Bernd Sandmann (eds.), Festschrift für Recht des öffentlichen Gesundheitswesens. Herbert Buchner zum 70. Geburtstag. 15th ed. Munich 2008. Munich 2009. pp. 67-80.

—; Kingreen, Thorsten (eds.): SGB V. — Das Recht auf Gesundheitsleistungen. Gesetzliche Krankenversicherung. In: Gerrit Manssen/Monika Jachmann/ Kommentar. Munich 2008. Christoph Gröpl (eds.), Nach geltendem Verfassungsrecht. Festschrift für Udo —; Kingreen, Thorsten: §§ 1, 11, 69 SGB V. Steiner zum 70. Geburtstag. Stuttgart 2009. In: Ulrich Becker/Thorsten Kingreen (eds.), pp. 50-76. SGB V. Gesetzliche Krankenversicherung. Kommentar. Munich 2008. — Der nationale Sozialstaat in der Euro- päischen Union. Von Einwirkungen und —; Olivier, Marius (eds.): Access to Social Verschränkungen. In: Miroslav Be˘lina/ Security for non-Citizens and Informal Sec- Marie Kalenská (eds.), Pocta Petru tor Workers. An International, South African Trösterovi k 70. narozeninám [Festschrift and German Perspective. Stellenbosch für Petr Tröster zum 70. Geburtstag]. 2008. Prague 2009. pp. 49-61.

—; Ruland, Franz (eds.): Abhandlungen — Der Stand des europäischen Sozial- zum Sozialrecht II. Heidelberg 2008. rechts. In: Peter Brandt (ed.), Soziales Europa? Berlin 2009. pp. 63-87.

139 REPORT 2008 – 2009

— Die Finanzierung der gesetzlichen für Arbeit und Sozialordnung, Familie und Unfallversicherung: Chancen und Risiken Frauen (ed.), Mediation in der Sozialgerichts- bei Einführung von Kapitaldeckungsele- barkeit, Ergebnisse eines Modellprojektes. menten. In: Ulrich Becker/Kenichiro Munich 2009. pp. 11-50. Nishimura/Christina Walser (eds.), Perspektiven der Unfallversicherung in —; Friedrich, Nikola: Mediation in der Japan und Deutschland. Baden-Baden bayerischen Sozialgerichtsbarkeit, Ab- 2009. pp. 79-96. schlussbericht zur Evaluation eines Modell- projekts. In: Max-Planck-Institut für aus- — European Social Charter. In: Max- ländisches und internationales Sozialrecht Planck-Institut für ausländisches öffent- (ed.), MPISoc Working Paper Vol. 3, liches Recht und Völkerrecht (ed.), Max Munich 2009. Planck Encyclopedia of Public International Law. MPEPIL. Maarsen 2009. pp. 1-12. —; Kingreen, Thorsten: Einführung. In: Ulrich Becker/Thorsten Kingreen (eds.), — Intergenerationale Beziehungen aus SGB V. Recht des öffentlichen Gesund- rechtlicher Perspektive. Einführung zum heitswesens. 16th ed. Munich 2009. Verhältnis zwischen Unterhalts- und Sozial- pp. VII-XXXIII. leistungsrecht. In: Jürgen Kocka/Martin Kohli/Wolfgang Streeck (eds.), Altern: Lauerer, Luise; —: Autonomie am Lebensen- Familie, Zivilgesellschaft, Politik. Stuttgart de. Zum Stand der gegenwärtigen Diskussion 2009. pp. 133-138. um die Patientenverfügungen aus rechtlicher Sicht. In: Kurt Kocksiek (ed.), Altern und — Nachruf Michael Wollenschläger. In: Gesundheit. Stuttgart 2009. pp. 247-281. Zeitschrift für Ausländerrecht und Auslän- derpolitik (ZAR) 29 (2009) 4. pp. 138-139. —; Nishimura, Kenichiro; Walser, Christina (eds.): Perspektiven der Unfallversicherung — Rechtsfragen der Erwachsenenbildung. in Japan und Deutschland. Baden-Baden In: Ursula Staudinger/Heike Heidemeier 2009. (eds.), Altern, Bildung und lebenslanges Lernen. Stuttgart 2009. pp. 83-94. Scholz, Olaf; — (eds.): Die Auswirkungen der Rechtsprechung des Europäischen — Social Security in Modern Europe. Gerichtshofs auf das Arbeitsrecht der In: Stanley N. Katz (ed.), The Oxford Mitgliedstaaten. Baden-Baden 2009. International Encyclopedia of Legal History. New York 2009. pp. 270-272. Schwarze, Jürgen; — ; Hatje, Armin; Schoo, Johann (eds.): EU-Kommentar. 2nd ed. –– Vorwort. In: Bayerisches Staatsministe- Baden-Baden 2009. rium für Arbeit und Sozialordnung, Familie und Frauen (ed.), Mediation in der So- zialgerichtsbarkeit, Ergebnisse eines Edda BLENK-KNOCKE Modellprojektes. Munich 2009. p. 7. Hohnerlein, Eva Maria; —: Einführung. In: — Art. 28-30, 42, 282, 291, 292, 299, 311, Bundesministerium für Familie, Senioren, 312 EGV. In: Jürgen Schwarze/Ulrich Frauen und Jugend (ed.), Eigenverant- Becker/Armin Hatje/Johann Schoo (eds.), wortung, private und öffentliche Solidarität EU-Kommentar. 2nd ed.. Baden-Baden 2009. – Rollenleitbilder im Familien- und Sozial- recht im europäischen Vergleich. Baden- — Art. 52, 53 GRC. In: Jürgen Schwarze/ Baden 2008. pp. 17-20. Ulrich Becker/Armin Hatje/Johann Schoo (eds.), EU-Kommentar. 2nd ed. Baden-Baden Hohnerlein, Eva Maria; —: Ergebnisse der 2009. vergleichenden Auswertung, Problemfelder und Forschungsbedarf. In: Bundesministe- ––; Friedrich, Nikola: Evaluation des Modell- rium für Familie, Senioren, Frauen und projekts "Mediation in der Sozialgerichts- Jugend (ed.), Eigenverantwortung, private barkeit". In: Bayerisches Staatsministerium und öffentliche Solidarität – Rollenleitbilder

140 V. PUBLICATIONS

im Familien- und Sozialrecht im europä- — 德国的残疾人社会保障 [Social ischen Vergleich. Baden-Baden 2008. Security for Disabled Persons in Germany]. pp. 486-502. In: Social Security Studies 9 (2009) 1. pp. 173-179. Hohnerlein, Eva Maria; — (editorial resp.): Eigenverantwortung, private und öffentliche Solidarität – Rollenleitbilder im Familien- Nikola FRIEDRICH und Sozialrecht im europäischen Vergleich. Baden-Baden 2008. Becker, Ulrich, ––: Evaluation des Modell- projekts "Mediation in der Sozialgerichts- • barkeit". In: Bayerisches Staatsministerium für Arbeit und Sozialordnung, Familie und Hohnerlein, Eva Maria; —: Einführung. In: Frauen (ed.), Mediation in der Sozialge- Bundesministerium für Familie, Senioren, richtsbarkeit, Ergebnisse eines Modell- Frauen und Jugend (ed.), Rollenleitbilder projektes. Munich 2009. pp. 11-50. und -realitäten in Europa. Rechtliche, ökonomische und kulturelle Dimensionen. Becker, Ulrich; —: Mediation in der baye- Baden-Baden 2009. pp. 17-22. rischen Sozialgerichtsbarkeit, Abschluss- bericht zur Evaluation eines Modellprojekts. Hohnerlein, Eva Maria; —: Schlussfolge- In: Max-Planck-Institut für ausländisches rungen. In: Bundesministerium für Familie, und internationales Sozialrecht (ed.), MPI- Senioren, Frauen und Jugend (ed.), Rollen- Soc Working Paper Vol. 3, Munich 2009. leitbilder und -realitäten in Europa. Recht- liche, ökonomische und kulturelle Dimen- sionen. Baden-Baden 2009. pp. 259-275. Ulrike HAERENDEL

Hohnerlein, Eva Maria; — (editorial resp.): — Vom Hitlerputsch zur Gleichschaltung. Rollenleitbilder und -realitäten in Europa. Münchens Weg zur nationalsozialistischen Rechtliche, ökonomische und kulturelle Hauptstadt der Bewegung 1923 bis 1935. Dimensionen: Dokumentation des Work- In: Horst Mayerhofer/Ferdinand Opll (eds.), shops vom 20.-22. Oktober 2008. Baden- Stadt und Nationalsozialismus. Linz 2008. Baden 2009. pp. 157-182.

• Barbara DARIMONT — Frauen, Männer und die Machtergrei- — Social Security in Contemporary China. fung. Beobachtungen aus der Geschlechter- In: Thomas Heberer/Gunter Schubert perspektive. In: Andreas Wirsching (ed.), (eds.), Regime Legitimacy in Contemporary Das Jahr 1933. Göttingen 2009. pp. 30-44. China. Institutional Change and Stability. London 2008. pp. 199-221. — Ideas of Justice in the Foundation of the German Old Age Pension System. — 社会保险法中的国家责任 [State's In: German Historical Institute London Responsibility in Social Security in Law Bulletin (2009) 2. pp. 3-28. in Germany]. In: Social Security Studies 8 (2008) 2. pp. 56-65. Eva Maria HOHNERLEIN • — Rezension von: "Giuseppe Nesi; Luca — Diskussion zum Entwurf des Sozial- Nogler; Marco Pertile (eds.): Child Labour versicherungsgesetzes der VR China. in a Globalized World: A Legal Analysis of In: Zeitschrift für Chinesisches Recht ILO Action". In: Zeitschrift für ausländi- (ZChinR) 16 (2009) 4. pp. 364-374. sches und internationales Arbeits- und Sozialrecht (ZIAS) 22 (2008) 4. pp. 360-364.

141 REPORT 2008 – 2009

— Rollenleitbilder und Sozialleistungen – Rollenleitbilder und -realitäten in Europa. Probleme der eigenständigen Existenz- Rechtliche, ökonomische und kulturelle sicherung von Frauen aus vergleichender Dimensionen. Baden-Baden 2009. Sicht. In: Bundesministerium für Familie, pp. 126-141. Senioren, Frauen und Jugend (ed.), Eigen- verantwortung, private und öffentliche — Rechtliche Rahmenbedingungen der Solidarität – Rollenleitbilder im Familien- Ausgestaltung intergenerationaler Bezie- und Sozialrecht im europäischen Vergleich. hungen im internationalen Vergleich. In: Baden-Baden 2008. pp. 65-77. Jürgen Kocka/Martin Kohli/Wolfgang Streeck (eds.), Altern: Familie, Zivilgesellschaft, —; Blenk-Knocke, Edda: Einführung. In: Politik. Stuttgart 2009. pp. 139-172. Bundesministerium für Familie, Senioren, Frauen und Jugend (ed.), Eigenverant- — Rezension von: "Carmelo Mesa-Lago: wortung, private und öffentliche Solidarität Reassembling Social Security: A Survey of – Rollenleitbilder im Familien- und Sozial- Pensions and Healthcare Reforms in Latin recht im europäischen Vergleich. Baden- America". In: Zeitschrift für ausländisches Baden 2008. pp. 17-20. und internationales Arbeits- und Sozialrecht (ZIAS) 23 (2009) 1. pp. 68-72. —; Blenk-Knocke, Edda: Ergebnisse der vergleichenden Auswertung, Problemfelder — The Paradox of Public Preschools in a und Forschungsbedarf. In: Bundesministe- Familist Welfare Regime: The Italian Case. rium für Familie, Senioren, Frauen und In: Kirsten Scheiwe/Harry Willekens (eds.), Jugend (ed.), Eigenverantwortung, private Child Care and Preschool Development in und öffentliche Solidarität – Rollenleitbilder Europe. Institutional Perspectives. Basing- im Familien- und Sozialrecht im europä- stoke 2009. pp. 88-104. ischen Vergleich. Baden-Baden 2008. pp. 486-502. —; Blenk-Knocke, Edda: Einführung. In: Bundesministerium für Familie, Senioren, —; Blenk-Knocke, Edda (editorial resp.): Frauen und Jugend (ed.), Rollenleitbilder Eigenverantwortung, private und öffentliche und -realitäten in Europa. Rechtliche, Solidarität – Rollenleitbilder im Familien- ökonomische und kulturelle Dimensionen. und Sozialrecht im europäischen Vergleich. Baden-Baden 2009. pp. 17-22. Baden-Baden 2008. —; Blenk-Knocke, Edda: Schlussfolgerun- • gen. In: Bundesministerium für Familie, Senioren, Frauen und Jugend (ed.), Rollen- — Das neue Bundesgesetz über Elterngeld leitbilder und -realitäten in Europa. Recht- und Elternzeit. Erste Bilanz. In: Miyoko liche, ökonomische und kulturelle Dimen- Motozawa/Bernd von Maydell (eds.), 家族 sionen. Baden-Baden 2009. pp. 259-275. のための総合政策II –市民社会における 家族政策 [Familienpolitik in der Gesell- —; Blenk-Knocke, Edda (editorial resp.): schaft]. Tokyo 2009. pp. 39-56. Rollenleitbilder und -realitäten in Europa. Rechtliche, ökonomische und kulturelle — Abstract: Das neue Bundesgesetz über Dimensionen: Dokumentation des Work- Elterngeld und Elternzeit. Erste Bilanz. shops vom 20. – 22. Oktober 2008. Baden- In: Miyoko Motozawa/Bernd von Maydell Baden 2009. (eds.), 家族のための総合政策II –市民社 会における家族政策 [Familienpolitik in der Gesellschaft]. Tokyo 2009. pp. 253-255. Otto KAUFMANN

— Güterrechtlicher Vermögensausgleich — Collective Agreement Law after the und Aufteilung von Rentenanrechten im Railway Strike in Germany. Is the Social Scheidungsfall – zum Zusammenspiel Dialogue Idling? In: Folio (2008) 47. pp. 7-8. von Güter- und Sozialrecht in Europa. In: Bundesministerium für Familie, — Flexibilité et flexicurité. Quelques Senioren, Frauen und Jugend (ed.), remarques. In: Institut de la Protection

142 V. PUBLICATIONS

Sociale Européenne (ed.), La protection Activation Schemes in Europe and the US. sociale, une securisation de la flexibilité du Berlin 2008. pp. 1-16. travail en Europe. XXXIIIème rencontre IPSE Strasbourg, 3 et 4 juillet 2008 au —; Reinhard, Hans-Joachim: Activation Parlement Européen de Strasbourg. Paris from a Legal Point of View. Concluding 2008. pp. 34-36. Remarks. In: Werner Eichhorst/Otto Kaufmann/Regina Konle-Seidl (eds.), — L'assurance maladie allemande. Le fonds Bringing the Jobless into Work? Experiences de santé. In: Folio (2008) 49. pp. 7-9. with Activation Schemes in Europe and the US. Berlin 2008. pp. 445-460. — La réforme de l'assurance maladie en Allemagne. Priorité à la compétitivité et à Eichhorst, Werner; — ; Konle-Seidl, Regina la concurrence. In: Dominique Assayag/ (eds.): Bringing the Jobless into Work? François Guedj/Patricia Toucas-Truyen Experiences with Activation Schemes in (eds.), Protection sociale et mutualité en Europe and the US. Berlin 2008. Europe. Quelle voie pour une approche solidaire de la santé? Paris 2008. pp. 25-37. •

— Le droit des conventions collectives — L'arrêt de la Cour constitutionnelle alle- après la grève des cheminots en Allemagne. mande sur le traité de Lisbonne et le droit Le dialogue social au ralenti. Le dialogue social européen. In: Folio (2009) 52. social au ralenti? In: Folio (2008) 47. pp. 6-8. pp. 6-7. — L'assurance maladie allemande après la — Protection sociale d'entreprise. Droit réforme. Fiabilité du mode de financement? d'information du salarié. In: La Semaine In: Droit social (2009) 4. pp. 478-487. Juridique 81 (2008) 30. pp. 38-39. — The German Federal Constitutional — Reform der sozialen Sicherungssysteme Court's Decision on the Treaty of Lisbon in Deutschland und der Türkei. In: Konrad- and European Social Law. In: Folio (2009) Adenauer-Stiftung (ed.), Wirtschaftliche 52. pp. 8-9. und sozialpolitische Strukturreformen in Deutschland und der Türkei. 18. – 19. 10.2007, Izmir. Berlin 2008. pp. 365-388. Matthias KNECHT

— Türkiye'de ve almanya'da sosyal güvenlik —; Moser, Dominik; Bruder, Florian: sistemleri reformları. In: Konrad-Adenauer- Symposium "Die Reform des World Anti- Stiftung (ed.), Türkiye'de ve almanya'da Doping Code". In: Zeitschrift für Sport ekonomik ve sosyopolitik yapısal reformlar. und Recht (SpuRt) 15 (2008) 1. pp. 43-44. 18. – 19.10.2007, Izmir. Berlin 2008. pp. 301-322. •

Barbier, Jean-Claude; —: The French Strat- — Aktuelle Entwicklungen im Anti-Doping- egy against Unemployment: Innovative but Kampf. Verbandsautonomie und staatliche Inconsistent. In: Werner Eichhorst/Otto Verantwortung im Widerstreit. In: Gerald Kaufmann/Regina Konle-Seidl (eds.), G. Sander/Andrea Sasdi/Konrad Scorl Bringing the Jobless into Work? Experiences (eds.), Sport im Spannungsfeld von Recht, with Activation Schemes in Europe and the Wirtschaft und europäischen Grundfrei- US. Berlin 2008. pp. 69-120. heiten. Berlin 2009. pp. 25-50.

Eichhorst, Werner; — ; Konle-Seidl, Regina; — Vorb. §§ 13-15 SGB I. In: Wolfgang Reinhard, Hans-Joachim: Bringing the Job- Noftz/Hartmut Haines (eds.), Sozial- less into Work? An Introduction to Activa- gesetzbuch SGB I. Allgemeiner Teil. tion Policies. In: Werner Eichhorst/Otto Kommentar. Berlin 2009. Kaufmann/Regina Konle-Seidl (eds.), Bring- ing the Jobless into Work? Experiences with

143 REPORT 2008 – 2009

— §§ 38-41, 45-47, 50, 151-156 SGG. • In: Tilman Breitkreuz/Wolfgang Fichte (eds.), Sozialgerichtsgesetz SGG. — Behindertenpolitik und Rechte behin- Kommentar. Berlin 2009. derter Menschen in Schweden. In: Bernd von Maydell/Rainer Pitschas/Peter Pörtner/ — Art. 6-12, 30, 31, 33 GRC. In: Jürgen Bernd Schulte (eds.), Politik und Recht Schwarze/Ulrich Becker/Armin Hatje/ für Menschen mit Behinderungen in Euro- Johann Schoo (eds.), EU-Kommentar. pa und Asien. Unter den Bedingungen 2nd ed. Baden-Baden 2009. des demografischen Wandels – kulturelle Voraussetzungen und Erklärungshypothe- — (editorial resp.): Wolfgang Noftz/Hartmut sen. Baden-Baden 2009. pp. 209-228. Haines (eds.), Sozialgesetzbuch SGB I. Allgemeiner Teil. Kommentar. Berlin 2009. — Betriebliche Zusatzversorgung in Schweden. Am Beispiel der Zusatzrente für Angestellte in Industrie und Handel – Peter A. KÖHLER tarifvertragliche Ergänzung der gesetzlichen Rentenversicherung. In: Soziale Sicherheit — Das kollektive Arbeitsrecht Schwedens 58 (2009) 12. pp. 415-418. auf dem europarechtlichen Prüfstand. Vaxholm – Gustafsson – Evaldsson. In: Landauer, Martin; — ; Körtek, Yasemin; Zeitschrift für europäisches Sozial- und Ar- Ross, Friso; Walser, Christina: Long-Term beitsrecht (ZESAR) 7 (2008) 2. pp. 65-74. Care Benefits and Services in Europe. In: Gerontology 55 (2009) 5. pp. 481-490. — Elterngeld als einkommensabhängige Versicherungsleistung. In: Soziale Sicher- heit 57 (2008) 4. pp. 138-143. Yasemin KÖRTEK

— Rollenleitbilder im Familien- und Sozial- — Aktuelle Entwicklungen im Bereich recht Dänemarks. In: Bundesministerium der türkischen Sozialversicherung. In: für Familie, Senioren, Frauen und Jugend Zeitschrift für ausländisches und interna- (ed.), Eigenverantwortung, private und tionales Arbeits- und Sozialrecht (ZIAS) 22 öffentliche Solidarität – Rollenleitbilder im (2008) 4. pp. 338-354. Familien- und Sozialrecht im europäischen Vergleich. Baden-Baden 2008. pp. 384-411. — Die gesetzliche Unfallversicherung in der Türkei. Eine Einführung. In: die BG — Schweden: Sanktionsabgaben für (BG) (2008) 4. pp. 125-132. Gemeinden im Bereich sozialer Dienste. In: Sozialrecht in Deutschland und Europa — Die Reform der sozialen Sicherheit in (ZFSH/SGB) 47 (2008) 5. pp. 259-269. der Türkei und die Staatsbediensteten. Die Entscheidung des türkischen Verfassungs- Kvist, Jon; Pedersen, Lisbeth; —: Making gerichts vom 15.12.2006. In: Zeitschrift für all Persons Work. Modern Danish Labour ausländisches und internationales Arbeits- Market Policies. In: Werner Eichhorst/Otto und Sozialrecht (ZIAS) 21 (2007) 4. Kaufmann/Regina Konle-Seidl (eds.), pp. 331-351, (published 2008). Bringing the Jobless into Work? Experiences with Activation Schemes in Europe and the — Wege zu mehr Beschäftigung in der US. Berlin 2008. pp. 221-256. Türkei. Vergleichende Betrachtungen zum deutschen Arbeits- und Sozialrecht. —; Thorén, Katarina H.; Ulmestig, Rickard: In: Zeitschrift für europäisches Sozial- Activation Policies in Sweden. Something und Arbeitsrecht (ZESAR) 7 (2008) 11/12. Old, Something New, Something Borrowed pp. 483-492. and Something Blue. In: Werner Eichhorst/ Otto Kaufmann/Regina Konle-Seidl (eds.), • Bringing the Jobless into Work? Experiences with Activation Schemes in Europe and the — Behinderte Menschen im türkischen US. Berlin 2008. pp. 257-296. Recht. In: Bernd von Maydell/Rainer

144 V. PUBLICATIONS

Pitschas/Peter Pörtner/Bernd Schulte Care Benefits and Services in Europe. (eds.), Politik und Recht für Menschen In: Gerontology 55 (2009) 5. pp. 481-490. mit Behinderungen in Europa und Asien. Unter den Bedingungen des demogra- —; Walser, Christina: Einleitung. In: phischen Wandels – kulturelle Vorausset- Ulrich Becker/Kenichiro Nishimura/ zungen und Erklärungshypothesen. Baden- Christina Walser (eds.), Perspektiven der Baden 2009. pp. 245-264. Unfallversicherung in Japan und Deutsch- land. Baden-Baden 2009. pp. 9-16. — Crime Victim Compensation in Germany – An Overview. In: NKU Papers on Social Rogowski, Wolf H.; —; Walser, John, J.: Science 2 (2009) 5. pp. 1-29. Entscheidungsanalytische Modellierung von Kosten pro QALY im Kontext des deut- — Der Regress der Sozialversicherungs- schen Sozialrechts. In: Gesundheitswesen anstalt gegenüber dem Arbeitgeber in der 71 (2009). pp. 739-750. gesetzlichen Unfallversicherung nach türkischem Recht. In: Sozialrecht in Deutschland und Europa (ZFSH/SGB) Luise LAUERER 48 (2009) 2. pp. 78-85. —; Lüddecke, Dirk: Gesetz der Angst. — Translation of: "Ali Nazim Sözer: Patientenverfügungen können nicht mehr Maßnahmen zur Bekämpfung der Arbeits- als ein Notbehelf sein. In: Süddeutsche losigkeit: Eine Bewertung aus sozialver- Zeitung (SZ) 08/12/2008. pp. 11. sicherungsrechtlicher Sicht". In: Zeitschrift für ausländisches und internationales • Arbeits- und Sozialrecht (ZIAS) 23 (2009) 2. pp. 112-139. —; Becker, Ulrich: Autonomie am Lebens- ende. Zum Stand der gegenwärtigen Dis- Landauer, Martin; Köhler, Peter A.; — ; kussion um die Patientenverfügungen aus Ross, Friso; Walser, Christina: Long-Term rechtlicher Sicht. In: Kurt Kocksiek (ed.), Care Benefits and Services in Europe. Altern und Gesundheit. Stuttgart 2009. In: Gerontology 55 (2009) 5. pp. 481-490. pp. 247-281.

Martin LANDAUER Bernd BARON VON MAYDELL

— Perspektiven der Unfallversicherung — Das Sozialrecht und seine Stellung im in Japan und Deutschland. In: Neue Zeit- Gesamtsystem unserer Wirtschafts- und schrift für Sozialrecht (NZS) 17 (2008) Rechtsordnung. Zur Einführung. In: Bernd 4. pp. 191-194. von Maydell/Franz Ruland/Ulrich Becker (eds.), Sozialrechtshandbuch. SRH. 4th ed. — Perspektiven der Unfallversicherung Baden-Baden 2008. pp. 35-53. in Japan und Deutschland. Tagung am Max-Planck-Institut für ausländisches — Entwicklung des europäischen und und internationales Sozialrecht. In: die internationalen Arbeits- und Sozialrechts. BG (BG) 120 (2008) 3. pp. 87-90. In: Franz Müntefering/Ulrich Becker (eds.), 50 Jahre EU – 50 Jahre Rechtsprechung • des Europäischen Gerichtshofes zum Arbeits- und Sozialrecht. Baden-Baden — Mechanismen der Qualitätssicherung 2008. pp. 9-14. in der Pflege in England. In: Dieter Giese (ed.), Beiträge zum Recht der sozialen — Europäischer Menschenrechtsschutz Dienste und Einrichtungen. Cologne 2009. und soziale Grundrechte. In: Horst Konzen/ pp. 47-61. Sebastian Krebber/Thomas Raab/Barbara Veit/Bernd Waas (eds.), Festschrift für —; Köhler, Peter A.; Körtek, Yasemin; Rolf Birk zum siebzigsten Geburtstag. Ross, Friso; Walser, Christina: Long-Term Tübingen 2008. pp. 547-556.

145 REPORT 2008 – 2009

— Kassenwettbewerb – Private Versiche- Be˘lina/Marie Kalenská (eds.), Pocta Petru rungsunternehmen und gesetzliche Kran- Trösterovi k 70. narozeninám [Festschrift kenkassen als Wettbewerber. In: Nada für Petr Tröster zum 70. Geburtstag]. Bodiroga-Vukobrat (ed.), Soziale Sicherung Prague 2009. pp. 263-272. und Wettbewerb – Europäische Vorgaben und nationale Regelungen. Rijeka 2008. — Familienpolitik als Gesellschaftspolitik. pp. 155-165. Unterschied zwischen Sozial- und Gesell- schaftspolitik. In: Miyoko Motozawa/Bernd — Sozialreformen – des Sozialrechtlers von Maydell (eds.), 家族のための総合政 Lust und Frust. In: Peter Hanau/Jens T. 策II –市民社会における家族政策 [Famili- Thau/Hans-Peter Westermann (eds.), enpolitik in der Gesellschaft]. Tokyo 2009. Gegen den Strich. Festschrift für Klaus pp. 5-14. Adomeit. Neuwied 2008. pp. 441-451. — Sozialpolitische Entwicklungen in Japan —; Ruland, Franz; Becker, Ulrich (eds.): und Deutschland im Vergleich. Bericht über Sozialrechtshandbuch. SRH. 4th ed. Baden- ein Symposion in Tokio am 16. November Baden 2008. 2009. In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht • (ZIAS) 23 (2009) 2. pp. 182-184.

— Familienpolitik als Gesellschaftspolitik. Motozawa, Miyoko; —: Thesen. In: Miyoko Unterschied zwischen Sozial- und Gesell- Motozawa/Bernd von Maydell (eds.), 家族 schaftspolitik. In: Miyoko Motozawa/Bernd のための総合政策II –市民社会における von Maydell (eds.), 家族のための総合政 家族政策 [Familienpolitik in der Gesell- 策II –市民社会における家族政策 [Famili- schaft]. Tokyo 2009. pp. 2-4. enpolitik in der Gesellschaft]. Tokyo 2009. pp. 5-14. Motozawa, Miyoko; —: Für die Verwirkli- chung einer familienfreundlichen Gesell- — Abstract: Familienpolitik als Gesell- schaft. In: Miyoko Motozawa/Bernd von schaftspolitik. Unterschied zwischen Sozial- Maydell (eds.), 家族のための総合政策II – und Gesellschaftspolitik. In: Miyoko Moto- 市民社会における家族政策 [Familien- zawa/Bernd von Maydell (eds.), 家族のた politik in der Gesellschaft]. Tokyo 2009. めの総合政策II –市民社会における家族 pp. 247-249. 政策 [Familienpolitik in der Gesellschaft]. Tokyo 2009. pp. 249-250. Motozawa, Miyoko; — (eds.): 家族のため の総合政策II –市民社会における家族政 — Behindertenrecht und Behindertenpolitik 策 [Familienpolitik in der Gesellschaft]. als Gegenstand vergleichender Betrachtung. Tokyo 2009. Einführung in die Projektdiskussion. In: Bernd von Maydell/Rainer Pitschas/Peter —; Pitschas, Rainer; Pörtner, Peter; Pörtner/Bernd Schulte (eds.), Politik und Schulte, Bernd (eds.): Politik und Recht Recht für Menschen mit Behinderungen in für Menschen mit Behinderungen in Europa und Asien. Unter den Bedingungen Europa und Asien. Unter den Bedingungen des demografischen Wandels – kulturelle des demographischen Wandels – kulturelle Voraussetzungen und Erklärungshypothesen. Voraussetzungen und Erklärungshypothe- Baden-Baden 2009. pp. 11-29. sen. Baden-Baden 2009.

— Demographische Entwicklung und Rentenversicherung in Deutschland. Iris MEEßEN In: Kazuaki Tezuka (ed.), Festschrift aus Anlass der Emeritierung von Prof. Wilman, Nikola; —: Tagung: Entsendung von Tezuka. Baden-Baden 2009. pp. 505-515. Arbeitnehmern in der Europäischen Union – Probleme aus der sozialrechtlichen Praxis. — Die demographische Entwicklung – In: Sozialrecht in Deutschland und Europa Eine Herausforderung für die Sozial- (ZFSH/SGB) 48 (2009) 10. pp. 611-614. und Gesellschaftspolitik. In: Miroslav

146 V. PUBLICATIONS

Janire MIMENTZA MARTIN Hans-Joachim REINHARD

— Der Auskunftsanspruch im deutschen und — Eigenverantwortung, private und öffent- spanischen Markenrecht. Vor dem Hinter- liche Solidarität – Rollenleitbilder im deut- grund der europäischen Richtlinie 2004/48/ schen Sozialrecht. In: Bundesministerium EG zur Durchsetzung der Rechte des geisti- für Familie, Senioren, Frauen und Jugend gen Eigentums. Frankfurt am Main 2008. (ed.), Eigenverantwortung, private und öffentliche Solidarität – Rollenleitbilder im Familien- und Sozialrecht im europäischen Miyoko MOTOZAWA Vergleich. Baden-Baden 2008. pp. 114-134.

—; von Maydell, Bernd : Thesen. In: Miyo- — Übersetzung von: "Qiao Qingmei: ko Motozawa/Bernd von Maydell (eds.), Anmerkungen zur Reform der Unfallver- 家族のための総合政策II –市民社会にお sicherung in China". In: Zeitschrift für aus- ける家族政策 [Familienpolitik in der Ge- ländisches und internationales Arbeits- und sellschaft]. Tokyo 2009. pp. 2-4. Sozialrecht (ZIAS) 22 (2008) 4. pp. 297-309.

—; von Maydell, Bernd : Für die Verwirkli- — §§ 24-28a, 216a, 216b, 240-253, chung einer familienfreundlichen Gesell- 260-264, 266-271, 279a, 340-342, 344-364, schaft. In: Miyoko Motozawa/Bernd von 366, 366a SGB III. In: Jürgen Kruse/Peter- Maydell (eds.), 家族のための総合政策II – Bernd Lüdtke/Hans-Joachim Reinhard/ 市民社会における家族政策 [Familien- Jürgen Winkler/Irene Zamponi (eds.), Sozial- politik in der Gesellschaft]. Tokyo 2009. gesetzbuch III. Arbeitsförderung. Lehr- und pp. 247-249. Praxiskommentar. Baden-Baden 2008.

—; von Maydell, Bernd (eds.): 家族のため — §§ 183, 225, 226, 264, 264a SGB VI. の総合政策II –市民社会における家族政 In: Franz Ruland/Joachim Försterling 策 [Familienpolitik in der Gesellschaft]. (eds.), Gemeinschaftskommentar zum Tokyo 2009. Sozialrecht – Gesetzliche Rentenversiche- rung. Neuwied 2008.

Magdalena NEUEDER Eichhorst, Werner; Kaufmann, Otto; Konle- Seidl, Regina; —: Bringing the Jobless into — Qualitätssicherung in der Pflege. Bericht Work? An Introduction to Activation Policies. über die Tagung am 12. und 13.6.2008 am In: Werner Eichhorst/Otto Kaufmann/Regina Max-Planck-Institut für ausländisches und Konle-Seidl (eds.), Bringing the Jobless into internationales Sozialrecht in München. Work? Experiences with Activation Schemes In: Sozialrecht in Deutschland und Europa in Europe and the US. Berlin 2008. pp. 1-16. (ZFSH/SGB) 47 (2008) 12. pp. 719-721. Kaufmann, Otto; —: Activation from a • Legal Point of View. Concluding Remarks. In: Werner Eichhorst/Otto Kaufmann/ — Qualitätssicherung in der Pflege. Bericht Regina Konle-Seidl (eds.), Bringing the über die Tagung am 12. und 13.6.2008 am Jobless into Work? Experiences with Max-Planck-Institut für ausländisches und Activation Schemes in Europe and the internationales Sozialrecht in München. US. Berlin 2008. pp. 445-460. In: Neue Zeitschrift für Sozialrecht (NZS) 18 (2009) 2. pp. 88-90. Kruse, Jürgen; Lüdtke, Peter-Bernd; — ; Winkler, Jürgen; Zamponi, Irene (eds.): Sozialgesetzbuch III. Arbeitsförderung. Lehr- Lorena OSSIO und Praxiskommentar. Baden-Baden 2008.

— El proceso de constitucionalizaciòn del • derecho Indigena en Bolivia. In: Revista Ju- ridica de la Facultad de Derecho de la Uni- — Anerkennung von Diplomen/Anerken- versidad Nacional 4 (2008) 4. pp. 261-282. nung von Berufsausbildungen. In: Zeit-

147 REPORT 2008 – 2009

schrift für europäisches Sozial- und Arbeits- Bertozzi, Fabio; Bonoli, Giuliano; —: recht (ZESAR) 8 (2009) 5/6. pp. 242-245. The Swiss Road to Activation. Legal Aspects, Implementation and Outcomes. — Asistencia sanitaria para inmigrantes In: Werner Eichhorst/Otto Kaufmann/ ilegales en Alemania. In: Cristina Sánchez- Regina Konle-Seidl (eds.), Bringing the Rodas Navarro (ed.), Aspectos jurídicos Jobless into Work? Experiences with de la inmigración irregular en la Unión Activation Schemes in Europe and the Europea. Murcia 2009. pp. 175-182. US. Berlin 2008. pp. 121-159.

— Betriebliche Altersversorgung in • Deutschland. In: Soziale Sicherheit 58 (2009) 7/8. pp. 406-409. — Das schweizerische Modell der gesetz- lichen Unfallrente. Grundzüge, Bemessung, — Betriebliche Altersversorgung in Koordination. In: DGUV-Forum (2009) Deutschland und Europa. In: Soziale 2. pp. 34-41. Sicherheit 58 (2009) 7/8. p. 405. — Die obligatorische berufliche Vorsorge — Betriebliche Altersversorgung in in der Schweiz: Betriebliche Alterssicherung Spanien. In: Soziale Sicherheit 58 (2009) mit Verfassungsauftrag. In: Soziale Sicher- 7/8. pp. 419-422. heit 58 (2009) 4. pp. 423-426.

— Die soziale Absicherung von pflegenden — Die rechtliche Struktur für die Qualitäts- Familienangehörigen in Spanien. In: erstellung in der Pflege Österreichs. In: Bundesministerium für Familie, Senioren, Beiträge zum Recht der sozialen Dienste Frauen und Jugend (ed.), Rollenleitbilder und Einrichtungen (RsDE) (2009) 70. und -realitäten in Europa. Rechtliche, pp. 21-34. ökonomische und kulturelle Dimensionen. Baden-Baden 2009. pp. 230-237. — §§ 1-6, 202 SGG. In: Tilman Breitkreuz/ Wolfgang Fichte (eds.), Sozialgerichtsgesetz — Translation of: "Carmelo Mesa-Lago: SGG. Kommentar. Berlin 2009. Die Renten der Sozialen Sicherheit in Lateinamerika nach drei Jahrzenten der — Art. 146-148 EGV. In: Jürgen Schwarze/ Reformen". In: Zeitschrift für ausländisches Ulrich Becker/Armin Hatje/Johann Schoo und internationales Arbeits- und Sozialrecht (eds.), EU-Kommentar. 2nd ed. Baden- (ZIAS) 23 (2009) 1. pp. 1-34. Baden 2009.

— §§ 44-74 SGB XII. In: Jürgen Kruse/ — Art. 22, 24-26, 29, 32, 34 GRC. In: Hans-Joachim Reinhard/Jürgen Winkler/ Jürgen Schwarze/Ulrich Becker/Armin Sven Höfer/Clarita Schwengers (eds.), SGB Hatje/Johann Schoo (eds.), EU-Kommentar. XII. Sozialhilfe. Kommentar. 2nd ed. Munich 2nd ed. Baden-Baden 2009. 2009. Landauer, Martin; Köhler, Peter A.; Körtek, Kruse, Jürgen; — ; Winkler, Jürgen; Höfer, Yasemin; — ; Walser, Christina: Long-Term Sven; Schwengers, Clarita (eds.): SGB XII. Care Benefits and Services in Europe. Sozialhilfe. Kommentar. 2nd ed. Munich In: Gerontology 55 (2009) 5. pp. 481-490. 2009. —; Walser, Christina: Rechtliche Antworten auf die alternden Gesellschaften. Die Soziale Friso ROSS Sicherheit und ihre fördernde Funktion bei der Arbeitsmarktintegration in Deutschland, — Grundgesetz und Gerichtsgebühr: den Niederlanden und der Schweiz. In: Axel Die Aufhebung der Kostenfreiheit im Börsch-Supan/Marcel Erlinghagen/Karsten Sozialgerichtsverfahren unter verfassungs- Hank/Hendrik Jürges/Gert G. Wagner (eds.), rechtlichen Aspekten. In: Die Öffentliche Produktivität in alternden Gesellschaften. Verwaltung (DÖV) (2008) 10. pp. 404-411. Stuttgart 2009. pp. 63-90.

148 V. PUBLICATIONS

Markus SCHÖN In: Sozialrecht in Deutschland und Europa (ZFSH/SGB) 47 (2008) 4. pp. 200-216. — Diskussionsbericht zu Teil I. In: Franz Müntefering/Ulrich Becker (eds.), 50 Jahre — Das Sozialrecht in der Rechtsprechung EU – 50 Jahre Rechtsprechung des Euro- des Europäischen Gerichtshofs im Jahre päischen Gerichtshofes zum Arbeits- und 2007. In: Peter Udsching/Christian Rolfs Sozialrecht. Baden-Baden 2008. pp. 27-28. (eds.), Jahrbuch des Sozialrechts. Gesetzge- bung, Verwaltung, Rechtsprechung, Literatur — Diskussionsbericht zu Teil II. In: Franz ; Nachschlagewerk für Wissenschaft und Müntefering/Ulrich Becker (eds.), 50 Jahre Praxis. Vol. 29. Berlin 2008. pp. 429-463. EU – 50 Jahre Rechtsprechung des Euro- päischen Gerichtshofes zum Arbeits- und — Die Ausübung der Patientenrechte bei Sozialrecht. Baden-Baden 2008. pp. 91-93. der grenzüberschreitenden Gesundheitsver- sorgung. Teil 1: Zu dem Richtlinienvor- — Diskussionsbericht zu Teil III. In: Franz schlag der Europäischen Kommission vom Müntefering/Ulrich Becker (eds.), 50 Jahre 2.Juli 2008. In: Gesundheits- und Sozial- EU – 50 Jahre Rechtsprechung des Euro- politik 62 (2008) 6. pp. 40-53. päischen Gerichtshofes zum Arbeits- und Sozialrecht. Baden-Baden 2008. pp. 141-143. — Institutional Framework, Legal Instru- ments and Legal Techniques Relating to — §§ 59-76, 183-189a SGB III. In: Jürgen the Promotion of Access to Social Security Kruse/Peter-Bernd Lüdtke/Hans-Joachim to Non-Citizens. A German Perspective. Reinhard/Jürgen Winkler/Irene Zamponi In: Ulrich Becker/Marius Olivier (eds.), (eds.), Sozialgesetzbuch III. Arbeitsförde- Access to Social Security for Non-Citizens rung. Lehr- und Praxiskommentar. and Informal Sector Workers. An Internation- Baden-Baden 2008. al, South African and German Perspective. Stellenbosch 2008. pp. 85-141. • — Pflege in Europa. Teil 1. Die soziale — Gelingende und leistungsfähige Jugend- Absicherung des Risikos der Pflegebedürf- hilfe. Ein Garant für die Zukunftsfähigkeit tigkeit in den Mitgliedstaaten der Europä- der Gesellschaft. In: Miyoko Motozawa/ ischen Union. In: Sozialrecht in Deutsch- Bernd von Maydell (eds.), 家族のための land und Europa (ZFSH/SGB) 47 (2008) 総合政策II –市民社会における家族政策 12. pp. 707-718. [Familienpolitik in der Gesellschaft]. Tokyo 2009. pp. 57-71. — Politische Aspekte des Generationenzu- sammenhalts in Europa. In: Susanne Zank/ — Abstract: Gelingende und leistungsfähige Astrid Hedtke-Becker (eds.), Generatio- Jugendhilfe. Ein Garant für die Zukunftsfä- nen in Familie und Gesellschaft im demo- higkeit der Gesellschaft. In: Miyoko Moto- graphischen Wandel. Europäische Perspek- zawa/Bernd von Maydell (eds.), 家族のた tiven. Stuttgart 2008. pp. 23-35. めの総合政策II –市民社会における家族 政策 [Familienpolitik in der Gesellschaft]. — Sozial-, verfassungs- und europarecht- Tokyo 2009. pp. 255-258. liche Fragen der Einbeziehung Selbstän- diger in die gesetzliche Rentenversicherung. In: Friedrich-Ebert-Stiftung/Abteilung Bernd SCHULTE Wirtschafts- und Sozialpolitik (ed.), Erwerbstätigenversicherung – Ein kleiner — Behindertenpolitik und Behinderten- Schritt in die richtige Richtung. Wiso recht in der Europäischen Union. Teil 1. Diskurs: Expertisen und Dokumentationen In: Sozialrecht in Deutschland und Europa zur Wirtschafts- und Sozialpolitik. Tagungs- (ZFSH/SGB) 47 (2008) 3. pp. 131-145. dokumentation im Auftrag der Friedrich- Ebert-Stiftung. Bonn 2008. pp. 16-34. — Behindertenpolitik und Behinderten- recht in der Europäischen Union. Teil 2. —; Allegrezza, Serge; Bauby, Pierre: Analyse der Auswirkungen des Lissabon-Vertrags

149 REPORT 2008 – 2009

auf die Dienstleistungen von allgemeinem — Ein Blick über die Grenzen. Erwerbs- Interesse und Umsetzungsvorschläge. minderungsrenten in europäischen Nach- In: Conseil Économique et Social (ed.), barländern. In: Soziale Sicherheit 58 Analyse der Auswirkungen des Lissabon- (2009) 3. pp. 93-99. Vertrags auf die Dienstleistungen von allgemeinem Interesse und Umsetzungs- — Europäische Kommission. Verbesserung vorlagen. Luxembourg 2008. pp. 1-102. des Mutterschutzes sowie des sozialen Schutzes selbständig tätiger und mitar- Finn, Daniel; —: Employment first. beitender Frauen. In: Informationsdienst Activating the British Welfare State. Europäisches Arbeits- und Sozialrecht In: Werner Eichhorst/Otto Kaufmann/ (EuroAS) 17 (2009) 1/2. pp. 18-20. Regina Konle-Seidl (eds.), Bringing the Jobless into Work? Experiences with — Europäische Vorgaben für die Qualität Activation Schemes in Europe and the der Pflege. In: Beiträge zum Recht der US. Berlin 2008. pp. 297-343. sozialen Dienste und Einrichtungen (RsDE) (2009) 70. pp. 62-82. • — Pflege in Europa. Teil 2. Die soziale — Addiction and German Social Law. Absicherung des Risikos der Pflegebedürf- In: Munich Re (eds.), Risk, Liability tigkeit in den Mitgliedstaaten der Europä- & Insurance. Munich 2009. pp. 60-67. ischen Union. In: Sozialrecht in Deutsch- land und Europa (ZFSH/SGB) 48 (2009) — Behindertenpolitik und Behinderten- 1. pp. 17-31. recht in Europa. Behindertenpolitische und behindertenrechtliche Grundlegung: Die — Pflege in Europa. Teil 3. Die soziale Europäische Union. In: Bernd von Maydell/ Absicherung des Risikos der Pflegebedürf- Rainer Pitschas/Peter Pörtner/Bernd Schulte tigkeit in den Mitgliedstaaten der Europä- (eds.), Politik und Recht für Menschen ischen Union. In: Sozialrecht in Deutsch- mit Behinderungen in Europa und Asien. land und Europa (ZFSH/SGB) 48 (2009) Unter den Bedingungen des demografischen 2. pp. 86-100. Wandels – kulturelle Voraussetzungen und Erklärungshypothesen. Baden-Baden 2009. von Maydell, Bernd ; Pitschas, Rainer; pp. 305-365. Pörtner, Peter; — (eds.): Politik und Recht für Menschen mit Behinderungen in Euro- — Chancen und Risiken einer EU-Richt- pa und Asien. Unter den Bedingungen des linie. Teil 2. Zur Ausübung der Patienten- demografischen Wandels – kulturelle rechte bei der grenzüberschreitenden Voraussetzungen und Erklärungs- Gesundheitsversorgung. In: Gesundheits- hypothesen. Baden-Baden 2009. und Sozialpolitik 63 (2009) 1. pp. 37-52.

— Das Sozialrecht in der Rechtsprechung Christina WALSER des Europäischen Gerichtshofs. In: Peter Udsching/Christian Rolfs (eds.), Jahrbuch — Rechtlicher Rahmen der Qualitätssiche- des Sozialrechts. Dokumentation für das Jahr rung für die Pflege in den Niederlanden. 2008. Vol. 30. Berlin 2009. pp. 473-513. In: Dieter Giese (ed.), Beiträge zum Recht der sozialen Dienste und Einrichtungen. — Die rechtlichen Rahmenbedingungen Cologne 2009. pp. 35-46. der Offenen Methode der Koordinierung und ihr Einsatz in den unterschiedlichen Becker, Ulrich; Nishimura, Kenichiro; — Aktionsfeldern. In: Stamatia Devetzi/ (eds.): Perspektiven der Unfallversicherung Helmut Platzer (eds.), Offene Methode in Japan und Deutschland. Baden-Baden der Koordinierung und Europäisches 2009. Sozialmodell. interdisziplinäre Perspektiven. Stuttgart 2009. pp. 51-82. Landauer, Martin; —: Einleitung. In: Ulrich Becker/Kenichiro Nishimura/ Christina Walser (eds.), Perspektiven

150 V. PUBLICATIONS

der Unfallversicherung in Japan und — Einschluss, Ausschluss und Öffnung Deutschland. Baden-Baden 2009. pp. 9-16. im Wandel. In: Zeitschrift für Sozialreform (ZSR) 55 (2009) 1. pp. 25-39. Landauer, Martin; Köhler, Peter A.; Körtek, Yasemin; Ross, Friso; —: Long-Term Care — Globale Sozialpolitik – Einige Zugänge. Benefits and Services in Europe. In: In: Matthias Herdegen/Hans-Hugo Klein/ Gerontology 55 (2009) 5. pp. 481-490. Hans-Jürgen Papier/Rupert Scholz (eds.), Staatsrecht und Politik. Festschrift für Ross, Friso; —: Rechtliche Antworten auf Roman Herzog zum 75. Geburtstag. die alternden Gesellschaften. Die soziale Munich 2009. pp. 537-558. Sicherheit und ihre fördernde Funktion bei der Arbeitsmarktintegration in Deutschland, — Uwagi o solidarnos´ci den Niederlanden und der Schweiz. In: Axel mie˛dzypokoleniowej. In: Acta Universitatis Börsch-Supan/Marcel Erlinghagen/Karsten Wratislaviensis No. 3082, PRAWO Hank/Hendrik Jürges/Gert G. Wagner CCCVII (2009), pp. 251-272. (eds.), Produktivität in alternden Gesell- schaften. Stuttgart 2009. pp. 63-90.

Nikola WILMAN

—; Meeßen, Iris: Tagung: Entsendung von Arbeitnehmern in der Europäischen Union – Probleme aus der sozialrechtlichen Praxis. In: Sozialrecht in Deutschland und Europa (ZFSH/SGB) 48 (2009) 10. pp. 611-614.

Hans F. ZACHER

— Der europäische Sozialstaat. In: Schweizerische Zeitschrift für Sozial- versicherung und berufliche Vorsorge (SZS/RSAS) 52 (2008) 1. pp. 1-21.

— Die Entwicklungsländer-Forschung in den ersten Jahrzehnten des Max-Planck- Instituts für ausländisches und interna- tionales Sozialrecht. In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (ZIAS) 22 (2008) 1/2. pp. 1-38.

— Europäische Sozialpolitik/Europäisches Sozialrecht. In: Anton Rauscher (ed.), Handbuch der Katholischen Soziallehre. Berlin 2008. pp. 721-737.

— Nachruf: Carl Friedrich von Weizsäcker. 28. Juni 1912 – 28. April 2007. In: Persona- lien 2007. Beilage zum Jahresbericht der Max-Planck-Gesellschaft. 2008, pp. 23-26.

•

151 REPORT 2008 – 2009

152 VI. Papers and Lectures REPORT 2008 – 2009

1. Papers Foreign and International Social Law, Kardi- nal-Wendel-Haus, Munich (3 July 2008).

Ulrich BECKER "EU Perspectives on Migration and Social Protection: Social Rights of "Aging and Social Security", Non-Citizens". Conference: "Social Protec- Max Planck Institute for Demographic tion Perspectives on Migration in South and Research, Rostock (24 January 2008). Southern Africa", Friedrich-Ebert-Stiftung, South Africa Office and Centre for Interna- "Familiale Generationenbeziehungen tional and Comparative Labour and Social im Wohlfahrtsstaat". Conference: Security Law (CICLASS), University of Jo- "Altern, Familie, Zivilgesellschaft und hannesburg, South Africa (27 August 2008). Politik", Akademiegruppe Altern in Deutsch- land, Dresden (1 February 2008). "Legal Analysis". Workshop: "New Pension Schemes", European Patent Office, Contribution to discussion. Expert Munich (12 September 2008). meeting: "Common Elements of European Labour Law". Kick-off workshop on Euro- "Bericht über jüngste Entwicklungen pean labour law, Bertelsmann Stiftung, des Instituts und aktuelle Forschungs- Cologne (10 March 2008). projekte". Alumni meeting, Max Planck Institute for Foreign and International "Einführung in das deutsche Sozial- Social Law, Munich (12 September 2008). versicherungssystem". Chinese-German symposium on social insurance law, Legal "Rentenreform und Arbeitsmarkt- Affairs Commission (LAC) of the Standing reformen in Deutschland", Council of Committee of the National People's Labor Affairs, Taipei, Taiwan, R. O. C. Congress (NPC), Beijing, P. R. China (15 October 2008). (31 March 2008). "Rentenreformen in Deutschland und "Koordinierung von Sozialleistungs- der Europäischen Union sowie die systemen in der EU". Chinese-German mögliche Bedeutung für Asien". Inter- symposium on social insurance law, Legal national Symposium on Pension Reform Affairs Commission (LAC) of the Standing in East Asia, Chengchi University, Taipei, Committee of the National People's Taiwan, R. O. C. (16 October 2008). Congress (NPC), Beijing, P. R. China (1 April 2008). "Die Pflegeversicherung in Deutsch- land", Kainan University, Luchu, Taiwan, Introduction and conclusion. Confer- R. O. C. (17 October 2008). ence: "Qualitätssicherung in der Pflege", Institute of Social Law and Social Policy Chair of discussion. Interdisciplinary in Europe of Christian Albrecht University workshop: "Gender Role Models in Europe: (CAU) Kiel and Max Planck Institute for Legal, Economic, and Cultural Dimen- Foreign and International Social Law, sions", German Federal Ministry of Family Munich (12/13 June 2008). Affairs, Senior Citizens, Women and Youth, Centro Italo-Tedesco Villa Vigoni, Loveno di Chair, part 1: "Analyse der aktuellen Menaggio/Como, Italy (21 October 2008). Rechtsprechung des EuGH". Sympo- sium: "Die Auswirkungen der Recht- Contribution to discussion: "Sterbehilfe sprechung des Europäischen Gerichtshofes und Geriatrie". 36th conference, Fach- auf das Arbeitsrecht der Mitgliedstaaten", ausschuss Betriebswirtschft [Committee German Federal Ministry of Labour and of experts on business administration], Social Affairs, Berlin (26 June 2008). Bundesverband Geriatrie (BVG) [Federal Association of Geriatric Organisations in "Einführung und Grundlagen". Sympo- Germany], Berlin (29 October 2008). sium: "Rechtsdogmatik und Rechtsvergleich im Sozialrecht", Max Planck Institute for

154 VI. PAPERS AND LECTURES

"Von der Unionsbürgerschaft zu so- "Perspektiven für die betriebliche zialen Grundrechten? Eine juristische Altersversorgung". Conference: Analyse". European conference 2008: "Steuerung der betrieblichen Altersver- "Unionsbürgerschaft, Freizügigkeit und sorgung in Europa: garantierte Sicherheit?", Sozialschutz", European Social Insurance Hans-Böckler-Stiftung, Max Planck Insti- Platform (ESIP), Brussels, Belgium tute for Foreign and International Social (20 November 2008). Law, The Western Institute of Law and European Studies (IODE) of the University Introduction. Expert meeting: "Project on of Rennes I, and Friedrich-Ebert-Stiftung, General Principles of Social Security Law Berlin (29 May 2009). in Europe (GPSoc)", Bertelsmann Stiftung and Max Planck Institute for Foreign and "Cultural Background of Social Secu- International Social Law, Munich rity in Germany". The Fifth International (4 December 2008). Conference on Social Security, Friedrich- Ebert-Stiftung, China Social Insurance As- Chair of discussion. Symposium: "Die sociation, and Renmin University of China, Tätigkeit von Spielervermittlern im natio- Beijing, P. R. China (12 September 2009). nalen und internationalen Sportrecht", Max Planck Institute for Foreign and Interna- "20 Jahre Sozialrecht in Mittel- und tional Social Law and Max Planck Institute Osteuropa – Überlegungen zur Trans- for Comparative and International Private formation sozialer Sicherungssysteme". Law, Hamburg (8 December 2008). Conference: "A New Welfare Model? – Social Security in Central and Eastern "Standards und Prinzipien des Euro- Europe 20 Years after Democratisation", päischen Sozialrechts". 11th annual con- Charles University, Faculty of Law and ference of the German social law teachers: Friedrich-Ebert-Stiftung, Prague, Czech "Sozialrecht in Europa", Deutscher Sozial- Republic (1 October 2009). rechtsverband e.V., University of Cologne (31 March 2009). "Perspectives: Compatibility of Ex- isting Up-to-date ILO Social Security "Einführung in die Tagungsthematik". Standards with New Social Policy Conference: "Entsendung von Arbeitneh- Trends". Workshop: "International Setting mern in der Europäischen Union – Pro- of Standards and Innovation in Social bleme aus der sozialrechtlichen Praxis", Protection in Low Income Countries", Bavarian Higher Social Court and Max Max Planck Institute for Foreign and Planck Institute for Foreign and Interna- International Social Law, Abtei Frauen- tional Social Law, Munich (20 April 2009). wörth, Frauenchiemsee (16 October 2009).

"Der Sozialstaat in der Europäischen "Die deutsche Krankenversicherung Union". Research colloquium on the occa- unter besonderer Berücksichtigung sion of Gerhard A. Ritter's 80th birthday: des Gesundheitsfonds". Information "Der deutsche Sozialstaat: Konstruktion, meeting: "Das deutsche Sozialversiche- Ausdifferenzierung und Weiterentwicklung", rungssystem", Max Planck Institute for Department of History of Ludwig Maximi- Foreign and International Social Law, lian University (LMU) Munich and Max Munich (5 November 2009). Planck Institute for Foreign and Interna- tional Social Law, Historisches Kolleg, "Age Limits and Social Security". Munich (24 April 2009). Workshop: "Extending the Working Life – Empirical Analyses of Legal Regulations "Aufgaben und Leistungen der gesetz- and their Enforcement", Institute for lichen Rentenversicherung in Deutsch- Labour Law and Industrial Relations in land". 9th symposium of the German- the European Community (IAAEG), Chinese Dialogue on the Rule of Law: Trier (13 November 2009). "Das Recht der Rentenversicherung im Rechtsstaat", Shenzhen, P. R. China Chair of discussion on "Rationierung (27 April 2009). von Sozialleistungen". Federal Congress,

155 REPORT 2008 – 2009

Deutscher Sozialrechtsverband e.V.: "60 "Rollenleitbilder in europäischen Jahre Grundgesetz und Sozialverfassung – Ländern im Vergleich – empirische Gesundheit und Verfassung", Federal Social Dimensionen". Conference: "Frauen in Court (BSG) Kassel (26 November 2009). Europa", Evangelische Akademie Tutzing (23 May 2009). Chair of discussion. Symposium: "Das Verbot von Mehrheitsbeteiligungen an Fußballklubs im nationalen und interna- Olga CHESALINA tionalen Recht", Max Planck Institute for Foreign and International Social Law "Das Recht des Mutterschutzes and Max Planck Institute for Comparative und des Erziehungsurlaubs in der and International Private Law, Hamburg Russischen Föderation". Internal lecture, (30 November 2009). Max Planck Institute for Foreign and Inter- national Social Law, Munich (6 May 2008). Laudatory speech at the conferral of the research award of the research network on social security in old age (FNA) to Jörg Barbara DARIMONT Adam on the occasion of his dissertation: "Eigentumsschutz in der gesetzlichen "Welche Verantwortung trägt die Rentenversicherung". Meeting of the fed- Regierung in der Sozialversicherungs- eral representatives, Deutsche Rentenver- rechtsordnung?". Chinese-German sympo- sicherung Bund, Berlin (3 December 2009). sium on social insurance law, Legal Affairs Commission (LAC) of the Standing Com- "Soziale Sicherheit in der Europä- mittee of the National People's Congress ischen Union – zur Rolle der Recht- (NPC), Beijing, P. R. China (1 April 2008). sprechung des EuGH im europäischen Integrationsprozess", Gesellschaft für "Soziale Sicherheit in Entwicklungs- Versicherungswissenschaft und -gestaltung ländern". Scientific Advisory Board meet- (GVG), Berlin (3 December 2009). ing, Max Planck Institute for Foreign and International Social Law, Munich "Staatsangehörigkeit und Aufenthalt (24 April 2008). als Anknüpfungspunkt für die Zustän- digkeit und das anwendbare Recht – "Anmerkungen zum Entwurf des Sozial- Sozialrecht", 3rd Luxembourg expert forum versicherungsgesetzes der V. R. China". on the development of Community law, Internal lecture, Max Planck Institute for ECJ, Luxembourg (8 December 2009). Foreign and International Social Law, Mu- nich (6 May 2008).

Edda BLENK-KNOCKE "Concluding remarks". The Fifth Inter- national Conference on Social Security, "Ergebnisse des europäischen Ver- Friedrich-Ebert-Stiftung, China Social gleichs aus rechtlicher und soziolo- Insurance Association, and Renmin Uni- gischer Perspektive" (Evaluation of the versity of China, Beijing, P. R. China, conference: "Self-Responsibility, Private and (13 September 2009). Public Solidarity – A Comparative View of Gender Role Models in Family Law and Commentary on "Migration and Health Social Law in Europe" (2007) in coopera- Services in P. R. China" (Ling Li). Work- tion with Eva Maria Hohnerlein). Interdis- shop: "International Setting of Standards ciplinary workshop: "Gender Role Models and Innovation in Social Protection in Low in Europe: Legal, Economic, and Cultural Income Countries", Max Planck Institute Dimensions", German Federal Ministry of for Foreign and International Social Law, Family Affairs, Senior Citizens, Women Abtei Frauenwörth, Frauenchiemsee and Youth, Centro Italo-Tedesco Villa (15 October 2009). Vigoni, Loveno di Menaggio/Como, Italy (21 October 2008). Commentary on "The Extension of Social Protection to Non-Formal Sector Workers:

156 VI. PAPERS AND LECTURES

Some Developing Country Experiences" Nikola FRIEDRICH (Marius Olivier). Workshop: "International Setting of Standards and Innovation in So- "Mediation in der Sozialgerichts- cial Protection in Low Income Countries", barkeit". Scientific Advisory Board Max Planck Institute for Foreign and Inter- meeting, Max Planck Institute for Foreign national Social Law, Abtei Frauenwörth, and International Social Law, Munich Frauenchiemsee (16 October 2009). (24 April 2008).

"Überblick über die deutsche Sozialver- "Wissenschaftliche Begleitforschung sicherung". Information meeting: "Das des Modellprojekts 'Mediation in deutsche Sozialversicherungssystem", Max der Sozialgerichtsbarkeit' in Bayern – Planck Institute for Foreign and International erste Ergebnisse". Conference: "Bundes- Social Law, Munich (2 November 2009). weiter Erfahrungsaustausch zur gerichts- internen Mediation in der Sozialgerichts- "Vergleich der Gesundheitssicherungs- barkeit", Bildungszentrum der Bayerischen modelle für Migranten in chinesischen Staatsregierung St. Quirin, Gmund Städten". Internal lecture, Max Planck (14 May 2008). Institute for Foreign and International Social Law, Munich (18 November 2009). "Evaluation der Begleitforschung des Projekts Gerichtsinterne Mediation in der Bayerischen Sozialgerichtsbarkeit". Henning FRANKENBERGER Conference: "Gerichtsinterne Mediation in der Sozialgerichtsbarkeit. Deutsch-Öster- "FaMI-Ausbildung in der Max-Planck- reichischer Erfahrungsaustausch", Bildungs- Gesellschaft". Trainers' meeting, Max zentrum Kloster Banz, Staffelstein Planck Institute for Mathematics in the (15 June 2009). Sciences, Leipzig (21 October 2008). "Mediation in der Sozialgerichtsbar- "RFID – Best Practice in der Biblio- keit". Kick-off meeting to introduce court- thek des Max-Planck-Instituts für aus- based mediation in North Rhine-Westpha- ländisches und internationales Sozial- lian social jurisdiction, Haus der Technik, recht in München". Librarians' meeting Essen (1 September 2009). of the Humanities and Social Sciences Section (GSHS) of the Max Planck Society, Max Planck Institute for Comparative Viktoria FÜLÖP and International Private Law, Hamburg (18 November 2008). "Einfluss von Verfassung und interna- tionalem Recht auf die Ausgestaltung "Bericht der Arbeitsgruppe Open- der sozialen Sicherheit". Scientific Advi- Access in der MPG". Librarians' meeting sory Board meeting, Max Planck Institute of the Humanities and Social Sciences for Foreign and International Social Law, Section (GSHS) of the Max Planck Society, Munich (25 April 2008). Max Planck Institute for the Study of Socie- ties, Cologne (13 November 2009). Maria GRIENBERGER-ZINGERLE "Bibliometrie in der Forschungsevalu- ierung – Kann man Wissenschaft mes- "Vom MPI in die Ministerialverwal- sen? Teil 1: Praxis und Erfahrungen tung – die Tätigkeit einer juristischen aus den Naturwissenschaften" (in coop- Referentin". Alumni meeting, Max Planck eration with Margit PALZENBERGER, Institute for Foreign and International Max Planck Digital Library, Munich, and Social Law, Munich (12 September 2008). Hermann SCHIER, Max Planck Society (IVS-CPT)). Internal lecture, Max Planck Institute for Foreign and International So- cial Law, Munich (16 December 2009).

157 REPORT 2008 – 2009

Ulrike HAERENDEL Eva Maria HOHNERLEIN

"Arbeiterschaft, Arbeiterbewegung und "Regionalgesetzliche Regelung von Arbeiterversicherung 1871 – 1881". Arbeitslosigkeit vor dem italienischen Oberseminar (graduate class) Prof. Dr. Verfassungsgericht – Anmerkungen Michael Stolleis, Max Planck Institute for zum Urteil Nr. 268 vom 4.7.2007". European Legal History, Frankfurt am Main Internal lecture, Max Planck Institute (15 January 2008). for Foreign and International Social Law, Munich (4 June 2008). "Die 'Machtergreifung' im Jahr 1933: Im Reich, in Bayern und in München". "Ergebnisse des europäischen Ver- Lecture held on the Day of Remembrance gleichs aus rechtlicher und soziolo- for the Victims of National Socialism, gischer Perspektive" (Evaluation of the Bavarian State Library (BSB), Munich conference: "Self-Responsibility, Private and (27 January 2008). Public Solidarity – A Comparative View of Gender Role Models in Family Law and "Soziale und wirtschaftliche Verhält- Social Law in Europe" (2007), in coopera- nisse im Königreich Sachsen 1871 – tion with Edda Blenk-Knocke) and con- 1914". School lecture within the scope of cluding remarks at the interdisciplinary the General Meeting of the Max Planck Soci- workshop: "Gender Role Models in Europe: ety held before secondary school students Legal, Economic, and Cultural Dimen- from Glückauf-Gymnasium Dippoldiswalde, sions", German Federal Ministry of Family Bernhard-von-Cotta-Gymnasium Brand- Affairs, Senior Citizens, Women and Youth, Erbisdorf, and Julius-Ambrosius-Hülße- Centro Italo-Tedesco Villa Vigoni, Loveno di Gymnasium Dresden (24 – 26 June 2008). Menaggio/Como, Italy (21 October 2008).

"Historische Legitimierung des Sozial- "Familienpolitik als Wirtschaftspolitik staats". Conference: "Macht, Ohnmacht in Deutschland: Das neue Bundesgesetz und Eigenlogik des Sozialstaates", Hanns- über Elterngeld und Elternzeit – eine Seidel-Stiftung, Wildbad Kreuth erste Bilanz". Conference: "Familienpolitik (11 November 2008). in Deutschland und Japan", University of Tsukuba, Japan (13 November 2008). "Gender Disparities in Social Law: The Treatment of Male and Female Pension- "Die finanzielle Sicherheit der betrie- ers by the Pension Insurance Institu- blichen Altersversorgung in Italien". tions of the German 'Kaiserreich' ". Col- Conference: "Steuerung der betrieblichen loquium: "New Perspectives on Gender and Altersversorgung in Europa: garantierte Legal History", Historisches Seminar, Goethe Sicherheit?", Hans-Böckler-Stiftung, Max University Frankfurt am Main (3 April 2009). Planck Institute for Foreign and Interna- tional Social Law, The Western Institute of "Gender Roles und die Konstruktion der Law and European Studies (IODE) of the Rentenversicherung im Kaiserreich". University of Rennes I, and Friedrich-Ebert- Research colloquium on the occasion of Stiftung, Berlin (28 May 2009). Gerhard A. Ritter's 80th birthday: "Der deut- sche Sozialstaat: Konstruktion, Ausdifferen- Commentary on "Social Cash Transfers in zierung und Weiterentwicklung", Department the Developing World" (Lutz Leisering). of History of Ludwig Maximilian University Workshop: "International Setting of Stand- (LMU) Munich and Max Planck Institute for ards and Innovation in Social Protection in Foreign and International Social Law, Histo- Low Income Countries", Max Planck Insti- risches Kolleg, Munich (23 April 2009). tute for Foreign and International Social Law, Abtei Frauenwörth, Frauenchiemsee "Die 'Väter' des deutschen Sozialstaats (16 October 2009). und ihr Gerechtigkeitsdenken". Confer- ence: "Eine Frage der Gerechtigkeit. Verteilung im Sozialstaat", Evangelische Akademie Tutzing (11 December 2009).

158 VI. PAPERS AND LECTURES

Otto KAUFMANN "Soziale Situation in der Medien- und Unterhaltungsindustrie: La protection "L'assurance maladie allemande et ses sociale des artistes et assimilés – réformes permanentes. Protection soziale Sicherung der Künstler und sociale et mutualité en Europe. Quelle Journalisten". AUDIENS – Le groupe de voie pour une approche solidaire de la protection sociale de l'audivisuel, de la com- santé?". Sixième Journée d'Etude, Groupe munication, de la presse et du spectacle, d'Histoire Sociale and Mutuelle Générale Brussels, Belgium (13 November 2008). de l'Education Nationale (MGEN), Paris, France (30 January 2008). "L'intérêt général et la protection sociale". VIIième Colloque professionnel "Aktivierung und Beschäftigungs- IPSE, [Institute for European Social Protec- förderung im Vergleich". Scientific Advi- tion]: "L'intérêt général: mission affirmée sory Board meeting, Max Planck Institute des organismes mutualistes et paritaires for Foreign and International Social Law, de protection sociale", Paris, France Munich (24 April 2008). (5 December 2008).

"Gesetzliche Regulierung der Leiharbeit Chair and presentation: "La protection in Frankreich". Expert meeting: "Atypische sociale et les moyens juridiques de la Beschäftigung und prekäre Arbeitsformen im réaliser en Europe". Colloquium: europäischen Vergleich", Hans-Böckler-Stif- "L'Europe sociale", IPSE [Institute for tung, the Managing Federal Board of the European Social Protection], and Charles Confederation of German Trade Unions University in Prague, Czech Republic (DGB), and Friedrich-Ebert-Stiftung, Berlin (3/4 April 2009). (20 June 2008). "Herausforderungen an die betrieb- "Introductory Remarks: De la fléxi- lichen Altersversorgungssysteme: bilité par la sécurité à la fléxicurité". vergleichender Ansatz". Conference: XXXIIIième Rencontre IPSE [Institute "Steuerung der betrieblichen Altersver- for European Social Protection] "Social sorgung in Europa: garantierte Sicherheit?", Protection: Safeguarding Employment Hans-Böckler-Stiftung, Max Planck Insti- Flexibility in Europe", European Parliament, tute for Foreign and International Social Strasbourg, France (4 July 2008). Law, The Western Institute of Law and European Studies (IODE) of the University "Leiharbeit gleich Prekarität? Am of Rennes I, and Friedrich-Ebert-Stiftung, Beispiel des französischen Rechts". Berlin (28 May 2009). Internal lecture, Max Planck Institute for Foreign and International Social Law, "L'économie sociale de marché et la Munich (10 September 2008). protection sociale" and introduction to the debates: "Adaptation, continuité ou "Une expérience de la vulnérabilité en rupture?". XXXIVième Rencontre IPSE Allemagne: la précarité dans l'emploi". [Institute for European Social Protection]: Seminar: "Productions sociales, juridiques "Le devenir de la protection sociale complé- et politiques des situations de vulnérabilité", mentaire solidaire dans le marché des assu- Maison des Sciences de l'Homme en rances de personnes", Folksam, Stockholm, Bretagne (MSHB), Rennes, France Sweden (1 September 2009). (26 September 2008). "L'assurance dépendance en Allemagne". "Le système de prévention des risques Seminar: "La dépendance: Emergence et en Allemagne dans le contexte de construction juridique d'un risque social en l'emploi". International colloquium: Europe", Montesquieu University – Bordeaux "La santé au travail à l'epreuve des nou- IV, Pessac, France (11 September 2009). veaux risques", Université de Bretagne Sud, Lorient, France (9 October 2008). "Die deutsche Arbeitslosenversiche- rung". Information meeting: "Das deutsche Sozialversicherungssystem", Max Planck

159 REPORT 2008 – 2009

Institute for Foreign and International "Das Ende des schwedischen 'Volks- Social Law, Munich (4 November 2009). heims'?". Research colloquium on the oc- casion of Gerhard A. Ritter's 80th birthday: "Der deutsche Sozialstaat: Konstruktion, Matthias KNECHT Ausdifferenzierung und Weiterentwick- lung", Department of History of Ludwig "Rechtsfragen der Dopingbekämpfung Maximilian University (LMU) Munich and im Sport". School lecture within the scope Max Planck Institute for Foreign and Inter- of the General Meeting of the Max Planck national Social Law, Historisches Kolleg, Society, held at Sportgymnasium Dresden Munich (24 April 2009). (26 June 2008). "Frauen in Politik und Öffentlichkeit "Recht im Nationalsozialismus". School europäischer Länder – Schweden". lecture within the scope of the General Conference: "Frauen in Europa", Evange- Meeting of the Max Planck Society, held lische Akademie Tutzing (22 May 2009). at Julius-Ambrosius-Hülße-Gymnasium, Dresden (26 June 2008). "Die finanzielle Sicherheit der betrieb- lichen Altersversorgung in Schweden: "Von den Römischen Verträgen zum Vorbild für Europa?". Conference: Reformvertrag von Lissabon – die Ent- "Steuerung der betrieblichen Altersver- wicklung des europäischen Rechts". sorgung in Europa: garantierte Sicherheit?", School lecture within the scope of the Gen- Hans-Böckler-Stiftung, Max Planck Insti- eral Meeting of the Max Planck Society, held tute for Foreign and International Social at Julius-Ambrosius-Hülße-Gymnasium, Law, The Western Institute of Law and Dresden (26 June 2008). European Studies (IODE) of the University of Rennes I, and Friedrich-Ebert-Stiftung, "Soziale Rechte vor dem Hintergrund Berlin (28 May 2009). des Reformvertrags – insbesondere Soziale Rechte der Charta der Grund- "Das dänische Modell 'Flexicurity' ". rechte der Europäischen Union". Inter- Conference: "Spannungsverhältnis national conference: "Soziale Rechte als zwischen koordinierendem Europarecht Grundrechte", Hanns-Seidel-Stiftung and und nationalem Sozialrecht", German Faculty of Law of the University of Rijeka, Judicial Academy, Trier (2 June 2009). Rijeka, Croatia (26 September 2008). "Kapitalgedeckte Altersvorsorge in Zeiten der Finanzkrise – das Beispiel Peter A. KÖHLER Schweden". Conference: "Alterssicherung im internationalen Vergleich", Deutsche " 'Sanktionsabgaben' für Gemeinden Rentenversicherung Bund, Erkner im Bereich sozialer Dienste – ein wirk- (15 October 2009). sames Mittel zur schnellen Umsetzung von Gesetzen und Gerichtsurteilen im "Versicherter Personenkreis in der Spannungsfeld von kommunaler Selbst- deutschen Sozialversicherung". Infor- verwaltung und der Garantie der lan- mation meeting: "Das deutsche Sozialver- desweiten Gleichheit der Lebensbedin- sicherungssystem", Max Planck Institute gungen". Internal lecture, Max Planck for Foreign and International Social Law, Institute for Foreign and International Munich (2 November 2009). Social Law, Munich (16 April 2008).

"Das Vorsorgeverhältnis – die richtige Yasemin KÖRTEK Frage für einen Rechtsvergleich?". Symposium: "Rechtsdogmatik und Rechts- "Sozialhilfe und soziale Fürsorge in vergleich im Sozialrecht", Max Planck Insti- der Türkei". Internal lecture, Max Planck tute for Foreign and International Social Institute for Foreign and International So- Law, Kardinal-Wendel-Haus, Munich cial Law, Munich (13 February 2008). (3 July 2008).

160 VI. PAPERS AND LECTURES

"Crime Victim Compensation and the Bernd BARON VON MAYDELL Social Welfare System". International Conference for Victims Support, Ministry "Die demographische Entwicklung. of Justice, Taiwan, and Association for Schicksal – Herausforderung – Victims of Crime Taiwan, Taipei, Taiwan, Chance?". Rotary Club Bonn-Rhein- R. O. C. (14 November 2008). brücke, Bonn (25 January 2008).

"Sozial(versicherungs)rechtliche Stel- "Die Erfassung von Lebensqualität lung türkischer Staatsangehöriger in demenzkranker Menschen in ihrer Deutschland". Internal lecture, Max Planck rechtlichen Dimension". Congress: Institute for Foreign and International Social "Lebensqualität bei Demenzerkrankung", Law, Munich (14 January 2009). Institute of Gerontology (IfG), Heidelberg University (19 May 2008). "Soziales und Islam". Internal lecture, Max Planck Institute for Foreign and Laudatory speech in honour of Hans F. International Social Law, Munich Zacher. Symposium: "Rechtsdogmatik und (22 July 2009). Rechtsvergleich im Sozialrecht", Max Planck Institute for Foreign and Interna- Commentary on "Experiences with Micro- tional Social Law, Kardinal-Wendel-Haus, Insurance in the Health Sector in India". Munich (3 July 2008). Workshop: "International Setting of Stand- ards and Innovation in Social Protection in "Alter als Verteilungsnorm im Gesund- Low Income Countries", Max Planck Insti- heitswesen – juristische Aspekte". Phi- tute for Foreign and International Social losophisches Seminar Prof. Quante, Univer- Law, Abtei Frauenwörth, Frauenchiemsee sity of Cologne (11 July 2008). (16 October 2009). "Internationale Kooperationen des "Die Einführung der allgemeinen Max-Planck-Instituts für Sozialrecht". Krankenversicherung in der Türkei Alumni meeting, Max Planck Institute und aktuelle Entwicklungen in der for Foreign and International Social Law, deutschen Krankenversicherung". Munich (12 September 2008). Conference: "Deutsch-türkisches Sozial- recht und Erbrecht" in cooperation with "Soziale Rechte als grundlegende Men- Deutsch-Türkische Juristenvereinigung schenrechte und das Völkerrecht". In- e.V. [German-Turkish Lawyers Association], ternational conference: "Soziale Rechte als Max Planck Institute for Foreign and Grundrechte", Hanns-Seidel-Stiftung and International Social Law, Munich Faculty of Law of the University of Rijeka, (30 October 2009). Rijeka, Croatia (26 September 2008).

"Reform der Finanzierung der Kranken- Martin LANDAUER versicherung in Deutschland". KEMPOREN (Umbrella organisation of "Zentralisierungstendenzen in der the health insurance carriers in Japan), Qualitätssicherung in England". Con- Cologne (14 October 2008). ference: "Qualitätssicherung in der Pflege", Institute of Social Law and Social Policy in "Familienpolitik als Gesellschafts- Europe of Christian Albrecht University politik". Conference: "Familienpolitik (CAU) Kiel and Max Planck Institute for in Deutschland und Japan", University of Foreign and International Social Law, Tsukuba, Japan (13 November 2008). Munich (12 June 2008). "Der Versorgungsausgleich. Grund- "Zentralisierungstendenzen in der struktur, Weiterentwicklung, Refor- Qualitätssicherung in England". Meet- men". Faculty of Law, Kyoto University, ing of the Board of Trustees, Max Planck Japan (21 November 2008). Institute for Foreign and International So- cial Law, Munich (14 June 2008).

161 REPORT 2008 – 2009

"Gewährleistung sozialer Grund- bled Persons in Germany and in Swit- rechte durch nationale, internationale zerland". Workshop for Young Researchers, und supranationale Rechtsetzung". European Institute of Social Security, Graz Colloquium: "Gewährleistung und Schutz (27 May 2008). sozialer Grundrechte der Bürger", German Foundation for International Legal Coop- "Das Leistungserbringungsverhältnis eration (IRZ) and Legal Academy of the bei der beruflichen Rehabilitation Ministry of Justice of the Russian Federa- behinderter Menschen in Deutschland tion, St. Petersburg, Russian Federation und der Schweiz". Doctoral seminar held (27 November 2008). by Deutscher Sozialrechtsverband e.V., Jena (21 June 2008). "Sozialpolitik in Japan – auch für Deutschland von Interesse?". "Selbstbestimmung und Gemeinwohl- Rotary Club Bonn-Rheinbrücke, Bonn interessen – die Erbringung von Leis- (18 September 2009). tungen zur beruflichen Rehabilitation von Menschen mit Behinderungen in "Offene Methode der Koordinierung Deutschland und der Schweiz (durch und Sozialrechtsvergleichung". Interna- Dritte)". Internal lecture, Max Planck In- tional Scientific Jean Monnet Conference: stitute for Foreign and International Social "Open Methods of Coordination", Hanns- Law, Munich (28 October 2009). Seidel-Stiftung and University of Rijeka, Rijeka, Croatia (2 October 2009). Lorena B. OSSIO "Übergreifende sozialpolitische Entwicklungen seit dem Ende des "Desarrollo institucional y dimensión 2. Weltkriegs". German-Japanese work- social de la CAN". Conference: "Estudios shop: "Rückblicke und Ausblick auf die constitucionales sobre integración política y Sozialpolitik in Japan und Deutschland económica. El caso de América Latina", mit Schwerpunkt auf Krankenversicherung Universitat Pompeu Fabra, Barcelona, Spain und Rentenversicherung", Tokyo, Japan (24 November 2008). (12 November 2009). "Rechtsgleichheit und Rechtspluralis- "Normierung sozialer Rechte durch mus". Internal lecture, Max Planck Insti- nationales, internationales und supra- tute for Foreign and International Social nationales Recht" and "System der Ga- Law, Munich (21 April 2009). rantien der sozialen Rechte: Garantien des Staates und Aufgabe der Zivilgesell- "Mögliche Arbeitsstrategien für die schaft". Seminar: "Soziale Rechte der Bür- Entwicklungszusammenarbeit im ger im 21. Jahrhundert", German Founda- Themenfeld Rechtspluralismus". tion for International Legal Cooperation Strategy workshop on international law (IRZ) and Institute of Legislation and Com- for the managers of the Rule of Law Pro- parative Law under the Russian Federation grammes for Africa, Asia, Latin America, Government, Moscow, Russian Federation and Southeast Europe, Konrad-Adenauer- (30 November 2009). Stiftung, Berlin (28. April 2009).

"KSPW und die Folgen". Symposium: "20 "Mediation und Verwaltungsrechts- Jahre Mauerfall – arbeits- und sozialrechtli- schutz in Lateinamerika". Symposium: che Entwicklung", Zentrum für Unterneh- "Verwaltungsrechtsschutz in Lateinamerika mensumstrukturierung und Unternehmens- und Europa", German University of Admin- sanierung, Leipzig (11 December 2009). istrative Sciences, Speyer (13 August 2009).

Commentary on "Social Security for the Magdalena NEUEDER Informal Sector: The Case of Mexico" (Angel Guillermo Ruiz Moreno). Workshop: "The Benefit Delivery Relationship for "International Setting of Standards and the Vocational Rehabilitation of Disa- Innovation in Social Protection in Low

162 VI. PAPERS AND LECTURES

Income Countries", Max Planck Institute Sicherheit?", Hans-Böckler-Stiftung, Max for Foreign and International Social Law, Planck Institute for Foreign and Interna- Abtei Frauenwörth, Frauenchiemsee tional Social Law, The Western Institute of (15 October 2009). Law and European Studies (IODE) of the University of Rennes I, and Friedrich-Ebert- "Flat Pension System in Bolivia". Work- Stiftung, Berlin (29 May 2009). shop: "International Setting of Standards and Innovation in Social Protection in Low "Asistencia sanitaria para immigrantes Income Countries", Max Planck Institute ilegales en Alemania", University of for Foreign and International Social Law, Seville, Spain (17 September 2009). Abtei Frauenwörth, Frauenchiemsee (16 October 2009). "Soziale Sicherung der Erwerbstätigen in Europa und ihre mögliche Fortent- wicklung in Deutschland", Deutsche Hans-Joachim REINHARD Rentenversicherung Bund, Erkner (22 September 2009). "Ausländische Anwartschaften im Ver- sorgungsausgleich". Darmstädter Kreis, "Das deutsche Sozialhilfesystem an- Mainz (11 April 2008). hand von konkreten Fallbeispielen – Grundzüge des SGB II". Information "Neuere Entwicklungen im spanischen meeting: "Das deutsche Sozialversicherungs- Sozialrecht". Internal lecture, Max Planck system", Max Planck Institute for Foreign Institute for Foreign and International So- and International Social Law, Munich cial Law, Munich (9 July 2008). (3 November 2009).

"Versorgungsausgleich bei Auslands- "Grundzüge des deutschen Sozial- berührung". Rechtsanwaltskammer rechts". Lecture delivered to a delegation München (22 October 2008). of Chinese judges from Nanjing (P. R. China), Fulda University of Applied "El Pacto de Toledo". Internal lecture, Sciences, Fulda (21 December 2009). Max Planck Institute for Foreign and International Social Law, Munich (11 March 2009). Friso ROSS

"Erwerbstätigensicherung in Europa "Das schweizerische Modell der gesetz- im Vergleich". Bayreuther Sozialrechts- lichen Unfallrente: Grundzüge, Renten- tage, 6th conference on social law, University bemessung, Koordination". Workshop: of Bayreuth (26 March 2009). "Reformbedarf bei der Versichertenrente aus der gesetzlichen Unfallversicherung", "Betriebliche Alterssicherung in Deutscher Sozialgerichtstag e.V., Deutsche Deutschland und ihre finanzielle Rentenversicherung Braunschweig- Absicherung – Planes y Fondos de Hannover, Laatzen (30 May 2008). Pensiones in Spanien". Conference: "Steuerung der betrieblichen Altersver- "Qualitätssicherung und Pflegegeld in sorgung in Europa: garantierte Sicherheit?", Österreich". Conference: "Qualitätssiche- Hans-Böckler-Stiftung, Max Planck Insti- rung in der Pflege", Institute of Social Law tute for Foreign and International Social and Social Policy in Europe of the Christian Law, The Western Institute of Law and Albrecht University (CAU) Kiel and Max European Studies (IODE) of the University Planck Institute for Foreign and Interna- of Rennes I, and Friedrich-Ebert-Stiftung, tional Social Law, Munich (12 June 2008). Berlin (28 May 2009). "Qualitätssicherung und Pflegegeld "Die Rechte der Arbeitnehmer in der in Österreich". Meeting of the Board of betrieblichen Altersversorgung". Con- Trustees, Max Planck Institute for Foreign ference: "Steuerung der betrieblichen Al- and International Social Law, Munich tersversorgung in Europa: garantierte (14 June 2008).

163 REPORT 2008 – 2009

"Weiterentwicklung oder Reformstau? Bernd SCHULTE Die 1. Revision des schweizerischen Unfallversicherungsgesetzes". Internal "Gesundheitsleistungen und Euro- lecture, Max Planck Institute for Foreign päisches Gemeinschaftsrecht". General and International Social Law, Munich meeting of ECCLESIA Versicherung (7 October 2008). für soziale Einrichtungen, Detmold (21 January 2008). "Die Autonomie der freien Träger und Vereinbarungen nach § 8a Abs. 2 SGB "Die rechtlichen Rahmenbedingungen VIII", Faculty of Social Studies, Erfurt der offenen Koordinierungsmethode University of Applied Sciences, Erfurt und ihr Einsatz in den unterschied- (9 December 2008). lichen Aktionsfeldern". Expert meeting: "Die Offene Methode der Koordinierung "Die berufliche Vorsorge in der und das Europäische Sozialmodell: Per- Schweiz und die Sicherstellung ihrer spektiven der Akteure und wissenschaft- verfassungsrechtlichen Funktion". liche Diagnosen", Centre for Intercultural Conference: "Steuerung der betrieblichen Communication and European Studies Altersversorgung in Europa: garantierte (CINTEUS), Department of Social and Sicherheit?", Hans-Böckler-Stiftung, Max Cultural Studies of the University of Ap- Planck Institute for Foreign and Interna- plied Sciences Fulda and Friedrich-Ebert- tional Social Law, The Western Institute of Stiftung, University of Applied Sciences Law and European Studies (IODE) of the Fulda (25 January 2008). University of Rennes I, and Friedrich-Ebert- Stiftung, Berlin (28 May 2009). "EC Coordination of Social Security Systems – the New Regulation (EC) 883/04". Development seminar for mem- Markus SCHÖN bers of ministries and social benefit institu- tions, European Commission, Bucharest, Systeme der Leistungserbringung Romania (18 March 2008). individueller Hilfen und allgemeiner Förderung der Entwicklung junger "Recent Developments in EU Labour Menschen in Deutschland und and Social Security Law". Seminar Österreich. Doctoral seminar held by for members of the Romanian Ministry Deutscher Sozialrechtsverband e.V., Jena of Labour and Social Solidarity, Hanns- (20 June 2008). Seidel-Stiftung, Mangalia, Romania (19/20 May 2008). "Gelingende und leistungsfähige Jugendhilfe – ein Garant für die "Discrimination on Grounds of Race Zukunftsfähigkeit der Gesellschaft". in Brazil, South Africa and Europe", Junior reseachers' workshop organised with- Pontifical Catholic University of Porto in the scope of the symposium "Familien- Alegre, Brazil (27 May 2008). politik in Deutschland und Japan", Japa- nese-German Center Berlin, University "Recent Developments in Social Secu- of Tsukuba and Max Planck Institute for rity Law in the Member States of the Foreign and International Social Law under European Union", School for Manage- the patronage of the German Embassy in ment and Administration, Brasilia, Brazil Tokyo, University of Tsukuba, Japan (29 May 2008). (13 November 2008). "Equal Treatment of Men and Women "Die Finanzierung sozialer Dienstleis- in European Community Law as an tungen in Trägerschaft der Landes- Example for European Anti-Discrimi- hauptstadt München und Europäisches nation Law", Foundation for Human Well- Beihilfenrecht". Sozialpolitischer Diskurs Being, Rio de Janeiro, Brazil (2 June 2008). München: "Partizipation – wir gestalten die soziale Stadt", Munich "Europäische Vorgaben für die Quali- (23 November 2009). tätssicherung – vergleichende Per-

164 VI. PAPERS AND LECTURES

spektiven". Conference: "Qualitätssicherung die Koordination sozialer Sicherheit", Berlin in der Pflege", Institute of Social Law and (27 September 2008). Social Policy in Europe of Christian Albrecht University (CAU) Kiel and Max Planck Insti- "Der Vorschlag für eine Richtlinie tute for Foreign and International Social Law, über Patientenrechte bei der grenz- Munich (12 June 2008). überschreitenden Inanspruchnahme von Gesundheitsleistungen – eine "Die Stellung der Wohlfahrtsverbände rechtliche Analyse". Expert conference: in Europa – Chancen und Risiken "Chancen und Risiken einer EU-Richtlinie sozialer Dienstleistungserbringung". über die Ausübung der Patientenrechte bei Expert conference on European policy: der grenzüberschreitenden Gesundheitsver- "Die Zukunft des Sozialen in Europa?", sorgung", German Federal Ministry of Paritätischer Gesamtverband e.V., Repre- Health, Berlin (29 September 2008). sentation of the European Commission, Berlin (16 June 2008). "Erwerbsminderungsrenten in euro- päischen Nachbarländern". Workshop: "Aktuelle Rechtsprechung des EuGH "Reform der Erwerbsminderungsrente", The zum Europäischen koordinierenden So- Confederation of German Trade Unions zialrecht und zu verwandten Rechtsfra- (DGB), Berlin (29 September 2008). gen". Austrian-German seminar: "Sozialrechts- koordination in der Europäischen Union" "50 Jahre Europäisches Koordinie- (trESS seminar 2008), Faculty of Law, Uni- rungsrecht". Internal lecture, Max Planck versity of Salzburg, Austria (30 June 2008). Institute for Foreign and International So- cial Law, Munich (12 November 2008). "Die aktuelle Rechtsprechung des Europäischen Gerichtshofs zum Euro- "Die neue Europäische Sozialrechts- päischen Koordinierenden Sozial- koordinierung: Die Verordnung (EG) recht". German-Austrian seminar on EC Nr. 883/2004". Annual judges meeting of coordination law, University of Salzburg, the North Rhine-Westphalian social courts, Austria (2 July 2008). Justizakademie Nordrhein-Westfalen, Reck- linghausen (17 November 2008). Commentary on the legal doctrine re- garding the comparison of the German- "Patientenrechte und grenzüberschrei- British system and European law, on tende Gesundheitsversorgung: Heraus- "Das Leistungsverhältnis in Förderungs- und forderungen für die nationalen Gesund- Hilfesystemen (Karl-Jürgen Bieback): Die heitssysteme – zum Vorschlag der Entwicklung der Social Assistance im Ver- Europäischen Kommission für eine gleich zwischen Deutschland, Frankreich Richtlinie über Patientenrechte bei der und dem Vereinigten Königreich. Von 'Wel- grenzüberschreitenden Gesundheitsver- fare' zu 'Workfare', von den 'armen Armen' sorgung vom 2. Juli 2008". Annual meet- zu den 'berechtigten Armen' ". Symposium: ing, Association Internationale de la Mutua- "Rechtsdogmatik und Rechtsvergleich im lité (AIM), Dresden (20 November 2008). Sozialrecht", Max Planck Institute for For- eign and International Social Law, Kardinal- "Die Auswirkungen der Europäisierung Wendel-Haus, Munich (3 July 2008). auf die sozialen Dienste". 15th Forum, Caritas München: "Global engagiert – "EG-Beihilfenkontrolle in der deut- regional verwurzelt. Sozialwirtschaft im schen Krankenhausfinanzierung – ein Aufbruch", Schloss Fürstenried, Munich Résumé". Workshop: "Krankenhausfinan- (21 November 2008). zierung und Europäisches Beihilfenrecht", German Federal Ministry of Health, Berlin "Europäische Behindertenpolitik – (26 August 2008). Auswirkungen auf das deutsche Recht", Arbeitsgemeinschaft der Schwer- Résumé. Annual meeting of the European behindertenvertretungen bei den obersten Institute of Social Security (EISS): "50 Landesbehörden des Freistaates Bayern Jahre nach dem Anfang – neue Regeln über (AGSV) [Working group of the representa-

165 REPORT 2008 – 2009

tive bodies for disabled persons of the re- "Probleme der grenzüberschreitenden sponsible Bavarian state authorities], Erbringung und Inanspruchnahme von Bavarian State Ministry of Education, Gesundheitsleistungen in der Euro- Munich (27 November 2008). päischen Union". International symposium: "Krankenversicherung und grenzüberschrei- "Aktuelle Rechtsprechung des Euro- tende Inanspruchnahme von Gesundheits- päischen Gerichtshofs zum Europä- leistungen in Europa", Hessian Higher ischen koordinierenden Sozialrecht Social Court, Darmstadt (4 May 2009). und zu verwandten Rechtsfragen". In- ternational conference: "Aktuelle Entwick- "Pflegepolitik im Wandel: Europäische lungen der Freizügigkeit und sozialen Perspektiven". Lectures and discussions Sicherheit", Academy of European Law on "Pflegepolitik im Wandel", Gesellschaft (ERA), Trier (1 December 2008). für Sozialen Fortschritt e. V. [Association for Social Progress] and German Center of "Arbeitsmobilität in EU/EWR: Gerontology (DZA), Deutsche Rentenver- Besteuerung bei Auslandstätigkeit – sicherung Bund, Berlin (6 May 2009). Telearbeit und Sozialversicherung – Aufenthalt von Familienmitgliedern "The Reform of EC Coordination Law: aus Drittstaaten". Expert conference: Unemployment Benefits and Activation "Arbeitsmobilität in Europa", European Measures. A Response to Professor Job Network (EURES) and Raphaels-Werk, Maximilian Fuchs". International confer- Würzburg (5 March 2009). ence on the reform of EC coordination law, Czech EU Presidency and European Com- "Pflegeleistungen im Europäischen mission, Prague, Czech Republic Recht". Workshop: "Pflegedienstleistungen (10 May 2009). im Europäischen Recht", Ministry of Labour, Health and Social Affairs of North Rhine- "Wie sich Rechtsnormen lebensnah Westphalia, Düsseldorf (10 March 2009). realisieren lassen. Grundrechte und deren Konkretion". Expert conference: "Die Entsendung von Arbeitnehmern "Rechte haben – Rechte verwirklichen", nach Europäischem Gemeinschafts- German Society for Social Psychiatry recht – VO 1408/71 und VO 883/04". (DGSP), Vormundschaftsgerichtstag e.V. Conference: "Entsendung von Arbeit- (VGT) and Faculty of Applied Social nehmern in der Europäischen Union – Sciences (F01) of Cologne University of Probleme aus der sozialrechtlichen Praxis", Applied Sciences, Cologne (15 May 2009). Bavarian Higher Social Court and Max Planck Institute for Foreign and Interna- "Alterssicherung von Männern und tional Social Law, Munich (20 April 2009). Frauen im Europäischen Gemeinschafts- recht und in der Rechtsprechung des "Das 'europäische Sozialmodell' vor Europäischen Gerichtshofes". Confer- neuen Herausforderungen". Research ence: "Frauen in Europa", Evangelische colloquium on the occasion of Gerhard A. Akademie Tutzing (23 May 2009). Ritter's 80th birthday: "Der deutsche Sozial- staat: Konstruktion, Ausdifferenzierung und "Konzernentwicklung und Arbeit- Weiterentwicklung", Department of History nehmerrechte in Europa". Fortbildungs- of Ludwig Maximilian University (LMU) forum für Betriebsräte im Konzern (FFB) Munich and Max Planck Institute for Foreign 1/2009, FRAPORT AG/Frankfurt Airport and International Social Law, Historisches Services Worldwide, Frankfurt am Main Kolleg, Munich (24 April 2009). (4 June 2009).

"Die soziale Sicherung Selbstständiger Introduction. trESS seminar: "Die ge- in den EU-Staaten". Workshop: "Sozial- meinschaftsrechtliche Koordinierung der versicherung von Selbständigen", German Systeme der sozialen Sicherheit in der Federal Ministry of Economics and Tech- Europäischen Union", German Federal nology, Berlin (29 April 2009). Ministry of Health, Berlin (5 June 2009).

166 VI. PAPERS AND LECTURES

"Das Übereinkommen über die Rechte "Inhalt und Grenzen externer Quali- von Behinderten der Vereinten Natio- tätssicherung durch Gerichte und Be- nen vom 6. Dezember 2006 – Heraus- treuungsbehörden". Expert conference: forderungen für das deutsche Sozial- "Qualitätssicherung in der rechtlichen recht". Development seminar for members Betreuung",Sozialreferat, City of Munich of the Bavarian State Ministry for Labour (22 October 2009). and Social Affairs, Family and Women, Munich (10 June 2009). "Erwerbsminderungsrenten in euro- päischen Nachbarländern". 7th European "Europäisches Wettbewerbsrecht und colloquium: "Wege zur Vermeidung von die sozialen Dienste". Expert conference: Erwerbsminderung", Deutsche Rentenver- "Die Lage der sozialen Dienste in Deutsch- sicherung Bund, Berlin (29 October 2009). land im Kontext der aktuellen Europapoli- tik", Deutscher Verein für öffentliche und "Leistungen und Leistungsempfänger private Fürsorge e.V., Berlin (15 June 2009). in der deutschen Sozialhilfe". Sympo- sium: "Das deutsche Sozialversicherungs- "Entwicklung und aktuelle Probleme system", Max Planck Institute for Foreign der Alterssicherung in Europa". Com- and International Social Law, Munich parative law symposium: "Rechtliche Pro- (3 November 2009). bleme und Perspektiven der Alterssicherung in Deutschland, Europa und Japan", Doshi- "Der EuGH: Entscheiden zwischen sha University Law School, Kyoto, Japan Grundfreiheiten und sozialen Rech- (11 July 2009). ten". Workshop: "Europäische Gesundheits- politik als nationale Aufgabe", Workshop I "Cross-Border Health Care for Pen- of Deutsche Krankenversicherung (DKV), sioners in the European Union". Work- European Representation of German Social shop: "Actual Problems of EC Coordination Insurance, Brussels (9 November 2009). Law", Department of Social Law, Ghent University, Belgium (16 September 2009). "Arbeitsmarkt und Europäisches Bei- hilfenrecht". Workshop: "Beschäftigung", "Arbeitsmarktpolitische Instrumente Evangelische Kirche and Diakonisches und EU-Beihilfenproblematik". Annual Werk (DW) Baden-Württemberg, Stuttgart meeting of Evangelischer Fachverband für (10 November 2009). Arbeit und soziale Integration e. V. (EFAS): "Beschäftigung schafft gesellschaftliche und "Soziale Arbeit – Freie Wohlfahrts- soziale Stabilität. Ansätze für mehr öffent- pflege – Europäisches Beihilfenrecht. lich geförderte Beschäftigung", Rothenburg Auf der Suche nach praktischer ob der Tauber (24 September 2009). Konkordanz". Sozialpolitischer Diskurs München [Social policy discourse]: "Parti- "Ein Blick über den Tellerrand: Akti- zipation – wir gestalten die soziale Stadt", vierung auf dem Arbeitsmarkt in Eu- Munich (23 November 2009). ropa". Conference in honour of Prof. Dr. Karl-Jürgen Bieback: "Arbeitsmarktpolitik "Introduction into the German Social in der Krise – reicht die Hartz-Gesetzge- Security System". Executive training bung?", German Federal Social Court, programme: "A Forecast on the Develop- Bremen University and DAK Hamburg, ment of the German Welfare State", Hamburg (28 September 2009). Hertie School of Governance, Berlin (27 November 2009). Commentary on "Need for the Integration of Migrants into Social Security Systems: "Auf dem Weg zu mehr Gerechtigkeit: South Africa" (Ockert Dupper). Workshop: Soziale Inklusion in Deutschland "International Setting of Standards and In- und Europa". Conference: "Eine Frage novation in Social Protection in Low Income der Gerechtigkeit. Verteilung im Sozial- Countries", Max Planck Institute for Foreign staat", Evangelische Akademie Tutzing and International Social Law, Abtei Frauen- (13 December 2009). wörth, Frauenchiemsee (15 October 2009).

167 REPORT 2008 – 2009

Quirin Vergho and International Social Law, Munich (11 February 2009). "Reform des portugiesischen Alters- sicherungssystems". Internal lecture, Max Planck Institute for Foreign and Nikola WILMAN International Social Law, Munich (16 January 2008). "10 Jahre National Institute for Health and Clinical Excellence (NICE)". Inter- nal lecture, Max Planck Institute for For- Ilona VILACLARA eign and International Social Law, Munich (24 June 2009). "Das Leistungserbringungsverhältnis im Sozialrecht". Scientific Advisory Board meeting, Max Planck Institute for Foreign Hans F. ZACHER and International Social Law, Munich (25 April 2008). Conluding words. Symposium: "Rechts- dogmatik und Rechtsvergleich im Sozial- "The Triangular Relations in the recht", Max Planck Institute for Foreign and Provision of Social Services by Public International Social Law, Kardinal-Wendel- Health Insurances. A Law Comparison Haus, Munich (4 July 2008). of the Provision of Medical Aids and Devices in Germany and France". "Entwicklung der Max-Planck-Gesell- Workshop for Young Researchers, European schaft". Alumni meeting, Max Planck Insti- Institute of Social Security, Graz, Austria tute for Foreign and International Social (27 May 2008). Law, Munich (12 September 2008).

"Das Leistungserbringungsverhältnis "Einschluss, Ausschluss und Öffnung im Recht der gesetzlichen Krankenver- im Wandel". Symposium: "Geschichte der sicherung – eine rechtsvergleichende Sozialpolitik in Deutschland seit 1945", Untersuchung der Versorgung mit medi- German Federal Ministry of Labour and zinischen Sachmitteln in Deutschland Social Affairs, Berlin (27 November 2008). und Frankreich". Doctoral seminar held by Deutscher Sozialrechtsverband e.V., Jena Keynote address. Symposium on the occa- (21 June 2008). sion of the 70th birthday of Prof. em. Dr. Manfred E. Streit: "Wirtschaftspolitik im institutionellen Umfeld", Max Planck Insti- Christina WALSER tute of Economics, Jena (26 February 2009).

"Qualitätssicherung und persönliches Laudatory speech. Research colloquium Budget in den Niederlanden". Confer- on the occasion of Gerhard A. Ritter's 80th ence: "Qualitätssicherung in der Pflege", birthday: "Der deutsche Sozialstaat: Kon- Institute of Social Law and Social Policy struktion, Ausdifferenzierung und Weiter- in Europe of Christian Albrecht University entwicklung", Department of History of (CAU) Kiel and Max Planck Institute for Ludwig Maximilian University (LMU) Foreign and International Social Law, Munich and Max Planck Institute for For- Munich (12 June 2008). eign and International Social Law, Histo- risches Kolleg, Munich (24 April 2009). "Qualitätssicherung und persönliches Budget in den Niederlanden". Meeting Welcome address (on behalf of the presi- of the Board of Trustees, Max Planck Insti- dent). International research colloquium in tute for Foreign and International Social honour of Prof. Dr. rer. nat. Ulrich Gösele, Law, Munich (14 June 2008). Max Planck Institute of Microstructure Physics, Halle (15 May 2009). "Wettbewerb im niederländischen Krankenversicherungsmarkt". Internal lecture, Max Planck Institute for Foreign

168 VI. PAPERS AND LECTURES

2. Lectures and Courses 29 August 2008: "Legal Research", Young Researchers' Workshop, Centre for Inter- national and Comparative Labour and Social Ulrich BECKER Security Law (CICLASS), Faculty of Law, University of Johannesburg, South Africa. Ludwig Maximilian University (LMU) Munich 10 November 2008: "Modernisation of the German Social Security System", Faculty WS 2007/2008: Lecture (focal subject 5): of Law, Department of Labour Law and "Grundlagen des Sozialversicherungsrechts" Social Security Law, University of Ljubljana, (2 hrs.). Slovenia.

SS 2008: Public law seminar: "Sport 15 April 2009: "Social Security Law in the und Recht" (with Dirk-Reiner Martens) European Union", Law School, Koç Univer- (2 hrs.). sity, Istanbul, Turkey.

WS 2008/2009: Social law seminar (with 1 September 2009: "Legal Research", Law Thorsten Kingreen) (2hrs.). School, University of Sydney, Australia.

WS 2008/2009: Lecture (focal subject 5): 10 September 2009: "The Development "Grundlagen des Sozialversicherungsrechts" and Reform of Social Security: On the (2hrs.). Background of Globalization", Renmin University, Beijing, P. R. China. SS 2008: Public law seminar: "Sport und 60 Jahre Grundgesetz" (with Dirk-Reiner Martens) (2 hrs.). Barbara DARIMONT

WS 2009/2010: Social law seminar (with 1 December 2008: "Social Policy, Social Thorsten Kingreen) (2hrs.). Law and Developing Countries", University College Cork, School of Applied Social WS 2009/2010: Lecture (focal subject 5): Studies, Cork, Ireland. "Grundlagen des Sozialversicherungsrechts" (2hrs.). Otto KAUFMANN Guest Lectures Lectures and Seminars Delivered at 24/25 January 2008: Seminar: "Social Se- Universities curity in an Aging Society", MaxNet Aging, Max Planck Institute for Demographic Re- 2008/2009: Lecture: "Droit social search, Rostock. communautaire – deutsches, französisches und europäisches Arbeits- und Sozialrecht" 9 June 2008: "Reformen sozialer Siche- within the scope of "Master 2 Droit Social", rungssysteme in Deutschland unter beson- Faculté de Droit, Robert Schuman Univer- derer Berücksichtigung der Rentenversiche- sity, Strasbourg, France. rung", Faculty of Law Administration and Economics, University of Wroclaw, Poland. 2008/2009: Seminars: "Droit social communautaire – deutsches, französisches 28 August 2008: "Introduction to the und europäisches Arbeits- und Sozialrecht", EC Coordination of Social Security Labour Institute (IDT), Robert Schuman Systems", Centre for International and University, Strasbourg, France. Comparative Labour and Social Security Law (CICLASS), Faculty of Law, University 2008/2009: University training course: of Johannesburg, South Africa. "La protection sociale – Comparaisons in- ternationales, droit allemand", Institut de Gestion, IGR, Licence MOPS, University of Rennes I, France.

169 REPORT 2008 – 2009

2008/2009: Training course for lawyers Matthias KNECHT (Centre de formation des avocats – CRFPA) "Droit du travail – Arbeitsrecht", Faculté de WS 2007/2008: Lecture: "Sozialwirt- Droit, Institut d'Etudes Judiciares, Univer- schaftliche Gestaltungsformen im interna- sity of Poitiers, France. tionalen Rahmen", Fakultät Betriebs-, Sozial- und Tourismuswirtschaft, Kempten 2009/2010: Training course for lawyers University of Applied Sciences (2 hrs.). (Centre de formation des avocats – CRFPA) "Droit du travail – Arbeitsrecht", Institut SS 2008: Lecture: "Internationale Sozial- d'Etudes Judiciares, University of Poitiers, wirtschaft", Fakultät Betriebs-, Sozial- und France. Tourismuswirtschaft, Kempten University of Applied Sciences (2 hrs.). 2009/2010: Lecture: "Einführung in das Deutsche Recht", Faculté de Droit, Univer- WS 2008/2009: Lecture: "Recht I: sity of Rennes I, France. Öffentliches Recht", Fakultät Betriebs-, Sozial- und Tourismuswirtschaft, Kempten Professeur invité University of Applied Sciences (2 hrs.).

2008/2009: Course Master 1: "Introduction SS 2009: Lecture: "Internationale Sozial- au droit allemand – Einführung in das wirtschaft", Fakultät Betriebs-, Sozial- und deutsche Recht", Faculté de Droit et de Tourismuswirtschaft, Kempten University Sciences Politiques, Laboratoire d'Etude of Applied Sciences (2 hrs.). du Droit Public, University of Rennes I, France. WS 2008/2009: Lecture: "Recht I: Öffentliches Recht", Fakultät Betriebs-, 2009/2010: Lecture: "Droit social Sozial- und Tourismuswirtschaft, Kempten communautaire: Droit comparé", Faculté University of Applied Sciences (2 hrs.). de Droit, University of Poitiers, France.

Other Lorena OSSIO

14 February 2008: Development seminar: WS 2008/2009: Colloquium: "Derechos "Les bases du droit international. La coordi- Sociales y Administración Pública en nation communautaire, du R 1408/71 au América Latina – Nivel Avanzado", R 883/2004. L'accès aux soins à l'étranger", German University of Administrative Société Mutuelle de l'Industrie (SMI), Sciences, Speyer. Paris, France.

8 December 2008: Rapporteur, thesis Hélène Gaftoniuc Cadinot-Mantion: "L'influence de la concurrence sur le droit social au sein de l'Union européenne", Faculté de Droit, University of Poitiers, France.

19 June 2009: Rapporteur, thesis Gilbert Dijols "Evolution de la santé et du travail vers une nouvelle épistémé: la société et le droit corrélativement revisités", University of Paris I Panthéon-Sorbonne, France.

170 VII. Grantees and Guests REPORT 2008 – 2009

1. Grantees 2. Guests

29 October 2007 – 29 March 2008: Dr. 1 April 2008 – 31 March 2009: Prof. Dr. Tulia ACKSON, University of Dar es Sa- Takeshi TSUCHIDA, Waseda University, laam, Tanzania: "Coordination of Social Tokyo, Japan: "The Reform of Medical Security in the Southern African Develop- Insurance in Germany". ment Community (SADC) and the East African Community (EAC)". 1 April 2008 – 31 August 2008: Dr. Matteo BORZAGA, Università degli Studi di Trento, 11 December 2007 – 10 May 2008: Yue Italy: "Arbeits- und sozialrechtliche Fragen FU, University of Tsukuba, Japan: "The Ef- der sogenannten 'lavoratori a progetto' in fects and Challenges of the Integration Policy Italien und der arbeitnehmerähnlichen for Migrants in the EU – The German Expe- Personen in Deutschland". riences and the Harmonization at EU Level". 12 June 2008 – 15 August 2008: Núria 1 March 2008 – 31 August 2008: Justine PUMAR BELTRAN, Universitat Pompeu LASSANSAA, Montesquieu University – Fabra, Barcelona, Spain: "Vereinbarkeit von Bordeaux IV, Pessac, France: "L'accès à une Familie und Beruf". retraite décente en France et en Allemagne: l'exemple des femmes". 16 June 2008 – 28 June 2008: Prof. Dr. Brahim BADAOUI, University of Mentouri, 13 March 2008 – 31 August 2008: Zhiming Constantine, Algeria: "Sozial- und Kranken- LI, Renmin University of China, Beijing, versicherung in Algerien: Geschichte, ak- P. R. China: "Social Insurance in Germany: tuelle Situation, Entwicklung und Per- Studies on the Ideas, Principles, and Au- spektiven". tonomy Authority, as well as the Implications and Applications to China". 10 September 2008 – 30 June 2009: Yifan YANG, Southwest University of Finance and 4 July 2008 – 4 August 2008: Dr. Peter Economics, Chongqing, P. R. China: "Social HERRMANN, University College Cork, Security Reform for an Integrated Scheme Ireland: "Personenbezogene Dienstleistungen in Urban and Rural China: A Historical and und soziale Einrichtungen in vergleichender Comparative Institutional Analysis of Devel- und europäischer Perspektive". oping and Developed Countries".

10 September 2008 – 28 February 2009: 1 July 2009 – 25 September 2009: Prof. Dr. Quan LU, Renmin University of China, Dr. Francis KESSLER, University Paris I, Beijing, P. R. China: "The Intergovernmental France: "Le droit social en Allemagne – Relations in the Pension System of Germany". L'année de l'elargissement et du réaménagement du rôle de l'État". 1 March 2009 – 31 March 2010: Justine LASSANSAA, Montesquieu University – 5 July 2009 – 7 August 2009: Dr. Albertjan Bordeaux IV, Pessac, France, "Die Verein- TOLLENAAR, Rijksuniversiteit Groningen, barkeit des Berufslebens und des Familien- Netherlands: "Public Governance in the lebens in Frankreich und in Deutschland". Welfare State".

1 July 2009 – 31 August 2009: Nóra 13 July 2009 – 21 August 2009: A. M. P. JAKAB, University of Miskolc, Hungary: RIJPKEMA, Rijksuniversiteit Groningen, "Beschäftigungsfähigkeit von geistig be- Netherlands: "Public Governance in the hinderten Menschen". Welfare State".

21 September 2009 – 25 September 1 August 2009 – 31 August 2009: Prof. 2009: Prof. Eri KASAGI, Kyushu Univer- Dr. Makoto ARAI, University of Tsukuba, sity, Fukuoka, Japan: "Private Complemen- Japan: "Entwicklungen des Betreuungs- tary Medical Insurance – The Legal Control rechts in Europa". of Private Insurance".

172 VII. GRANTEES AND GUESTS

11 August 2009 – 23 August 2009: Prof. Dr. Miyoko MOTOZAWA, University of Tsukuba, Japan: "Familienpolitik in der Gesellschaft".

1 September 2009 – 30 September 2009: Nóra JAKAB, University of Miskolc, Hun- gary: "Beschäftigungsfähigkeit von geistig behinderten Menschen".

1 September 2009 – 31 March 2010: Jus- tine LASSANSAA, Montesquieu University – Bordeaux IV, Pessac, France: "L'accès à une retraite décente en France et en Alle- magne: l'exemple des femmes".

1 September 2009 – 28 February 2010: Zhaiwen PENG, Renmin University of Chi- na, Beijing, P. R. China: "Decentralization and the Delivery of Healthcare Services – The German Experience and its Implication for China".

12 September 2009 – 27 September 2009: Dr. Edit MARSI, University of Debrecen, Hungary: "Sozialrechtliche Aspekte der Arzt- haftung in der ungarischen Regelung".

28 September 2009 – 4 December 2009: Hongbo WANG, Chinese Academy of So- cial Sciences (CASS), Beijing, P. R. China: "German Social Policy".

2 October 2009 – 15 October 2009: Dr. Elsa Marina ÁLVAREZ GONZÁLEZ, Uni- versity of Málaga, Spain: "European Ob- servatory on Emigration of Elder People (Gerontomigrations)".

173 REPORT 2008 – 2009

174 VIII. The Institute REPORT 2008 – 2009

1. Personalia

Scientific Members Academic Assistants

Prof. Dr. Ulrich Becker, LL.M. (EHI) Dr. Edda Blenk-Knocke Managing Director Martin Breuer (until 1/2009) Prof. Dr. Bernd Baron von Maydell Olga Chesalina (from 2/2008) Emeritus Mathias Enzler (until 7/2008) Prof. Dr. Dr. h.c. mult. Hans F. Zacher Felix Grollmann (3/2008 to 6/2008) Emeritus Dr. Ulrike Haerendel (until 2/2009) Yasmin Holm (2/2009 to 3/2009) Doreen Knöfel (until 5/2008) Luise Lauerer (until 1/2009; from 11/2009) Katharina Liebe (from 12/2008) Thomas Neumair (from 7/2009) Oxana Rimmer (from 5/2008) Research Staff Melanie Schmidt (until 5/2008) Ingo Seitz (until 3/2009; from 8/2009) Dr. Barbara Darimont Karen von Berg (from 5/2008) Dr. Eva Maria Hohnerlein Dr. Simone Gräfin von Hardenberg Dr. habil. (HDR) Otto Kaufmann (9/2008 to 8/2009) Dr. Matthias Knecht (until 12/2008) Sandro Wendnagel (from 5/2009) Dr. Peter A. Köhler Dr. Yasemin Körtek Lorena Ossio (from 9/2008) Prof. Dr. Hans-Joachim Reinhard Dr. Friso Ross (until 6/2009) Dr. Bernd Schulte Dr. Christina Walser (until 2/2009) Student Assistants Nikola Wilman, LL.M., M.Jur. (Durham, UK) (from 8/2008) Annemarie Aumann (from 5/2008) Katharina Blepp (from 9/2009) Anne Lilli Breitkreuz (from 11/2009) Ellen Buschuew (from 11/2009) Sandra Carter (5/2008 to 10/2008) Alexandra Dietzen (from 11/2009) Lea Grohmann (from 11/2009) Doctoral Candidates Felix Grollmann (1/2008 to 2/2008) Yasmin Holm (1/2008 to 1/2009) Kyung A Choi (from 10/2008) Katharina Huber (from 9/2008) Nikola Friedrich (until 2/2009) Lukasz Kokot Viktória Fülöp (until 12/2008) Phillip Lammers (7/2008 to 12/2008) Martin Landauer, M.Jur. (Oxon) Katharina Liebe (until 11/2008) (until 4/2009) Si Liu (from 3/2008) Dongmei Liu Katharina Mayer (from 7/2008) Iris Meeßen (from 1/2008) Sara Michalelis Janire Mimentza (until 12/2009) Philine Nau (until 6/2008) Magdalena Neueder Thomas Neumair (until 6/2009) Anna Karina Olechna (until 12/2009) Joan Mwende Nguku (from 5/2009) Michael Schlegelmilch (from 3/2008) Michelle Regiani Bertenbreiter (5/2008 Markus Schön to 12/2009) Daniela Schweigler (from 11/2008) Oxana Rimmer (until 4/2008) Quirin Vergho (until 3/2008) Florian Ruhs (from 11/2008) Ilona Vilaclara Gianna Schlichte (until 8/2009) Miriam Schmid (until 9/2008)

176 VIII. THE INSTITUTE

Sarah Scholl (until 2/2009) Public Relations and Reporting Sandrine Schwertler (from 11/2009) Mathias Skironi (until 10/2008) Dr. Monika Nißlein Stefan Stegner (from 5/2008) (until 9/2008; from 2/2009) Ralf Suhre (12/2008) Eva Ulbrich (from 4/2008) Markus Vordermayer (from 12/2009) Sandro Wendnagel (11/2008 to 5/2009)

Administration (jointly with the Max Planck Digital Library)

Library Josef Kastner (Head) Brigitte Albrecht Henning Frankenberger (Head) Annemarie Batzek Stefan Götz (from 7/2009) Adriana Exner (from 9/2008) Melanie Jackenkroll (until 5/2009) Marlin Freise (until 7/2009) Kathrin Merker (until 9/2008) Annemarie Huber (from 8/2009) Alexandra Müller (from 9/2008) Karl-Heinz Katzbach Irina Neumann Sylvia Klemm Nadja Rudoba (from 8/2009) Heidrun Kohnle-Koitzsch Andrea Scalisi Eva Kraatz Christine Moser Claudia Pethke Werner Pfaffenzeller Michael Reinert Andreas Schmidt Andrea Then (from 7/2009) Secretriats

Roswitha Ellwanger (until 3/2008) Anna Fenzl (until 8/2008) Andrea Feucht Hertha Fricke Mareike Kiy (from 5/2009) IT Heike Wunderlich (jointly with the Max Planck Digital Library)

Dr. Andreas Wohlschläger (Head, on leave since 9/2009) Oliver Janitza Axel Römmelmayer Translation Services

Esther Ihle (until 6/2008) Eva Lutz, M.A. Christina McAllister, M.A. (from 11/2008)

177 REPORT 2008 – 2009

2. Scientific Advisory Board and Board of Trustees

Scientific Advisory Board Board of Trustees

Prof. Dr. Franz Ruland, Prof. Dr. Dres. h.c. Hans-Jürgen Papier, Chair of the German Social Advisory President of the German Federal Constitu- Council (Sozialbeirat), Munich (Chairman) tional Court, Karlsruhe (Chairman)

Prof. Dr. Jos Berghman, Peter Masuch, Katholieke Universiteit Leuven President of the German Federal Social Prof. Dr. Dagmar Coester-Waltjen, Court, Kassel University of Göttingen Dr. Klaus Theo Schröder, Prof. Dr. Otto Czúcz, State Secretary, German Federal Ministry of Court of First Instance of the European Health, Berlin Communities, Luxembourg Kari Tapiola, Prof. Dr. Moris Lehner, Executive Director, International Labour Ludwig Maximilian University (LMU) Organization, Geneva Munich Dr. Werner Tegtmeier, Prof. Dr. Udo Steiner, State Secretary (retired), German Federal University of Regensburg Ministry of Labour and Social Affairs, Prof. Dr. Petr Tröster, St. Augustin Charles University, Prague Dr. Manfred Wienand, Councillor, German Association of Cities, Cologne

3. Institute Library

The library of the Max Planck Institute for search options (like VLib, EZB [Electronic Foreign and International Social Law offers a Journals Library] or the eBooks Catalog of unique collection of specialised literature on the Max Planck Society). Since 2008, the German and foreign social law and the bor- Institute's researchers have had ubiquitous dering fields of political and social sciences. remote access to these e-resources, except In addition to the pertinent country-based where the licence terms object to these con- social law literature, the library's holdings ditions. Researchers thus have unlimited also cover European Community law, consti- availability of the e-resources of the library tutional and administrative law, family and and the Institute. inheritance law, economic and public pro- curement law, consumer protection law, so- The library moreover ensures the quick pro- cial insurance and labour law, as well as some curement of external literature and docu- very area-specific collective fields concern- ments, thus serving as a highly efficient re- ing individual research projects of the Insti- search and working instrument for the tute's researchers. Basic literature on com- scholars and guests of the Institute, as well plementary fields of law is also available. The as other academically interested users. holdings comprise monographs, printed stat- utory material, periodicals, loose-leaf edi- The library is a reference library and is com- tions, as well as published and "grey" litera- mitted to the academic work of the Institute. ture from over 100 countries. Also, access The library ranks among the leading research is provided to diverse specialist databases libraries and has the largest holdings of so- (JURIS, Beck-Online, Westlaw, LexisNexis, cial law literature worldwide. Source OECD, etc.) and other electronic re-

178 VIII. THE INSTITUTE

The library team: Andrea Scalisi, Alexandra Müller, Nadja Rudoba, Stefan Götz, Henning Frankenberger and Irina Neumann (left to right).

It currently comprises more than 100,000 During a general refurbishment, the basement volumes, consisting of some 8,500 bound stacks of the library were reorganised and pro- journals and continuing sets. Serial issues vided with state-of-the-art technical equip- embrace 244 periodicals, 125 German and ment that is easy to use. Each of the stacks is 119 foreign; 187 loose-leaf collections, 144 now furnished with a research terminal, a German and 43 foreign; and 13 newspapers, photocopier with scan and e-mail functions, 5 German and 8 foreign. In the past two and a self-service terminal for borrowing lit- years, the library's stock of volumes increased erature. In addition to the entire stock, also all by nearly 10,000. The number of acquisi- ordered media as well as works currently in tions is on a par with the high level reached processing can be searched via WebOPAC. in the period of 2006 – 2007.

Publications by the Institute are collected by With the introduction of the RFID system to the library staff, who record and archive them the library in the beginning of 2008 the usa- and make them accessible on the central bility of the library holdings has considerably electronic eDoc-Server of the Max Planck improved. Researchers can borrow any media Society. Along with the print archives and the they need by using the self-service terminals Institute's in-house database AMALIE (here: in the reading room and the stacks. Borrow- publication module), an electronic repository ing is recorded electronically and registered is being set up which is to allow the members on the users' personal accounts. Staff mem- of the Institute to do literature search by bers will be able to tell from the catalogue means of a novel, comprehensive search tool entry whether the volume is located in the using OCR [Optical Character Recognition). library or in a colleague's office. According to Moreover, a multimedia server will be pro- the library regulations, the entire Institute vided making the use of electronic resources building counts as a reference library in the still more convenient. broader sense. Urgently required literature may, for example, be taken from a colleague's

179 REPORT 2008 – 2009

In spring 2008, the adaptation to ExLibris Version 18 of the integrated Aleph 500 li- brary system was completed. As expected, this alteration required less additional efforts than the previous conversion to Version 16. However, the conversion brought about some major changes with regard to the WebOPAC user interface. Google Book Search was im- plemented together with Yahoo Spell Check, with the latter correcting erroneous data en- tries, while the former refers to additional information about the required literature like tables of contents, extracts or cover images.

The library staff were also committed to the Aleph Digital Asset Management (ADAM) Project of the Max Planck Libraries, a tool that makes more and more ancillary informa- tion available in the catalogue on the media presented there. First, the tables of contents of all commemo- rative publications available at the Institute were inserted in the system on the basis of catalogue enrichment. In a second step, ta- bles of contents and other information will be entered electronically in the case of espe- The Radio Frequency Identification (RFID) cially relevant new acquisitions. This makes shelf automatically identifies returned media. it possible for the researchers at the Institute to start preparing for a subject and to read office and booked onto the current user's extracts at their workplaces, without having personal account via the barcode label. For to visit the library. this purpose, every workplace is equipped with a personal hand-held scanner so that it The Aleph project of the MPI libraries has is always possible to ascertain the precise lo- successfully developed further. Meanwhile cation of every book. Unnecessary trips to the 38 libraries use the Aleph software manufac- library and the stacks can therefore be avoid- tured by ExLibris; another two institutes are ed. Passing on loans to fellow staff by way of planning to do so. The entire system and immediate reassignment to the current user's therefore also the libraries' catalogues are account is part of the library's comprehensive maintained and administered by the Gesell- new RFID concept. Every Institute staff schaft für wissenschaftliche Datenverarbeitung member is provided with a user card enabling on a central server in Göttingen. The various him/her to borrow media via self-service libraries have access to the specific adapta- registration. From spring 2010, these ID tions designed by them to meet their particu- cards will also assure access control to the lar needs. Via the VLib information portal stacks. Literature that is no longer needed (Virtual Library) the holdings of nearly all must be returned to the reading room and MPI libraries and many other key local re- placed in the RFID shelf. The RFID shelf is sources can be accessed. an innovation that has been designed specifi- Literature not available in the Institute library cally for the particular requirements of the can be borrowed from the Bavarian State Li- Institute library. Via integrated RFID anten- brary or other libraries near the Institute, or nae the shelf identifies the books placed in it can be quickly acquired for the Institute li- and reassigns them to the library system as brary. The purposeful and structured expan- available items. The electronic catalogue im- sion of library holdings contributes to the mediately shows that the required item is rapid growth of the library. Urgently needed now located on the library premises in the literature that is not otherwise available can narrower sense. be supplied by document delivery services.

180 VIII. THE INSTITUTE

The library's excellent collection of works 4. The AMALIE Database has also attracted increasing interest from other academic circles. To meet the attend- Project ant needs, the number of guest workplaces available has been extended to a total of Like other research institutions, the Institute eleven. usually allocates data from various application fields to separate systems. Of course, there Since the summer of 2008, the library has are software systems that allow for an inte- been able to offer two research terminals, grated administration of personnel, inventory two workstations with high quality scanners, and bookkeeping, for example. An integration which are actively used, and seven ordinary with other systems (like access control, bor- library workplaces. All workplaces are rowing media via RFID, e-mail accounts, etc.) equipped with modern electronic data usually requires a great number of staff as processing facilities. well as manual work and is hence associated with systematic data inconsistency. This is In 2009, internet access was made available to why data synchronisation between the indi- guests in the library through a W-LAN hotspot. vidual systems is in some parts completely During the reporting period it was possible to dispensed with. The individual systems must welcome some 750 visitors to the library to be administered separately, and this, in turn, conduct research – in addition to the longer- involves high personnel expenditure. term guest researchers already working at the From the technical perspective, integration Institute. A special management system (a cannot be effected, above all, due to the het- module of AMALIE, the internal database of erogeneous (not uniformly represented) da- the Institute) helps library guests to immedi- tabase technologies. Furthermore, different ately retrieve their personal settings (like lan- database technologies go along with differ- guage selection, search results, etc.) when ent application technologies. The AMALIE they revisit the library to continue their re- database project developed at the Institute search. A multilingual function will soon pro- strives for a complete integration of all rele- vide Institute guests with user interfaces and vant data irrespective of whether they belong keyboards in their native languages. to research activities or administrative opera- tions. Meanwhile a number of IT-data, li- There have been some staff changes, and the brary data as well as publication data have library team has gained some new members. been integrated into this system. Subject to Particular mention must be made of the fact their competence and their eligibility, Insti- that, since September 2008 an apprentice- tute members can now administer these data ship training position has been offered at the autonomously. The website of the Institute library for the first time. After a regular train- and the list of publications drawn up for this ing period of three years, the first trainee will report are largely based on information con- complete her apprenticeship to be a qualified tained in AMALIE. assistant in media and information services Oliver Janitza [FaMI – Fachangestellte/r für Medien- und Informationsdienste]. This requires addition- al commitment from the library staff. How- ever, the experience gained during the train- ing period has been so rewarding that we hope to continue this initiative in future. Henning Frankenberger

181 REPORT 2008 – 2009

5. Work of Institute Mem- Memberships of Advisory Boards, Boards of Trustees, Committees, bers in External Bodies Research Organisations

Ulrich BECKER – Advisory Board of the research network on old age pensions (FNA), Deutsche Editorships Rentenversicherung Bund – Research Advisory Board of the journal – Neue Zeitschrift für Sozialrecht (NZS) "ZFSH/SGB – Sozialrecht in Deutsch- (co-editor since 2000) land und Europa" – Schriften zum deutschen und – Advisory Board, Bremen International europäischen Sozialrecht, Baden-Baden Graduate School of Social Sciences (since 2000) (BIGSSS, the former GSSS), University – Kommentar zum SGB I (since 2001) of Bremen – Schriftenreihe für internationales und – Editorial Advisory Board of the Interna- vergleichendes Sozialrecht, Berlin tional Social Security Review (since 2002) – ISSA Advisory Board on Social Security – Studien aus dem Max-Planck-Institut Policy and Research für ausländisches und internationales – Research Advisory Board of the journal Sozialrecht, Baden-Baden (since 2002) "Social Security Studies" (Shehui – Zeitschrift für ausländisches und interna- baozhang yanjin) tionales Arbeits- und Sozialrecht (ZIAS), – Board of Trustees of the Institute for Heidelberg (co-editor since 2002) Labour Law and Industrial Relations in – Zeitschrift für europäisches Sozial- und the European Community (IAAEG) Arbeitsrecht, Wiesbaden (ZESAR) – Board of Trustees, Institut für euro- (co-editor since 2002) päische Verfassungswissenschaften, FernUniversität Hagen Memberships of Steering Committees, – Selection Committee of Alexander von Executive Boards, Research Associa- Humboldt-Stiftung for the promotion of tions institute partnerships

– Steering Committee, Gesellschaft für Versicherungswissenschaft und Other Memberships -gestaltung e.V. (GVG) – Executive Board of the Social Insurance – Disciplinary Committee of the German Division of Deutscher Verein für Athletics Association (DLV) Versicherungswissenschaft – Selection Committee for the conferral of – Executive Board, Gesellschaft für Rechts- the dissertation award of Gesellschaft vergleichung zur Förderung der sozialrechtlichen – Executive Board of the German Section Forschung e.V. of the International Society of Labour – Arbitrator at the German Court of Arbi- and Social Security Law (ISLSSL) tration for Sport of Deutsche Institution – Executive Board (vice president), für Schiedsgerichtsbarkeit e.V. (DIS) Deutscher Sozialrechtsverband e.V.

Barbara DARIMONT

– Preparatory Committee of the German Federal Ministry of Justice for the 9th symposium of the German-Chinese Dialogue on the Rule of Law: "Renten- versicherung im Rechtsstaat" [Pension insurance law in the constitutional state], Shenzhen, P. R. China (27 – 28 April 2009)

182 VIII. THE INSTITUTE

Henning FRANKENBERGER Bernd SCHULTE

– Executive Board (first deputy chairman), – Expert Committee "Internationale Arbeitsgemeinschaft der Spezialbiblio- Zusammenarbeit und europäische theken e.V. (AspB) Integration" and Steering Committee – Executive Board BID – Bibliothek & of Deutscher Verein für öffentliche und Information Deutschland private Fürsorge e.V. – Deputy chairman of the Vocational – International Advisory Committee, Training Committee of FaMI-Ausbildung The European Journal of Social Quality in Bayern – Editorial Board, European Journal of – Deputy chairman of the Examination Social Security Board of FaMI-Ausbildung in Bayern – Editorial Board, Revue Belge de Securité Sociale (RBSS) – Project Advisory Board "Fortentwicklung Otto KAUFMANN der gesetzlichen Rentenversicherung zu einer Erwerbstätigenversicherung. – Working Group "Zukunft der Sozial- Konsequenzen bei Einkommensvertei- politik", Hans-Böckler-Stiftung lung, Beitragssatz und Gesamtwirt- – Expert Committee/Advisory Board on schaft", Hans-Böckler-Stiftung occupational pension schemes, Hans- – Project Advisory Board "Erwerbstätigen- Böckler-Stiftung versicherung – Splittung des Gesamt- – Conseil Scientifique, Bulletin de Droit effekts auf einzelne Personengruppen", Comparé du Travail de la Securité Sociale Hans-Böckler-Stiftung – Commission "Europe", Institut de la – Reflection Group of the Economic and Protection Sociale Européenne (IPSE) Social Council (CES), Luxembourg, on – Conseil d'Orientation, Institut de la the "Analysis of the Implications of the Protection Sociale Européenne (IPSE) Lisbon Treaty on Services of General In- terest and Proposals for Implementation"

Bernd BARON VON MAYDELL Hans F. ZACHER – Independent member and chairman (Selection) of the Board of Arbitration pursuant to § 129 (8) SGB V (registered pharmacies) – Honorary chairman of the Executive – Independent member of Bundesschieds- Board of Deutscher Sozialrechtsverband amt für Kassenzahnärztliche Versorgung e.V. – Group of Consultants for the Application – Member of the European Institute of of Article 76 of the European Code of Social Security Social Security, Council of Europe – Member of the Research Advisory Board – Board of Trustees of the Foundation "Geschichte der Sozialpolitik in Deutsch- for Liberal Arts and Science, Domus land seit 1945", German Federal Minis- Dorpatensis, Tartu, Estonia try of Labour and Social Affairs and Ger- – Editorial Advisory Board of DGUV- man Federal Archives (BArch) Kompakt – Member of the Research Advisory Board – Board of Trustees (chairman) of Thomas at the German Federal Ministry of Eco- Berberich-Stiftung nomics and Technology – Bayerische Akademie der Wissenschaf- ten [Bavarian Academy of Sciences and Hans-Joachim REINHARD Humanities] – Academia Europaea – Research Advisory Board of the journal – Member of the Pontifical Academy Revista Internacional de Direito Tributario of Social Sciences – Member of the International Board of the Weizmann Institute of Sciences

183 REPORT 2008 – 2009

6. Collaborations ty. Focusing primarily on inclusion, it investi- gated the forms of disability in an aging soci- ety, the impacts of disability on the family, German Federal Ministry of Family policies and legislation on behalf of persons Affairs, Senior Citizens, Women and with disabilities, as well as the handling of Youth, Berlin disability in various countries of Europe Eva Maria WELSKOP-DEFFAA (Germany, Belgium, Netherlands, Italy, Swe- den, Spain, Czech Republic) and Asia (In- and Eva-Maria HOHNERLEIN, dia, Japan, Republic of Korea, Republic of Edda BLENCK-KNOCKE China/Taiwan, P. R. China).

Changing Gender Role Models and Independent Income Security for Ghent University Women in Europe Yves JORENS Starting in 2006, the project has continued to examine gender role models in the context of and Bernd SCHULTE family law and social law (with a main focus on marital property law, maintenance law, so- Social Security for Migrant Workers cial security for family caregivers, and women Reform of European Coordination Law: as the family's main or sole breadwinners). From Regulations (EEC) No. 1408/71 and No. 574/72 to Regulations (EC) No. 883/04 and No. 987/09. Consejo Nacional de Ciencia y Técnica (CONICET), Buenos Aires Laura PAUTASSI Institute for Employment Research of the Federal Employment Agency (IAB), and Eva Maria HOHNERLEIN Nuremberg Regina KONLE-SEIDL Social Rights, Social Policy and Social Institute for the Study of Labour (IZA), Indicators Bonn The project looks into the function and use of Werner EICHHORST social indicators in the context of social poli- cy interventions and social rights (serving es- and Otto KAUFMANN pecially as a benchmark both in the control procedures regarding regional human rights Activation Strategies in Labour Market pacts on economic, social and cultural rights Policy – A Comparison through national reports, and in the context This international and interdisciplinary of supranational cooperation aiming at the project investigated the labour market policy modernisation of social security systems). measures of "activation" with a special focus on the implementation of new approaches for the reintegration or initial integration of German University of Administrative jobseekers or simply unemployed persons. Sciences, Speyer Legal scholars, economists and social scien- Rainer PITSCHAS tists from Germany, the United States, Ludwig Maximilian University (LMU) France, Denmark, Sweden, the United King- Munich, Japanese Centre dom, Switzerland and the Netherlands par- Peter PÖRTNER ticipated in this project.

and Bernd BARON VON MAYDELL, Bernd SCHULTE

Disability in Asia and Europe – A Comparative Approach to Policy and Law Based on a comparative approach, the inter- disciplinary project worked out strategies to solve particular problems of old age disabili-

184 VIII. THE INSTITUTE

International Institute for Social Law Max Planck Institute for Demographic and Policy, Clarkson, Australia and Research, Rostock Pretoria, South Africa James W. VAUPEL, Marc LUY, Rainer Marius OLIVIER HEUER, Andreas EDEL and Ulrich BECKER and Ulrich BECKER, Matthias KNECHT

Social Law and Social Policy in Southern MaxNetAging Research School (MNARS) Africa under the MaxNetAging Programme of Research is conducted into the coordination the Max Planck Society of social security systems in SADC and into MaxNetAging conducts interdisciplinary, the institutional frameworks for extending transnational research into the causes, pat- access to social security for non-citizens and terns, processes and consequences of human informal sector workers in Germany and aging and is part of the comprehensive re- South Africa. The collaboration also includes search activities carried out in this field by the exchanges with lecturers from other South Max Planck Society. MNARS grants scholar- African universities. ships and offers research opportunities at insti- tutions participating in the project in order to assist junior researchers in dealing with the Katholieke Universiteit Leuven, Research subject of human aging. Unit European Social Security (RUESS) Danny PIETERS, Paul SCHOUKENS Max Planck Institute for European and Ulrich BECKER, Yasemin KÖRTEK, Legal History, Frankfurt am Main Friso ROSS Michael STOLLEIS Stefan RUPPERT General Principles of Social Security Law in Europe and Ulrike HAERENDEL The research project is devoted to a compara- tive legal analysis of the fundamental princi- The Social History of Pension Insurance ples of social security law in various EU mem- in the German Empire: 1871 – 1914 ber states, the EFTA member states and the The research project investigates the societal EU accession states. The criteria relevant to background to the origin of German pension the investigation were established by the co- insurance and its impact on the society of operation partners and will be examined by the German Empire. The project was carried the country correspondents with regard to the out by Ulrike Haerendel, who left the Insti- respective legal systems and incorporated into tute on 1 March 2009. the country reports.

Renmin University of China, Pontifícia Universidade Católica de Department of Social Security, Beijing Porto Alegre Gongcheng ZHENG Ingo SARLET and Ulrich BECKER, Barbara DARIMONT and Ulrich BECKER, Lorena OSSIO Basic Issues of Social Insurance – A Right to Health Comparison between China and Germany The project investigates the tense relation- Comparative law analysis of current issues; ship between collective rights and individual investigation into the factors influencing the rights from a comparative law perspective, development of Chinese social law (including taking Brazil and Columbia as examples. The the aspects of its creation and reception); ex- basic question is whether a right to health change of researchers and junior researchers. care benefits does in fact exist and what roles are played by the courts, especially the consti- tutional courts, regarding its concretisation.

185 REPORT 2008 – 2009

University College Cork University of Tsukuba Peter HERRMANN Makoto ARAI European Centre for Social Welfare Policy and Research and Bernd SCHULTE Manfred HUBER Adult Guardianship Law in an and Bernd SCHULTE International Perspective A comparative law project on Guardianship Social Services in Europe (including Law for Adult Persons in Germany, Japan, Health Care Services) Austria, the United Kingdom, Canada and This study looks into the social services and the United States, with current focus on health care services provided by the EU Germany and Japan. member states against the background of in- tensifying European integration until the Treaty of Lisbon came into effect in 2009. University of Tsukuba, Graduate School of Humanities and Social Sciences Miyoko MOTOZAWA University of Illinois, Institute of Government and Public Affairs and Bernd BARON VON MAYDELL, Robert RICH Eva Maria HOHNERLEIN, Markus SCHÖN and Ulrich BECKER, Markus SICHERT Family Policy in the Aging Society – Choice and Competition in Hospital A German-Japanese Comparison Health Care A comparative analysis of the family policies The interdisciplinary project is based on of Japan and Germany including caregiving comparative law and deals with competition and educational infrastructures, cash bene- and regulation as conceptions of normative fits and other social policy measures. steering in the health care sector. It seeks to shed light on competitive instruments as well as on functional and steering modes in the health care sectors of the United States, Switzerland, the Netherlands and Germany. Research is conducted both by social law ex- perts and economists.

University of Utrecht Frans PENNINGS

and Ulrich BECKER, Barbara DARIMONT

International Standard Setting and Innovation in Social Security (ISSISS) The project investigates and discusses ten- sions between international social security standards and new approaches to national so- cial security systems. Thus, new develop- ments of social security in both industrialised states and developing countries are identified and analysed for their compatibility with in- ternational social standards. In case of incom- patibility it must be investigated whether the problem can be solved by changing the exist- ing international social security standards.

186 VIII. THE INSTITUTE

7. Legal Opinions

Ulrich BECKER

4 May 2009: Expert opinion for the hearing on a draft law on the suspension of the law governing the benefits for asylum seekers, German Bundestag, Committee on Labour and Social Affairs, Berlin.

Eva Maria HOHNERLEIN

20 March 2008: Expert opinion on the legal conditions for the development of intergen- erational relations in an international com- parison on behalf of AG LeoTech Alter, repre- sented by the German Academy of Sciences Leopoldina, Halle.

Yasemin KÖRTEK

26 January 2009: Expert opinion for a pub- lic hearing of experts on a draft law relating to the extension of compensation for victims of violence and for persons who became vic- tims of terrorism abroad, German Bundestag, Committee on Labour and Social Affairs, Berlin.

187 REPORT 2008 – 2009

8. Alumni Meeting 2008

On 12 and 13 September 2008 the alumni of Alumni Network the Institute met for a second time to ex- change information within the alumni circle Building up an alumni network at the Insti- or with the staff of the Institute in larger or tute offers colleagues, ex-colleagues and smaller groups. This time a two-day event guest researchers the opportunity to corres- had been scheduled. On the first day the pond with one another and keep in touch managing director, Ulrich Becker, reported with the Institute. In addition, the Institute on the Institute's most recent developments is currently setting up an electronic platform and current research projects while the form- which is to allow for a direct and worldwide er directors, Bernd von Maydell and Hans F. transfer of information wherever the alum- Zacher, in their reports focused on the In- nus or alumna may be located. stitute's international cooperation and the development of the Max Planck Society in Since as early as 1980 there has been a vivid general. exchange of knowledge and information due to the alumni who conducted research at the On the second day, former Institute mem- Institute and who have always felt associated bers commented on their professional activi- with the research community. The alumni net- ties. Maria Grienberger-Zingerle elaborated work provides ex-colleagues with the opportu- on her work as a legal advisor within the min- nity to get informed about current scientific isterial administration and on the manifold events, conferences and publications of the opportunities that opened up to her there. Institute and creates a communication portal Angelika Schmid reported on her activity as a for them. Furthermore, dedicated alumni are judge at the Munich Social Court and on planning to found an alumni association that work/life balance in her profession. Finally will help to organize the alumni meetings of Alpay Hekimler spoke about the sometimes the Institute. For further information please difficult research practice at a Turkish uni- turn to the alumni representative at the fol- versity. lowing e-mail address: [email protected]. The alumni meeting concluded with a guided Lorena Ossio/Christina Walser tour of the exhibition "city / building / plan (stadt / bau / plan) – 850 years of urban de- velopment in Munich".

Dr. Maria Grienberger-Zingerle (Bavarian State Ministry for Labour and Social Affairs, Family and Women) at the alumni meeting 2008.

188 VIII. THE INSTITUTE

189 REPORT 2008 – 2009

190 IMPRINT

Imprint

Published by Max Planck Institute for Foreign and International Social Law

Content Authority The Managing Director Prof. Dr. Ulrich Becker, LL.M. (EHI)

Max Planck Institute for Foreign and International Social Law Amalienstraße 33 80799 Munich, Germany Phone: +49 (0)89 38602-511 Fax: +49 (0)89 38602-590 www.mpisoc.mpg.de

Editorial Board Dr. Monika Nißlein (responsible) Dr. Yasemin Körtek, Nikola Wilman, LL.M, M.Jur (text) Henning Frankenberger (publications)

Translation Christina McAllister, M.A. Eva Lutz, M.A.

Illustrations Andreas Schmidt, Prof. Dr. Ulrich Becker i.a. © Max Planck Institute for Foreign and International Social Law and p. 14: European Court of Justice pp. 39, 40, 82: Silvia Reum p. 69: MVV Energie p. 80: Legislative Affairs Office of the State Council of P. R. China and German Federal Ministry of Justice p. 95 (bottom): Dr. Monika Nißlein p. 123: Bavarian State Ministry for Labour and Social Affairs, Family and Women

Design & Litho HM Scherer GmbH Druck & Kommunikation Munich

Copyright © Max Planck Institute for Foreign and International Social Law Munich, 2010

191