Max-Planck-Institute-Research-Report

PREFACE

Preface

The present report ties in with the 2001- bodies and functions (VIII.). A new, separate 2003 report and, as announced there, reverts section deals with the promotion of junior to the two-year reporting interval. researchers (III.). Its introduction and placement within the report mirrors the value The report furnishes information on the attached to this objective. To be noted in this activities of the Max Planck Institute for connection is the establishment of small, Foreign and International Social Law in the inhouse doctoral groups, which are detailed years 2004 and 2005. Thus it outlines the below. research projects that were completed and initiated during this period and simultan- The Introduction (I.) begins with a descrip- eously documents the Institute’s progress. tion of the Institute’s tasks and the concep- This task is reflected in the largest section tion of its research activities. In this sense, it devoted to the depiction of our research serves as a guideline for all following sec- (II.). Here, we have striven to heighten read- tions by providing a short overview of their ability by presenting individual projects as contents. At the same time, this preliminary self-contained entities and to address a presentation of our research programme elu- wider group of prospective readers. Yet this cidates the connections between the wide- was not done at the expense of completeness ranging and variably designed individual pro- – notably as regards the recording of our own jects. events, publications, and papers and lectures (IV. – VI.), as well as the names of our Munich, January 2006 grantees and guests (VII.), and the detailed description of the Institute and its members, Ulrich Becker

1 REPORT 2004-2005

Contents

Preface 1

Contents 2

I. Introduction 5

II. Research 13

1. Europeanisation and Internationalisation 14 1.1. The Tax and Social State in European Institutional Competition 14 1.2. Principles of Social Security Law in Europe 14 1.3. EC Coordination Law 16 1.4. Internal Market and Social Services 17 1.5. Cross-Border Medical Care in the Hospital Sector 18 1.6. Implementation of International Social Standards 19

2. Adjustments in Developed States 21 2.1. State Tasks on Behalf of the Third Generation 21 2.2. Activating Labour Market Policy 23 2.3. Choice and Competition in Hospital Health Care 25 2.4. MaxnetAging 26 2.5. Occupational and Other Forms of Supplementary Retirement Provision 27 2.6. Constitutional Review of Welfare Reform 29 2.7. Legal Protection of Social Benefits in Europe 30 2.8. The Swedish Welfare State 31 2.9. Reform of the Netherlands Health Insurance System 33 2.10. Adjustment of Social Insurance Systems to Societal and Economic Developments – Japan und Germany in a Legal Comparison 34 2.11. German-Japanese Joint Research on Social Security 36

3. Transformation in Threshold Countries 37 3.1. Formal and Informal Social Security 37 3.2. Processes of Social Law Reception in China 37 3.3. South African Perspectives on Undergoing Transformations 40 3.4. Solaris 41

4. Multi-Focus Research 42 4.1. Equality Through Law 42 4.2. Emeritus Workplace: Hans F. Zacher 44 4.3. Emeritus Workplace: Bernd Baron von Maydell 47

2 CONTENTS

III. Promotion of Junior Researchers 51

1. Doctoral Group: “State Responsibility for Social Security in Flux” 52 2. Doctoral Group: “Influence of Constitutional Law and International Law on the Configuration of Social Security” 55 3. Doctorates 56

IV. Events Organised by the Institute 57

1. Conferences and Workshops 58 2. Guest Lectures 63

V. Publications 65

1. Publications of the Institute 66 2. Publications by the Institute Staff 67

VI. Papers and Lectures 79

1. Papers 80 2. Lectures 93

VII. Grantees and Guests 97

1. Grantees 98 2. Guests 99

VIII. The Institute 101

1. Personalia 102 2. Scientific Advisory Board and Board of Trustees 104 3. Library 105 4. Homepage and Internet 107 5. Honours 108 6. Work of Institute Members in External Bodies 108 7. Legal Opinions 109 8. Alumni 110

3 REPORT 2004-2005

4 I. Introduction REPORT 2004-2005

1. Task, History und Structure of the tute in the course of their longstanding ac- Institute tivities can be put to productive use. Never- theless, in filling new positions – given that (1) According to its statute, the Institute is only fixed-term posts are available – import- devoted to research in the field of foreign ance is above all attached to the fact that the and international social law. social law of researched countries should, if possible, be of significance to ongoing re- Following a suggestion made in 1972 by the form processes. Beyond this, the country- former president of the German Federal specific structuring of research has forfeited Social Court, Prof. Dr. Georg Wannagat, to some of its relevance owing to the process of establish a Max Planck Institute for inter- Europeanisation and internationalisation – national social law, the Max Planck Society albeit on a much smaller scale than in legal decided two years later to launch a project fields that are more strongly impacted by group for international and comparative unitarisation tendencies than social law. social law in Munich. This project group Finally, knowledge about foreign law is nat- commenced its activities in 1976 under the urally augmented when researchers from leadership of Prof. Dr. Dr. h.c. mult. Hans F. abroad participate in individual projects or Zacher. To begin with, it employed a staff of when projects are conducted exclusively five, later six researchers. Ahead of sched- with foreign collaborators. ule, that is, prior to the end of the originally planned term, the group’s conversion into the Max Planck Institute for Foreign and 2. Research Programme of the Institute International Social Law was resolved and subsequently carried through in 1980. Social Law as a Law in Flux and Processes of Change From 1 January 1980, the Institute was under the direction of its founder, Hans F. Social law is characterised to a special de- Zacher, who in 1990 assumed the office of gree by its vicissitude. That results from the President of the Max Planck Society while high level of functionality demonstrated by continuing his directorship on a temporary this body of law, which by nature must con- basis. He was succeeded as Institute dir- stantly be adapted to societal and economic ector on 1 February 1992 by Prof. Dr. Bernd changes. Now more than ever, systemic Baron von Maydell. After Prof. von Maydell changes, whose development has been espe- acquired emeritus status on 31 July 2002, cially pronounced over the past few years, the direction passed on to Prof. Dr. Ulrich can be destinguished from system-inherent Becker, LL.M., who took full-time office as adjustments based on internal and external Scientific Member and Managing Director reform requirements. as from 1 September 2002. Proceeding on the groundwork established (2) The Institute is still under the leadership in the first phase of the Institute and the of only one director; organisational sub-div- wider perspectives gained in the second isions do not exist. The Institute’s research phase – with a view both to the role of the staff engage in the observation and analysis European Community and to insights from of social law and social policy developments new country comparisons – the third phase in various European and non-European involves the systematic classification of pro- countries. The country-specific structuring jects into three analytically differing process- of this work is supplemented by subject- es of change, without affecting their diversi- related competences and responsibilities for ty and structural differences. These proces- the observation of international organisa- ses comprise: tions. This structure is basically to be upheld • the Europeanisation and international- in the coming years, given that law continues isation of social law as characterised by to bear nation-state features. Country-spe- the shift in regulatory levels, especially cific societal, economic and cultural settings also by the influence of transnational therefore play an essential role in legal interrelations, as well as by supranational understanding, and it is in this sense that the and international provisions governing expertise acquired by members of the Insti- national law;

6 I. INTRODUCTION

• the adjustment (or change) of social se- concerns (in contrast to the former nation- curity systems in developed states; ality-based principle of non-discrimination • the transformation of social benefit dating from its origins and widely extended in schemes in developing and threshold terms of substantive scope). countries. Individual Projects and Basic Issues A separation of these processes can be undertaken only for analytical purposes and In researching all of these three change to highlight specific features. Accordingly, processes, basic issues figure prominently in the first process chiefly involves the intri- a number of different ways. For one thing, cacies of creating “supranational” law (law that applies to the examination of national “above” the national level) along with all the legal systems. Here, social law can serve as a difficulties of its integration and enforce- reference area for the study of overlapping ment; the second process consists in the issues of legal policy and legal doctrine, say, need to compare, and also assess, solutions as regards the effects of privatisation or the for identical or similarly structured prob- role of competition within social benefit lems; and the third process seeks to find out schemes. But that likewise holds true for how traditional and modern forms of social comparative law. In times of intensified in- security interact in countries with immense formational exchange, an increasingly asked disparities in their internal development. question is: what national regulatory patterns governing social benefit schemes can Of course, that does not alter the fact that be transferred to other countries? Such an the three change processes are strongly enquiry may prove expedient either because interwoven with each other. Thus globalisa- the reform needs of different countries are tion and international law play an important similarly bedded, for instance where demo- role in the transformation of social benefit graphic trends pose a threat to existing pay- systems in threshold countries; it is no coin- as-you-go risk coverage schemes; because cidence that China’s accession to the WTO increasing economic interpenetration and is emphasised time and again as an import- migration prompt the convergence of social ant step in its development. Europeanisation benefit schemes, as is now endorsed by the goes hand in hand with adjustments to so- European Union through an institution- cial security systems in the EU member alised process of comparison; or because states. In part, it reinforces national trends conventional social security options need to (in particular through the institutionalisation be replaced by new forms of security in the of comparison in the form of the so-called wake of societal development and change. Open Method of Coordination); in part, it At any rate, knowledge of national legal adopts some of these trends on its own be- systems is required in each case. Yet, in half (because European social policy always order to shed light on the aforementioned remains based on the substance existing in processes, these systems must not only be the member states). The list of interconnec- compared along mere functional lines, but tions could be extended. But the point here must (also) be examined with a view to their is just to show that we are indeed aware of own mechanisms of action, as well as their these links and include them in our studies, societal and cultural preconditions. without necessarily having to query the meaningfulness of any distinction. An ex- In this way, general structures and prin- ample of an overlapping subject is the ciples, such as level of democracy and rule of project “Equality Through Law” (II. 4.1.) law or protection of personal freedoms, because the targeted implementation of acquire greater significance, as do the institu- anti-discrimination regulations – based on tional arrangements underlying the actions of specific historical experiences – plays a role both the persons involved and the administra- in both developed nations (USA) and tion. The growing importance attributed to threshold countries (South Africa, Brazil), the development of social benefit schemes, thereby assuming differing functions. This not only in financial terms but especially as development has been reinforced within the regards people’s actual living circumstances European Union, but now the main em- and the stability of society, is easily inferred phasis is placed on particular social policy from the current reform debates.

7 REPORT 2004-2005

Europeanisation and Internationalisation supranational law but as a synopsis of national legal systems, the elaboration of com- Debates over the European Constitution mon principles of social law in Europe is of (i.e. the draft Treaty establishing a Constitu- great interest (cf. II. 1.2.). That will require tion for Europe) were by nature also of sig- greater efforts over a period of several years, nificance to European social law, given that not least because of the large number of a central issue was the extent to which member countries and the extensive reach of European integration has, or should have, a the subject matter. A comparative examin- social dimension. It is thereby acknowledged ation of national bodies of law in Europe is that this integration process – unlike most also of relevance to the coordination of other forms of regional amalgamation – social benefit schemes. Such coordination displays a certain measure of ambivalence. must reflect member state developments as For at its core, the European Union consti- well as EU enlargements in order to do just- tutes a legal community which, though ice to its fundamental objective, namely to entrusted with the power to impose restric- protect persons who make use of their right tions on its member states, has at the same to freedom of movement against the loss of time been founded by them to safeguard their social rights. In recent years, and also common goals. Thus, on the one hand, the in the period under review, the reform of EC commitment to an internal market endowed coordination rules, which has come to a pro- with economic freedoms increases pressure visional conclusion through the entry into on member states to open up their markets force of a new and simplified coordination and permit the exchange of factors of regulation, has been the subject of a series of production. On the other hand, this form of research projects (cf. II. 1.3.). regionalisation in principle also makes it possible to accompany the opening of mar- Apart from that, the influence of Commu- kets at a supranational level by political nity law on member state systems of social measures for the protection of other com- law remains an important theme (II. 1.4. and mon welfare interests. At least at the current 1.5.). Thus the existing distribution of com- level of development, economic parameters petences in the social policy sphere seems to still carry more weight. In this sense, the indicate that internal market law and social higher-ranking legal and political require- law will increasingly “meet”, i.e. display ments lead to institutional competition (i.e. points of contact. That applies to the effects between national systems). Although the of both the fundamental freedoms and Com- member states are not prevented from pur- munity competition law, although a certain suing national policies in certain fields, they degree of dissymmetry results from econom- must acknowledge that in doing so they ic law being at the higher regulatory level determine location factors which – in a and social law at the lower. A balance can realm allowing for the free movement of scarcely be achieved through harmonisation persons, goods, services and capital – be- (that is, by assigning social law to the higher come essential influencing variables in com- level). A remaining possibility, however, is to peting for factors of production. These prin- leave sufficient scopes of action to the mem- ciples do not only apply to social law and so, ber states through appropriate constructs of as it were, to the expenditure side; mean- legal doctrine, notably through the recogni- while, they likewise have a bearing on tax tion of justification grounds and prerogatives law, which is why it seems expedient to scru- of assessment. Indeed – despite the consid- tinise the influences in both of these inter- erable, often bemoaned (by social law related and structurally similar legal fields scholars in particular) influence of the Euro- (cf. II. 1.1.). pean Court of Justice (ECJ) – it has been shown that many issues involve a social pol- In the long run, the substance of social law icy dimension of integration. Yet one cannot, in the member states will remain crucial to and should not, speak offhand of a “Euro- European development; features shared EU- pean social model” in view of the disparities wide will continue to be determined by existing in the member states. It suffices national law. For this reason, and above all here to point out a number of important because social law so far lacks attempts at developments, which nevertheless remain portraying Community law not only as controversial, not least of all because they

8 I. INTRODUCTION

impact core issues of market orientation. responsible for changes in labour markets Meant here are: the exclusion of the applic- and employment structures, decisions con- ability of competition law to social insurance cerning the organisation of social benefit institutions and collective agreements; the systems must nonetheless be taken primar- recognition of social return services under ily at national level. In view of similarly state aid law and social criteria under public bedded problems, the need for knowledge- procurement law; and minimum wage able solutions and, hence, for comparative requirements governing the posting of analysis is great indeed – always presup- workers. posing that such a comparison embraces fundamental issues and deals with the per- On an international level, the above-outlined tinent details, as otherwise nothing can be processes of mutual interpenetration of said about the transferability of prospective multi-level legal systems continue to be less individual solutions. pronounced. For public international law largely lacks directly applicable rules of Major subjects addressed by the Institute in social law that decisively affect state powers the period under review include: social of governance and tends to exercise restraint benefits and parental benefits granted on in respect of state responsibility for social behalf of children in various European states policy. Even so, international law does have (II. 2.1.); activating labour market policy in a perceptible bearing on social security. In the United States and Europe from a dual asking how social protection can be aligned comparative perspective (II. 2.2.); the role of at an international level with the exchange of competition in the delivery of in-patient goods, services and capital, as well as with hospital care benefits in Germany, the migratory movement, special thought must Netherlands, Switzerland and the United be given to the future role of international States (II. 2.3.); occupational retirement agreements on the protection of social schemes as an element of supplementary rights. These are addressed, for instance, in old-age provision (II. 2.5.); the role of the Conventions of the International Labour constitutional jurisdiction in the reform of Organization (ILO), but also in the United social benefit schemes (II. 2.6.); and the Nations International Covenant on Eco- judicial protection of social rights in Europe nomic, Social and Cultural Rights, and in (II. 2.7.). These projects, some of which are the European Social Charter. The imple- founded on earlier studies (for instance on mentation of these international treaties supplementary insurance), were comple- appears difficult not only on account of the mented by smaller projects and numerous specific nature of social rights, but also lectures and publications (cf. V. and VI. because of the diversity of existing provisions below) that often also served to enhance the and their disparate enforcement mech- exchange of knowledge of differing legal anisms. Where precisely the difficulties lie systems, but also accompanied legal devel- and what improvement options make sense opments in Germany. requires an in-depth investigation, including an assessment of the practical experience Precisely because the gaining of insights gained by all relevant supervisory bodies through comparative law demands detailed (II. 1.6. below). scrutiny, including extra-legal conditions, a time-tested approach for investigating di- Adjustments in Developed States verse national developments continues to rest on the creation of an institutional frame- Irrespective of the above discussions and the work based on longer-term collaboration. In significance of globalisation, it is essentially the period under report, this was again a internal factors that trigger reform processes prime objective of the research ties to Japan, within states. Practically all developed coun- given that in the light of comparable societal tries are faced with two decisive dem- change processes, both Japan and Germany ographic trends, namely the prolongation of are intensely engaged in reforms to their life expectancy and negative population social security systems. Here, the aim was to growth – as it were, a double aging process strengthen mutual understanding in the field (cf. II. 2.4.). Even granting that intensified of social law through long-term cooperation international exchange relations are also and to study current reform trends (cf. II.

9 REPORT 2004-2005

2.10., 2.11 and 4.3.). Especially with a view 3. Staff Changes to similarly bedded demographic problems, findings promise to reveal what can be learn- The previous reporting period (2001 to ed from the other side in dealing with the 2003) was characterised by numerous staff challenges of an aging society and, simultan- changes. These were not so much the result eously, to show what particularities persist of the new directorship as the successful despite comparable economic development. promotion of junior scholars. The downside of such changes, from the point of view of Transformation in Threshold Countries the Institute, is the inevitable loss of qualified research personnel, which is neverthe- The two new research posts for China and less more than offset by extended contacts South Africa, already addressed in the and the ensuing greater attraction for junior preceding report, have put the Institute in a researchers. As a number of new positions position to deal much more extensively than could be filled between 2002 and 2003, staff in the past with the social legislation of fluctuation remained at a comparatively low selected threshold countries. In the process, level in 2004 and 2005 (cf. more detailed it was possible to fall back on the results VIII. 1.). achieved in a number of projects from the early years of the Institute’s work on social New to the circle of research fellows was security in developing countries. Dr. Markus Sichert (since 1/12/2004). Upon expiry of her parental leave (on 30/06/2005), The initial aims are to enhance our know- Dr. Christina Walser reduced her scope ledge of foreign social law by way of bilater- of activity to 75%. Dr. Alexander Graser, al comparisons and events organised in col- LL.M., who was awarded the Bavarian laboration with research partners in these Habilitation Promotion Prize in 2003, re- countries (at present, with Renmin Univer- mains on leave for purposes of completing sity in Beijing and the University of Johan- his postdoctoral lecture qualification (habili- nesburg), to pass on German experience tation). with developed social security systems, and to discuss in greater depth such current Of the non-research staff, Ingrid Werner-Böll issues as the build-up of administrations and and Melanie Winkler left the Institute upon the coordination of different systems within expiry of the active phase of partial retire- a country and within regions (more detailed ment. Eliane Rammler accepted the post as II. 3.2. and 3.3.). Based on these experi- head librarian of the Institute for Civil Law ences, intersecting subjects are then to be and Law of Civil Procedure of the Ludwig- compared. The intent is to focus on subjects Maximilians-Universität in Munich. She considered important in all countries sharing was replaced by Melanie Jackenkroll. a specific level of development and whose treatment is expected to shed light on the The first three of the doctoral candidates relationship between societal and cultural employed during the previous reporting particularities, on the one hand, and mod- period (Ariane Wiedmann, Monika Goller, ernisation tendencies, on the other. Here, a Claudia Matthäus) successfully ended their good example – yet one which is not easily engagement with the Institute, although the grasped as a distinct phenomenon – is so- doctoral examination procedures were not called informal social security (cf. II. 3.1.). quite completed by the end of 2005. Ms. An aspect of legal relevance to transforma- Wiedmann and Ms. Matthäus have each tion processes is the influence of constitu- started their legal traineeship; Ms. Goller, tional law, notably social rights and equality who was temporarily engaged with the Ger- precepts, as well as the role of constitution- man Federal Ministry for Health and Social al courts in the extension of social benefits Security under an interdisciplinary pro- (cf. also II. 4.1., II. 2.6. and III. 2.). gramme funded by the Volkswagen Founda- tion, accepted a post as legal advisor in the social affairs department of the municipality of Augsburg. New doctoral posts were filled by Maria Grienberger-Zingerle, Benno Quade and Janire Mimentza, LL.M., who have thus

10 I. INTRODUCTION

reinforced the doctoral group on state re- Publications sponsibility for social security in flux (cf. more detailed III. 1.). With the appointment As a publicly funded establishment, the of Quirin Vergho, an additional doctoral Institute considers it an additional task to group was initiated. It will deal with the in- place its basic research findings at the dis- fluence of constitutional law and inter- posal of other institutions and to report on national law on the law of social security (cf. its work to the general public. Based on the also 4. and more detailed III. 2. below). Institute’s web presentation, which was re- configured in the previous reporting period, there are future plans to collect further 4. The Institute as a Research and information on social law reforms in se- Meeting Place lected countries and to make this accessible to interested persons for their own research Work Facilities (cf. II. 3.4. below).

The Institute disposes of a specialised li- The research findings of the Institute’s brary, meanwhile comprising over 84,000 scholars are not only published in German volumes (cf. more detailed VIII. 3. below). and foreign journals (cf. more detailed V. 2. The books and journals primarily cover the below); the Institute itself also offers venues social legislation of international organ- for the publication of social law contribu- isations, the European Union, Germany, and tions (cf. V. 1. below). In cooperation with selected European and non-European the Institute for Labour Law and Labour states, encompassing social policy, social sci- Relations in the European Community ence and economic works as well as the (Trier), it issues the “Zeitschrift für auslän- basics of legal history and legal philosophy, disches und internationales Arbeits- und and general depictions of constitutional, ad- Sozialrecht” (ZIAS). Moreover, it has two ministrative, civil and labour law. Additional publication series called “Studien aus dem information can be accessed via databases Max-Planck-Institut für ausländisches und and Internet publications. internationales Sozialrecht” and “Schriften- reihe für internationales und vergleichendes The Institute thus furnishes work opportun- Sozialrecht”. A new working paper series has ities for conducting social law and social been launched (MPISoc Working Papers) policy research in a manner that is unique with the aim of publishing smaller or spe- both inside and outside of Germany. And so cially targeted works on a timely and low- the Institute has remained an attractive cost basis – primarily but not exclusively on venue for German and foreign guest scholars the Internet. In addition, the director edits a – supported in part by the Institute, but series entitled “Schriften zum deutschen largely through other institutions – who und europäischen Sozialrecht” (Nomos Ver- stayed here for differing lengths of time to lag, Baden-Baden), under which eight new carry out their investigations (cf. VII. below). volumes were released in 2004 and 2005.

Sponsoring guest stays, similar to the organ- Applied Research isation of guest lectures, workshops and conferences (cf. IV. below), contributes to both The Institute is particularly committed to international and interdisciplinary exchange. the communication of knowledge on Ger- It is also in this sense that the Institute con- man, European and international social law stitutes a meeting place – which is important to interested persons at home and abroad. To because, being a small institute, it cannot on this end, its members participate in a wide its own survey all social law regimes on an variety of conferences and workshops (cf. equal scale. The Institute therefore relies on VI. 1. below). They also exchange informa- its collaboration with foreign research part- tion with practitioners from ministries, asso- ners, which is to be expanded in future ciations and social benefit institutions, as through a more closely knit correspondence well as with politicians. In this way, the In- network that will permit the more precise stitute not only acts in an advisory capacity, assessment of reform processes in different but enables its staff to take practical prob- regions. lems as an opportunity for more extensive

11 REPORT 2004-2005

investigation and for the verification of some time now. The director of the Institute theoretical assumptions. and affiliated lecturers (Kruse, Adolf) conduct all social law courses as well as the Like most of the juridical Max Planck Insti- elective oral exams under the First State tutes, the Institute also prepares expert opin- Law Examination. In addition, two written ions for courts dealing with foreign social exams on elective courses were prepared by law issues (cf. VIII. 7. below). This function the Institute for the First State Examination nevertheless remains of secondary import- in the period under review. Future cooper- ance. Owing to the obviously small number ation with the Faculty of Law is to gain sig- of cases, the demand for such services is nificance through the establishment of a limited, although it does arise from time to major subject area (Schwerpunktbereich: time. While the Institute is not in a position, Law in the Company: Labour and Social or even anxious, to provide worldwide cover- Law). Additional collaborations are likely to age of all individual social law problems, arise from the envisaged formation of excel- most demands in this connection could be lence clusters. As there are no plans also in satisfied nonetheless. the foreseeable future to establish a position with a social law focus at the Munich Uni- Promotion of Junior Scholars versity, the Institute will continue to bear a special responsibility for the maintenance of Last but not least, the legal education and teaching in this field of law. promotion of junior scholars rank highly in the work of the Institute. Additional teaching activities are conducted abroad (cf. VI. 2.) in the form of: regular (1) Worthy of note is the increase in doctor- courses at the universities of Strasbourg and al posts at the Institute and the establish- Rennes (Kaufmann), guest lectures at vari- ment of smaller, in-house doctoral research ous universities (v. Maydell, Becker), lectures groups. These are to enable the participants under the “European Master in Social Se- to elaborate the foundations for their disser- curity” programme of the Katholieke Univer- tation projects and to exchange information siteit Leuven (Becker), programmes under on the progress and individual problems of DAAD-sponsored student exchanges be- their work within the frame of regular meet- tween the University of Frankfurt/Main and ings chaired by the director and attended by the University of Johannesburg, as well as other research staff. Moreover, doctoral stu- under the SOCRATES exchange between dents are given the opportunity to partici- the LMU Munich and the University of pate in seminars abroad (notably those or- Athens. ganised by the European Institute for Social Ulrich Becker Security) and in seminars with external doctoral students as a means of widening their perspectives and reviewing their own work through the academic discourse with other scholars and tutors (cf. more detailed III. below).

(2) Like his predecessors, the director of the Institute is active as a university lecturer, thus maintaining contacts to the Faculty of Law of the Ludwig-Maximilians-Universität (LMU) in Munich. These ties are facilitated by the Institute’s close proximity to the university. The director, in seeking to intensify these contacts with both colleagues and students, has therefore agreed to hold com- pulsory lectures in addition to his other tasks. Moreover, the teaching of social law as a university course in Munich has been sustained exclusively by the Institute for

12 II. Research REPORT 2004-2005

1. Europeanisation and the tax and social state through institutional competition (examined by the first block of Internationalisation lecturers) and the state’s concrete involvement within the European market and com- 1.1. The Tax and Social State in European petition system (dealt with by the second Institutional Competition block). An additional emphasis was placed on the specific regulatory approaches to- Tax law and social law are in many ways wards a large number of cross-border prob- related to each other and display numerous lem constellations confronting both domains parallels. Even so, exchanges between the (third block). Beyond the specific subject two disciplines rarely take place, although matter, additional points of reference emerged this would be a good opportunity to improve for examining the interaction between the system compatibility and to learn from the tax and social state in all its complexity and solutions proposed by the respective other diversity (this task was outlined in the final branch. In the light of this finding, the Insti- contribution by Hans F. Zacher). tute, in collaboration with the department Ulrich Becker / Alexander Graser for tax law of the neighbouring Max Planck Institute for Intellectual Property, Competi- tion and Tax Law, has embarked on a dis- 1.2. Principles of Social Security Law course between eminent members of both in Europe sub-disciplines, along with several special- ists from economics and political science. To The social systems of European states are reinforce these efforts, a two-day expert experiencing a situation of profound change. seminar entitled “Steuer- und Sozialstaat im Terms such as modernisation, competitive- europäischen Systemwettbewerb” (The Tax ness or simply cost containment are used to and Social State in European Institutional describe social policy guidelines. At the Competition) was held in December 2004. same time, there are numerous demands to abandon regulatory action by the nation The choice of this theme was prompted by state and, in principle, to shift it to the the mounting competition currently facing supranational level. As a matter of course, the nation states of Europe in the wake of “globalisation” and “Europeanisation” are the the progressive opening of their borders. slogans invoked to support these demands. This process is generally associated with And while national discussions meanwhile globalisation and, at least as far as European centre almost exclusively on the economic integration is concerned, constitutes an ob- perspective, the European vantage point is vious and ubiquitous fact. The resulting often lost in metaphysics, thus overlooking pressure on national scopes of action above the dominance of national benefit systems. all impacts those policy fields in which the state operates with factors of production that This legal policy jumble brings to light what are burdened by cross-border competition. is obviously missing in such discussions: a This applies in particular to tax law and so- fundamental analysis of the base lines and cial law, which moreover resemble each principles underlying social benefit systems. other in that they have so far largely re- Granted, future reflections on a European mained a national policy domain. Hence, the social model have their own special merit, competitive pressure they face cannot be just as thoughts impelled by the economic met at a supranational – notably European – efficiency of the nation state have an exten- level, say, by way of harmonisation. sive impact on social benefit structures. Nevertheless, it should not be overlooked Bearing all that in mind, the challenge posed that both propositions fail to do ample just- by European institutional competition seemed ice to the actual condition of social benefits an especially appropriate subject for testing – be it that the modes of perception are too the exchange between the two disciplines heavily accentuated by daily politics, be it via similar problem constellations and prop- that they are too visionary. ositional solutions. And indeed, a series of common issues did come to the fore with a Alternatively, the elaboration of base prin- view to both the elemental challenge facing ciples has the advantage of revealing, in an

14 II. RESEARCH

intermediate first step, legal criteria that affect everybody, these national regulations characterise social benefit systems. Proceed- are, also historically speaking, nothing but ing from there, an overall European perspec- an extrapolation of the charitable state. In tive can then be developed. In doing so, one contrast to social assistance (former poor re- can hardly hope to find one underlying prin- lief), social benefits covering specific risks of ciple applicable to all European states. Yet specific collectives evolved only little by little. determining the relative base principles could serve as a starting point for tracking In collaboration with the Research Unit down convergence criteria among the diverse European Social Security (RUESS) of the systems. All the more so as it is to be pre- Catholic University of Leuven, the Institute sumed that apparent antagonisms often serve has set itself the goal of identifying common the same idea and that national systems are features of national social law systems, likely to be assimilated more and more. despite all dissimilarity in their respective layouts. One outstanding common objective Starting Point is to afford protection to persons in specific situations of need and to protect against Base lines and principles underlying social risks. This protective function of social pro- security law seem easy to detect at first tection law could thus be taken as the smallest glance. They can be characterised by such common denominator for establishing the concepts as mutually supportive society legal frame of a prospective General Section. (keywords: solidarity, welfare state and just Simultaneously, the protection function can redistribution). Only at second glance do we be used to ascertain the legal frame for clas- notice that these attributes are not solely sifying principles and, hence, for guiding the confined to what is understood by social law actual project work. In the process, the de- or, more precisely, social security law. Rather liberate focus is on social security law. Its they denote multifarious legal sub-areas that protective elements are not a priori as heav- serve to guarantee the societal protection of ily accentuated as those of the more general individuals. Examples are landlord and ten- social protection law, because the very con- ant law, protection against unfair dismissal, ceptualisation of social security law already law of succession, family law, the principles presupposes that the individual is in some of liability law, as well as insolvency regula- way capable of making his or her own provi- tions. Common to all these legal fields is sions. Despite this system-based particular- that they create mechanisms to protect or ity, we are assuming that our prospective support the means of existence in specific findings on social security law as a whole can life circumstances. Yet what distinguishes be adopted for the entirety of social protec- these legal fields from that of social security tion law as well. law is their strong focus on individual life circumstances. Mode of Procedure

Social security law is quite different in that In its preliminary papers, the project group, respect. Its initial concepts define mass phe- consisting of members of the Institute nomena that create specific risks for collect- (Becker, Quade, Ross, Sichert) and of RUESS ive life circumstances. Strictly speaking, at (Peeters, Pieters, Schoukens, Zaglmayer), laid European level this means that specific, down the mode of procedure in workshops separate phenomena are regulated under held in November 2004 and December social security law for specific, separate col- 2005: lectives, for instance sickness costs for employees, accidents and their consequences On the basis of reflections on the protection for workers, or financial compensation for function of social security law, the research persons no longer in dependent employ- project will focus on baselines that are ment, and so forth. These examples differ geared to the protection of individuals but distinctly from national regulations adopted involve collective risks. Notwithstanding all to combat the general problem of poverty by common elements, each of these baselines providing social benefits to secure subsist- will take a different approach: The collective ence (social assistance). Apart from their element of social security law addresses individual alignment with phenomena that reciprocity and the mutual need to stand by

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each other (Solidarity). The individual elem- However, it is not yet applicable because it ent is aimed at personal responsibility and still lacks the pertinent implementing regu- participation (Self-responsibility). The pater- lation. The Regulation will place EC coord- nalistic element is reflected in non-optional ination rules on a new legal footing. Thus a regulations governing the protection of indi- theoretical and practical task will be to viduals (Protection). And finally, the time- deliver commentaries on the amended rules related element spans the entire system of vis-à-vis the former Regulation (EEC) No. social security law, given that protection 1408/71, e.g. on behalf of the new member functions and guarantees are provided for states as well as the future accession coun- specific periods of time (Security). tries.

The research project will investigate these On the one hand, the new Regulation has elements (Solidarity, Self-responsibility, Pro- simplified and considerably abridged the en- tection, Security). In a preliminary step, it tire volume of the coordination rules. On the will therefore attempt to track them down other hand, it contributes to a modernisation for the respective national legal systems. of these rules, in that the new legal These national systems include those of the instrument introduces amendments both at EU’s member and accession states, as well national level, in the form of state social as those of states which have already estab- legislation, and at European level, through lished close legal ties with the EU (e.g. the Council and Parliament acting as legisla- Norway or Switzerland). In order to identify tors and through the European Court of these elements in the given states, a ques- Justice. Moreover, arrangements have been tionnaire is to be drafted for each of them made to ensure the Regulation’s imple- and forwarded to the cooperation partners. mentation in the ten new member states. The second step will consist in evaluating the national results obtained for each of the In previous years, the Institute, in its en- four elements. Alongside the comparative deavour to link theory and practice, has been legal analysis, the idea of the project is to mandated by the Commission to contribute elaborate lines of convergence, thus making to making EC coordination law known to the it possible to extract principles of social se- new accession states, as this law forms part curity law in Europe. of the acquis communautaire, i.e. the applic- Friso Ross able body of Community law which these countries must adopt. A simultaneous task has been to identify any need for legal 1.3. EC Coordination Law amendments, both within national legisla- tions and at European level. EC coordination law – today regulated as secondary Community legislation under Similarly, the Institute was involved in the Regulations (EEC) Nos. 1408/71 and reform discussions that preceded the enact- 574/72, which are due to be consolidated in ment of Regulation 883/2004 through its Regulation (EC) No. 883/2004 and its pro- participation in the preparatory conferences spective implementing regulation – has al- of the Commission and on the occasion of a ways been a main feature of the Institute’s hearing held by the competent committee of work on Europe. This work has been con- the European Parliament. ducted through regular reporting on the case-law of the European Court of Justice in Content of the New Regulation the “Jahrbuch des Sozialrechts” (Yearbook of Social Law), in treatises on the social secur- The simplifications achieved by the new ity of migrant workers, and in collaboration Regulation apply in particular to the provi- with the relevant European institutions in sions governing its personal scope and its the form of expertises and events concerning subject matter. Thus it seeks to place other the implementation and enforcement of the EU nationals on an equal footing with a Regulations at national level. member state’s own nationals in terms of these provisions, and it regulates individual Regulation (EC) 883/2004 has been adopt- aspects of the rules governing the respective ed by the Council and is in fact already valid. branches of social security benefits.

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At the same time, some aspects of the of the European Commission at the Federal Regulation fall short not only of the Com- Ministry for Health and Social Security in mission’s proposals, but also of expectations. Berlin. The experts agreed that the former Thus, for instance, the Regulation continues coordination instrument, Regulation 1408/71, to lack separate provisions on benefits had in essence proven itself and that the same awarded in the event of long-term care was to be expected of the new Regulation needs. According to the case-law of the 883/2004. In particular, practitioners dealing European Court of Justice, these benefits with EC coordination rules favourably as- are to be placed on an equal footing with sessed the Regulation’s more concise wording sickness benefits within the meaning of the and thus improved “readability”, its consider- Regulation. However, an often held view, able reduction in volume, and its resultant one that is taken also by German scholars, is “manageability”. Moreover, it was found that that the special nature of long-term care the Regulation took account – albeit within benefits requires specific regulation. limits – of developments in the member states’ social security systems, for instance Also missing is a delineation of the approval through the inclusion of early retirement pro- procedure under both the former Regulation visions. (EEC) No. 1408/71 and the new Regulation (EC) 883/2004 in respect of claims to sick- Still lacking, however, is a coordination of ness benefits. Here again, the case-law of occupational and private old-age pension the Court of Justice endorses a different schemes, which are gaining importance in view, declaring that every insured person is all EU member states – also in Germany allowed to claim cross-border healthcare since the 2001 reform of supplementary benefits in other EU member states – with pensions (“Riester Reform”) – as most retire- respect to the benefit level in the country of ment schemes are “converging” towards a origin – by invoking the economic funda- public-private mix, thus giving more scope to mental freedoms of the Common Market. non-state pension options. Conversely, the coordination rules provide for recourse to the instrument of administra- A further missing element is the adequate tive assistance by the competent institution consideration of tax components of social of the host state, meaning that benefits can security which increasingly have a bearing be claimed there without restriction under both at the financing level and on the bene- the conditions of that state. fit side, for instance under the law governing the equalisation of family burdens. Definitional problems between coordination Bernd Schulte law and internal market law also arise in connection with the current controversy over the general services directive, for which the 1.4. Internal Market and Social Services Commission submitted a draft proposal in February 2004. The proposal met with heavy The European internal market has not been criticism (detailed below) not only in fully accomplished in the services sector. This Germany and in respect of its application to shortcoming is felt all the more as the ser- the healthcare and social sector, but also as vices sector is not only the fastest growing regards its reference to the provisions gov- branch of economic activity, but also the erning sickness benefits under Regulation only domain with rising rates of employ- (EEC) No. 1408/71 and Regulation (EC) ment. In Germany, for example, the services 883/2004, respectively. This raises questions sector meanwhile accounts for 70 percent of about the concurrence of coordination legis- all jobs. lation and internal market law. This development acquires its momentum in Research Issues Regarding the New the wake of deregulation, liberalisation, Regulation outsourcing and privatisation tendencies. As a result, service administration, previously Specific issues regarding this reform and its the classic modus for the fulfilment of state implementation in Germany were debated in responsibility for public services, is being two expert seminars held under the auspices replaced by a new model of state-guaranteed

17 REPORT 2004-2005

provision of services of general (economic) 1.5. Cross-Border Medical Care in the interest by third parties acting on behalf of Hospital Sector the state. With European integration on the increase, This change reflects the transition from the the rendering of medical care benefits across intervening social state of the 1970s to the national borders is gaining ever more im- cooperative and activating, yet more distant portance. The European Court of Justice social state of today. The move from the has paved the way for this development benefit-providing to the guaranteeing state through its case-law, thereby making a dis- entails an increase in economic procedures tinction between ambulant and in-patient as instruments of modern public administra- treatment. While statutorily insured persons tion. And these in turn generate the height- are free to seek ambulant medical treatment ened use of competitive elements also in the in other EU member states and to obtain a field of social service provision. Consequent- refund of their expenses from statutory sick- ly, this function is progressively performed ness insurance, in-patient treatment in other on a social market embedded in the struc- member states is subject to the prior consent tures of a market economy and thus subject of the competent sickness fund. Owing to to competition law. It follows that the role of this requirement of consent, but no doubt competition law and, in this context, also also to the lacking mobility of insured per- that of state aid law is constantly enhanced sons for the purpose of hospital stays, the in connection with the delivery of social use of hospital services in other member services. In this way, European Community states still tends to be rare, whereas cross- law, notably its internal market legislation, is border ambulant care is becoming more and gaining more and more importance also in more frequent, especially in frontier regions. the field of social services of public interest. Such “de-territorialisation” offers new per- Social services in tandem with the compe- spectives as regards the density of medical tent social security institutions form a cen- care rendered to the population, given that it tral pillar of social protection in Germany raises the number of available suppliers. The and Europe. They thus constitute indispens- resultant increase in choice is also likely to able policy instruments on behalf of fam- enhance the quality of treatment owing to ilies, youths and senior citizens and towards more competition between benefit pro- the creation of equal opportunities – a major viders. Nevertheless, such an extension of task field of the German Federal Ministry for treatment options also bears a number of Family Affairs, Senior Citizens, Women and risks. For instance, quality controls of non- Youth. Together with leading local and national hospitals can then only be effected voluntary welfare associations and in co- on a contractual basis, but not through man- operation with the Institute, this ministry datory regulations. In addition, the conse- has published an edited volume (Linzbach/ quences for the financial stability of statu- Lübking/Scholz/Schulte [eds.], Die Zukunft tory health insurance are not yet assessable. der sozialen Dienste vor der Europäischen The requirement of consent for in-patient Herausforderung [The Future of Social benefits, on the other hand, creates a new Services in the Face of the European Chal- kind of non-territorial border that adversely lenge], 2005) that seeks to analyse – along affects the freedom to provide services. On interdisciplinary lines and from differing the whole, a host of questions remain open perspectives – current challenges facing in- in this context, thus prompting the Institute stitutions and providers of social services, to deal with these matters in more detail. with a special focus on European challenges. Bernd Schulte The Institute initially addressed this subject matter in the conference entitled “Grenz- überschreitende Inanspruchnahme von Kran- kenhausleistungen” (Cross-Border Medical Care in the Hospital Sector), which it organised in June 2004 (Becker, Walser). The conference was attended by experts on Europe- an and German hospital insurance law. The objective was not solely to engage in an

18 II. RESEARCH

academic discussion of the problematic sub- After the Second World War, other inter- ject areas, but also to convey the Institute’s national organisations (e.g. UNO, Council knowledge to practitioners. The agenda cen- of Europe) likewise framed minimum social tred on two broad themes, namely political standards and social rights in covenants and and economic parameters, on the one hand, treaties. These, however, were not confined and legal problems of cross-border hospital to workers, but devolved from human rights benefits, on the other. The first set of sub- accorded to all citizens. Compliance was jects highlighted the economic consequences monitored by introducing reporting proced- of the current case-law of the European ures similar to those already adopted by the Court of Justice and outlined the possi- ILO. In the absence of their ratification or bilities of putting the Court’s rulings into for other internal policy reasons, minimum practice, considering a Nuremberg clinic as social standards often could not be effective- example. The second subject group dealt ly enforced in practice. In 1998, the ILO with the differentiation between in-patient adopted a Declaration on Fundamental and ambulant medical care services, and Principles and Rights at Work. These so- subsequently addressed the qualitative pre- called core labour standards are deemed so requisites for cross-border access to these fundamental that the ILO demands their services. observance on the sole ground of member- Christina Walser ship, thus no longer requiring ratification by a national parliament. In the wake of the globalisation of world trade, this problem has 1.6. Implementation of International acquired a new dimension. Fierce protests Social Standards on the occasion of WTO negotiation rounds reveal the close nexus between world trade The spreading industrialisation of Europe and compliance with social standards de- and attendant impoverishment of large riving from universal human rights. Here, sections of the workforce in the 19th century highly disparate interests collide with each raised ethical demands to create and enforce other. Developing and threshold countries minimum social standards. The main issues fear the loss of their competitive edge were child labour, forced labour, the unre- through the introduction of “social clauses”. stricted defence of worker interests through The industrialised nations, supported above trade unions, and the status of women in the all by the trade unions, are pushing for un- working world, notably in conjunction with conditional compliance with minimum so- maternity protection. Non-compliance with cial standards. The stance taken by the minimum social standards was nevertheless countries addressed nevertheless tends to be regarded as problematic, not only for hu- ambivalent. Of course, they are willing to manitarian reasons; it was soon to be aug- improve the social situation of their inhabit- mented by an economic dimension. In the ants, yet the observance of these standards international realm, the introduction of so- does not only bring them advantages. The cial rights was often feared to impair the abolition of child labour, for example, leads competitiveness of economies. A failure by to a loss of urgently needed family income. some states to introduce social improve- Discussions about the unequal remuner- ments was perceived as an obstacle to the ation of men and women is relativised for development of those states wishing to up- those concerned if even the smallest of grade the situation of workers, as the latter incomes earned by women must contribute suffered a competitive disadvantage. With to a family’s subsistence. the founding of the International Labour Organization (ILO), all states were to be Current Research Issues obliged to comply with minimum social standards set forth in conventions. A com- Since its foundation, the Institute has dealt mittee established in 1926, and still active with minimum social standards in a range of today, was assigned the task of monitoring the studies. The initial focus was on the investi- effective implementation of social standards gation of state activities of social security, and social rights on the basis of state reports. notably in developing countries. Later on, the so-called informal sector of social protection (families, clans) was included. In the

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At the end of October 2005, the Institute hosted a workshop entitled “Implemen- tierung internationaler Sozialstandards und -rechte (IISR). Bestandsaufnahme und Weiterentwicklung” (Implementation of International Social Standards and Rights. Survey and Further Development). This workshop sought to consolidate the experience gained by various international organisations in the implementation of social standards. Its aim was to analyse enforcement problems arising from both the nature of legal provisions and the respective institutional setting. Included in the reflections were treaties with a genuine social and labour law orientation, such as the social standards and rights implemented under the European Social Charter (“Implementation internationaler Sozialstandards und -rechte nach der Europäischen Sozialcharta”; Birk, sphere of international organisations, the Öhlinger) and the conventions of the Inter- main focus was initially on the supervisory national Labour Organization (“Implemen- procedures based on state reports. tierung der Konventionen der Internatio- nalen Arbeitsorganisation”; Nußberger, Heller). To date, not enough is known about the Functional aspects were addressed by look- implementation of social standards and the ing at the significance of unspecific inter- effects of “soft law”. Owing to the increasing national and supranational instruments, exodus of companies in the face of global such as the European Human Rights Con- institutional competition, the question vention (“Bedeutung unspezifischer inter- reemerges – as it already did in the 1920s – und supranationaler Instrumente: Die whether non-compliance with social stand- Europäische Menschenrechtskonvention”; ards is not also an obstacle to the develop- Grabenwaerter, de Wet, Keller). The legal re- ment of countries that wish to sustain better quirements governing the EU were the sub- social conditions for their inhabitants. The ject of the paper and the commentary on the more the economies of developing and protection of social rights and standards in threshold countries grow, the greater the the European Union (“Der Schutz sozialer competitive pressure on other states. This Rechte und Standards in der Europäischen trend is reflected in the incipient disman- Union”; Becker, Iliopoulos-Strangas). Fur- tling of social rights in industrialised coun- thermore, the papers addressing the social tries – in Germany, for example, through the standards of international finance institu- most recent labour market reform laws. tions (“Sozialstandards der internationalen Hence, German social law is indirectly Finanzinstitutionen”; Bluethner) and the in- affected by the implementation of social fluence of the IMF and the World Bank standards in developing and threshold coun- (“Einfluss von IWF und Weltbank”; Sailer) tries. In the light of this close correlation, sought to take account of the binding effects the Institute considers it a task to continue of international standards on organisations the work on this subject. A future aim could located at a supranational level. Last but not be to classify the various co-existing min- least, two reporters analysed the International imum social standards and then to develop Covenant on Economic, Social and Cultural better strategies for their more efficient Rights (“Internationale Pakt für wirtschaft- implementation. If that could be accom- liche, soziale und kulturelle Rechte”; Riedel, plished, it would not only benefit those pri- Schneider). marily affected in developing and threshold countries, but would likewise have a bearing The opening reports brought to light the on the social situation of our own popula- weaknesses of enforcement instruments, tion. owing above all to the lack of sanction mech-

20 II. RESEARCH

anisms on the part of the responsible bodies 2. Adjustments in and committees. Even so, it is precisely the committee reports which are in fact often Developed States consulted by the courts for legal interpretation, although they lack binding effect. This 2.1. State Tasks on Behalf of the Third poses the problem of the legitimation of such Generation: judicial decisions. In any case, it was found Maintenance, Education and Care of that the composition and election of bodies Children Between Public and Private responsible for monitoring the implementation Responsibility – A Legal Comparison of social standards lacked transparency. Mostly, the members of these bodies are ap- Germany is today one of the most rapidly pointed by the respective governments with- aging societies. Its birth rate is stagnating at out any clear reference to the interests and a low level and ever fewer members of our qualifications involved in these procedures. society – especially in larger cities – live Especially in the past, it was not always ap- together with children in a parenting house- parent to what extent individual body mem- hold. The few families with growing-up bers were (not) bound by instructions. Fluc- children in turn feel neglected by politicians, tuation likewise impairs the reliability and and children are increasingly considered a continuity of committee work. It was more- poverty risk. Although the spectrum of state over agreed that the criteria of interpretation benefits on behalf of families has been were not always comprehensible. At times, extended several times since the 1980s, the single rights laid down in treaties were con- proportion of children and youths in receipt strued very broadly by the relevant bodies. of social assistance and other minimum But owing to the specific reference to indi- security benefits is rising disproportionately. vidual cases, it is difficult to derive generally Especially hard hit by poverty are children valid regulations therefrom. Sporadically, it in single-parent families, in multiple-child was even queried whether certain bodies families with only one source of income, and might not be dissolved or amalgamated to in families with long-term unemployed par- avoid a co-existence of similar standards and ents. Families with children, however, are thus to heighten the effectiveness of actually burdened not only by maintenance costs, enforceable standards. Another result of the but also by the shortage of adequate day-care discussions was to question the relationship facilities for children. This situation of short- between European Community law and the age is aggravated by a school system that law of international conventions. In purely fails to tap full educational potential, that to formal terms, the law of conventions takes an excessive degree links success in school precedence over Community law, yet in prac- to parentage, and that demands considerable tice Community law often has the greater en- efforts on the part of parents in assisting the forcement potential, given that possible educational development of their children. sanctions are quick to take effect. The Euro- Gainfully employed parents find it increas- pean Fundamental Rights Charter is likewise ingly difficult to find the time needed for expected to affect the further development of these efforts, especially in the face of height- social standards, even if the Treaty establish- ened demands of mobility, flexibility and ing a Constitution for Europe has not yet pressure to perform in the working world. entered into force. The co-existence of individual convention rights, their differing inter- Against this background, a multi-annual pretation and their relationship to other Institute project involving four selected international legal instruments was a topic European countries with very different that workshop participants felt had not been family policy traditions, namely Germany, investigated to a sufficient degree. Another France, Italy and Sweden, seeks to investi- subject area found worthy of consideration gate how the respective benefits for the was the impact of privatisation of parts of maintenance, education, and care of chil- social security, given that the relevant con- dren and youths are awarded and accounted ventions are based on an extensive guarantee for. of social rights under public law. Hans-Joachim Reinhard

21 REPORT 2004-2005

Conception and Legal Dimensions of the details of benefit claims themselves, which Subject Matter often differ in terms of age and family con- stellation, are analysed from a legal perspec- While previous investigations on family tive, which in turn – beyond social law – policy were based on a social, political- hinges on provisions of family and main- science or economic premise and tended to tenance law. be geared to the family as an institution, this Institute project deals explicitly with the Social Law Concepts in Support of legal foundations underlying the definition Parenting Households and the of state responsibility for the upcoming Furtherance of Children and Youths generation – from the normative embodiment of legal rules to the allocation of child- Nevertheless, the main focus is on social law related costs of maintenance, care, educa- concepts for the support of families with tion and furtherance. Thus the project is not children, as well as for the independent fur- confined to the analysis of social policy con- therance of children and youths within the cepts, but in fact embraces the dimension of scope of child/youth welfare services and the juridical structures and principles essential school system. In the process, not only the to understanding the legal integration and legal basis and legal quality (notably as re- legally binding quality of differing welfare gards the award of legal claims) of specific state arrangements. benefits and measures need to be identified. Rather, it is also necessary to look at the legal This legal dimension governs the central status of the persons involved, along with aspects of the Institute project. Accordingly, their rights of participation; at the nature of the project seeks to clarify to what extent the parent-child relationship, as a central and on what grounds the state – either alone prerequisite for numerous child-related or in interplay with other public and private benefits; and at the organisational integra- actors – supports the education of children tion of private benefit providers, especially in the broadest sense, especially in the light with a view to day-care facilities. of children’s right to furtherance and development. Government actions are thereby Benefits and measures geared to the scrutinised at various regulatory levels: inter- existence of children (in need of education- national, national, regional or local. On the al assistance and/or care) are found not only one hand, the aim is to examine the legal in the branch of general and specific family frameworks that nurture the development of benefits, but in all branches of social protec- children and adolescents within and outside tion. Youth welfare services and the educa- the family, particularly emphasising the rec- tion system play a decisive – yet differently ognition of children’s independent rights and weighted – role in the direct furtherance of the primacy of child interests or child wel- children and adolescents (above all, through fare as a guiding principle of family and child the organisation of the school system, and law. On the other hand, in order to help holiday and recreational programmes). understand the differing framework conditions, the individual country reports also A supplementary, but nonetheless vital task address socio-structural circumstances, cul- for the promotion of families and children is tural traditions of particular family models performed by labour and tax law. In most and educational concepts, and not least countries, tax law is traditionally regarded as ingrained social/welfare state principles. part of the scheme for the equalisation of family/child burdens. But as indirect taxes The main part of the country reports deals can considerably encumber families with with benefits for child maintenance and dependent children, it is increasingly ques- benefits for the care, education and further- tioned whether child maintenance needs ance of children, with layout and content of and work-related expenses for child care are the reports likewise committed to a juridical adequately allowed for under tax law. Labour approach. In structural terms, this is shown law in turn offers a series of legal instru- by the stratification of individual benefits ments that are indispensable to the simul- according to the legal basis of the commit- taneous compatibility of occupational activ- ment (private law / social law). Also, the ity and child-raising. Prominent among these

22 II. RESEARCH

are claims to parental leave as well as flexi- state ought to, or must, intervene in this time and organisational schemes. Here, the private sphere and under what conditions it use of modern communications technologies does so. On what grounds and in what form often aids the development of family-friend- the state shares in the cost associated with ly forms of work time autonomy. parental responsibilities is likewise viewed differently. Development and Renewal of Social Policy Principles in Support of Families Progress in the Period Under Review and Children In the course of the reference period, the The aim of the research project is to provide country reports on Germany (Hohnerlein), a comprehensive and reliable outline of the France (Kaufmann) and Sweden (Köhler) relevant legal foundations in their respective were supplemented and brought up to date cultural settings, along with their regulatory – above all with a view to the comparative objectives and their actual relatedness to legal evaluation. The introductory part was practice. Particular attention is thereby paid edited (Becker) and the country report to normative developments that introduce for Italy completed (Hohnerlein). The new social policy principles towards a “mod- above-outlined legal dimensions have been ernisation” of family policy. These principles elaborated for the comparative analysis include personal responsibility, equality of (Hohnerlein). They are to show where the men and women in their function as parents, respective borderlines are drawn between but also the rights of children. The under- primary parental responsibility in terms of lying modernisation approaches are partially family and maintenance law, on the one rooted in fundamental and human rights; hand, and public responsibility for the main- partially, they stem from concepts for a tenance, education and care of children, on reorientation of the social state in other the other. Hence, the question is: to what branches of protection. extent have “child costs” been “socialised” in the compared countries and what “institu- On the whole, increasingly complex ap- tions” are financially and organisationally proaches within the frame of family policy involved in the education and furtherance of benefits and measures are coming to the the upcoming generation, thus relieving the fore, also as a result of the altered parental parental burden. roles of mothers and fathers. In many coun- Eva Maria Hohnerlein tries, “parenting work” is progressively being incorporated into social and labour law. The compatibility of children and work is an 2.2. Activating Labour Market Policy issue which – if overall conditions allow this – is coming to be seen also under the aspect This Institute, the IAB (Institute for of the father’s parenting work: on the one Employment Research), and the IZA (Insti- hand, more and more fathers seek to effect- tute for the Study of Labor), have come ively participate in custody and to assume together to conduct a cooperative project on genuine parenting responsibilities following the activation of labour market policy in an a divorce; on the other, more involvement on international comparison. Economists and the part of fathers can be derived from the sociologists have been dealing with this conception of child rights themselves. subject for some years; for legal scholars, however, it constitutes a new field of re- Family policy, more than most other policy search. Hence, this specific aspect of labour fields, is shaped by cultural traditions and market policy is to be examined for the first attendant family role models. Despite the time in an interdisciplinary study based also common legal conviction in the four coun- on a legal perspective. tries under comparison – Germany, France, Sweden and Italy – whereby the decision to Problem accept parental responsibility is foremost seen as a highly personal one, each of these Since the mid-1990s, labour market policies countries has nonetheless adopted differing in numerous countries have been subject to concepts as regards the extent to which the sometimes fundamental transformation. In

23 REPORT 2004-2005

some countries, notably in Scandinavia, Objective and Procedure of the such changes were wrought under the cen- Interdisciplinary Project tral theme of “activation”. The concept itself was unknown to many other states, but the The project, to be concluded by a publica- procedures they adopted were quite similar. tion, seeks to investigate labour market Thus unemployment insurance, existing changes brought about by specific measures minimum security schemes for unemployed and policies. This will involve an analysis of persons, and certain labour law provisions countries that have implemented the acti- were amended or initiated with the aim of vation principle in their labour market specifically promoting jobless persons or policies at quite an early stage, or have those threatened by unemployment. The attempted to do so. A systematic international underlying objective was often to establish a comparison is to focus on the design, func- closer and more effective connection tionality and effect of activating labour mar- between the rights and duties of un- ket policies in selected countries. If possible, employed persons in receipt of transfer findings on the prerequisites for an effective income. In this way, promotion has been activation strategy are to be provided. linked to the demand to make a personal effort – at least in countries solely guided by The thematically ordered country analyses the insurance principle. And that above all and cross-national comparative subjects means that the receipt of income replace- themselves will display a dual structure. The ment benefits in the event of unemployment depiction of each country’s unemployment is to be flanked to a greater extent than in insurance scheme in general and its acti- the past by intensive personal search efforts vation measures in particular – from both an subject to strict supervision. economic/sociological and a legal perspective – are to complement each other. The Generally, “activation” means to abandon the countries and the respective legal and soci- passive policy of granting unemployment ological or economic reporters are: Germany support; it is expressed by the attempt to (Grienberger-Zingerle, Eichhorst, Konle- reduce overt unemployment through long- Seidl), France (Kaufmann, Barbier), USA term “action careers”. Hence, activation may (Dupper, Quade, O’Leary), Denmark (Köhler, be viewed in many countries as a response to Pedersen), United Kingdom (Schulte, Finn), the rising proportion of transfer recipients the Netherlands (Sichert, Sol, van Lieshout, within the working population and to an Koning), Sweden (Köhler, Hemstroem), increasingly sceptical appraisal of the effect- Switzerland (Ross) and Spain (Reinhard). iveness of “classic” labour market policies. Activation aims, on the one hand, to en- Content and Regulatory Interdependence hance jobseeking and, on the other, to improve the labour market situation through Apart from presenting changes in the law intensified placement efforts. Yet it is often governing unemployment insurance and not the result that counts when classifying a means-tested aid to jobseekers, as well as in certain country as “activation country”, or neighbouring legal fields, a main objective is not, the decisive issue rather being the to assess the effects of amended laws across method of implementing (re)integration or several countries. In particular, this con- “employment promotion”. cerns the legal regulations that define reasonability criteria and conditions for access With the exception of some countries, to benefits, but also the changes in the dur- “activation” is not the decided name of a ation of benefit receipt and, ultimately, the programme. From a legal point of view, possibility of imposing sanctions for non- activation could embrace all measures that compliance with the rules. Besides the successfully lead away from unemployment. analysis and comparison of these legal foun- Yet if activation simply reflects the intention dations, an additional task is to examine to generate employment, then it is not per se their actual implementation and administra- a legal instrument, notably because the tion by the institutions entrusted with their securing of jobs is no longer the prime practical application. It is precisely here that motive. considerable research is still needed; significant findings, however, are only to be expect-

24 II. RESEARCH

ed through the interdisciplinary approach as active measures, and between job offers and it is planned here. public work opportunities as well as individual search activities; to outline the practical The effects of activation strategies based on application and enforcement of reasonability legally implemented rules are to be high- and availability criteria; and to depict lighted by reverting to the economic and frequency and rigour in the supervision of sociological state of knowledge held forth search activities. Finally, the aim is also to in the respective countries. The one intent describe penalty procedures in practice and is to identify the effects of activation on to assess the execution of activation strat- individual employment processes (e.g. tran- egies with a view to competences and sitions to regular employment, salary applied instruments. trends); the other is to monitor its effects on Otto Kaufmann macroeconomic indicators reflecting labour market and budgetary developments. In assessing the outcome of activation strat- 2.3. Choice and Competition in Hospital egies, economic and institutional contexts Health Care must be taken into account, the job supply also playing an important role here. In many countries, competition in the healthcare sector serves as a steering instrument to The overall legal framework has a particular achieve welfare state allocation effects and to bearing on the formulation of general legal meet the sustained cost rises accompanying foundations (organisation and competences; medical progress. The nature and scope of rules in the form of either statutory law or competitive elements thereby tend to vary autonomous lawmaking within the scope of substantially, as do the steering mechanisms statutory requirements) as well as on the in- they are thought to create. Moreover, compe- stitutional parameters governing the labour tition itself as a structural feature is subject to market (minimum wage system, protection normative steering. It stands in a tense rela- against dismissal und regulation of flexitime tionship to state intervention and regulation, employment options). Fundamental eco- which are committed to the provision of nomic data supplement this overview. benefits tailored to need- and solidarity-based requirements, and which characterise trad- Activation within the system of unemploy- itional statutory social security schemes. In ment support, in the sense of specific legal the healthcare sector, competition is there- rules elaborated to that effect, is a prime fore often restricted and thus confined with- task of the legal investigation. The aim is to in a system of imperfect and heavily regu- analyse benefit access requirements, level lated markets. and duration of benefits, and prerequisites governing benefit receipt. Activation in real Yet innovative controlling and regulating terms can, where appropriate, be deter- potential is also inherent within competi- mined by examining formal links between tion, especially in contractual competition benefit receipt and job search or, alternative- that is thus capable of creating new struc- ly, by the active participation in measures tures. Competition does not only serve as an based on agreements between the labour instrument, but also as an objective of legis- administration and jobseekers, but also by lation in conformity with the value concepts depicting the instruments used by the labour of a liberal society. It is in the nature of com- administration to promote jobseeking and petition to open new options and scopes of job acceptance. Provisions governing pen- action to providers and cost units, and to alties are important in the event of infringe- give patients more freedom of choice. More- ments. And finally, another aim is to portray over, permitting cooperation among individ- non-contributory assistances schemes. ual providers makes it possible to establish specific supply structures and to offer The investigations relating to the imple- choices between differing organisational mentation of activation strategies are to be forms and contractual terms. conducted by the sociological-economic side. The chief objectives here are: to high- The project “Choice and Competition in light the factual links between benefits and Hospital Health Care” is devoted to the

25 REPORT 2004-2005

hospital sector – an especially cost-intensive portant as the relationship between compe- area of medical treatment in which competi- tition and anti-trust law, on the one hand, tive elements are assigned a central steering and (social) insurance and medical law, on function. The cross-national study is con- the other, in measuring actors’ scope of conceived as a German-American collaboration duct under such aspects as market access between this Institute (Becker, Ross, Sichert, and selection, market power and cooper- Walser) and the Institute of Government and ation, and creative freedom and heightened Public Affairs of the University of Illinois responsibility. (Rich). Taking the Netherlands (Walser), Germany (Sichert), Switzerland (Ross) and The country-specific findings are to be con- the United States (Rich) as examples, the solidated in a comparative analysis and fur- investigation seeks to highlight the pre- ther developed into central statements on requisites and the interrelated conditions the steering function of law in the hospital and effects of normative steering in the hos- sector. The general acknowledgement of a pital sector, for example as regards financing trend towards mixed regulative-competitive and reimbursement structures, benefit sup- systems is to be evaluated and verified in ply and the linking of previously separate view of the given challenges and the actual healthcare areas. The comparative legal measures adopted by the legislator commit- analysis makes it possible to identify the sig- ted to the social state. nificant dimension of the steering issue by Markus Sichert way of plural approaches with partially varying objectives, embedded in differing insurance systems. The selection of the afore- 2.4. MaxnetAging mentioned countries aims to take account of private and mandatory systems, private sup- Everyone is talking about the problem of plementary schemes, federal structural con- “society aging”. The concomitant regulatory ditions, differing patterns and systems of challenges have been dominating social law competition, as well as differing market discussions for some time now, and thus also structures. form a central subject of the Institute’s work. In the long range, the sole objective will not Following the preliminary conceptual work be to make adjustments to existing pension, and a joint work session with the American long-term care and health insurance sys- partner at this Institute in the summer of tems. Rather, a reorientation of the social 2005, the project is now in the active phase state is also debated in other fields such as of realisation. The central groundwork family policy or the organisation of social (Becker) for the individual country reports services, to pinpoint only a few. outlines the function and significance of competition in the healthcare sector, formu- In the autumn of 2004, the Max Planck lates basic questions on normative steering, Society established an international research and defines the hospital sector in functional network for the interdisciplinary study of terms, including ambulant care options. individual and societal aging: MaxnetAging. With a view to the country reports, the The network is under the leadership of Paul following aspects have already been iden- Baltes and its administration is based at the tified: “Critical Issues for Competition and Max Planck Institute for Human Develop- Regulation”; structural conditions governing ment in Berlin. From the outset, our Insti- the hospital sector (e.g. planning and invest- tute has participated in the network as a per- ment); and the legal framework regulating manent cooperation partner, along with competition as the basis for the subsequent eight other Max Planck Institutes from the analysis of key steering mechanisms through humanities section, the Karolinska Institute (regulated) competition in light of the mani- in Stockholm, and the University of Vir- fold (competitive) ties among and between ginia/Charlottesville. Also affiliated are a the relevant actors. The latter include both number of individual researchers from other private operators and the institutions of institutions. The members of MaxNetAging statutory health insurance, as well as pri- meet twice a year for multi-day conferences vately and publicly run hospitals. Managed to present their own research findings on care concepts are considered just as im- network subjects and to develop new pro-

26 II. RESEARCH

jects. Our Institute has attended the three or less far-reaching reforms. The proportion conferences held so far (Becker, Graser). of occupational pensions and other forms of supplementary insurance, or at least the pos- Represented within the network is a broad sibilities of establishing them, have in- spectrum of disciplines, ranging from neuro- creased in many countries and thus serve to biology and demography to art history. complement obligatory “basic” old-age provi- Accordingly, the initial phase was devoted to sion. Generally, the reason for introducing establishing a dialogue between the various additional retirement options is seen in the fields and identifying common subject areas need to ensure a level of social protection for future emphasis within the network. In that is regarded as “right”. On a number of the process, a host of connecting issues grounds, the basic protection afforded to re- have emerged for our Institute. In one tired persons can be inadequate – either be- respect, that applies to the numerous inter- cause it no longer meets general require- disciplinary references social law shares with ments or its shortcomings have been taken demography, economics, sociology, social into account belatedly, or because the level psychology and medicine, and which the In- of protection has been lowered. stitute hopes to study in greater depth thanks to the network. Beyond that, the net- The differences between occupational and work promises to open new perspectives on “general” supplementary retirement provi- intradisciplinary cooperation with partici- sion are significant in manifold respects. pating legal scholars from the fields of pri- Thus, for example, the personal scope of ap- vate and criminal law. Specifically, collabor- plication of occupational schemes is restricted ation in terms of comparative law is envis- to employees, and the funding of such com- aged with the network partner from Virginia, pany pension plans – despite similarities to who will be hosting the next conference with other kinds of supplementary provision and a juridical focus on legal arrangements for independent of the financing source – is al- the special protection of older persons, com- ways based on the formation of coverage prising measures to enhance their autonomy capital. These differences alone justify a dif- and social participation. This discourse, ferential approach in researching this social which is above all central to social law, will security domain. But also pertinent rules seek to identify ways of providing regulative under Community law that are applicable to protection against “ageism” and to highlight various forms of supplementary provision the legal and institutional organisation of and notably concern occupational pensions elder care and support, as well as precau- make a specific analysis seem advisable. tions against elder abuse. Alexander Graser Supplementary Retirement Provision

Supplementary retirement provision was a 2.5. Occupational and Other Forms of comparative law subject prior to and during Supplementary Retirement Provision the reporting period. Initially, the main focus was on the comparison of supplementary Old-age security has always been a central schemes (Kaufmann); subsequently, it research theme of the Institute. Following turned to country-specific reforms of old-age an extensive comparative law analysis pension systems (Kaufmann, Köhler). These (Alterssicherung im Rechtsvergleich, Zacher investigations have shown that miscellan- [ed.]), this subject matter was perpetuated eous forms of voluntary supplementary pro- along diverse lines of emphasis (Demografie, vision exist in almost all countries, yet with Reinhard [ed.]; country reports and lectures: varying scopes of application. Collective Kaufmann, Köhler). schemes tend to depend above all on company size. In some countries, most recent re- National supplementary retirement schemes forms have led to an increase in voluntary are characterised by their great diversity of and obligatory supplementary plans. The form; they can be conceived on a mandatory newly launched comparative legal analysis of or a voluntary basis. Nearly all European occupational pension schemes shows that states have subjected their pension systems, certain forms of supplementary provision are as well as supplementary schemes, to more regaining importance. This results from the

27 REPORT 2004-2005

mere fact that in some countries, specific legislation and national law has been recog- supplementary retirement schemes can be nised as a highly fruitful subject of compara- utilised for both occupational pensions and tive law and was therefore selected for a other supplementary options. In Germany, cross-national investigation. It resulted in an the personal asset formation scheme con- international conference project on occupa- stitutes such an example. Competitive tional retirement provision. The colloquium problems may emerge in countries where was held on 18 and 19 November 2005 in obligatory supplementary old-age insurance Rennes (Bretagne) by the Institut de trad-itionally does not take the form of occu- l’Ouest: Droit et Europe (IODE) of the Uni- pational pensions and, in particular, is not versity of Rennes 1 in collaboration with this implemented through the formation of cov- Institute, and funded above all by the Hans erage capital, yet where new provisioning Böckler Foundation. In order to depict as modalities are being offered on the market comprehensively as possible the problems of alongside long-established models. In France, safeguarding rights to occupational retire- for instance, the classic insurance industry ment provision and to permit their subse- could prove a potential competitive factor quent comparison, a general analysis of the also in the area of supplementary retirement respective national schemes was also re- provision, which is organised collectively quired. The prime objective of the collo- and on the basis of solidarity. The question is quium was to compare various national whether generally competing models could occupational retirement schemes, with a not also include occupational schemes. certain bilateral focus on those of Germany Interdependencies between differing sup- and France, and to interchange ideas with a plementary options could thus be of height- number of national research institutions. ened interest to comparative law studies on occupational retirement provision. Following a general introduction (Hennion- Moreau, Kaufmann), the individual thematic Occupational retirement provision blocks, within which the comparative law papers were held and discussed, were Occupational pension schemes reflect a devoted to occupational retirement provision high degree of legal complexity, which needs from the perspective of EU law (Dupuis, El to be analysed further on a comparative Moudden), equality of treatment for men international, European and cross-national and women in respect of occupational retire- level. The diversity of legal forms can impair ment provision (Hohnerlein, Le Barbier-Le the acquired and accruing rights of employ- Bris), as well as a comparative investigation ees who exercise their right of free move- into the establishment and forms of occupa- ment within both the national and the Euro- tional schemes in European states (Muller, pean sphere. In the case of cross-border Körner, Del Sol, Ferrion, Carby Hall, Köhler, activities – that is, internationalisation – Ross). Additional papers addressed control, difficulties in the recognition as well as portability and taxation issues surrounding maintenance of claims acquired within the occupational retirement provision (Martin, national realm are shifted to another level Wismer, Reinhard). A round table (chaired by and demand adequate solutions there. Dir- Boucher) with representatives of the social ective 2003/41/EC of the European Parlia- partners provided an opportunity for a sum- ment and the Council of 3 June 2003 “on mary discussion; in conclusion, a recapitu- the activities and supervision of institutions latory analysis was drafted (Chauchard). for occupational retirement provision” is aimed at safeguarding the stable value and It was shown that, aside from such basic sustainability of newly established company principles as capital cover, national provi- pension schemes. Its transposition into sioning schemes exhibit special features national law was scheduled for 23 Septem- whose comparison is indispensable to the ber 2005; however, this target was not met academic elaboration of future points of em- by all EU member states. phasis. In this area, Community legislation is faced with a prominent and, in a certain The multi-layered problem of acquiring sense, harmonising task; it is the starting claims, safeguarding rights and dealing with point for successful internationalisation – in the interdependence between Community terms of both the financial concerns of sup-

28 II. RESEARCH

pliers of occupational pensions and the schemes that provide basic coverage and de- rights of insured persons. Although social se- mand more personal responsibility. curity in the form of company pension plans is certainly a prevalent aspect of contem- The dimension of such “reform-oriented porary law, transnational research in this interventions” calls attention to the stand- field is nonetheless still lacking. ards governing the control of constitutionality as well as these standards’ procedural An initial yield of these investigations will enforceability. An international comparison consist in a comparative analysis of existing shows that differing constitutional re- legal systems and is to be presented in a con- quirements, their protection function and ference volume. A second international col- justiciability mirror the inconsistent apprais- loquium is planned and will focus on the al of tensions between the reform legislator’s continued and in-depth review of national sovereignty and the judicial control of con- and Community law problems relating to oc- stitutionality in this problem area. The cupational retirement provision. As the se- German-Israeli project entitled “Constitu- cond colloquium will be able to build on the tional Review of Welfare Reform” takes a findings of the first, the identified subject closer look at these correlations. areas can be addressed more specifically. Thus, for instance, a main point of emphasis Initial approaches and associative points of will be to illuminate the role of the actors in- departure outlining the research project volved – that is, the social partners and their were introduced on the occasion of a work- organisational forms, but also the persons shop conducted at the Institute in April entitled to occupational pensions. This espe- 2005 under the title “Constitutional Litiga- cially will raise questions both with a view to tion of Welfare Reform – Concepts and Out- these actors’ role in deciding on new occupa- comes in Israel and Germany”. There it was tional pension schemes and as regards the found that incisions in the social benefit competences involved in implementing such sphere posed a specific challenge to both schemes. The findings on this problem com- (constitutional) legal systems. Yet according plex will in turn generate queries about con- to the insights of the Israeli guest scholar trol options and control rights. Hence, the (Mundlak), these cuts have only recently ini- cross-country investigation is also to address tiated a conceptualisation of the role of (con- the extent to which the social partners stitutional) law in the transformation pro- should be entrusted with a control function cess occurring in Israel. The reform legisla- in applying national and/or Community rules tion adopted there from 2002 to 2005 has and regulations, and how that function can led to a breach with previous development be put into practice. and to a curtailment of essential achieve- Otto Kaufmann ments of the social state. This process is characterised by crucial substantive amendments as well as by the dominance of minis- 2.6. Constitutional Review of terial authority in the legislative process, Welfare Reform thus entailing a shift away from traditional corporate and consensus-oriented struc- In the wake of changing societal structures tures. Consequently, the Supreme Court of and budgetary constraints, national social Israel has been called upon to deal with an security systems have repeatedly been an ob- unprecedented wave of constitutional peti- ject of reform. Whereas the further develop- tions that plead an infringement of funda- ment and mostly system-inherent extension mental human rights and the democracy of social security used to be in the fore- principle. These petitions have generated ground, ever more dramatic changes to sys- court rulings based primarily on the prin- temic conditions have prompted a growing ciple of protection of human dignity, which number of approaches aimed at its funda- was enshrined in the Constitution in 1992 mental revision, attended by deep incisions and is regarded as the source of social rights into benefit law and additional obstacles to and the attendant guarantee of minimum benefit receipt. In some cases, a partial “dis- protection. Israel is witnessing a juridification mantling” of risk-specific insurance systems of social policy that raises largely unresolved has been undertaken in favour of (activating) questions as regards the legitimation both of

29 REPORT 2004-2005

the control of constitutionality and of deci- state guarantees. The so-called Open sion-making within democratic procedures Method of Coordination seeks to flesh out committed to deeply rooted social state the legal guarantee of a subsistence min- guarantees and to the protection of needy imum and ultimately to incorporate it in persons, mostly minorities. terms of positive law, also as a means of achieving “social congruence” between In the case of Germany, the longstanding member state and supranational law. and, by international standards, prominent role of federal constitutional jurisdiction The main stress of the further project work (Sichert) is emphasised, particularly as re- is to be placed on the relationship between gards judicial review of the constitutionality the judicial control of constitutionality, along of laws and the constitutional complaint pro- with its need of systematic processing, on cedure. The significance of the complaint the one hand, and democratic lawmaking, acceptance procedure has recently been on the other. In this context, it is to be en- demonstrated by the Constitutional Court’s quired whether and under what conditions handling of complaints against the Fourth judicial intervention is feasible and admis- Amendment Law on Modern Services in the sible when it comes to calculating the Labour Market. A specific yardstick of con- amount of the constitutionally guaranteed trol is the equality principle, whose relation- subsistence minimum. Against the backdrop al structure in conjunction with the social of the legal and constitutional traditions pre- legislator’s broad scope of assessment is al- vailing in Israel and Germany, the “consti- leged to require a readjustment of social law tutionalisation of social policy” is to be inves- provisions that fail to do adequate justice to tigated as a process, and the constitutional this constitutional principle. The tense rela- control of social law reforms is to be critical- tionship between lawmaking and control of ly illuminated within the limits of both epis- constitutionality becomes manifest when a temology and democratic theory. The pre- legal norm is not repealed but instead de- liminary conceptual work is currently being clared incompatible with the constitution, conducted under the leadership of the whereupon the legislator is requested to Israeli side (Mundlak) and supported by the remedy the situation. Conversely, a legal Institute (Dupper, Sichert). norm’s assessment as “still” constitutional Markus Sichert may be coupled with an appeal to the legislator to take some form of action. 2.7. Legal Protection of Social Benefits in From a German and European Community Europe law perspective (Schulte), the embodiment of the subsistence minimum in the principle Since 2003, a discussion has been going on of human dignity constitutes a prime focus. in Germany about the organisation of the This reference to the highest constitutional jurisdiction of the social courts. As with gen- value is reaffirmed at statutory level and eral reflections on the reform of state organ- given concrete substance in Germany’s isation, this discussion, too, focuses on how social assistance legislation (§ 1 SGB XII). the administration of justice can be struc- The Federal Constitutional Court bears the tured more efficiently. Even if the debate on ultimate responsibility for controlling com- specialised jurisdiction is not new, but was pliance with constitutional standards, there- already led upon founding the Federal Re- by taking account of economic feasibility. public and has since recurred periodically The Court is simultaneously aware of the (under the heading of “joint public-law rules difficulties inherent in the scientific deduc- of court”), it has now attained a new quality. tion of numerical standards. At European For what was previously entertained as a level, the guarantee of human dignity like- thought in academic circles or certain minis- wise unfolds a standard-setting effect, espe- terial bureaucracies now commands public cially under the banner of its entrenchment opinion on grounds of “cost reduction” and in the EU Fundamental Rights Charter, “budgetary efficiency” and, for that reason which is already being invoked as soft law alone, is infused with a new power of legit- and, moreover, comprises a catalogue of fun- imation. Yet a discourse on specialised juris- damental social rights that transcend member diction is initially nothing but a critical illu-

30 II. RESEARCH

mination of the actual state of affairs. Effi- utilise, by means of a juridical comparison, ciency and cost-saving on the part of the the characteristics of other national judiciary could well be taken as criteria for solutions for the benefit of the German reviewing the due process of law. In fact, discussion. however, the crucial point tends to be the organisation of the judiciary as the third power The country reports concentrate on states alongside the executive and the legislature. with long traditions of a specialised judiciary Those advocating the idea of a unified juris- or due process of law, respectively. Corres- diction ostensibly do not address the prob- pondingly, the following countries were con- lems associated with how due process sidered: France (Kaufmann), Great Britain should be guaranteed through an adequate (Schulte), Italy (Hohnerlein), the Netherlands statutory judiciary. Yet, strictly speaking, (Walser), Austria (Ross), Sweden (Köhler) and their reform proposals will affect this do- Spain (Reinhard). In terms of content, only main to a considerable extent if, for example, certain social benefits are highlighted be- “efficiency” is taken to mean that judges not cause nationally designed systems define so- working to full capacity in one jurisdiction cial benefits and their prospective legal pro- should be assigned to another and must tection differently in terms of organisation, therefore transfer their judicial traditions to and substantive and formal law. Consequent- annex fields. And that essentially calls into ly, the project members selected approxi- question whether any differences should mately uniform definitions of social benefits exist in the first place as regards the pro- characterised by international or supranation- cedures, organisation and staffing of courts al bodies as “social security schemes”. Included entrusted with specific fact-finding. are the benefits awarded for: sickness, retirement, occupational accident, nursing care, Accordingly, this subject matter centres on unemployment and minimum assistance. the functionality of specialised jurisdictions Friso Ross and on the closely related possibilities and limitations of differentiated jurisprudence. The Institute project is thus devoted to the 2.8. The Swedish Welfare State: pros and cons of a unified jurisdiction, pro- Example of a Successful ceeding from functional grounds and, hence, Modernisation Process the due process of law. In order to broaden its perspective, the project takes a compara- The Institute’s country-specific research on tive law approach. For the judiciary in all the Nordic States has for years taken a com- European states has become differentiated parative law approach to various aspects of and, notably as regards the legal protection their welfare state systems, notably that of of social benefits, very often specialised. Sweden. The general investigations describe How and under what premises this has the origins of the Nordic welfare states, their occurred, and is still occurring, forms the national healthcare systems and attendant starting point of the investigation. The pro- models of patient insurance. The particular ject is not, however, geared to the ultimate Swedish studies focus on old-age pensions decision-makers – that is, panels of judges, and their current reform as well as on the role courts or tribunals and their legal organisa- of supplementary occupational pensions, on tion. Rather it already addresses the under- the special protection of persons with dis- lying country-specific particularities in abilities under social and labour law, and on respect of social benefit administration and the legal organisation of part-time work. its concomitant procedures. This is to Moreover, projects on the legal status of ensure that the legal protection aspect is not children and on the specifics of legal protec- neglected and that precisely the organisation under social law are due to deliver fur- tional features can be illuminated. The ther insights into the Swedish system. entire procedure in terms of legal form and due process can thus be outlined from the This preliminary work already makes it seem first to the last instance. And consequently, expedient, for practical reasons, to embark the specific features of each country can be on a compendious legal analysis of the elaborated with a view to the functionality of Swedish welfare state. Beyond that, such an legal protection. The final aim is then to endeavour merits particular interest because

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Sweden can serve as a model on two leave under health insurance, and began not grounds. The first is that precisely highly just to reform the old-age pension system traditional social welfare institutions are in but to replace it by new institutions. Un- need of wide-ranging reforms in the face of employment was scaled back from 15 to 4 current challenges. The second is that such percent through measures of “active labour reforms, even if they involve fundamental market policy”, and the deficit has mean- modernisation, have to be politically feasible while been transformed into a slight surplus. in the way of democratic processes. That cannot be taken for granted, considering that It is this success story that lends an analysis persistent economic stagnation and societal of the Swedish reform process its particular aging have led the social security systems of relevance against the background of the most European countries into some degree German situation, because it shows that the or other of deep crisis since the early 1990s. problem of “aging” welfare states is not And this in turn has generated more or less unsolvable and need not be accepted as in- varied reform legislation in response to mas- evitable. Rudolf Meidner, one of the fathers sive savings constraints. Yet most of these ef- of the Swedish model, gave the following forts have only gone as far as rendering comment on the future of the Swedish social mere corrections in detail. Only in Sweden state in 1997, that is, in the middle of the re- was a fundamental reform of the entire system form process: “What must be done in such enforced politically. moments of history is to step back and realise what is happening – realise that the dis- Also Sweden’s current social security system mantling of the social state has not been is the product of a more than century-long forced by economic necessities, but is the history of development. In the 1930s, the result of political decisions. As long as we “Swedish model” was initially considered to believe in democracy, we therefore still have exemplify the “Scandinavian welfare state” good prospects for directing this develop- and was regarded a “middle course” between ment in other channels.” communism and capitalism. Later it was scorned as a deterring example of “welfare The research project is planned as a mono- totalitarianism”. Both appraisals have no graph summarising the numerous prelim- doubt always been somewhat problematical inary works. The transformation of the owing to their one-sidedness. But also Swedish welfare state as an institution is Esping-Andersen’s classification – which was thus to be analysed by depicting the reforms widely accepted after 1990 and qualified the to diverse system components governed by Scandinavian “social democratic” welfare social law, including the organisation of so- states by the concepts of universalism and cial security. All of these components are uniformity of social benefits – has now interrelated along legal and purely factual doubtless become obsolete. That at least lines. Hence, any reform to part of the sys- holds true for Sweden since the introduction tem will have direct or indirect consequences of its most recent large-scale reforms, not- for its other parts and ultimately for the sys- ably in the field of old-age pensions and tem as a whole. In order to successfully through the Social Insurance Act of 1997. “modernise” a highly developed welfare After the recession-induced cuts from the state, the legislator must take account of early to mid-1990s and the pension reform, these complex interrelations. The project one would hesitate to go on speaking of an aims to verify this necessity, taking Sweden unbroken “Swedish model” of the welfare as an example, and to demonstrate how a state. European state that is in many ways comparable to Germany has dealt with this necessity. Yet one must bear in mind that by the mid- Peter A. Köhler 1990s Sweden’s government deficit had run to more than 12 percent of its economic per- formance, and was thus the highest of all industrialised countries! Along with numerous savings measures, the Government cur- tailed unemployment benefit and social assistance, introduced a day of unpaid sick

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2.9. Reform of the Netherlands Health Manifold issues have been raised in the Insurance System course of this work, prominent among these being the Dutch concept of a uniform health Health insurance currently ranks highly as a insurance system for all inhabitants. This topic of discussion both in social law circles system was opted for on the grounds of effi- and in the public. The steadily rising cost of ciency and equal access for all. But also the medical care and the simultaneous decline privatisation of health insurance institutions in contribution income on account of dem- and the increased potential for competition ographic change confronts statutory health have contributed to the fundamental renewal insurance with persistent problems that of the former system. The institutional re- require fundamental reform. In Germany, a organisation of control in the health insur- number of reform models are being dis- ance sector is directly aligned with these cussed with this goal in mind; in the measures, decisive being the balance struck Netherlands, an extensive structural reform between freedom of competition within a of the health insurance system has just re- system governed by private law, on the one cently entered into force, at the beginning of hand, and the sovereign foundations that 2006. A closer examination of this reform need to be controlled to safeguard its social therefore appears compelling in the light of character, on the other. In this respect, the the current discussion in Germany. current reform bears both opportunities and risks. The interplay between these param- The Dutch reform plan is geared to the com- eters has already been explained in the Insti- prehensive coverage of the sickness risk tute’s publications. Nevertheless, the out- through a uniform, socially compatible incomes of the Dutch reform and the extent to surance scheme. The first step has been to which it will be able to achieve the aforesaid adopt measures for the flexibilisation of balance cannot be assessed until the reform benefits and contributions in order to facili- laws have taken effect. In so far, there is still tate the transition to a system that assigns need for further research by the Institute as more personal responsibility to its members, regards these issues. while government controls recede into the background. The second step involves the To round off the previous activities, but also abolition of duality between statutory and to lay the cornerstone for further cooper- private health insurance in favour of a sys- ation, a workshop is to be held at the Insti- tem of uniform basic coverage that is man- tute in February 2006 and attended by datory for all inhabitants. Private insurance Dutch experts from scholarship and prac- companies have been entrusted with the tice. Its objective is to proceed with an in- provision of this basic coverage. At the same depth examination of individual aspects of time, the institutional conditions of super- the reform, such as control of competition, vision and control have been placed on a contractual flexibilisation and financing new footing through the establishment of a issues, as well as to offer a forum for the new authority with extended powers (Neder- discussion of the overall reform concept landse Zorgautoriteit). As for financing, flat- (Becker, Walser). rate premiums have gained importance Christina Walser alongside income-related contributions. The third step plans to integrate the scheme for the coverage of especially severe illnesses, similar to German long-term care insurance, into the new basic protection system.

The Institute first explored this subject matter by way of research stays at Dutch universities, which were soon followed by talks with experts from the health ministry in The Hague. These endeavours were accompanied by publications, with the main focus on structural changes planned in the Nether- lands and the reasons for undertaking them.

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2.10. Adjustment of Social Insurance organised by the Max Planck Institute for Systems to Societal and Economic Foreign and International Social Law and Developments – Japan and Germany the German Federal Ministry for Health and in a Legal Comparison Social Security in Berlin. There are plans to publish the findings of this project and the Bridging the Gap Between Scholarship workshop in Japan and Germany. and Practice in a Joint Programme on the Transformation of the Social State Results

In both Japan and Germany, social security An important difference between the health is faced with similar societal and economic insurance systems of the two countries is developments that urgently necessitate an that in Japan a high value is set on the equal extensive reform of their existing systems. treatment of patients. Whereas reimburse- The Japanese-German comparison sought to ment scales and total reimbursements are extend prospective approaches towards agreed between the sickness funds and pro- solving these problems by highlighting the viders in Germany, uniform reimbursement main structural elements of, and reform scales are set by the health minister in propositions for, the Japanese social security Japan. In fixing these reimbursement scales, system, notably health, long-term care and the Japanese ministry seeks a compromise pension insurance, and relating these to solution that takes account of the differing Germany. Not only the societal and econom- opinions of insurance institutions and bene- ic developments, but also the social security fit providers. This reimbursement system systems of the two countries exhibit many guarantees that every physician and every common features. Of course, there are also hospital receives the same reimbursement significant differences that require a differ- for the same services, irrespective of the pa- entiated investigation. tient’s insurance institution. As a result, discrimination against patients owing to their Organisation and Execution affiliation with different insurers is ruled out. This fundamental distinction is the rea- This research project set out to examine the son behind divergent reform measures in the problems arising for social security systems two countries. Whereas great importance is in the wake of demographic, societal and attached in Germany to enhancing the economic developments. Beyond that, it il- scope of action for sickness funds, govern- luminated private health and long-term care ment intervention plays a dominant role in insurance as well as occupational and pri- the Japanese healthcare reform, which in- vate retirement provision in conjunction cludes such issues as the raising of co-pay- with statutory health, long-term care and ments, changes in reimbursement scales and pension insurance. realignment of the financial equalisation scheme. To date, these changes have helped The exchange of views with scholars from keep health costs at a comparatively low the field of economics delivered new in- level and to achieve a just distribution of sights on the problems facing the existing costs in Japan. systems, the need for reform proposals and their effects. Discussions with practitioners The newly enacted long-term care insurance were especially conducive to contemplating law in Japan shares many common features the political objectives behind the reform with the relevant German law. Yet the two proposals and their operability. This interdis- laws simultaneously display a few important ciplinary and international collaboration pro- differences, which are attributable to the cir- duced fruitful results. cumstances of persons requiring nursing care and their family members, and to the The end of the project was marked by a previous legal situation prevailing in each of German-Japanese workshop entitled “Sozial- the countries. In Germany, great store is set recht in der alternden Gesellschaft – Re- by the principle of subsidiarity, which subor- formpolitik in Japan und Deutschland” (So- dinates solidarity-based assistance to person- cial Law in an Aging Society – Reform Pol- al responsibility. Conversely, one of the most icies in Japan and Germany). It was jointly important aims of long-term care insurance

34 II. RESEARCH

in Japan is to reduce, as far as possible, the Over and above this, a main focus was on burden on care recipients and their family the role of private health and long-term care members. Owing to the high level of its insurance as well as on occupational and pri- benefits, the Japanese long-term care insur- vate retirement provision in conjunction ance scheme faces the greater risk of run- with statutory health, long-term care and ning into financial difficulties in the future. pension insurance. In Japan, the chief func- Hence, the most recent Japanese reform tion of private health and long-term care in- (2005) paid greater attention to the financial surance is to supplement the corresponding sustainability of long-term care insurance. statutory schemes. Conversely, in Germany, private and public schemes are basically In both Japan and Germany, pension insur- structured as alternatives, with the supple- ance must come to terms with substantial fi- mentary significance of private insurance nancial problems, brought on above all by now growing in terms of health insurance demographic change. To resolve them, a ser- law. In both countries, statutory pension in- ies of reforms have been carried out. The surance plays the leading role in retirement prime objective is to avoid a sharp rise in provision. In Germany, however, private op- contribution rates and to achieve intergener- tions are increasingly replacing statutory pro- ational justice. At the same time, an appro- vision, whereas in Japan they are to maintain priate pension level is to be ensured for the their supplementary function. Supplemen- future. These reform targets are very much tary pension insurance is subject to favour- the same in both countries. In Japan, how- able tax treatment in Japan with the aim of ever, statutory pension insurance consists of improving life in old age, whereas the idea a basic protection pillar (National Pension behind promoting private retirement provi- insurance) and an income-related pillar sion in Germany is to partially replace statu- (Employee Pension insurance), so that in tory pension insurance. this respect the Japanese statutory system Katsuaki Matsumoto clearly differs from the German. On the other hand, the structure of Japan’s Employ- ee Pension scheme is similar to that of German statutory pension insurance. An- other important distinction between Japan and Germany is that in Japan social equalisation is regarded as one of the essential functions of statutory pension insurance.

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2.11. German-Japanese Joint Research Basis on Social Security (GJJRSS) The working group on pension insurance Organisation centred on the problem of poverty in old age (von Maydell, Tanaka), the income mix German-Japanese cooperation has a long (Schmähl, Komamura, Fukawa), changes in and successful tradition at the Institute. An work biographies (Schmähl, Komamura, agreement reached in February 2005 has Fukawa), and families and pensions (von turned over a new leaf in the joint work con- Maydell, Tanaka). All of these sub-areas are ducted under the comparative project to take account of the trans-sectoral ques- “German-Japanese Joint Research on Social tion of sustainability, which is not confined Security”. The project management has to pension insurance but also affects both been assumed by the Max Planck Institute health and long-term care insurance. It was for Foreign and International Social Law for this reason that the formation of a fourth, (Becker) and Chuo University (Kaizuka). new working group on sustainability was Among the participating universities is the contemplated. renowned Waseda University (Tsuchida). The endeavour will deal with the current The working group on health insurance problems and issues facing the project coun- identified the subjects of solidarity and tries in the areas of health, pension and long- group formation (Becker, Busse, Fukawa), term care insurance. Aside from the portray- regulation and benefit provision (Knieps, al of existing regulations and problem areas, Busse, Matsuda, Tsuchida), and specific the aim is also to work out solutions that questions concerning health care in an aging could improve and modernise the social in- society (Becker, Busse, Matsuda, Tsuchida). surance systems of both countries. Central research issues thus emerge with regard to healthcare costs for older persons, The joint research will not only be of a com- contribution financing, taxes and subsidies, parative nature, but have an interdisciplinary regional differences, intergenerational soli- focus through the participation of both legal darity, and differentiation between statutory scholars and economists. The project’s start- and private health insurance. Further ques- ing points, its fundamental subjects and the tions revolve around the scope and instru- division of its members into groups were ments of benefit provision, main points here sketched out in a German-Japanese ex- being state regulation, cooperation and com- change of ideas lasting from February to Au- petition, on the one hand, and the definition gust 2005. At a preliminary workshop from 4 of the benefit catalogue, quality controls and to 6 September 2005 in the Abbey of Frau- reimbursement, on the other. The effects of enwörth (Lake Chiemsee, Bavaria), the pro- society aging on health insurance require ject members consolidated the foundations thoughts about optimum out- or in-patient established in the prior months. The partici- care, interfaces between health insurance pants agreed on a division into three working and long-term care, and about prevention. groups on health insurance, pension insurance and long-term care insurance. As the The working group on long-term care insur- workshop progressed, the group members in ance was entrusted with issues relating to turn agreed on the details of the substantive quality assurance (Igl, Hashimoto), feasible work and discussed new problem items. The long-term care models (Igl, Hashimoto), the results of the sub-groups were presented to job market for care staff (Komamura, Roth- the large plenum and evaluated there. Sub- gang), and the financing of long-term care sequently, the plenum adopted the following (Rothgang, Tanaka). With regard to the vari- procedure: ous long-term care models, the research will deal with assisted living, joint residence, as well as domestic care and the traditional care in nursing homes, taking account of age-specific illnesses. In examining the job market for care staff, external care is to be compared with domestic care. A further item will be the financing of long-term care.

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Further Procedure The previous work has been geared to issues of formal and informal social security in After the workshop at Frauenwörth, the pro- threshold countries. From the perspective of ject entered into the actual research phase, developed countries, informal social security during which both sides are to draft their re- systems and their notions of reciprocity ports, exchange questionnaires and, in the were hollowed out by formal systems of course of 2006, prepare the country reports. state-provided social security. Under the formal systems, monetary transfers by the state In October 2006, a final symposium is have brought about the dissolution of social planned in Kyoto or Tokyo. It is to be pre- relations and, hence, anonymity – thus a ceded by a second workshop in which the widespread conviction. This development is country reports will be submitted, discussed now leading the social security systems of and adopted as final versions. In the process, developed countries into crisis, since mere the joint research findings will be evaluated financial distribution in the light of low and prepared for their presentation at the levels of economic growth and declining symposium. After the symposium, the pro- birth rates will cease to suffice in future. ject results are to be compiled in a Japanese Even so, it is often assumed that informal so- and English publication. cial security systems will disappear in future Ulrich Becker / Matthias Knecht / and be replaced by formal systems. With that Bernd Baron von Maydell in mind, many international organisations sought to transfer concepts of Western social security systems to developing countries in the 1990s. Recently, however, the imple- 3. Transformation in mentation of these systems has shown flaws. Threshold Countries Going in quite another direction is the sup- position that there will always be informal 3.1. Formal and Informal Social Security social security systems, but that these will eventually adapt to the given circumstances As a contrast to the comparative law analy- and possibly merge with the formal system. ses of developed states, the Institute is now Whether that can lead to more comprehen- also intensely devoted to juridical compari- sive social protection remains an open ques- sons of social security in threshold countries, tion for the time being. At any rate, such a but also to the comparison of developed process would entail “social security plural- countries and threshold countries. It has be- ism”, which could prove an alternative to come apparent in the process that the legal previous approaches. To illuminate these systems of threshold countries are in a state questions and assumptions in more detail, of flux that not only affects economic law workshops and a lecture series are planned but, as a consequence of economic changes, in the coming years to bring together scholars also impacts social law. Developing coun- interested in the social security arrange- tries strive to meet the resultant reform pres- ments of developed and threshold countries. sure through the selective reception and Barbara Darimont / George L. Mpedi adaptation of the social law regulations of more developed countries. 3.2. Processes of Social Law Reception in Research on social security in threshold China countries first of all enquires how processes of social security building, but also those of Under the planned economy, social benefits its further development and transformation in China were granted exclusively by the are to be examined. In order to access this state-owned enterprises. With the introduc- problem area, an initial comparison was tion of the market economy, inter-company launched between China and South Africa, competition was accelerated, as a result of and is still in progress. Later, there are plans which state enterprises ceased to be competi- to analyse the determinants of social security tive as they remained burdened with the high through the inclusion of additional countries costs of social benefits. Consequently, the (notably a South American state and India). need to reform the social protection rendered

37 REPORT 2004-2005

solely by state enterprises has grown with in modifications whose analysis will be of the introduction of economic reforms since interest to the “solution-exporting” country: the early 1980s. The requisite reform pro- both to better understand the bases of its cess began in China twenty years ago and is own systems and to monitor options for their now showing initial results. Thus pension, further development. health, unemployment, accident and maternity insurance schemes have been estab- Influence of Legal Culture on the Recep- lished for urban inhabitants. Legal regulation Process tions have been adopted for all of these social insurance branches and are to be given The comparison of legal cultures is a neces- further substance in the coming years. sary precondition for the transferral of law. Receptions of law already played an import- A comparison of the situations in Germany ant role in China at the beginning of the pre- and the P.R. China reveals that the acknow- vious century, as many statutes and legal ledged reasons for reforms are similar in norms were imported from Western Europe parts, notably insofar as they stem from the in the 1920s and ’30s. That “tradition” was demographic trend and growing internation- upheld by China’s Communist Party when it al economic ties. Yet they are highly different introduced law from the Soviet Union. In not only in their effects, but above all with a practice, however, the acquired law often view to the respective starting positions in proved incompatible with domestic law and the two countries. While China must seek to legal comprehension. It is thus scarcely sur- build new structures, Germany concentrates prising that the reception of law, also on restructuring its well-established sys- referred to as Westernisation or modernisa- tems. Even so, points of contact evidently tion, is now again a subject of intense dis- exist along these lines. For whoever wishes cussion in the P.R. China. From the legal to create something new will consider revert- scholar’s point of view, it remains open ing to models that have proven themselves whether a reception of Western ideas is an elsewhere. In doing so, however, account expedient method for bringing about a sub- must not only be taken of whether existing stantial change in China’s legal system, its preconditions permit the adoption of a par- legal thought and legal culture. ticular model, but also whether that model is adaptable in the first place. This may result

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Fundamentally, taking a look at different disciplines and resulted in a conference legal cultures – here, the European and the volume (Becker, Zheng, Darimont). Asian – first demands an inquiry into the conditions under which reception can take Reception of Autonomous Administration place at all, when it will be successful, and in China how thus absorbed law fits into the new societal, economic and cultural context. That Foremost among the insights gained has applies to the reception procedure. Beyond been the better understanding of Chinese that, of course, the results of such reception social law. In Western welfare states, the are likewise of great interest and promise to function of subjective rights is to help en- deliver new insights on the significance of force social policy objectives. Yet the weak cultural influences on law. In this respect, it institutionalisation of social policy in the or- is possible to distinguish between a macro- ganisation of Chinese government, the low and a micro-perspective: for one thing, by level of its juridification and the lacking judi- asking in what way law is changed through cial protection of social rights has exposed reception and, for another, by examining welfare state benefits in China to the danger whether the reception of law has repercus- of party policy influences. sions on the entire legal system and, hence, on legal culture per se, thus being capable of Given such difficulties, it is worth consider- changing it. ing to what extent German autonomous administration could contribute to solving Reception serves to develop law. Selective problems in China. The Chinese side has instances of reception and adaptation char- shown an interest in adopting a tripartite acterise legal systems that have adjusted to form of self-administration as it is practised social, political and cultural changes. In this in the German unemployment insurance context, social law appears an especially re- scheme. Such a construct would, of course, warding field of investigation. That holds have to be adapted to Chinese conditions, true at any rate if one assumes that this field and – so it is conceded – this process would of law is shaped by its close correlation with probably take years to accomplish. Hence, prevailing societal and economic circum- further analyses are needed on how, precise- stances. Social law in particular affects the ly, codetermination could be strengthened in distribution of duties between the state, so- China and in what respects it could be cial institutions and the individual; at the modelled on the German example of au- same time, its level of development depends tonomous administration. on the organisation and degree of economic exchange relationships. The follow-up conference entitled “Entwick- lung der sozialen Sicherheit in China und In this light, it is indeed remarkable that, Deutschland” (Development of Social Secur- despite the sweeping social changes now ity in China and Germany), held in Beijing occurring, a specific discussion on the re- on 25 and 26 December 2005, re-addressed ception of social law has been launched nei- the subject of German autonomous adminis- ther in China nor in Germany. By contrast, tration as a model for the P.R. China. In add- the reception of social insurance models is ition, the influence of legal culture on social already being contemplated from a political law was pursued further with the help of and socio-scientific perspective under the cross-sectional subjects such as the role of heading of “social policy learning”. Conse- the family under social law. This subject mat- quently, the conference entitled “Grundfra- ter also needs to be researched with a view to gen und Organisation der Sozialversicherung developing and threshold countries. Apart im Rechtsvergleich zwischen Deutschland from legal culture, future investigations are und China” (Basic Issues and Organisation to deal more extensively with the influence of Social Insurance in a Juridical Compari- of international law on Chinese social law in son Between Germany and China), held at order to look into the effects of absorbed law Ringberg Castle from 28 June to 2 July and to analyse its impact on the manifest- 2004, has paved the way for an interdis- ation and functioning of law in China. ciplinary exchange. It was attended by Barbara Darimont German and Chinese scholars from various

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3.3. South African Perspectives on sector workers suitable for both countries Undergoing Transformations under study will be developed. The preliminary research findings will be presented by The Max Planck Institute for Foreign and participating researchers from the Institute International Social Law established a coun- and the Centre for International and Com- try section for South Africa in autumn 2003. parative Labour and Social Security Law at a Research activities conducted under the workshop to be held on 18 to 19 January auspices of this country section include an 2006 in Johannesburg. It is foreseen that the ongoing research project between the Insti- final project findings will be disseminated tute and the Centre for International and through a project publication. Comparative Labour and Social Security Law (University of Johannesburg) on access Redesigning the South African Unemploy- to social security for non-citizens and in- ment Protection System formal sector workers; a nearly complete doctoral thesis on “Redesigning the South The aim of this doctoral study is to critically African unemployment protection system: A analyse the South African unemployment socio-legal inquiry”; and a joint research protection system so as to identify the exist- paper on the dualist approach to social se- ing deficiencies and to develop proposals on curity provisioning in China and South Afri- how to reconstruct the system, with particu- ca (this is a product of a collaborative effort lar emphasis on legal hindrances, challenges between this country section and that for and implications. The South African un- China). In addition, the Institute is involved employment protection system is largely in a DAAD-supported exchange project be- built on an unemployment insurance ap- tween the University of Frankfurt/Main and proach. In addition, it is confronted by the the University of Johannesburg. following main issues and challenges. First- ly, the official unemployment rate of 26.5% Access to Social Security for Non- is unacceptably high. The urgency that this citizens and Informal Sector Workers reform should be treated with stems from an acknowledged fact that unemployment The project on access to social security for comes with a heavy price tag for employees informal sector workers flowed from a pro- and their employers, unemployed persons ject planning seminar which was held on 15 and their communities, and (most import- June 2004 in Munich by researchers from antly) the state. Unemployment results in, the Institute and the Centre for Internation- inter alia: loss of output that unemployed al and Comparative Labour and Social Se- workers could have produced; loss of free- curity Law. The aim of this project is to dom and social exclusion; poor health (both investigate the legal techniques (e.g. coord- physical and psychological) and mortality; ination of social security schemes), the insti- discouragement for future work; and the tutional framework (e.g. adjudication and lack of organisational flexibility and tech- enforcement mechanisms) and the legal in- nical conversion. Secondly, the scope of cov- struments (e.g. Constitutions, Treaties and erage of South African unemployment pro- Protocols) for extending access to social se- tection is limited. It does not extend cover- curity to non-citizens and informal sector age to groups such as civil servants, persons workers. This investigation, which focuses who participate in learnership agreements on South Africa and Germany, is intended at (e.g. contracts of apprenticeship), the un- researching the specific causes (from a legal employed youth and certain categories of perspective) of the social exclusion of mi- foreign nationals. Persons who fall outside grants and informal sector workers from ac- the strict formal-sector based definition of cessing social security. The significance of “employees” and/or “contributors” are also this study is that it will contribute towards excluded. Furthermore, measures to pro- the better understanding of the challenges mote employment, prevent job losses and (of a legal and an institutional nature) facing (once job losses are inevitable) to (re)inte- non-citizens and informal sector workers in grate those who lost their jobs into the la- their quest to access social security. Further- bour market are limited in the South African more, appropriate strategies for extending unemployment system. social protection to migrants and informal

40 II. RESEARCH

The significance of the study is that the most On 29 and 30 June 2005, a conference was salient deficiencies found in the South Afri- organised within the framework of this pro- can unemployment protection system are ject in Frankfurt/Main. This conference fo- highlighted and measures, which include cused on the integration of labour and social legislative proposals, to remedy those defi- security law in the SADC region. Papers ciencies are proposed. At the same time, presented at the conference covered the fol- proposed remedies are aimed at improving lowing topics which are crucial to the devel- the South African unemployment protection opment of the social security systems and system that is presently in need of compre- the labour law regimes of the SADC coun- hensive overhaul. It, therefore, follows that tries: Developing minimum standards for so- this study does not only contribute to exist- cial protection in SADC: the value of coming academic debates in the field of un- parative experiences; Harmonisation of la- employment protection. Apart from the le- bour law regimes in the SADC region; Re- gislative proposals, a major contribution is designing unemployment protection systems also made in the form of policy options for within SADC countries: comparative experi- the South African unemployment protection ences; Co-ordination of social security: les- system and policymakers alike. This is so be- sons from a comparative perspective; Re- cause, on many occasions, the South African gional charters of fundamental rights regu- social insurance and social assistance legis- lating social protection: the relevance of the lation, academics and policymakers fall into European experience for the SADC context; a trap of viewing the South African un- and Different approaches to harmonisation employment protection system from what of labour laws within the European Commu- one can call a narrow-minded point of view. nity: lessons for the SADC context. In add- That is, they fail to recognise protection ition, the conference addressed specific from unemployment as something that issues relating to experiences and perspec- stretches beyond mere unemployment insur- tives on the LLM and LLD Programmes in ance. There is a dire need for a comprehen- Labour and Social Security Law such as: de- sive unemployment protection system: a sys- veloping a curriculum for structured doctor- tem that will combat unemployment and al teaching; research capacity training for (above all) promote employment by intro- post-graduate students; and addressing the ducing measures that will create work (tackle need for capacity building amongst histor- youth unemployment, and integrate people ically disadvantaged institutions and histor- with disabilities into the labour market), pre- ically disadvantaged students. vent unemployment and (re)integrate those George L. Mpedi who lost jobs into the labour market.

DAAD-Supported Exchange Project 3.4. Solaris Between the Institute, the University of Frankfurt/Main and the University of The Institute’s country reports provide an Johannesburg overview of the legal, economic, political and/or social situation comprising or influ- Under the auspices of the DAAD-supported encing social law in a particular country. The exchange project, two or three LLM stu- subsequent annual reports or updates dents from South Africa visit the Institute pres-ent the current status, subsequent to for Labour and Civil Law of the University changes, modifications, developments, of Frankfurt/Main and this Institute each and/or the tendencies in these fields. Both year for the purpose of conducting research the reports and, of course, the annual up- for their mini-dissertations on social security dates have proven to be very valuable tools. and labour law related topics. In addition, the director of this Institute and several aca- Reports are written by authors who actually demics from the University of Frank- work and live in the respective country. furt/Main present lectures at the University These authors comprise an international of Johannesburg on social security and la- correspondence network with the Institute’s bour law related themes. researchers and staff. In addition to the personal contacts which have been established and enjoyed, the network has also shown its

41 REPORT 2004-2005

academic merits, since it allows for highly The authors who form the correspondence efficient information exchanges and insight network were also taken into consideration into the various domestic occurrences from in the Solaris planning. Authors will have the a local and international point of view. possibility to access the platform directly and thus include the latest news and edit or The reporting system is currently undergoing amend their reports online. Participating a major transformation. The idea is to pro- authors and researchers will also be provided vide the advantages of modern technology to with a platform to exchange information, ask enhance the data retrieval and comparison questions, provide their comments and in- possibilities without detriment to continuity form on topics of general interest. Of course or coherency, the latter thus also allowing the results of such forums and possibilities the traditional method of simply choosing a for participation are not yet known. Never- country and reading uninterrupted through theless, the opportunities for research, dis- the entire report. With this in mind, Solaris, cussions and comparisons should prove use- the Social Law Reform Information System, ful to authors, researchers and Solaris users has been conceived to integrate country re- in general. ports into an Internet platform which allows Carlos L. Cota for various views of the same contents and thus also permits for diverse comparison methods and links to available sources. 4. Multi-Focus Research Solaris will remain a system based on the country report as its starting point. In this re- 4.1. Equality Through Law spect, it is not only a database with listings of various reports and/or sources but should One of the fundamental questions of dis- remain a comprehensive system with a com- tributive ethics is how benefits and burdens mon basis which, at the same time, provides should be distributed between people. One the advantages of multiple listings and the long-standing answer to that question is the information retrieval options of a database. ideal of equality. Equality may have replaced Reports will also be consolidated with the liberty as the central topic of contemporary subsequent updates to provide a compre- political and legal discourse. Two questions hensive, ongoing overview of a particular figure prominently in the debate about country. Updates or relevant news, i.e. the equality. The first question is Amartya Sen’s: contents of most annual reports, will never- “Equality of What?”. If we are to distribute theless also continue to be highlighted as a benefits and burdens equally, Sen argues, we separate listing based on the event’s subject have to determine what dimensions of matter or chronological order. Once the con- people’s lives should be compared in order to solidated individual reports have been es- establish whether one person is worse off tablished, similarities and/or differences than another. In other words, we have to de- concerning institutions, subjects, themes, termine what needs to be “equalised”. solutions, etc., between the different coun- Equality must be of something in order that tries can also be highlighted, thus allowing we have a substantive egalitarian principle. A for direct comparisons between two or more choice has to be made (based on acceptable countries. reasons of course) and this choice will inev- itably lead people to be treated unequally in The sources of country information, for ex- other respects. One advantage of taking this ample statutes, facts and figures, court deci- approach, and an important one, is that it sions, insofar as possible, will also be in- draws attention to the fact that certain cluded and linked to the reports as well as measures in the pursuit of equality involve listed in the bibliographical references. The treating people unequally. novelty here, besides providing available ex- cerpts, is also allowing these to become inte- In the second place, Joseph Raz asks whether grated into the updates or news listings. In our numerous appeals to equality are not in doing so, it will actually be possible to follow fact an appeal to some deeper normative a current event whilst it is still in process, value (such as human dignity, redistribution, and not only at the end of the year. participative democracy, etc.) rather than to

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egalitarian principles. Raz acknowledges possible responses to a situation where cer- that we often talk about equality because we tain groups are underrepresented, for ex- stand to gain from the good name that ample, in an employer’s workforce. Either “equality” has in our culture. However, there the preference given to members of a certain is a danger in using the language of equality group can be allowed to influence decisions when we are in fact talking about other between candidates who are otherwise values. The price we pay, Raz writes, is in equally qualified (for example, in the Euro- “intellectual confusion”. pean Union), or it might go beyond this and involve the selection of a member of the tar- These considerations represent the under- geted group over other candidates who are in lying theoretical assumptions for the project fact better qualified for the position (as is “Equality Through Law”. In the attempt to the case, for example, in South Africa). answer the question whether legal strategies can contribute to the ideal of equality, one Many believe that affirmative action repre- must in each instance ask what one is in fact sents an injustice – a departure from the trying to equalise by means of legal strat- widely held belief that people should be egies; acknowledge that the process may in- treated without regard to characteristics such volve treating people unequally; and finally as race or sex. The manner in which affirma- be careful not to use the concept of “equal- tive action is justified is therefore crucial to ity” as a mere rhetorical device when in fact the mounting of a successful defence of the talking about deeper underlying values that policy, but its justification has not always have nothing to do with strict egalitarian been clearly articulated. Too often, support- principles. ers and opponents rely on not wholly articulated beliefs in the rightness or wrongness of Affirmative Action affirmative action, and simply deny the valid- ity of genuinely held opposing views. The The term “affirmative action” refers to a most common justification for affirmative ac- range of programmes directed towards tion is to view it as a form of compensation targeted groups in order to redress inequal- for past discrimination. To the extent that the ities resulting from discriminatory practices. argument for affirmative action is a compen- Broadly it takes two forms: policies to alter satory one, the argument involves an essen- the composition of the labour force, and pol- tial reference to unjust actions in the past, icies to increase the representativeness of and is thus essentially backward-looking. government, public committees and educa- This justification raises a number of common tional institutions. Affirmative action, thus (and often fatal) objections. However, af- understood, is practised in many countries, firmative action can also be justified in a including South Africa, the United States, more forward-looking manner in which less many countries within the European Union, emphasis is placed on the injustices of the India and Canada, to name just a few. past and more attention is given to a vision of the society we would ultimately like to attain Affirmative action can take a number of – a society in which people are treated as forms. A distinction is often drawn between civic equals, and this in part by means of “weak affirmative action” and “strong af- affirmative action measures. Although the firmative action”. Weak affirmative action details of this forward-looking justification essentially involves efforts to ensure equal varies, its fundamental thrust is twofold: first, opportunity for members of groups that have that affirmative action is a way of overcoming been subject to discrimination. Examples of prejudice by changing widely held attitudes such efforts are active recruitment of quali- towards members of disadvantaged groups fied applicants from the formerly excluded (what is referred to as the attitude-changing groups, special training programmes to help argument) and second, that affirmative ac- them meet the standards for appointment, tion is a necessary tool for integrating disad- and measures to ensure that they are fairly vantaged groups into a democratic society, considered in the selection process. Strong thereby breaking what would otherwise be an affirmative action, on the other hand, in- endlessly continuing cycle of poverty, sub- volves the use of what has been called “pref- servience and social inequality (what is erential treatment”. There are at least two referred to as the integration argument).

43 REPORT 2004-2005

Broad-Based Black Economic investment in enterprises that are owned or Empowerment (BBBEE) managed by black people. Achieving these goals involves a number of instruments, in- As a social and legal system, apartheid has cluding legislation and regulation, preferential had a devastating effect on the social, eco- procurement, institutional support for black nomic, political and cultural life of especial- businesses, and financial and other incentive ly black South Africans. Despite its demise schemes. What is clear is that the debate in in the early 1990s, the apartheid has left an South Africa is no longer whether BBBEE is indelible mark on the country. For instance, necessary, but how best to achieve BBBEE in a country review conducted in 1992 by while at the same time ensuring growth and the International Labour Organisation continued investment in the country. (ILO), it was found that South Africa had Ockert C. Dupper the highest levels of inequality of any country in the world for which the ILO had data. Ten years later, in 2002, the World Develop- 4.2. Emeritus Workplace: Hans F. Zacher ment Report found that only five other countries had a higher level of inequality than (1) The life activities social law seeks to ad- South Africa as measured by the Gini coeffi- dress cannot be confined to the scope of ap- cient. Statistics show that poverty is over- plication of a national legal system, much whelmingly concentrated in the African and less that of a constituent state. Rather, in Coloured populations, and that this racial in- many instances, these activities transcend equality is reflected in unemployment fig- the limits of such a system. Hence, there is a ures, too. The latest annual report issued by need for some form of accompanying or af- the Commission for Employment Equity re- filiating inclusion, as laid down and fulfilled veals that 81.5% of all top management pos- under citizenship and residence law, as well itions are currently occupied by Whites, as under the conflict-of-laws rules regulating 10% by Africans, 5% by Indians, and 3.4% by social law. Beyond that, however, there is Coloureds. At the end of 2003, only 21 of also a need for comprehensive forms of gov- the over 400 companies listed on the Johan- ernance which relativise the differences nesburg Securities Exchange (JSE) were between national legal systems through joint black-controlled. institutions and regulations, and which supplement the governance of domestic rela- In order to redress these disparities, the tions and processes through the governance South African government has embarked on of transnational, supranational and inter- an ambitious programme to achieve the eco- national relations and processes. All these ex- nomic empowerment of black persons (internal and supranational regulations foster digenous Africans, Coloured and Indians changes in national social law, just as they that are South African citizens), known as themselves are exposed to the immanent and Broad-Based Black Economic Empower- external driving forces of their own change ment. BBBEE means the empowerment processes. This interaction of diverse forms of all black people (Africans, Coloureds, of non-concurrent (successive) national and Indians) including women, workers, youth, supranational social law with diverse forms of people with disabilities and people living in concurrent (co-existing) national and supra- rural areas (so-called “black designated national social law characterises the themat- groups”) and includes the following goals: (i) ic ensemble of the emeritus workplace in a increasing the number of black people who special way. manage, own and control productive enterprises and productive assets; (ii) facilitating Such interaction is manifested to an extreme ownership and management of enterprises in the history of German social law. These cor- and productive assets by communities, relations were highlighted in two investiga- workers, co-operatives and other collective tions: the one extending over the entire his- enterprises; (iii) human resource and skills torical epoch (“Deutschland den Deutschen? development; (iv) affirmative action, that is Die wechselvolle Geschichte des sozialen achieving equitable representation in all oc- Einschlusses im Deutschland des 19. und cupational categories and levels in the work- 20. Jahrhunderts” [Germany to the Ger- force; (v) preferential procurement; and (vi) mans? The Changeful History of Social In-

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clusion in Germany of the 19th and 20th Cen- member states, the accentuation of the so- tury], 2004); the other concentrating on the cial element has differed greatly in the past. era of German division (“Sozialer Einschluss und Ausschluss im Zeichen von National- An essentially different approach was taken isierung und Internationalisierung” [Social by the colloquium “Steuer- und Sozialstaat Inclusion and Exclusion Under the Banner im europäischen Systemwettbewerb” (The of Nationalisation and Internationalisation], Tax and Social State in European Institution- 2004). An additional study reflected the deal Competition), held jointly by the Max velopment of social law in its further context Planck Institute for Intellectual Property, as the law governing life in German society – Competition and Tax Law and the Max from a national legal order to a mixture of na- Planck Institute for Foreign and Internation- tional, European, international and trans- al Social Law. On that occasion, Hans F. national bodies of law (“Sechs Jahrzehnte Zacher was asked to present the final Rechtsgeschichte” [Six Decades of Legal remarks (“Schlussbemerkungen”; in print). History], 2005). The organisers had decided to begin with a very pragmatic approach – no doubt rightly (2) Individual works focused on the relation- so, given the difficulty of finding a common ship between national law and European point of departure. This approach unveiled a Community law. These included a paper (in host of correlations between tax law and so- print) held at a conference organised by the cial law, between the various national tax and research network on old-age security, entitled social law systems, and finally between Euro- “Das Soziale als Begriff des deutschen und pean and national law. The final remarks des europäischen Rechts” (The ‘Social’ Elem- sought to perpetuate this rich yield of sugges- ent as a Concept of German and Commu- tions in a systemic endeavour – in other nity law). The article illustrates how distinct- words, to integrate the particular findings ly the ongoing, European openness of the into a larger unity. Nevertheless, this effort, term “social”, as it is used in the discussion too, was unable to lead beyond initial prop- over the “European social model”, differs ositions. from its narrower, German openness, as it is known from the interpretation of the “social (3) An equally national, European and global state objective” embodied in the Grundge- theme: fundamental social rights (“Soziale setz (constitution). Especially in this context, Grundrechte”, 2005). it is instructive to note how very much the comprehension of the word “social” is reliant (4) Conversely, other investigations focused on its historical background. To compare the on the historical dimension of national law. political, legal and, notably, the legislative de- Thus, collaboration was continued on the velopments whereby the social element has comprehensive collected edition entitled been entrenched in the recollection of soci- “Geschichte der Sozialpolitik in Deutschland ety thus seems expedient. In a national con- seit 1945” ([History of Social Policy in Ger- text (e.g. the German), this historical back- many since 1945]; edited by the Bundesmi- ground might display a certain degree of nisterium für Arbeit und Sozialordnung and closeness. Yet for Europe as a whole, such a Bundesarchiv). In the period under review, comparably close historical basis cannot be this co-endeavour concentrated on the ef- ascertained. Indeed, the historical paths fective editing responsibility of the Scientific taken by the social element differ far too Council (Hans Günter Hockerts, Franz- greatly from one EU member state to an- Xaver Kaufmann, Gerhard A. Ritter, Peter other. A similarly instructive comparison Rosenberg, Hartmut Weber, and Hans F. focuses on the principles that underlie the Zacher). However, the emeritus workplace development of the social element within a also delivered a textual contribution, consist- national framework (expressed in German ing in a report for the 11th volume (1989 – thought by the concepts of justice, solidarity, 1994) entitled “Gemeinsame Fragen des participation, security, etc., or more general- Rechts und der Organisation sozialer Lei- ly and elementarily, by “more equality”). stungen” ([Common Issues on the Law Here again, a common ensemble of compa- and the Organisation of Social Benefits]; rable recognisability is nevertheless lacking in print). This contribution is not only a for Europe as a whole. And in the individual description of the factual development of

45 REPORT 2004-2005

common grounds of social benefit law. It more, the political concept, too, was defi- above all seeks also to find endogenous and cient. Owing to the way it was implemented, exogenous reasons why the solutions found the concept affected only two of three gener- until the period reviewed in volume 11 are ations (the middle and the older generation), called into question. Put differently: the while the third (the younger) generation was investigation portrays to what extent reforms included only imperfectly. Later on, society prove necessary and what direction they are aging, declining employment opportunities considered to take, or should take. Moreover, for the middle generation, but above all both this diagnosis and the therapy for social “child poverty” in the German society spot- benefit law are substantially influenced by lighted the need for a critical discussion. the Europeanisation and globalisation of so- Meanwhile, the problem was also perceived cial problems and their solutions. as one that faces every human society – and is thus a problem of every social policy – and (5) A new description of the social state itself that existing structures and normative condi- has also become necessary in the light of a tions give the problem a different configur- large number of crucial developments (“Das ation in each case, calling for differently soziale Staatsziel” [The Social State Object- tailored solutions. Hence, it seemed advis- ive], 2004; “Sozialstaat” [Social State], able to place the urgently needed analysis of 2005). the German development in an international context (“Children and the Future”, 2004; (6) Prominent among the social problems “Kinder und Zukunft”, 2005; “Das Wichtig- that need new perceptions and solutions in ste aber sind die Kinder” [Most Important many countries of the world, especially also are the Children], in print). in Germany, is that of intergenerational relations. From the 1950s, many people in West (7) All past and present research on the social Germany believed that the “inter-generation state and on constitutional declarations con- contract” had provided an especially fitting cerning the social state objective have shown and conclusive solution in finding an appro- that the development and implementation of priate social policy relationship between national social law depends very much less on the generations. In truth, one had not only normative policy requirements than on govern- underestimated the wide gap between a ance and actual societal conditions. The same “contract” and a political concept; what is no doubt holds true for the development and

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implementation of supranational, internation- Europe” (published by Springer) in Brussels al and transnational law. Here, obviously, the on 8 December 2005. The project involved interplay between the forms of governance the disciplines of philosophy and jurispru- and the realities which in each case fill out dence as well as the economic and social sci- the configurative and operative framework of ences. Its members were recruited from supranational, international and transnation- western, northern and eastern Europe. As al law is much more manifold and may be the study progressed, the interdisciplinary much more complex than national societal approach proved helpful in identifying the conditions. Indeed, no less obvious is the many facets of the subject matter and in de- fact that the knowledge of these config- veloping strategies for a future European so- urative and operative conditions of supra- cial policy. national, international and transnational law will be much more incomplete and unreli- The investigated subject matter, “European able than the knowledge of societal struc- social policy”, is discussed very controver- tures and activities governed by national law. sially in the political debate. On the one It was therefore welcomed that Hans F. Za- hand, there is wide agreement that social cher was able to play a responsible part, with- policy is, and should remain, a task of nation in a global and interdisciplinary research states. From this national perspective, context (Pontifical Academy of Social Sci- Europe is viewed as a risk to these states’ ences, 2005), in investigations on structures own social systems, for instance as regards which supplant democratic statehood within migration from east and west. On the other the framework of supranational, internation- hand, a European social policy is considered al and transnational law (“Report on Democ- to exist already, at least rudimentarily, and is racy”, 2004; “Democracy in Debate”, 2005; regarded as an important prerequisite for the “Demokratie als Gestaltungsaufgabe” [Dem- creation of a European identity in the aware- ocracy as a Configurative Task], 2005). ness of Union citizens. In this respect, the European Social Model has been evoked (8) A particular accomplishment of compara- as a reality, or at least as an objective to be tive law work was the editing by Professor striven for. Makoto Arai (Tokyo) of a collection of fundamental works by Hans F. Zacher on German The ambivalent assessment of a European social law in the Japanese language (“Doitsu social policy is attributed to the insufficient Shakaiho no Kozo to Tenkai. Das Sozialrecht awareness that the EU already determines in Deutschland”, 2005). The project was vital aspects of social policy – aspects that go launched on the initiative of Professor Arai, beyond the previously “communitised” social who also brought it to completion. Neverthe- security of migrant workers. Yet there is also less, project planning and implementation a lack of clarity about the objectives and in- were undertaken in close collaboration with struments of a modern social policy under Hans F. Zacher. conditions of globalisation. This background Hans F. Zacher enhanced the attractiveness of the project theme, but at the same time demanded very complex approaches and analyses. 4.3. Emeritus Workplace: Bernd Baron von Maydell The understanding of objectives and instruments of social policy has undergone funda- European Social Policy mental changes over the past century. Ori- ginally, the prime intent was to grant social European social law and European social benefits in order to avoid poverty and reduce policy resulting from the cooperation of EU inequality. Modern notions of social policy, member states and institutions are central however, are geared to the concept of funda- fields of the Institute’s work. This problem mental social rights of the individual. The area was addressed by an internationally aim is to foster the individual citizen’s devel- constituted interdisciplinary project group opment within society, so that he or she is under German leadership (von Maydell). enabled to participate in societal life. This Upon completion of its work, the project aim cannot be achieved alone through the group presented the study “Enabling Social payment of social benefits. Rather what is

47 REPORT 2004-2005

needed is a broad approach that also em- An ethically founded social policy can help braces and integrates education policy, fam- secure social cohesion and integration in ily policy and labour market policy, as well as society. This demands a policy targeted at others. The underlying concept is to couple the integration of citizens – a demand that the provision of support with the activation applies to both the national and the Euro- of beneficiaries’ own efforts. pean level. Here, the project group sought to investigate the concrete demands facing This modern social policy concept geared to the individual social policy fields included the development of the individual within so- in the national comparisons. The subse- ciety is able to rely on basic principles and quently targeted objectives do not require a values enshrined in the European Commu- harmonisation of national social protection nity treaties – underscored by the funda- systems. Rather, these objectives can be ad- mental rights section of the draft Constitu- vanced effectively by a policy aimed at con- tional Treaty. Moreover, upon taking stock verging national and supranational levels we see that, alongside its coordination law while coordinating social policy with other designed to secure the free movement of policy fields. In the process, the Open workers within the EU, the European Com- Method of Coordination can indeed be munity exerts manifold additional influences a suitable instrument if it observes the on social policy such as, for instance, the re- defined objectives and does not lead to a flex effects of the fundamental freedoms laid hidden form of harmonisation. down in the EC Treaty. Thus the European Court of Justice in Luxembourg construed Social policy at both national and supra- the free movement of goods and services to national levels should seek to contribute to a mean that statutory health insurance bene- society in which the goals of productivity fits can in principle be claimed in other EU and effectiveness are reconciled with the member states. Which is why frequent refer- principles of fairness and justice. The on- ence is made to an emerging European mar- going development of a European social ket for healthcare benefits, despite the na- policy can help accomplish this end. tional alignment of healthcare systems. German-Japanese Cooperation A common European element, however, can also be seen in the fact that social protection The Max Planck Institute has maintained systems in EU member states concur with extensive research contacts with Japan for a one another in important points. This is the long time, contacts that have been con- assumption underlying the thesis of a uni- tinued and intensified over the past two form European Social Model. It would be years. This collaboration has been outlined verifiable through a comprehensive compari- above under the Institute’s research on the son of national social systems. Yet that task adjustment of social security systems in could not have been tackled by the project developed countries (cf. II. 2. 10. and 2.11. group within the allotted timeframe. In- above). An additional project, which is cur- stead, the group had to confine itself to spe- rently in its preparatory phase, will consist in cific examples by examining and comparing a joint investigation on family policy in Japan sub-areas of social policy, namely health and Germany. On the Japanese side, this policy, family policy, old-age security and project, organised by the Japanese govern- prevention of poverty, for two member states ment in collaboration with the Japanese- respectively. These comparative country German Centre in Berlin, is headed by Prof. studies, which included two transformation Motozawa (University of Tsukuba). A sym- states, revealed a great many common fea- posium at the University of Tsukuba and a tures as well as numerous differences. A very conference in Tokyo are scheduled to take distinct finding was that the individual states place in March 2006. display differing measures of success in implementing the approach of the “enabling Apart from the above-mentioned Institute welfare state”. At the same time, such a projects in the period under review, the comparison conveys valuable suggestions on German-Japanese cooperation also included how effective and less effective reforms a one-month research and lecture stay in could be designed. Japan. The stay took place in October 2004

48 II. RESEARCH

following an invitation by the Japan Society The stay in Japan, which included the at- for the Promotion of Science. The central tendance of an international congress on theme of the academic work conducted dur- Alzheimer’s disease in Kyoto, presented sev- ing that month was the development of so- eral occasions for a new exchange of ideas cial security in Japan – in comparison to with numerous, well-acquainted Japanese Europe and with a special view to globalisa- colleagues, but also for establishing fresh tion. The individual issues focused on elder contacts. The opportunity to meet with a care and on assuring the quality of such number of young colleagues and students care. Several papers were held on this sub- was an especially pleasing aspect. It was im- ject at different universities and on behalf of pressive to observe how scholars from vari- civil servants engaged in social administra- ous universities and disciplines and of differ- tion. Another thematic focus was the inter- ing ages collaborate in so-called research nationalisation of social law. Worth noting communities set up to investigate inter- here is a report given at the University of related subjects. German academics could Tsukuba on the social policy influences of no doubt profit from this form of research the Council of Europe and the European cooperation. Union, as well as a lecture following an invi- Bernd Baron von Maydell tation by the Japan Society for Social Law in Tokyo on the subject of “The Influence of European and International Law on German Social Law”. Along with four Japanese co-reports, this lecture was intensely discussed with the members of the Society.

49 REPORT 2004-2005

50 III. Promotion of Junior Researchers REPORT 2004-2005

1. Doctoral Group: tive and needs to be substantiated. Thus, de- “State Responsibility for pending on its object or subject, the essence of responsibility changes. That applies above Social Security in Flux” all to the social security sphere, which involves quite different risks (e.g. old age, sickness, unemployment) as objects of Subject Matter responsibility, and quite different actors (e.g. the state, social partners, employers, With the development of the welfare state employees, unemployed persons) as subjects from the second half of the nineteenth cen- of responsibility. Social law does not only tury, industrialised countries began to accept acknowledge various areas of responsibility, “social responsibility” for their citizens. Their it also configures these. Constitutional law legislatures created “social security systems” as well as other legal fields come to bear in in which also the state was included as an the process. Accordingly, a country’s consti- actor – in quite differing forms and func- tution can, for instance, assign responsibility tions. In the course of their history, these so- to the state, while its law governing non-na- cial security systems were differentiated tionals can variegate state responsibility for more and more (also in legal terms): they citizens and non-citizens. were systematised, and their benefits were improved and progressively diversified. Soci- Hence, in order to examine areas of respon- ety’s growing economic efficiency made it sibility in different legal systems, the term it- possible to include ever more sections of the self must first be defined and its essence population in social security and to extend fathomed out in a specific context. Only coverage to additional and, in part, new so- then can an investigation – for example, with cial risks. a view to Germany – deal with such issues as the partial privatisation of benefit provision Because the configuration of social security in the long-term care sector, or current systems is bi-directionally linked to socio- reforms to the healthcare system or to the economic reality, the legislator in today’s in- labour market (Hartz reform laws), in dustrialised states is faced – albeit to differ- conjunction with their effects on state and ing extents – with new problems to which personal responsibility. A comparative law the social security systems themselves are analysis can focus on the legal means used contribute. Most prominent among these to configure areas of responsibility, on ways problems are demographic change, mass un- to ensure that all actors meet the responsi- employment, cost trends in the health and bilities incumbent upon them, and on the long-term care sector, social benefit abuse (legal) grounds for existing disparities in the and high ancillary wage costs. layout of responsibility areas.

One thing is certain: existing and impending Organisation and Individual Subjects financial gaps in social security systems cannot be closed endlessly through contribution In the course of 2004, a doctoral group or tax increases. Already now, high ancillary was established to deal with the above-out- wage costs are viewed as a locational disad- lined subject of “State Responsibility in the vantage for German enterprises in inter- Field of Social Security”. In November national competition. Moreover, the raising 2004, the group of five doctorands (Grien- of social insurance contribution rates and berger-Zingerle, Landauer, Matthäus, Mimen- the tax burden find less and less acceptance tza and Quade) was complete, and its among those impacted by them, thus setting members began to elaborate a conceptual boundaries to their political enforceability. framework for this project, alongside their own research work. The joint concept on the Current reform debates and reform laws are overall theme of “state responsibility” serves infused with the term “responsibility” – as a basis for their dissertation projects and whether as individual or personal responsi- places these in a common context. bility, or as entrepreneurial responsibility or state responsibility. Responsibility by nature To date, this concept has remained an “alive is not only a legal term, but one that is rela- paper” that is continually questioned, re-

52 III. PROMOTION OF JUNIOR RESEARCHERS

drafted and supplemented by the doctoral ability-related benefits under German, Aus- group in a concerted effort, and that is re- trian and Swiss law. plenished by individual findings, notably from the work on foreign legal systems. Janire Mimentza focuses on the social rights After completion of all dissertation projects, of non-nationals in Germany and Spain. the group aims to publish a joint article based on the framework paper. The article Benno Quade compares the legal div- will highlight the essence of state responsibil- ision/distribution of responsibility in the em- ity under social security law from a compara- ployment promotion schemes of Germany tive perspective and simultaneously elucidate and the United States. He is also involved in the significance of statutorily prescribed re- the “principles of social security law” and “la- sponsibility for social law relationships. bour market policy” projects.

In the period under report, the doctorands Activities worked mainly on their dissertation projects and were partially involved in other Institute Alongside the doctoral group, an additional projects relating to their doctoral theses. pilot project launched by the Institute was the doctoral seminar. Apart from the doctor- Maria Grienberger-Zingerle examines the in- ands, it was attended by Ulrich Becker clusion of the individual through agreements and some of the research fellows (Dupper, with benefit providers, in particular under Graser, Ross, Sichert), and consisted in 15 aspects of employment promotion law in meetings over the course of the report period. Germany and England. She also participates in the “labour market policy” project. The seminar gave the doctorands an opportunity to query aspects of the framework Martin Landauer deals with the state respon- concept, to present their theses, and to dis- sibility for guaranteeing benefit delivery by cuss assumptions and specific questions or private providers in the long-term care sector problems. The evaluation shows that the under German and English law. seminar has proven itself as a critical expert forum in which relevant questions and prob- Claudia Matthäus investigates personal re- lems were by all means debated controver- sponsibility with a view to sickness and dis- sially.

53 REPORT 2004-2005

From 4 to 6 February 2005, the Institute The Institute gave four doctorands (Grien- launched the Workshop for Young Social Law berger-Zingerle, Landauer, Mimentza, Quade) Researchers in collaboration with Eberhard the opportunity to attend the Workshop for Eichenhofer (University of Jena). It was at- Young Researchers 2005 held by the Euro- tended by nine participants (Grienberger- pean Institute of Social Security from 22 to Zingerle, Landauer, Matthäus, Mimentza and 28 May 2005 in Graz, Austria. The meeting Quade [all LMU München and MPI], brought together eleven doctoral candidates Kremalis [LMU München], Abig, Schultze, from various European countries and Japan Wehner and Will [all University of Jena]) who research social security and social law who presented their projects and contended in their dissertation projects. with objections and critical questions. In this way, they were able to find assistance From November 2004 till November 2005, and suggestions for the further progress of Benno Quade was spokesman of the doctor- their work. The workshop was moreover a al network of the Max Planck Society chance for the Institute’s doctoral candi- (PhDnet). On 18 October 2005, the Insti- dates to establish contacts to other young so- tute placed its infrastructure at the disposal cial law researchers and, in a few cases, to of the PhDnet workshop entitled “Scientific lay the foundations for an ongoing fruitful Publications”, which was also attended by exchange. Above all, however, the partici- three doctorands of the Institute. pants, according to their own estimation, Benno Quade were able to profit from the papers of the others and from the extensive and critical review of their own presentations.

54 III. PROMOTION OF JUNIOR RESEARCHERS

2. Doctoral Group: The decisive fact is merely that this aspect is “Influence of gaining importance in the ongoing discussion, thus making it ever more imperative Constitutional Law and here to ask what boundaries the constitution and international law can set to social re- International Law on forms. the Configuration of Organisation and Individual Subjects Social Security” The doctoral group, designed to accommo- Subject Matter date four to six doctorands, has already taken up its work at the Institute (Fülöp, The realignment of social security systems Gibek, Liu, Vergho). In terms of its members, plays an important role in political debate, this new group is more internationally ori- not only in Germany but in many other ented. Three of the previously engaged doc- countries as well. Most of the discussions torands come from abroad, where they have concentrate on the increasing difficulty of fi- so far largely completed their school and nancing these systems. The basic legal par- academic education. The main focus of the ameters underlying potential reforms, by individual investigations is not on compari- contrast, tend to be less in the foreground sons of different legal systems, but on the and are often even considered annoying obs- detailed depiction of the legal system in a tacles that stand in the way of implementing given country. The influence of constitu- once-found solutions. Yet, in order to find a tional and international law is examined by comprehensive solution to the problems at Viktoria Fülöp for Hungary, Anna Gibek für hand, it is necessary to focus also on legal Poland, Dongmei Liu for the P.R. China and factors alongside socio-economic concerns. Quirin Vergho for Portugal. Taking centre stage here are the legal requirements laid down by constitutional and The international and specifically eastern international law, given that the legislature European orientation of the doctoral group must align its actions with these norms – will allow the Institute to gain insights into even if international law’s inclusion in na- the social law systems of countries previous- tional law may occur in various ways and to ly not at the centre of its reflections. More- differing degrees of commitment. Hence, over, by promoting young scholars from both norm complexes constitute the basis these countries, the Institute aims to secure for legislative measures in general, and they future access to a widely ramified and sus- need to be complied with specifically in re- tainable network of international scholars. building social security systems and defining individual social benefit claims. A reform of In terms of its organisation, the new doctor- social protection schemes cannot be imple- al group will be guided and supervised in the mented successfully without analysing their same manner as the first group. Thus it, too, normative foundations. will meet regularly at intervals of initially two weeks, and then somewhat longer periods, In addition, social systems are subject to the for doctoral seminars attended also by Ulrich growing influence of internationalisation Becker and some of the fellows and staff of and globalisation. This leads not only to the Institute. In the course of this seminar, competition between basic economic par- the common foundations of the subject mat- ameters, but also between national social se- ter are to be elaborated, and each group curity systems. The configuration of these member is to outline the developmental systems and, in particular, their financing stages of his or her work. At the outset, a are increasingly taken as arguments for re- small closed meeting is to foster a concen- locating production facilities and generating trated discussion of the most important gen- employment. Whether in fact there are tar- eral issues and strengthen group cohesion. get conflicts between the maintenance and Apart from that, external doctorands not af- creation of social security, on the one hand, filiated with the Institute are to be invited to and the maintenance and creation of jobs, present work done at their home universities on the other, is not the point in question. on related subjects. An additional seminar is

55 REPORT 2004-2005

planned at the Institute. Moreover, the doc- 3. Doctorates torands’ renewed participation in an EISS workshop is scheduled for spring/summer 2007. Supervision: Quirin Vergho Bernd BARON VON MAYDELL Ludwig-Maximilians-Universität, Munich

2004: Roland KLEIN: „Das Verhältnis der Kollisionsnormen in der VO (EG) 1408/71 zum Internationalen Arbeitsrecht in EGBGB und EVÜ“.

Supervision: Ulrich BECKER University of Regensburg

2004: Markus SICHERT: „Die Grenzen der Revision des EU-Primärrechts“.

2004: Ulrich FEIERLEIN: „Klägerlegitima- tion und gewillkürte Prozessstandschaft im Verwaltungsprozess“.

2004: Hannah KREUZER: „Die Wirkung der Grundrechte im deutschen und italieni- schen Privatrecht – Eine rechtsvergleichende Untersuchung“.

56 IV. Events Organised by the Institute REPORT 2004-2005

1. Conferences and 28 June – 2 July 2004: Conference: “Grundfragen und Organisa- Workshops tion der Sozialversicherung im Rechtsver- gleich zwischen China und Deutschland” 3 June 2004: (Basic Issues and Organisation of Social In- Conference: “Grenzüberschreitende In- surance in a Juridical Comparison Between anspruchnahme von Krankenhausleistungen” Germany and China), Max Planck Institute (Cross-Border Medical Care in the Hospital for Foreign and International Social Law, Sector), Max Planck Institute for Foreign Munich, Ringberg Castle/Tegernsee. and International Social Law, Munich. Yongxian Gao Overview and current Arnold Schreiber Cross-border use of hos- problems of social insurance in China pital services from the point of view of the Georg Recht Overview and current prob- German Federal Ministry of Health and lems of pension insurance in Germany Social Security – possibilities and realities Franz Knieps Overview and current Günter Danner The cross-border use of problems of health insurance in Germany hospital services in practice in diverse EU Ingwer Ebsen Grundgesetz (German member states constitution) and social security Klaus Wambach Possibilities for economic Meixia Shi Constitution and social security activity on the part of hospitals, taking a Lutz Leisering Social policy learning and Nuremberg clinic as example dissemination of knowledge in a globalised Christopher Hermann Economic conse- world quences of the current ECJ case-law on the Yiyong Yang Problems relating to the freedom to provide services in respect of reception of models from the viewpoint of a inpatient hospital care developing country Ulrich Becker In-patient services vis-à-vis Hans Jürgen Rösner Transferability of social ambulant hospital services policy experience from industrialised Stefan Wöhrmann, Christof Maaßen countries to developing countries Statements Liejun Wang Commentary Christina Walser Qualitative prerequisites Jia Lin Comparative law and reception of governing the cross-border use of hospital law: significance for Chinese social security care services legislation Günter Danner, Sibylle Merk Statements Barbara Darimont State of discussion in Arnold Schreiber, Gerhard Knorr, Monika Germany on the reception of social security Kücking, Günter Danner, Klaus Wambach, law Christof Maaßen Final legal policy state- Quanxing Wang Discussion and definition ments by the participants on the necessary of the term “social law” in China legal framework for efficient EU-wide Bernd Baron von Maydell Discussion and access to hospital services. definition of the German term „Sozialrecht“ Zhichao Lin Commentary 15 June 2004: Yi Lin General presentation on social Workshop: “South African and German insurance organisation in present-day China Perspective on Social Security Law and Guanyi Dai Problems of social insurance Schemes”, CICLASS University of authorities in the P.R. China Johannesburg and Max Planck Institute for Helmut Platzer Conceptions and functions Foreign and International Social Law, of autonomous administration in Germany Munich. Gongcheng Zheng Autonomous administra- Nicola Smit South African Social Security tion: an alternative for the organisation and Law and Schemes administration of social insurance? Marius Olivier Social Security Framework Ulrich Becker Experiences and discussions of the SADC relating to autonomous administration in Friso Ross German Social Security Law and Germany Schemes Fangfang Yang Commentary Bernd Schulte Social Security Framework Ningning Ding Institutions organised under of the EU. private law as alternatives to the public organisation of individual pension insurance accounts?

58 IV. EVENTS ORGANISED BY THE INSTITUTE

Heinz-Dietrich Steinmeyer Discussion on 12 November 2004: institutions organised under private law in 1st Workshop: “Principles of Social Security German pension insurance Law in Europe”, Research Unit European Song Zhang Commentary Social Security of the Catholic University Otto Ernst Krasney Dispute settlement of Leuven and Max Planck Institute for under social law in Germany Foreign and International Social Law, Yanyuan Cheng Dispute settlement under Leuven, Belgium. social law in the P.R. China Friso Ross Underlying Principles of Social Yisheng Gong Commentary. Security Law in Europe: A project proposal Bernhard Zaglmayr Principles of Social 7 July 2004: Security Case Law in Europe. Discussion meeting: “Sozialrecht” (Social Law), Landessozialgericht München 18/19 November 2004: (Higher Social Court) and Max Planck German-Japanese symposium on social Institute for Foreign and International security law: “The Role of Private Actors in Social Law, Munich. Social Security”, Max Planck Institute for Friso Ross The jurisdiction of the social Foreign and International Social Law, and courts in Europe: a project outline. The Japan Cultural Institute, Cologne. I. German Employment Promotion 24 July 2004: Legal Aspects: Research colloquium on the occasion of the Hisaaki Fujikawa, Angelika Nußberger 70th birthday of Bernd Baron von Maydell: Economic Aspects: “Die Rahmenvorgaben des inter- und Kazutoshi Koshiro, Ulrich Walwei supranationalen Rechts für die aktuellen II. Pension Insurance Reformen im Arbeits- und Sozialrecht” Legal Aspects: (The Framework of International and Hiroya Nakakubo, Bernd v. Maydell Supranational Law Governing Current Economic Aspects: Reforms in Labour and Social Law), Max Noriyuki Takayama, Holger Viebrok Planck Institute for Foreign and III. Health and Long-Term Care Insurance International Social Law, Munich. Legal Aspects: Angelika Nußberger Introduction Kazuaki Tezuka, Ulrich Becker Ulrich Becker On current developments in Economic Aspects: EC social legislation and their effects on Katsuaki Matsumoto, Jürgen Wasem the reform discussion in Germany Winfried Schmähl EC enlargement to the 3/4 December 2004: east and the Open Method of Coordination Colloquium: “Steuer- und Sozialstaat im as a factor influencing retirement provision europäischen Systemwettbewerb” (The Tax in the EU and Social State in European Institutional Angelika Nußberger Securing the status quo Competition), Max Planck Institute for in international social (security) law and Intellectual Property, Competition and Tax current discussion over reforms and saving Law, and Max Planck Institute for Foreign measures and International Social Law, Munich. Heinz-Dietrich Steinmeyer The role of the I. Revenue Erosion Versus Expenditure Council of Europe in the social sphere, Explosion? considering policies for the disabled as an Ulrich Becker The social law perspective example Wolfgang Schön The tax law perspective Andreas Hänlein ILO standards and Kai A. Konrad Human capital formation, maternity benefits in Germany taxation and globalisation Winfried Boecken Protection against II. Effects of the Emerging European (unfair) dismissal: back to protecting vested Market Order rights Hanno Kube National tax law and EC state Jürgen Kruse Current issues on the reform aid law of the healthcare system. Wulf-Henning Roth Commentary Richard Giesen National social law and EC competition law Josef Drexl Commentary

59 REPORT 2004-2005

Christian Waldhoff Distinguishing between 16 February 2005: taxes and social security contributions Workshop: “Equality Through Law? under EC law Affirmative Action in Brazil and South III. Tax and Social Law in Respect of Africa”, Max Planck Institute for Foreign Cross-Border Issues and International Social Law, Munich. Michael Lang Double load and double Ingo Sarlet Affirmative action in Brazil exemption under tax law Ockert C. Dupper Affirmative action in Thorsten Kingreen Follow-up paper on South Africa. social law Jacob Joussen Social law problems in the 6 April 2005: posting of workers German-Japanese workshop: “Sozialrecht in Dietmar Wellisch Follow-up paper on tax der alternden Gesellschaft – Reformpolitik law in Japan und Deutschland” (Social Law in Hans F. Zacher Closing statement. an Aging Society – Reform Policies in Japan and Germany), Max Planck Institute for 4 – 6 Februar 2005: Foreign and International Social Law, and Workshop for Young Social Law Researchers, Federal Ministry of Health and Social Max Planck Institute for Foreign and Security (BMGS), Berlin. International Social Law, Munich. Katsuaki Matsumoto, Takeshi Tsuchida, Benno Quade Responsibility and solidarity Kenji Shimazaki, Franz Knieps under social security law in the United Health Insurance States and in Germany Katsuaki Matsumoto, Kenji Shimazaki, Claudia Matthäus Participation and damage Ulrich Becker Long-term care insurance minimisation under civil law and social law Katsuaki Matsumoto, Takeshi Tsuchida, Peter Wehner Compensation for non- Georg Recht Pension insurance. material damage in the case of occupational accidents and diseases 15 April 2005: Maria Grienberger-Zingerle Agreements Workshop: “Constitutional Litigation of under social law. A comparative law analysis Welfare Reform – Concepts and Outcomes of cooperative forms of action by labour in Israel and Germany”, Max Planck administrations in Germany and England Institute for Foreign and International Ingmar Schultze Contract structures in Social Law, Munich. labour administration Guy Mundlak Constitutional litigation of Judith Will Family promotion under social welfare reform in Israel law Markus Sichert Constitutional litigation of Martin Landauer State responsibility for welfare reform in Germany and its impact guaranteeing long-term care benefits on social policy and law-making Constanze Abig The Europeanisation of Bernd Schulte The legal guarantee of a social law “social minimum” in German Law and in an Dimitrios K. Kremalis Freedom of international perspective. movement for members of the medical profession in the EU. 5/6 September 2005: Workshop: “Social Security in Germany and 7 February 2005: Japan”, German-Japanese Joint Research on Workshop held by the “Steering Committee Social Security, Max Planck Institute for of German-Japanese Joint Research on Foreign and International Social Law, Social Security”, Max Planck Institute for Frauenchiemsee. Foreign and International Social Law, Munich.

60 IV. EVENTS ORGANISED BY THE INSTITUTE

28/29 October 2005: F. Ross The Swiss Occupational Pension Workshop: “Implementierung internationa- Scheme and its impact on the Swiss Old ler Sozialstandards und -rechte (IISR) – Age Pension System Bestandsaufnahme und Weiterentwicklung” J. Carby Hall Les modes de retraite (Implementation of International Social d’entreprise dans le système britannique Standards and Rights – Survey and Further Ph. Martin Portabilité des retraites Development), Max Planck Institute for professionnelles et mobilité salariale Foreign and International Social Law, F. Wismer La fiscalité des dispositifs Munich. français d’épargne d’entreprise Bernd von Maydell Introduction H.-J. Reinhard La fiscalité des dispositifs Eibe Riedel International Covenant on allemands d’épargne d’entreprise Economic, Social and Cultural Rights J.-P. Chauchard Synthèse des travaux. Jakob Schneider Commentary Rolf Birk European Social Charter 25/26 November 2005: Theo Öhlinger Commentary Conference: “Entwicklung der Sozialversi- Angelika Nußberger Conventions of the cherung in China und Deutschland” International Labour Organization and (Development of Social Insurance in China European Code of Social Security and Germany), Social Security Research Wolfgang Heller Commentary Centre of the People’s University, Beijing, Christoph Grabenwarter European Human and Max Planck Institute for Foreign and Rights Convention International Social Law, Beijing, China. Erika de Wet/Helen Keller Commentary Hong Yao Latest developments in health Ulrich Becker Social rights in the EU insurance in China Julia Iliopoulos-Strangas Commentary Ulrich Becker Latest developments in Andreas Blüthner Social standards of health and long-term care insurance in international finance institutions Germany Markus Sailer Influence of the IMF and the Kaiping Jiao Latest developments in World Bank. pension insurance in China Georg Recht Latest developments in 18/19 November 2005: pension insurance in Germany Colloquium: “Les retraites professionnelles Shunhua Sun Latest developments in d'entreprise en Europe” (Occupational Chinese accident insurance Pensions in Europe), Institut de l'Ouest: Joachim Breuer Latest developments in Droit et Europe/Université de Rennes I, German accident insurance and Max Planck Institute for Foreign and Junling Jia Latest developments in social International Social Law, Rennes, France. law jurisdiction in China O. Kaufmann La place des retraites Peter Udsching Latest developments in professionnelles d’entreprise dans la social law jurisdiction in Germany protection vieillesse Gongcheng Zheng Migration, mobility and S. Hennion-Moreau L’impact du droit social security in China communautaire sur les retraites Ulrich Becker Freedom of movement for professionnelles d’entreprise workers and social security in the EU J. M. Dupuis, C. El Moudden Les enjeux Shuguang Shen Organisation of social économiques des modes de retraite en insurance in China Europe Thorsten Kingreen Autonomous social E.-M. Hohnerlein L’égalité de traitement administration in Germany entre les hommes et les femmes Shangyuan Zheng The role of the family M. Le Barbier-Le Bris L’égalité de under social law in China traitement entre les hommes et les femmes Barbara Darimont The role of the family F. Muller Le régime professionnel dans la under social law in Germany Directive 2003/41 et les droits nationaux Jitong Liu Is the model of the Western M. Körner Promotion des retraites welfare state implementable in China? complémentaires facultatives en Allemagne Stephan Leibfried Bypasses for a “social M. Del Sol, J. Ferrion Les modes Europe”: lessons from the history of d’épargne-retraite en France Western federalism.

61 REPORT 2004-2005

7/8 December 2005: 19/20 December 2005: 2nd Workshop: “Principles of Social Expert workshop: “Activating Labour Security Law in Europe”, Research Unit Market Policies”, Institute for Employment European Social Security of the Catholic Research (IAB), Nuremberg, Institute for University of Leuven, and Max Planck the Study of Labor (IZA), Bonn, and Max Institute for Foreign and International Planck Institute for Foreign and Inter- Social Law, Leuven, Belgium. national Social Law, Lauf/Nuremberg. Jean Claude Barbier Keynote speech 13 December 2005: Benno Quade, Werner Eichhorst, Regina Presentation of the Japanese edition of Konle-Seidl Country Report Germany research papers on German social law by Otto Kaufmann, Jean Claude Barbier Hans F. Zacher (editor of the Japanese Country Report France version: Makoto Arai, Tsukuba University, Ockert C. Dupper, Christopher O’Leary Japan) “Sozialrecht in Deutschland” (Social Country Report USA Law in Germany), Max Planck Institute for Niels Ploug Country Report Denmark Foreign and International Social Law, Bernd Schulte, Dan Finn Country Report Munich. United Kingdom Ulrich Becker Introduction Markus Sichert, Els Sol, Harm van Lieshout Makoto Arai German social law in Japan Country Report Netherlands Bernd Baron von Maydell The research Maria Hemstroem Country Report Sweden activities of the Institute on German- Friso Ross Country Report Switzerland Japanese comparative social law Hans-Joachim Reinhard Country Report Hans F. Zacher Social law in Germany. Spain.

62 IV. EVENTS ORGANISED BY THE INSTITUTE

2. Guest Lectures 12 July 2004: Prof. Dr. Jürgen WASEM and Dr. Stefan 11 February 2004: GRESS, chair for medicine management, Dr. Katsuaki MATSUMOTO, National University of Duisburg-Essen: “Der Institute of Population and Social Security morbiditätsorientierte Risikostrukturaus- Research, Ministry of Health, Labour and gleich als Voraussetzung für die wettbe- Welfare, Tokyo, Japan: “Gesundheitsreform werbliche Weiterentwicklung der gesetz- in Japan”. lichen Krankenversicherung”.

8 March 2004: 14 July 2004: Prof. Dr. Kenichiro NISHIMURA, Faculty Prof. Dr. Terry CARNEY, University of of Integrated Human Studies, Kyoto Sidney, Australia: “Lessons from Australia´s University, Japan: “Neuere Entwicklungen Fully Privatised Labour Exchange Reform des japanischen Arbeitsunfallrechts”. (Job Network): From `rights´ to `management´”. 15 March 2004: Prof. Dr. Paul SCHOUKENS, Institute of 27 October 2004: Social Law, Catholic University of Prof. Dr. Ockert C. DUPPER, Stellenbosch Leuven/European Institute of Social University, South Africa: “Is there a right to Security, Leuven, Belgium: “Illegal migrant affirmative action in South Africa? Two workers and access to social protection”. opposing views”.

10 May 2004: 18 January 2005: Prof. Dr. Ockert C. DUPPER, Stellenbosch Dr. Clemens PROKOP, President of the University, South Africa: “Remedying the German Athletic Association (DLV), past or reshaping the future? Race-based Frankfurt/Main: “Aktuelle Rechtsfragen des affirmative action in the United States”. Dopings – Nachweis, Verfahrensfragen, Rechtsschutz”. 27 May 2004: Prof. Dr. Eberhard EICHENHOFER, 13 June 2005: School of Law, Social Law and Civil Law, Dr. Sara STENDAHL and Dr. Thomas Friedrich-Schiller-Universität in Jena: ERHAG, Department of Law, Göteborg “Eigentum — Verschulden — Vertrag: University, Sweden: “Are the different legal Privatrechtsbegriffe als Sozialrechts- strategies for `rehabilitation to work´ konstrukte”. comparable?”.

16 June 2004: 15 June 2005: Dr. Grant DUNCAN, School of Social and Prof. Dr. Rubén M. LO VUOLO, Cultural Studies, Massey University Albany, Academic Director Centro Interdisciplin- Auckland, New Zealand: “Social Security ario para el Estudio de Políticas Públicas and the Third Way in New Zealand: How (Ciepp), Buenos Aires, Argentina: “Social have third-way policies responded to the protection in Latin America: different legacy of neo-liberalism?”. approaches of managing social exclusion and their probable outcomes”. 6 July 2004: Prof. Dr. Robert F. RICH, College of Law, 28 June 2005: University of Illinois, Champaign, USA; Prof. Dr. Robert F. RICH, College of Law, Institute of Government and Public Affairs, University of Illinois, Champaign, USA; University of Illinois, Urbana, USA: “Legal Institute of Government and Public Affairs, and Political Challenges to Health Care University of Illinois, Urbana, USA: “Legal Reform in the United States and Germany”. and Policy Approaches to Health Care Cost Reduction”.

63 REPORT 2004-2005

13 July 2005: 6 December 2005: Prof. Dr. Ockert C. DUPPER, Stellenbosch Prof. Dr. Franz-Xaver KAUFMANN, University, South Africa: “Broad-based Faculty of Sociology, University of Bielefeld: black economic empowerment”. “Der Bevölkerungsrückgang als Problem- generator für alternde Gesellschaften”.

64 V. Publications REPORT 2004-2005

1. Publications by the Working Papers.

Institute Ed.: Max-Planck-Institut für ausländisches und internationales Sozialrecht. Studien aus dem Max-Planck-Institut Munich, 2005 – . für ausländisches und internationales Sozialrecht (Publication series by the Max - Vol. 1: The role of private actors in social Planck Institute for Foreign and Inter- security. München, 2005, 136 p. national Social Law). Ed.: Max-Planck-In- stitut für ausländisches und internationales Zeitschrift für ausländisches und Sozialrecht. Baden-Baden, 1984 – . internationales Arbeits- und Sozial- recht (ZIAS) (Journal for foreign and - Vol. 32: Darimont, Barbara: international labour and social law). Sozialversicherungsrecht der V. R. China. Ed.: Max-Planck-Institut für ausländisches, Baden-Baden, 2004. and internationales Sozialrecht und Institut für Arbeitsrecht und Arbeitsbeziehungen in - Vol. 33: Becker, Ulrich; Graser, der Europäischen Gemeinschaft. Alexander (eds.): Perspektiven der Heidelberg, 1987 – . schulischen Integration von Kindern mit Vol. 18. Iss. 1-4. 2004, 434 p. Behinderung. Baden-Baden, 2004. Vol. 19. Iss. 1-4. 2005, 426 p.

- Vol. 34: Becker, Ulrich; Schlachter, Max-Planck-Institut für ausländisches Monika; Igl, Gerhard (eds.): Funktion und internationales Sozialrecht. und rechtliche Ausgestaltung zusätzlicher Kernarbeitsnormen in Verträgen der Alterssicherung. Baden-Baden, 2005. Entwicklungszusammenarbeit. Eschborn, 2004. - Vol. 35: Becker, Ulrich; Boecken, Winfried; Nußberger, Angelika; Steinmeyer, Heinz-Dietrich (eds.): Reformen des deutschen Sozial- und Arbeitsrechts im Lichte supra- und internationaler Vorgaben. Baden-Baden, 2005.

- Vol. 36: Becker, Ulrich; Zheng, Gongcheng; Darimont, Barbara (eds.): Grundfragen und Organisation der Sozialversicherung in China und Deutschland. Baden-Baden, 2005.

66 V. PUBLICATIONS

2. Publications by the Becker, Ulrich: Private und betriebliche Altersvorsorge zwischen Sicherheit und Institute Staff Selbstverantwortung. In: Juristenzeitung (JZ) 59 (2004) 17, pp. 846-855. – B – Becker, Ulrich: Rs. C-138/02 Brian Francis Becker, Ulrich: Avrupa’nın Sosyal Collins ./. Secretary of State for Work and Politikası. In: Alpay Hekimler (ed.), AB Pensions. Anmerkung zum Urteil des – Türkiye & endüstri ilis¸kileri (EU – Turkey EuGH vom 23.3.2004. In: Zeitschrift für and industrial relations). Istanbul, 2004, europäisches Sozial- und Arbeitsrecht pp. 29-44. (ZESAR) 3 (2004) 11/12, pp. 496-498.

Becker, Ulrich: Der Finanzausgleich in der Becker, Ulrich: Selbstbindung des Gesetz- gesetzlichen Unfallversicherung. Baden- gebers im Sozialrecht. In: Matthias von Baden, 2004. Wulffen (ed.), Festschrift 50 Jahre Bundes- sozialgericht. Cologne, 2004, pp. 77-96. Becker, Ulrich: Die alternde Gesellschaft. In: Juristenzeitung (JZ) 59 (2004) 19, pp. Becker, Ulrich: The challenge of migration 929-938. to the welfare state. In: Eyal Benvenisti / Georg Nolte (eds.), The welfare state, Becker, Ulrich: Die soziale Dimension des globalisation and international law. Berlin, Binnenmarktes. In: Jürgen Schwarze (ed.), 2004, pp. 1-31. Der Verfassungsentwurf des Europäischen Konvents. Baden-Baden, 2004, Becker, Ulrich: Arbeitnehmerfreizügigkeit pp. 201-219. – § 9. In: Dirk Ehlers (ed.), Europäische Grundrechte und Grundfreiheiten. 2nd. ed. Becker, Ulrich: Einführung. Berlin, 2005, pp. 257-283. In: Ulrich Becker / Alexander Graser (eds.), Perspektiven der schulischen Integration Becker, Ulrich: Artikel 16a GG. von Kindern mit Behinderung. In: Christian Starck (ed.), Kommentar zum Baden-Baden, 2004, pp. 9-14. Grundgesetz. 5th fully rev. ed. Munich, 2005, pp. 1541-1645. Becker, Ulrich: Generationengerechtigkeit als juristisches Problem. In: Verband Becker, Ulrich: Artikel 16 GG. Deutscher Rentenversicherungsträger (ed.), In: Christian Starck (ed.), Kommentar zum Generationengerechtigkeit - Inhalt, Bedeu- Grundgesetz. 5th fully rev. ed. Munich, tung und Konsequenzen für die Alterssiche- 2005, pp. 1487-1540. rung. Frankfurt am Main, 2004, pp. 56-64. Becker, Ulrich: Das Gemeinschaftsrecht, Becker, Ulrich: Grenzüberschreitende die deutschen Sozialleistungssysteme und Versicherungsleistungen in der Kranken- die Debatten um deren Reform. In: Ulrich versicherung. In: Jürgen Basedow / Ulrich Becker / Winfried Boecken / Angelika Meyer / Dieter Rückle / Hans-Peter Nußberger / Heinz-Dietrich Steinmeyer Schwintowski (eds.), Lebensversicherung (eds.), Reformen des deutschen Sozial- und – betriebliche Altersversorgung, VVG-Re- Arbeitsrechts im Lichte supra- und inter- form, grenzüberschreitende Versicherungs- nationaler Vorgaben. Baden-Baden, 2005, leistungen in der Krankenversicherung, der pp. 15-32. Handel mit gebrauchten Versicherungspoli- cen. Baden-Baden, 2004, pp. 171-188. Becker, Ulrich: Deguo shehui baoxian de zizhuquan (Germany’s social security self- Becker, Ulrich: Lockerung des Mehr- und administration system). In: Shehui Fremdbesitzverbots von Apotheken im baozhang yanjiu (Social security studies) Lichte des Grundgesetzes und der Grund- (2005) 1, pp. 56-67. freiheiten des EG-Vertrags. In: Elmar Mand (ed.), Neuregelung des Apothekenrechts. Frankfurt am Main, 2004, pp. 48-65.

67 REPORT 2004-2005

Becker, Ulrich: Die Harmonisierung der Becker, Ulrich: Verfassungsrechtlicher Pensionssysteme in Österreich – Quadratur Schutz rentenrechtlicher Positionen. des Kreises? In: Benjamin Kneihs (ed.), In: Landesversicherungsanstalt Oberfranken Wirtschaftssteuerung durch Sozialversiche- und Mittelfranken (ed.), LVA-Mitteilungen rungsrecht? Vienna, 2005, pp. 222-245. 47 (2005) 5, pp. 228-240.

Becker, Ulrich: Die Regelungen des GMG Becker, Ulrich; Boecken, Winfried; zu dem Verhältnis von privater und gesetz- Nußberger, Angelika; Steinmeyer, Heinz- licher Krankenversicherung in nationaler Dietrich (eds.): Reformen des deutschen und europarechtlicher Perspektive. Sozial- und Arbeitsrechts im Lichte supra- In: Institut der Deutschen Zahnärzte (ed.), und internationaler Vorgaben. IDZ-Information (2005) 1, pp. 32-43. Baden-Baden, 2005.

Becker, Ulrich: Gemeinschaftsrechtliche Becker, Ulrich; Darimont, Barbara: Deguo Vorgaben für die Leistungserbringung im shehui baozhang zhidu zuixin gaige (Most Bereich der Sozial-, Kinder- und Jugendhil- recent reforms in the German social fe. In: Archiv für Wissenschaft und Praxis security systems). In: Shehui baozhang der sozialen Arbeit 36 (2005) 3, pp. 20-32. yanjiu (Social security studies) (2005) 2, pp. 41-51. Becker, Ulrich: Generalbericht unter besonderer Berücksichtigung der Rechts- Becker, Ulrich; Darimont, Barbara (eds.): lage in Deutschland. In: Monika Schlachter Shehui baozhang yanjiu (Social security / Ulrich Becker / Gerhard Igl (eds.), studies). H. 1, 2005. Beijing, 2005. Funktion und rechtliche Ausgestaltung zusätzlicher Alterssicherung. Baden-Baden, Becker, Ulrich; Darimont, Barbara; 2005, pp. 107-145. Hekimler, Alpay: Alman Sosyal Güvenlik Sisteminde Son Reformlar (Most recent Becker, Ulrich: German health and long- reforms in the German social security sys- term care insurance. In: Max-Planck- tems). In: Mercek (2005) 10, pp. 139-146. Institut für ausländisches und internationales Sozialrecht ‹München› (ed.), The role of Becker, Ulrich; Graser, Alexander (eds.): private actors in social security. Munich, Perspektiven der schulischen Integration 2005, pp. 3-18. von Kindern mit Behinderung. Baden-Baden, 2004. Becker, Ulrich: Lockerung des Mehr- und Fremdbesitzverbots von Apotheken im Becker, Ulrich; Heckmann, Dirk; Lichte des Grundgesetzes und der Grund- Kempen, Bernhard; Manssen, Gerrit: freiheiten des EG-Vertrags. In: Apotheke & Öffentliches Recht in Bayern. 3rd ed. Recht (ApoR) 8 (2005) 2, pp. 37-45. Munich, 2005.

Becker, Ulrich: Nationale Sozialleistungs- Becker, Ulrich; Landauer, Martin: systeme im europäischen Systemwettbe- Beschäftigungs- und bildungspolitische werb. In: Ulrich Becker / Wolfgang Schön Gehalte der EU-Einwanderungspolitik. In: (eds.), Steuer- und Sozialstaat im europä- Recht der Jugend und des Bildungswesens ischen Systemwettbewerb. Tübingen, 2005, (RdJB) 52 (2004) 1, pp. 91-107. pp. 3-39. Becker, Ulrich; Matthäus, Claudia: Becker, Ulrich: Soziale Selbstverwaltung in Rehabilitation in der Europäischen Union. Deutschland. In: Ulrich Becker / In: Deutsche Rentenversicherung 50 Gongcheng Zheng / Barbara Darimont (2004) 11/12, pp. 659-678. (eds.), Grundfragen und Organisation der Sozialversicherung in China und Becker, Ulrich; Schlachter, Monika; Igl, Deutschland. Baden-Baden, 2005, Gerhard (eds.): Funktion und rechtliche pp. 225-243. Ausgestaltung zusätzlicher Alterssicherung. Baden-Baden, 2005.

68 V. PUBLICATIONS

Becker, Ulrich; Schön, Wolfgang (eds.): Darimont, Barbara; Becker, Ulrich: Deguo Steuer- und Sozialstaat im europäischen shehui baozhang zhidu zuixin gaige (Most Systemwettbewerb. Tübingen, 2005. recent reforms in the German social security systems). In: Shehui baozhang Becker, Ulrich; Seewald, Otfried: Fälle yanjiu (Social security studies) (2005) 2, zum Sozialrecht. Munich, 2004. pp. 41-51.

Becker, Ulrich; Sichert, Markus: Hartz IV Darimont, Barbara; Becker, Ulrich (eds.): in Diensten des Sports. In: SpuRt 12 Shehui baozhang yanjiu (Social security (2005) 5, pp. 187-191. studies). H. 1, 2005. Beijing, 2005.

Becker, Ulrich; Walser, Christina: Darimont, Barbara; Becker, Ulrich; Stationäre und ambulante Krankenhaus- Hekimler, Alpay: Alman Sosyal Güvenlik leistungen im grenzüberschreitenden Sisteminde Son Reformlar (Most recent Dienstleistungsverkehr. In: Neue Zeitschrift reforms in the German social security für Sozialrecht (NZS) 14 (2005) 9, systems). In: Mercek (2005) 10, pp. 449-456. pp. 139-146.

Becker, Ulrich; Zheng, Gongcheng; Darimont, Barbara; Becker, Ulrich; Darimont, Barbara (eds.): Grundfragen Zheng, Gongcheng (eds.): Grundfragen und Organisation der Sozialversicherung in und Organisation der Sozialversicherung in China und Deutschland. Baden-Baden, China und Deutschland. Baden-Baden, 2005. 2005.

Darimont, Barbara; Cheng, Yanyuan: – C – Deguo shehui baozhang zhengyi chuli (Settlement of disputes in the German Cheng, Yanyuan: The development of social security systems). In: Shehui labour disputes and the regulation of baozhang zhidu (Social security system) industrial relations in China. In: The (2004) 5, pp. 58-60. international journal of comparative labour law and industrial relations 20 (2004) 2, Darimont, Barbara; Cheng, Yanyuan: pp. 277-295. Deguo shehui baozhang zhengyi chuli (Settlement of disputes in the German social security systems). In: Zhongguo – D – shehui baozhang (China social security) (2004) 3, pp. 24-25. Darimont, Barbara: Antworten aus Beijing. In: Kristin Kupfer (ed.), Sozialer Spreng- Darimont, Barbara; Cheng, Yanyuan: stoff in China?. Essen, 2004, pp. 67-78. Deguo shehui baozhang zhengyi chuli (Settlement of disputes in the German Darimont, Barbara: Sozialversicherungs- social security systems). In: Journal of recht der V. R. China. Baden-Baden, 2004. Beijing Administrative College 36 (2005) 2, pp. 55-59. Darimont, Barbara: Alterssicherung in China auf dem Hintergrund konfuzianischer Darimont, Barbara; Cheng, Yanyuan: und marxistischer Lebensvorstellungen. Occupational accident insurance reform China Analysis No. 48 (July 2005). and legislation in China. In: International social security review 58 (2005) 1, Darimont, Barbara: Rezeption und die pp. 85-97. Bedeutung für das deutsche Sozialrecht. In: Ulrich Becker / Gongcheng Zheng / Darimont, Barbara; Cheng, Yanyuan: Barbara Darimont (eds.), Grundfragen und Reform und Gesetzgebung der chinesi- Organisation der Sozialversicherung in schen Arbeitsunfallversicherung. China und Deutschland. Baden-Baden, In: Internationale Revue für soziale Sicher- 2005, pp. 127-137. heit 58 (2005) 1, pp. 107-122.

69 REPORT 2004-2005

Dupper, Ockert: In defence of affirmative Graser, Alexander: Integration aus action in South Africa. In: The South Afri- rechtlicher Perspektive. In: Ulrich Becker / can law journal 121 (2004) 1, pp. 187–215. Alexander Graser (eds.), Perspektiven der schulischen Integration von Kindern mit Dupper, Ockert: The current legislative Behinderung. Baden-Baden, 2004, framework. In: Elize Strydom (ed.), pp. 63-92. Essential employment discrimination law. Lansdowne, 2004, pp. 15-30. Graser, Alexander: „Kündigungsschutz wird überbewertet“. In: Max-Planck-Forschung Dupper, Ockert: The Employment Equity (2004) 3, pp. 54-57. Act in context. In: Elize Strydom (ed.), Essential employment discrimination law. Graser, Alexander: Sozialrecht ohne Staat? Lansdowne, 2004, pp. 1-14. In: Adrienne Héritier (ed.), European and international regulation after the nation Dupper, Ockert: Remedying the past or state. Baden-Baden, 2004, pp. 163-184. reshaping the future? In: The international journal of comparative labour law and Graser, Alexander; Becker, Ulrich (eds.): industrial relations 21 (2005), pp. 89-130. Perspektiven der schulischen Integration von Kindern mit Behinderung. Dupper, Ockert; Garbers, Christoph: Baden-Baden, 2004. Affirmative action. In: Elize Strydom (ed.), Essential employment discrimination law. Graser, Alexander; Richter, Cornelia: Lansdowne, 2004, pp. 258-286. Diskussionsbericht zu Teil III „Steuer- und Sozialrecht in der Grenzüberschreitung“. Dupper, Ockert; Garbers, Christoph: In: Ulrich Becker / Wolfgang Schön (eds.), Justifying discrimination. In: Elize Strydom Steuer- und Sozialstaat im europäischen (ed.), Essential employment discrimination Systemwettbewerb. Tübingen, 2005, law. Lansdowne, 2004, pp. 66-96. pp. 285-288.

Dupper, Ockert; Garbers, Christoph: The prohibition of unfair discrimination. In: – H – Elize Strydom (ed.), Essential employment discrimination law. Lansdowne, 2004, Hekimler, Alpay (ed.): AB – Türkiye & pp. 31-65. endüstri ilis¸kileri (EU – Turkey and industrial relations). Istanbul, 2004. Dupper, Ockert; Garbers, Christoph; Landman, Adolph; Christianson, Marylyn; Hohnerlein, Eva-Maria: Deutsch- Basson, Annali: Essential employment brasilianische Adoptionsfälle. In: Gisela discrimination law. Lansdowne, 2004. Puschmann (ed.), Familien- und Erbrecht in Deutschland und Brasilien. Aachen, Dupper, Ockert; McEwan, Martin; Louw, 2004, pp. 190-224. André: Employment equity in the higher education sector. Stellenbosch, 2005. Hohnerlein, Eva-Maria: Rs. C-99/02 Kommission der Europäischen Gemein- schaften ./. Italienische Republik. – G – In: Zeitschrift für europäisches Sozial- und Arbeitsrecht (ZESAR) 3 (2004) 11/12, Graser, Alexander: “Dismissal protection is pp. 483-489. overrated”. In: Max Planck Research (2004) 4, pp. 54-57. Hohnerlein, Eva-Maria; Mesa-Lago, Carmelo: Rentenreformen im Vergleich. In: Graser, Alexander: Grenzenlose Solidarität? Barbara Fritz / Katja Hujo (eds.), Ökonomie In: Rechtsgeschichte (RG) 3 (2004) 5, unter den Bedingungen Lateinamerikas. pp. 29-34. Frankfurt/M., 2005, pp. 189-212.

70 V. PUBLICATIONS

– K – Kaufmann, Otto: Evaluation des réformes et perspectives dans le domaine des Kaufmann, Otto: Die aktuelle Reform der pensions. In: Institut de la Protection Alterssicherung in Frankreich 2004. In: Die Sociale Européenne ‹Paris› (ed.), Efficience Angestelltenversicherung (DAngVers) 51 des réformes de la protection sociale. Paris, (2004) 2, pp. 63-73. 2005, pp. 86-89.

Kaufmann, Otto: Die französische Alters- Kaufmann, Otto: Krankenversicherung in sicherung nach der Reform. In: Zeitschrift Frankreich. In: Zeitschrift für Sozialhilfe für Sozialhilfe und Sozialgesetzbuch und Sozialgesetzbuch (ZFSH/SGB) 45 (ZfSH/SGB) 43 (2004) 5, pp. 266-279. (2005) 9, pp. 515-531.

Kaufmann, Otto: Die Reform der Alters- Kaufmann, Otto: La jurisprudence relative sicherung in Frankreich. In: Das Recht der à l’assurance maladie et le droit de la Arbeit (DRdA) 54 (2004) 2, pp. 194-199. concurrence. In: Social-law.net (2005).

Kaufmann, Otto: Droit communautaire du Kaufmann, Otto: La sortie du travail des travail et de la protection sociale. In: Le travailleurs salariés âgés en Allemagne. Dalloz 180 (2004) 7, pp. 439-442. In: Dialogue social. 2005.

Kaufmann, Otto: La législation applicable Kaufmann, Otto: Le code civil et le droit en matière de sécurité sociale. In: Social- social. In: Dragutin Ledic´ (ed.), Zbornik law.net (2004). radova (Recueil des travaux). Rijeka, 2005, pp. 25-35. Kaufmann, Otto: La notion de sécurité sociale au niveau international et Kaufmann, Otto: Protection sociale communautaire. In: Social-law.net (2004). d’entreprise. In: La semaine juridique entreprise et affaires (2005) 43, Kaufmann, Otto: Le droit international de pp. 1829-1830. la sécurité sociale. In: Social-law.net (2004). Kaufmann, Otto: Référendum. In: www.euroipse.net (2005). Kaufmann, Otto: Le droit social comparé. In: Electronic journal of comparative law Kaufmann, Otto: The age of retirement (EJCL) 8 (2004) 1. and the protection of older workers in Germany. In: Institut de la Protection Kaufmann, Otto: L’histoire de l’assurance Sociale Européenne (ed.), sociale allemande. In: Social-law.net Folio (2005) 40. p. 6. (2004). Kaufmann, Otto; Köhler, Peter A.: Alters- Kaufmann, Otto: Protection sociale sicherung im europäischen Kontext. In: Die d’entreprise. In: La semaine juridique Angestelltenversicherung (DAngVers) 51 entreprise et affaires (2004) 47, (2004) 7, pp. 281-291. pp. 1833-1834. Kaufmann, Otto; Badel, Maryse; Laborde, Kaufmann, Otto: Wörterbuch Arbeits- und Jean-Pierre; Lafore, Robert; Martin , Sozialrecht (Dictionnaire de droit du travail Philippe (cooperators): Le risque vieillesse et de droit de la sécurité sociale. Français - en Europe: quels droits, quelles allemand, allemand - français). Munich, protections? Paris, 2005. 2004. Klein, Roland: Das Verhältnis der Kaufmann, Otto: Âge de la retraite et Kollisionsnormen in der VO (EG) 1408/71 protection du travailleur âgé en Allemagne. zum internationalen Arbeitsrecht in In: Institut de la Protection Sociale EGBGB und EVÜ. 2005. Européenne (ed.), Folio (2005) 40, p. 5.

71 REPORT 2004-2005

Knecht, Matthias H.: Die Charta der Matthäus, Claudia; Becker, Ulrich: Grundrechte der Europäischen Union. Rehabilitation in der Europäischen Union. Stuttgart, 2005. In: Deutsche Rentenversicherung 50 (2004) 11/12, pp. 659-678. Köhler, Peter A.: Internationale Sozial- politik. In: Geschichte der Sozialpolitik in von Maydell, Bernd: Die Abnahme von Deutschland seit 1945. Vol. 8. Kindern und die Überalterung und die Baden-Baden, 2004, pp. 777-797. Rentenversicherung in Deutschland. In: Vierteljahresschrift für Arbeitsrecht (2004) Köhler, Peter A.: Schweden 2004 - die 205, pp. 130-137. Fortschreibung der Reform. In: Betriebliche Altersversorgung (BetrAV) 59 (2004) 3, von Maydell, Bernd: Rechtsstaatliche pp. 247-252. Voraussetzungen einer Rationierung von Gesundheitsleistungen. In: Peter Albrecht Köhler, Peter A.: Schweden 2004 – die (ed.), Risikoforschung und Versicherung. Fortschreibung der Reform. In: Die Karlsruhe, 2004, pp. 353-365. Angestelltenversicherung (DAngVers) 51 (2004) 3, pp. 135-141. von Maydell, Bernd: Abgrenzung der Zuständigkeiten zwischen gesetzlicher und Köhler, Peter A.: Staatliche Souveränität privater Krankenversicherung unter und Schutz der Arbeitsmigranten. In: besonderer Berücksichtigung des europä- Vereinte Nationen 52 (2004) 3, pp. 83-88. ischen Gemeinschaftsrechts. In: Helge Sodan (ed.), Krankenkassenreform und Köhler, Peter A.: Funktion und rechtliche Wettbewerb. Berlin, 2005, pp. 67-77. Ausgestaltung der Zusatzversicherungssys- teme bei der Reform der Alterssicherungs- von Maydell, Bernd: A new perspective on systeme. In: Monika Schlachter / Ulrich European social policy. In: Europäische Becker / Gerhard Igl (eds.), Funktion und Akademie zur Erforschung von Folgen Wis- rechtliche Ausgestaltung zusätzlicher Alters- senschaftlich-Technischer Entwicklungen sicherung. Baden-Baden, 2005, pp. 85-105. (ed.), Newsletter (2005) 59, pp.1-2.

Köhler, Peter A.; Kaufmann, Otto: von Maydell, Bernd: Degue shehui Alterssicherung im europäischen Kontext. (baozhang) fai dingyi, neirong he jieding In: Die Angestelltenversicherung (Social (security) law in Germany: (DAngVers) 51 (2004) 7, pp. 281-291. definition, content, delineation). In: Shehui baozhang yanjiu (Social security studies) (2005) 2, pp. 86-93. – L – von Maydell, Bernd: Der Begriff des Landauer, Martin; Becker, Ulrich: Sozialrechts in Deutschland. In: Ulrich Beschäftigungs- und bildungspolitische Becker / Gongcheng Zheng / Barbara Gehalte der EU-Einwanderungspolitik. In: Darimont (eds.), Grundfragen und Recht der Jugend und des Bildungswesens Organisation der Sozialversicherung in (RdJB) 52 (2004) 1, pp. 91-107. China und Deutschland. Baden-Baden, 2005, pp. 167-179.

– M – von Maydell, Bernd: Doitsu-Ho ni taisuru Yoroppa-Ho oyobi Kokusai-Ho no Eikyo Matthäus, Claudia: Grenzüberschreitende (The influence of European and inter- Inanspruchnahme von Krankenhaus- national law on German social (security) leistungen. In: Zeitschrift für europäisches law). In: Journal of social security law Sozial- und Arbeitsrecht (ZESAR) 3 (2004) (2005) 20, pp. 101-113. 9, pp. 388-390.

72 V. PUBLICATIONS

von Maydell, Bernd: German old-age Mpedi, Letlhokwa George: Charity begins pension insurance. In: Max-Planck-Institut – but does not end – at home. In: Obiter für ausländisches und internationales 26 (2005) 1, pp. 173-186. Sozialrecht ‹München› (ed.), The role of private actors in social security. Munich, Mpedi, Letlhokwa George; Kuppan, G. Y.: 2005, pp. 97-112. Social assistance and legal aid. In: Marius P. Olivier (ed.), Introduction to social von Maydell, Bernd: Gesetzliche und security. Durban, 2004, pp. 221-232. private Krankenversicherung. In: Alfred Söllner (ed.), Gedächtnisschrift für Mpedi, Letlhokwa George; Olivier, Marius Meinhard Heinze. Munich, 2005, P.: The extension of social protection to pp. 585-595. non-formal sector workers. In: Zeitschrift für ausländisches und internationales von Maydell, Bernd: Herausforderungen Arbeits- und Sozialrecht (ZIAS) 19 (2005) für die Altersvorsorge im 21. Jahrhundert. 2, pp. 144-178. In: Münsterische Sozialrechtsvereinigung (ed.), 10. Münsterische Sozialrechtstagung. Mpedi, Letlhokwa George; Olivier, Marius Karlsruhe, 2005, pp. 1-14. P.; van Rensburg, L. Jansen: Adjudication and enforcement of social security. In: von Maydell, Bernd: Kaigo to Shitsu no Marius P. Olivier (ed.), Introduction to Kakuho (quality assurance of long-term social security. Durban, 2004, pp. 503-528. care). In: Kaigohoken-Tenkanki (long-term care insurance at the crossroads). Tokyo, Mpedi, Letlhokwa George; Smit, Nicola; 2005, pp. 17-24. Klinck, Elsabe: Health care in South Africa. In: Marius P. Olivier (ed.), von Maydell, Bernd: Rationierung in Introduction to social security. Durban, unterschiedlichen Gesundheitssystemen. 2004, pp. 233-252. In: ArztRecht (ArztR) 40 (2005) 4, pp. 88-92. – Q – von Maydell, Bernd: Relevance of international social security standards in the Quade, Benno: Auftakt zum Austausch mit South-Eastern Mediterranean countries. In: China. In: Max-Planck Intern (2004) 3, Social security: a factor of social cohesion. p. 17. Strasbourg, 2005, pp. 49-55. Quade, Benno: Deutsch-Chinesische von Maydell, Bernd: Sozial- und Gesund- Konferenz „Grundfragen und Organisation heitspolitik in Europa. In: Gesellschaft für der Sozialversicherung im Rechtsvergleich Versicherungswissenschaft und -gestaltung zwischen China und Deutschland“. In: (ed.), Informationsdienst (2005) 308, Ulrich Becker / Gongcheng Zheng / Barbara pp. 5-6. Darimont (eds.), Grundfragen und Organi- sation der Sozialversicherung in China und Mpedi, Letlhokwa George: Administration Deutschland. Baden-Baden, 2005, and institutional framework. In: Marius P. pp. 309-319. Olivier (ed.), Introduction to social security. Durban, 2004, pp. 55-68. Quade, Benno: Deutsch-Chinesische Konferenz „Grundfragen und Organisation Mpedi, Letlhokwa George: HIV/Aids in der Sozialversicherung im Rechtsvergleich South Africa. In: Zeitschrift für ausländi- zwischen China und Deutschland“. In: sches und internationales Arbeits- und So- Zeitschrift für Chinesisches Recht zialrecht (ZIAS) 18 (2004) 3, pp. 243-270. (ZChinR) 12 (2005) 1, pp. 64-66.

Mpedi, Letlhokwa George: Indirect social security. In: Marius P. Olivier (ed.), Introduction to social security. Durban, 2004, pp. 101-116.

73 REPORT 2004-2005

– R – Schulte, Bernd: Auswirkungen eines Grundrentensystems auf die internationale Reinhard, Hans Joachim: A previdência Sozialpolitik. In: Michael Opielka (ed.), social pública e privada, as suas inter- Grundrente in Deutschland. Wiesbaden, relações e o seu custeio. In: Revista 2004, pp. 227-265. internacional de direito tributário (2004) 2, pp. 29-33. Schulte, Bernd: Binnenmarkt und „Daseinsvorsorge“ aus rechtlicher Sicht. In: Reinhard, Hans-Joachim: Consumer Soziale Dienste und Wettbewerb in Europa. protection through EU-directive. In: The Frankfurt am Main, 2004, pp. 45-50. European legal forum 4 (2004) 2, pp. 85-90. Schulte, Bernd: Binnenmarkt und „Soziale Reinhard, Hans-Joachim: Rs. C-342/01 Daseinsvorsorge“ aus rechtlicher Sicht. In: María Paz Merino Gómez ./. Continental Theorie und Praxis der Sozialen Arbeit Industrias del Caucho SA. Anmerkung zum (TUP) 55 (2004) 6, pp. 54-59. Urteil des EuGH vom 18.3.2004. In: Zeit- schrift für europäisches Sozial- und Arbeits- Schulte, Bernd: Das Sozialrecht in der recht (ZESAR) 3 (2004) 7, pp. 299-301. Rechtsprechung des Europäischen Gerichtshofs in den Jahren 2002 und 2003. Reinhard, Hans-Joachim: Verbraucher- In: Wolfgang Gitter / Georg Wannagat schutz durch EU-Richtlinien. In: The Euro- (eds.), Jahrbuch des Sozialrechts. Vol. 26. pean legal forum 4 (2004) 2, pp. 86-91. Berlin, 2005, pp. 573-608.

Reinhard, Hans-Joachim: Competencias Schulte, Bernd: Die Entwicklung der estatales y autonómicas en matería de Sozialpolitik der Europäischen Union und Seguridad Social. In : Los retos de la ihr Beitrag zur Konstituierung des europä- Seguridad Social. Madrid, 2005, ischen Sozialmodells. In: Hartmut Kaelble pp. 227-240. (ed.), Das europäische Sozialmodell. Berlin, 2004, pp. 75-103. Reinhard, Hans-Joachim; Kruse, Jürgen; Winkler, Jürgen: SGB II. Munich, 2005. Schulte, Bernd: Die Entwicklung der Sozialpolitik der Europäischen Union unter Ross, Friso: Arbeit am Wissen. In: Peter besonderer Berücksichtigung der Beschäfti- Collin / Thomas Horstmann (eds.), Das gungspolitik. In: Ulrich Steinvorth / Gerd Wissen des Staates. Baden-Baden, 2004, Brudermüller (eds.), Arbeitslosigkeit und pp. 175-192. die Möglichkeiten ihrer Überwindung. Würzburg, 2004, pp.129-151.

– S – Schulte, Bernd: Die Europäische Verfassung aus Sicht der Kinder- und Schulte, Bernd: Defending and enforcing Jugendhilfe. In: FORUM Jugendhilfe rights to social protection. Geneva, 2004. (2004) 4, pp. 5-13.

Schulte, Bernd: A German view on the Schulte, Bernd: Die Umsetzung der background of recent developments in Verordnung 1408/71. In: Ireland / German social security legislation. In: Rose Department of Social and Family Affairs Langer (ed.), Co-ordinating work-based and (ed.), „Koordination der sozialen Sicherheit residence-based social security. Helsinki, in einem erweiterten Europa – heute und 2004, pp. 93-130. morgen“. Dublin, 2004, pp. 18–30.

Schulte, Bernd: Ausländische gesetzlich Schulte, Bernd: Implementation of bzw. staatlich krankenversicherte Patienten Regulation 1408/71. In: Ireland / als Zielgruppe deutscher Krankenhäuser. Department of Social and Family Affairs In: Günther E. Braun (ed.), Ausländische (ed.), Co-ordination of social security in an Patienten für deutsche Krankenhäuser enlarged Europe. Dublin, 2004, pp. 18–29. gewinnen. Munich, 2004, pp. 71-87.

74 V. PUBLICATIONS

Schulte, Bernd: Rechtliche, institutionelle Schulte, Bernd: Die internationalen und infrastrukturelle Bedingungen für die Aktivitäten des Deutschen Vereins. In: Weiterentwicklung der Altenhilfestrukturen Deutscher Verein für öffentliche und in international vergleichender Sicht. In: private Fürsorge (ed.), Forum für Sozial- Senioren Deutschland / Bundesministerium reformen. Berlin, 2005, pp. 541-579. für Familie / Frauen und Jugend (eds.), Altenhilfestrukturen der Zukunft. Bonn, Schulte, Bernd: Die „offene Methode der 2004, pp. 224-252. Koordinierung“ (OMK) als politische Strategie in der europäischen Sozialpolitik. Schulte, Bernd: Soziale Daseinsvorsorge In: Sozialer Fortschritt 54 (2005) 5/6, und das Europäische Wettbewerbsrecht. In: pp. 105-113. Dieter Kreft (ed.), Fortschritt durch Recht. Munich, 2004, pp. 414-428. Schulte, Bernd: Die Sozialgesetzgebung in den neuen EU-Mitgliedsstaaten. In: Jutta Schulte, Bernd: The open method of co- Braun-von der Brelie (ed.), Der soziale ordination as a political strategy in the field Dialog in Mitteleuropa. Berlin-Mitte, 2005, of immigrant integration policy. In: Rita pp. 16-22. Süssmuth / Werner Weidenfeld (eds.), Managing integration. Gütersloh, 2004, Schulte, Bernd: Die Sozialwirtschaft als pp. 137-145 (CD-ROM, P. 5.3). europäischer Marktplatz. In: Benchmarking – politische und betriebliche Implikationen Schulte, Bernd: Verteidigung und Stärkung aus Benchmarkingprozessen. Mainz, 2005, der Rechte auf Sozialschutz. Geneva, 2004. pp. 41-80.

Schulte, Bernd: Access to social protection Schulte, Bernd: Die Zukunft der sozialen and information for migrants. In: Irish Dienste vor der europäischen Heraus- Presidency Conference ‹2004, Bundoran› forderung. In: Christoph Linzbach / Bernd (ed.), Reconciling mobility and social Schulte (eds.), Die Zukunft der sozialen inclusion. Dublin, 2005, pp. 101-137. Dienste vor der europäischen Heraus- forderung. Baden-Baden, 2005, pp. 25-61. Schulte, Bernd: Alterssicherung und Sozialhilfe (Grundsicherung). In: Verband Schulte, Bernd: Europäische Sozialpolitik Deutscher Rentenversicherungsträger (ed.), nach der Erweiterung und nach dem Interdependenzen in der sozialen Siche- Verfassungsvertrag. T.1. In: Zeitschrift für rung. Bad Homburg, 2005, pp. 102-114. Sozialhilfe und Sozialgesetzbuch (ZFSH/SGB) 44 (2005) 11, pp. 643-650. Schulte, Bernd: Betreuung: Rechtsfürsorge im Sozialstaat aus sozialrechtlicher Per- Schulte, Bernd: Europäische Sozialpolitik spektive. In: Karl-Heinz Zander (ed.), nach der Erweiterung und nach dem Rechtsfürsorge im Sozialstaat. Bochum, Verfassungsvertrag. T.2. In: Zeitschrift für 2005, pp. 29-62. Sozialhilfe und Sozialgesetzbuch (ZFSH/SGB) 44 (2005) 12, pp. 716-726. Schulte, Bernd: Betreuung: Rechtsfürsorge im Sozialstaat. In: Betreuungsrechtliche Schulte, Bernd: Europäische Vorgaben für Praxis (BtPrax) 14 (2005) 1, pp. 10-13. die nationalen Gesundheitssysteme. In: Gesundheit und Gesellschaft: Wissenschaft Schulte, Bernd: Das europäische Sozialmo- (GGW) 5 (2005) 4, pp. 15-25. dell. In: Observatorium für die Entwicklung der sozialen Dienste in Europa (ed.), News- Schulte, Bernd: Europas soziale Dienste letter (2005) 2, pp. 1-2. im Wettstreit. In: Neue Caritas 106 (2005) 11, pp. 9-14. Schulte, Bernd: Der Sozialstaatsgedanke – Modell oder Auslaufmodell? Schulte, Bernd: Flexicurity. In: Wolfgang In: Katholischer Akademischer Ausländer- Mazal / Takashi Muranaka (eds.), Sozialer Dienst e.V. (ed.), Soziale Verantwortung Schutz für atypisch Beschäftigte. Vienna, neu denken. Bonn, 2005, pp. 37-50. 2005, pp. 117-131.

75 REPORT 2004-2005

Schulte, Bernd: Perspektiven des Sichert, Markus; Becker, Ulrich: Hartz IV Sozialstaats in Deutschland und Europa. in Diensten des Sports. In: SpuRt 12 In: Joachim Rock (ed.), Sozialpolitik mit (2005) 5, pp. 187-191. Zukunft. Hamburg, 2005, pp. 158-170. Sichert, Markus; Ehlers, Alexander P.F.: Schulte, Bernd: Rs. C-101/04 Roger Die sozialrechtliche Fortbildungs- und Noteboom ./. Rijksdienst voor Pensionen. Fortbildungsnachweispflicht der Ärzte. Anmerkung zum Urteil des EuGH vom In: Die pharmazeutische Industrie (Pharm. 20.1.2005. In: Zeitschrift für europäisches Ind.) 66 (2004) 7, pp. 874–876. Sozial- und Arbeitsrecht (ZESAR) 4 (2005) 11/12, pp. 491-493. Sichert, Markus; Ehlers, Alexander P.F.: Zulässigkeit von Rabattvereinbarungen Schulte, Bernd: Rs. C-306/03 Cristalina zwischen pharmazeutischen Unternehmen Salgado Alonso ./. Instituto Nacional de la und Managementgesellschaften nach Seguridad Social (INSS), Tesoreria General § 130a Abs. 8 SGB V. In: Die pharma- de la Seguridad Social (TGSS). Anmerkung zeutische Industrie (Pharm. Ind.) 66 (2004) zum Urteil des EuGH vom 20.1.2005. 10, pp. 1215-1218. In: Zeitschrift für europäisches Sozial- und Arbeitsrecht (ZESAR) 4 (2005) 11/12, Sichert, Markus; Ehlers, Alexander P.F.: pp. 491-493. Juristische Möglichkeiten der Verbands- politik. In: Allergo Journal (Allergo J) 14 Schulte, Bernd: Seguro de pensión de (2005) 2, pp. 138-147. jubilación en Alemania. In: Konrad- Adenauer-Stiftung (ed.), Reforma de los sistemas de previsión social. Rio de Janeiro, – W – 2005, pp. 13. Walser, Christina: Die aktuellen Reformen Schulte, Bernd: Sozialversicherung als der niederländischen Krankenversicherung. „soziale Dienstleistung“ im Binnenmarkt: In: Sozialrecht in Deutschland und Europa kein angemessenes Konzept für Europa. (ZFSH/SGB) 43 (2004) 7, pp. 410-419. In: Informationsdienst Europäisches Arbeits- und Sozialrecht (EuroAS) 13 Walser, Christina: Hausarztmodelle – bloße (2005) 6, pp. 103-105. Farce oder Mittel zur Versorgungseffizienz? In: Sozialrecht in Deutschland und Europa Schulte, Bernd: Stichwort „Sozialpolitik/ (ZFSH/SGB) 43 (2004) 9, pp. 519-526. Soziale Sicherheit, Europäische“. In: Dieter Kreft / Ingrid Mielenz (eds.), Wörterbuch Walser, Christina: Qualitätssicherung bei Soziale Arbeit. 5th fully rev. and suppl. ed.. grenzüberschreitenden Krankenhaus- Weinheim, 2005, pp. 861-867. leistungen. In: Zeitschrift für europäisches Sozial- und Arbeitsrecht (ZESAR) 3 (2004) Schulte, Bernd: The open method of 9, pp. 365-370. coordination as a political strategy in the field of immigrant integration policy. Walser, Christina: Neue Krankenver- In: Rita Süssmuth / Werner Weidenfeld sicherung der Niederlande. In: Zeitschrift (eds.), Managing integration. Gütersloh, für Rechtspolitik (ZRP) 38 (2005) 8, 2005, pp. 114-121. pp. 273-276.

Schulte, Bernd; Linzbach, Christoph; Walser, Christina; Becker, Ulrich: Lübking, Uwe (eds.): Die Zukunft der Stationäre und ambulante Krankenhaus- sozialen Dienste vor der europäischen leistungen im grenzüberschreitenden Herausforderung. Baden-Baden, 2005. Dienstleistungsverkehr. In: Neue Zeitschrift für Sozialrecht (NZS) 14 (2005) 9, Sichert, Markus: Grenzen der Revision des pp. 449-456. Primärrechts in der Europäischen Union. Berlin, 2005.

76 V. PUBLICATIONS

– Z – Zacher, Hans F.: Päpstliche Akademie für Sozialwissenschaften. In: Stimmen der Zeit Zacher, Hans F.: Children and the future. 223 (2005) 11, pp. 736-748. In: Intergenerational solidarity, welfare and human ecology. Vatican City, 2004, Zacher, Hans F.: Sechs Jahrzehnte Rechts- pp. 242-255. geschichte. In: Martin Huber / Gerhard Lauer (eds.), Wissenschaft und Universität. Zacher, Hans F.: Das soziale Staatsziel. Köln, 2005, pp. 95-144. In: Josef Isensee / Paul Kirchof (eds.), Handbuch des Staatsrechts. Vol. 2, Zacher, Hans F.: Steuer- und Sozialstaat im Verfassungsstaat. 3rd ed.. Heidelberg, europäischen Systemwettbewerb – 2004, pp. 659-784. Schlussbemerkungen. In: Ulrich Becker / Wolfgang Schön (eds.), Steuer- und Sozial- Zacher, Hans F.: Deutschland den staat im europäischen Systemwettbewerb. Deutschen? In: Michael Brenner (ed.), Der Tübingen, 2005, pp. 291-317. Staat des Grundgesetzes. Tübingen, 2004, pp. 639-668. Zacher, Hans F.: Stichwort „Soziale Grundrechte“. In: Ergänzbares Lexikon des Zacher, Hans F.: Forschung im Rechts. Neuwied, 2005, loose-leaf, Gruppe Bundesstaat. In: Alexander Blankenagel 5/660. (ed.), Verfassung im Diskurs. Tübingen, 2004, pp. 703-730. Zacher, Hans F.: Stichwort „Sozialstaat“. In: Ergänzbares Lexikon des Rechts. Zacher, Hans F.: Globalisierung, Neuwied, 2005, loose-leaf, Gruppe 5/670. Governance und Wissen. In: The governance of globalisation. Vatican City, 2004, pp. 189-194.

Zacher, Hans F.: Report on democracy. In: Intergenerational solidarity, welfare and human ecology. Vatican City, 2004, pp. 383-386.

Zacher, Hans F.: Sozialer Einschluß und Ausschluß im Zeichen von Nationalisierung und Internationalisierung. In: Hans Günter Hockerts (ed.), Koordinaten deutscher Geschichte in der Epoche des Ost-West- Konflikts. Munich, 2004, pp. 103-152.

Zacher, Hans F. (ed.): Democracy in debate. Vatican City, 2005.

Zacher, Hans F.: Demokratie als Gestal- tungsaufgabe. In: Herder Korrespondenz 59 (2005) 9, pp. 472-476.

Zacher, Hans F.: Doitsu Shakaiho no Kozo to Tenkai (Social (security) law in Germany). Tokyo, 2005.

Zacher, Hans F.: Kinder und Zukunft. In: Stephan Lorenz (ed.), Festschrift für Andreas Heldrich zum 70. Geburtstag. Munich, 2005, pp. 1211-1224.

77 REPORT 2004-2005

78 VI. Papers and Lectures REPORT 2004-2005

1. Papers 3 June 2004: Introduction and chair of the workshop: “Grenzüberschreitende Inan- Ulrich BECKER: spruchnahme von Krankenhausleistungen”, Max Planck Institute for Foreign and 8 January 2004: “Mögliche Konsequenzen International Social Law, Munich. der Anwendung des Wettbewerbsrechts auf die Vertragsstrukturen”. Workshop: “Zur An- 8 June 2004: “Rechtliche Aspekte des Soli- wendbarkeit des Wettbewerbsrechts auf die daritätsprinzips in der umlagefinanzierten gesetzliche Krankenversicherung”, Verband Alterssicherung”. Seminar: “Fortent- der Angestellten-Krankenkassen e.V. wicklung des Sozialstaats, europäische – Arbeiter-Ersatzkassen-Verband e.V. Benchmarks – Handlungsbedarf für die (association of the salaried employees’ health umlagefinanzierte und ergänzende Alters- insurance funds/workers’ health insurance sicherung”. Hans Böckler Foundation and funds), Siegburg, Erkner near Berlin. German Federal Ministry of Health and Social Security: “Zukunft des Sozialstaats 14 January 2004: “Primäres EU-Recht vs. – Wandel der Erwerbstätigenstruktur und EuGH-Rechtsprechung”. EU Committee Alterssicherung”, Cologne. meeting of the Gesellschaft für Versiche- rungswissenschaft und -gestaltung (GVG), 29 June/1 July 2004: Introduction and Kolpinghaus International, Cologne. paper: “Erfahrungen und Diskussion über die Selbstverwaltung in Deutschland: Ist 26 January 2004: “Grenzüberschreitende eine Reform der Selbstverwaltung in Gesundheitsversorgung in Europa”. Deutschland notwendig?”. Conference: Conference series: “Dahlemer Forum “Grundfragen und Organisation der Sozial- – Gesundheitsversorgung in Europa”, versicherung im Rechtsvergleich zwischen European Centre for Comparative China und Deutschland”, Max Planck Government and Public Policy, Berlin. Institute for Foreign and International Social Law, Ringberg Castle, Tegernsee. 2 March 2004: “Freie Berufe im Binnenmarkt”. European policy talks: 15 September 2004: “Das Verhältnis von “Dienstleistungen der Heilberufe im privater und gesetzlicher Krankenversiche- europäischen Kontext – zwischen rung in nationaler und europarechtlicher Binnenmarkt und Gemeinwohl”, German Perspektive”. Workshop: “Zu rechtswissen- Medical Association (BÄK), Brussels. schaftlichen Implikationen des GMG für die versorgungspolitischen Perspektiven”, 5 May 2004: Introduction to the workshop: Institute of German Dentists (IDZ), “Binnenmarkt – Chancen und Risiken”. Cologne. Conference: “Tag der Freien Berufe 2004 – Freiberuflichkeit im neuen Europa”, 25 September 2004: “Soziale Gerechtigkeit Bundesverband der Freien Berufe (German – Anspruch und Wirklichkeit”. Law association of the self-employed), Urania, congress: 52. Juristentag, Evang.-Luth. Berlin. Dekanant, Munich, Evangelische Akademie, Tutzing. 7 May 2004: Chair of panel discussion: “AusSicht(en) der erweiterten EU – was 29 September 2004: “Sozialgerichtliche erwartet uns?”. European week 2004, Ost- Praxis im europäischen Ausland”. 50th West-Zentrum (Europaeum), Regensburg anniversary and 36th judicial meeting of the University. Federal Social Court: “50 Jahre Bundes- sozialgericht – 50 Jahre Sozialgerichts- 13 May 2004: “Rehabilitation im Recht barkeit”, Kassel. der Europäischen Gemeinschaft”. Judicial development seminar organised by the regional insurance institution LVA Braunschweig for the social court judges of Niedersachsen and Bremen, Bad Pyrmont.

80 VI. PAPERS AND LECTURES

5 October 2004: “Spaltet Hartz die Gesell- 25 January 2005: “Europarechtliche schaft? Zu den Verteilungswirkungen der Dimensionen der Leistungsgestaltung und jüngsten Arbeitsmarktreformen”. Sociology Beispiele der Leistungserbringung im conference, Federal Employment Agency europäischen Ausland”. Workshop (BA), Institute for Employment Research organised by the Deutscher Verein (IAB), Munich. (German Association for Public and Private Welfare): “Neugestaltung der Leistungs- 6/7 October 2004: “The rights of the beziehungen unter Berücksichtigung European citizen – balancing equity with wettbewerblicher Verfahren”, Berlin. choice”. PARALLEL FORUM A1: “Values, principles and objectives of health policy in 4 March 2005: “Verfassungsrechtlicher Europe: The need for a European Schutz rentenrechtlicher Positionen”. consensus as the basis for a new concerted Sozialrechtstage, Bayreuth. health strategy”. 7th European Health Forum Gastein: “Global Health Challenges 15 March: “Sozial- und verfassungsrecht- – European Approaches and Responsibil- liche Kernfragen der Zusammenlegung von ities”, Bad Hofgastein. Arbeitslosen- und Sozialhilfe”. 3. Kölner Sozialrechtstag (3rd Social Law Conference 22 October 2004: “Abwendung und Aus- of Cologne), Cologne. gleich von Benachteiligungen als Aufgabe des Sozialrechts aus deutscher Sicht”. 6 April 2005: Introduction and chair on Conference of the Turkish and the German the subject of long-term care insurance: Section of the International Society for “Pflegeversicherung”, by Katsuaki labour Law and Social Security: “Neuere Matsumoto. Joint German-Japanese Entwicklungen des türkischen und des workshop: “Sozialrecht in der alternden deutschen Arbeits- und Sozialrechts”, Gsellschaft – Reformpolitik in Japan und Freiburg. Deutschland”, German Federal Ministry of Health and Social Security, Berlin. 19 November 2004: “German Health and Long-Term Care Insurance – Legal 7 April 2005: “Die so genannte Harmoni- Aspects”. German-Japanese Symposium on sierung der Pensionssysteme – Eine Social Law, 2004: “The Role of Private Quadratur des Kreises?”. Conference: Actors in Social Security”, Max Planck “Wirtschaftssteuerung durch Sozialver- Institute for Foreign and International sicherungsrecht?”, Vienna. Social Law, Munich, and The Japan Cultural Institute, Cologne. 12 April 2005: Introduction and chair of discussion-round with Prof. Robert Rich: 3/4 December 2004: Introduction and “Ist der Gesellschaftsvertrag noch zu ret- paper: “Die sozialrechtliche Perspektive”. ten? Deutsch-amerikanische Betrachtungen Workshop: “Steuer- und Sozialstaat im zur Zukunft der öffentlichen Sozial- und europäischen Systemwettbewerb”, Max Gesundheitssysteme”, America House, Planck Institute for Intellectual Property, Munich. Competition and Tax Law, and Max Planck Institute for Foreign and International 22 April 2005: Short paper as member of Social Law, Munich. the Leopoldina/Acatech working group: “Chancen und Probleme einer alternden 11 December 2004: “Aktuelle Reformen in Gesellschaft: Die Welt der Arbeit und des der deutschen Sozialversicherung”. lebenslangen Lernens”. Constituent Workshop on comparative German and meeting of the Leopoldina/Acatech working Chinese social law, Renmin University of group on its prospective work schedule, China, Beijing, China. Marbach Castle, Oehningen/Bodensee.

81 REPORT 2004-2005

25 April 2005: “Sozial- und verfassungs- 22 October 2005: “Wettbewerb und soziale rechtliche Fragen der Zusammenlegung von Sicherung”. Conference: “Soziale Sicherung Arbeitslosen- und Sozialhilfe”. Judicial und Wettbewerb – Europäische Vorgaben development conference on social und Nationale Regelungen”, University of jurisdiction (Richterfortbildungstagung der Rijeka, Croatia. Sozialgerichtsbarkeit des Landes Baden- Württemberg für Berufsrichter/innen in der 29 October 2005: “Soziale Rechte in der Sozialgerichtsbarkeit des Landes Baden- EU”. Workshop: “Implementierung inter- Württemberg), Ludwigsburg. nationaler Sozialstandards und -rechte (IISR)”, Max Planck Institute for Foreign 3 May 2005: Chair of panel discussion: and International Social Law, Munich. “Europa XXL – Eine Gefahr für die Stabilität der Europäischen Union? ”, Ost- 8 November 2005: “Reformen und West-Zentrum (Europaeum), Regensburg Perspektiven der sozialen Sicherheit in University. Deutschland und Europa”, Procuradoria- Geral do Município, Rio de Janeiro, Brazil. 21 June 2005: “The legal problems in complying with ILO Instruments”. Joint 10 November 2005: “Reformen und conference: “Legal and non-legal Perspektiven der sozialen Sicherheit in impediments to the application of inter- Deutschland und Europa” and ”Gesetzliche national labour standards: German experts und private Versicherung in Deutschland meet ILO”, Friedrich Ebert Foundation and (Schwerpunkt Krankenversicherung)”, International Labour Organisation, Geneva, Faculty of Law, Catholic University, Porto Switzerland. Alegre, Brazil.

29 June 2005: “Co-ordination of social 11 November 2005: “Reformen und security: lessons from a comparative per- Perspektiven der sozialen Sicherheit in spective”. Conference on comparative law: Deutschland”, Associação dos Magistrados “Integration of labour and social security Catarinenses – AMC/Escola Superior da law in the SADC-Region”, Frankfurt/Main. Magistratura do Estado de Santa Catarina, Florianopolis, Brazil. 1 September 2005: “Sozialpolitische Geschichte/Sozialgeschichte”. Colloquium: 25 November 2005: “Neueste Entwicklun- “Arbeitnehmer/innen-Solidarität oder gen in der Kranken- und Pflegeversicherung Bürger/innen-Solidarität? Die Schweiz und in Deutschland und China”. Conference: Deutschland im sozialpolitischen “The development of social insurance in Vergleich”, University of Basel, Switzerland. China and Germany”, Social Security Research Centre of the People’s University 16 September 2005: “Altern, Zivilgesell- Beijing, China. schaft und Politik”. Meeting: “Chancen und Probleme einer alternden Gesellschaft: Die 26 November 2005: “Arbeitnehmerfrei- Welt der Arbeit und des lebenslangen zügigkeit und soziale Sicherheit in der EU: Lernens”, Leopoldina/Acatech working Die Koordinierung der sozialen Sicherungs- group on aging, Potsdam. systeme”. Conference: “The development of social insurance in China and Germany”, 28 September 2005: “Die Zusammen- Social Security Research Centre of the legung von Arbeitslosen- und Sozialhilfe in People’s University Beijing, China. sozial- und verfassungsrechtlicher Frage- stellung”. Meeting of professional judges on 1 December 2005: “Das ‚Soziale’ und der the development of social jurisdiction in Wettbewerb”. Annual Confernce 2005: Bavaria, Dillingen. “Das Soziale in der Alterssicherung”, Forschungsnetzwerk Alterssicherung 13 October 2005: Statement: “Standards (research network on old-age provision), in der EU”. Thematic block: “Innovationen Erkner near Berlin. im europäischen Gesundheitswesen”, European Health Congress, Munich.

82 VI. PAPERS AND LECTURES

Barbara DARIMONT: 26 November 2005: “Deguo jiating zai shehuifa zhong de juese” (The role of the 24 April 2004: “Rechtsrezeption und family in German social law). Conference: Kultur: Praxis des chinesischen Sozial- “Entwicklung der Sozialversicherung in rechts”. Board of Trustees, Max Planck Deutschland und China”, Beijing, China. Institute for Foreign and International Social Law, Munich. Ockert C. DUPPER:

25 May 2004: “Entwicklungshilfe im Be- 8 February 2004: “The Equal Protection reich Recht: Die ‘Law and Development’- Model in the United States: Overview and Diskussion und die Auswirkungen in der Recent Developments”. Seminar: “Dimen- Praxis auf die rechtliche Entwicklungshilfe sionen Rechtlicher Gleichheit”, Max Planck zwischen Deutschland und VR China”, Institute for Foreign and International Otto Suhr Institute for Political Science, Social Law, Hochries/Chiemgau. Freie Universität Berlin. 18 May 2004: “Remedying the Past or 30 June 2004: “Diskussionsstand der Reshaping the Future? Justifying Race- Rechtsrezeption in der sozialen Sicherheit Based Affirmative Action in South Africa in Deutschland”, Ringberg Castle, and the United States”, Johann Wolfgang Tegernsee. Goethe-Universität, Frankfurt/Main.

20 September 2004: “Dezentralisierung 22 June 2004: “Affirmative action in South und die Auswirkungen auf die Gesetz- Africa and the United States: Justifying the gebung in der Volksrepublik China”, Max unjustifiable?”, Ludwig-Maximilians- Planck Institute for European Legal Universität, Munich. History, Frankfurt/Main. 13 March 2005: “Ensuring Equality 12 November 2004: “Recent efforts at through Law: Issues in Affirmative Action social security reform in China”, University from a Comparative Perspective”. Seminar: of Trier. “European Employment and Equality Law”, Venice International University, San 25 November 2004: “Pluralismus von Servolo, Venice, Italy. Rechtssystemen”. Seminar on legal anthropology of the Ludwig-Maximilians- 7 April 2005: “Justifying Affirmative Action Universität, Munich. Measures”, Equality and Unfair Discrimin- ation in Employment, Nelson Mandela 20 January 2005: “Alterssicherung in Metropolitan University, Port Elizabeth/ China auf dem Hintergrund konfuzianisch- South Africa. marxistischer Lebensvorstellungen”. Seminar on legal anthropology of the 7 April 2005: “Affirmative Action as a Ludwig-Maximilians-Universität, Munich. Defence”, Equality and Unfair Discrimina- tion in Employment, Nelson Mandela 21 June 2005: “The legal problems in Metropolitan University, Port Elizabeth/ complying with ILO Instruments”. South Africa. Workshop “Legal and non-legal impediments to the application of international 8 July 2005: “Broad-Based Black Econom- labour standards: German experts meet ic Empowerment in South Africa: A Critical ILO”, Friedrich Ebert Foundation and Analysis”, German-South African Lawyers International Labour Organisation, Geneva, Association (GSLA), Cologne. Switzerland. 10 December 2005: “Affirmative Action in 21 October 2005: “Rentenversicherung in South Africa: Recent Developments and der Volksrepublik China”. Conference: Future Challenges”, German-South African “Altersicherung im internationalen Lawyers Association (GSLA), annual Vergleich”, VDR, Erkner near Berlin. meeting, Hamburg.

83 REPORT 2004-2005

19 December 2005: “Activating Labour 18 November 2005: “L'égalité de traitement Market Policies in the United States”. entre hommes et femmes dans les retraites Expert workshop: “Activating Labour professionnelles d'entreprise – les évolutions Market Policies”, Institute for Employment récentes en Allemagne”. International Research (IAB), Lauf/Nuremberg. colloquium on the subject of company pensions in Europe (Colloque International Alexander GRASER: sur les retraites professionnelles d'entreprise en Europe), Institut de l’Ouest: Droit et 13 April 2004: “Der gekündigte Arbeitneh- Europe (IODE) de l’Université de Rennes I, mer als Objekt gesetzgeberischer Fürsorge”. Centre d’excellence Jean Monnet, and Max Colloquium on law and the economy, Planck Institute for Foreign and Internatio- University of Kassel. nal Social Law, Rennes, France.

23 September 2005: “Approaching the Otto KAUFMANN: Social Union?”. Paper held on the occasion of the final conference: “Law and Demo- 11 March 2004: “Bürgerliches Recht und cracy in Europe's Post-National Constella- Sozialrecht”. Discussion meeting: ”Droit tion”. Project: “Citizenship and Democratic social et droit commun”, Strasbourg Legitimacy in the EU”, Robert Schuman University, France. Centre for Advanced Studies, European University Institute, Florence. 2 July 2004: “Soziale Sicherheit und die EU-Erweiterung”. Conference organised by 3 November 2005: “Law and Aging the Institut de la Protection Sociale – Perspectives for an Interdisciplinary Européenne (IPSE), Budapest, Hungary. Cooperation”. 2nd conference held by the Max Planck International Research 26 November 2004: “Le droit commun Network on Aging, Marbella. (le code civil) et le droit social". Two hundredth anniversary of the "code civil", Eva-Maria HOHNERLEIN: organised by the University of Rijeka and the French Embassy, Rijeka, Croatia. 22 June 2005: “Sozialstaat und soziale Sicherheit – Herausforderungen und 17 November 2004: "Tendenzen in der Reformtendenzen im europäischen deutschen Sozialversicherung insbesondere Vergleich”. School lecture held before in der Krankenversicherung", Institut de la students of Teterow secondary school Protection Sociale Européenne (IPSE), (within the scope of the annual meeting of Paris, France. the Max Planck Society in Rostock), Teterow. 19 January 2005: “Les retraites complémentaires en Europe et le droit 20 September 2005: Seminar held on the communautaire”, Assemblée constitutive pension reform in Italy within the workshop MV4-Parunion, Paris, France. series: “Pension reform in Europe”, Institut de Travail de l’Université de Strasbourg, 25 February 2005: “Les travailleurs âgés Strasbourg, France. en Allemagne”. Colloquium : “La sortie du travail des travailleurs âgés”, Palais des 20 October 2005: “Flexible Work and Congrès, organised inter alia by Strasbourg Social Security. How earnings-related University and Inspection du Travail, pension schemes cope with part-time Alsace, Strasbourg, France. workers. The case of Germany and other foreign experience”, Turkish social 4/5 July 2005: “Reformen in der sozialen insurance fund SSK, Ankara, Turkey. Sicherung: Gründe und Wege”. Conference: “Efficiences des réformes de la protection 21 October 2005: “Policies to improve the sociale: attentes, résultats actuels et avenir”, social protection of part-time workers”. Institut de la Protection Sociale Européenne Paper held before Turkish social partners, (IPSE) and European Commission, London, Turk-Is, Ankara, Turkey. Great Britain.

84 VI. PAPERS AND LECTURES

3 June 2005: “La cohésion sociale en 24 April 2004: “Rationierung im Gesund- Allemagne”. Colloquium : “La cohésion heitswesen in Europa”, Arbeitsgemeinschaft sociale”, Institut régional de für ArztRecht, Frankfurt/Main. l´Administration de Metz, France. 5 May 2004: “Zur Zulässigkeit der Vermitt- 20 October 2005: “Die französische lung von Versicherungsverträgen durch ge- Alterssicherung”. Conference: “Alters- setzliche Krankenkassen”, VDVM (Associ- sicherung im internationalen Vergleich”, ation of insurance brokers), Cologne. DRVBund, Erkner near Berlin. 27/28 May 2004: “International Social 18 November 2005: “La place des retraites Security Standards in the Southern professionnelles d´entreprise dans la protec- (Eastern) Mediterrian Countries”. Seminar tion vieillesse”. International colloquium on of the Council of Europe, Limassol, Cyprus. the subject of company pensions in Europe (Colloque International sur les retraites 30 June 2004: “Der Begriff Sozialrecht”. professionnelles d'entreprise en Europe), Conference: “Grundfragen und Organisa- Institut de l’Ouest: Droit et Europe (IODE) tion der Sozialversicherung in Rechtsver- de l’Université de Rennes I, Centre gleich zwischen China und Deutschland”, d’excellence Jean Monnet and Max Planck Max Planck Institute for Foreign and Institute for Foreign and International International Social Law, Ringberg Castle, Social Law, Rennes, France. Tegernsee.

6 December 2005: “Mitbestimmung in 29 September 2004: “Europarat und Deutschland/Partizipation”. Seminar: EU-Organisation und sozialpolitischer “Partizipation CGT Confédération”, CGT, Einfluss”, University of Tsukuba, Japan. Courcelle, France. 7 October 2004: “Sozialpolitik und inter- Peter A. KÖHLER: nationales Recht”, University of Tsukuba, Japan. 31 March 2004: “Gesundheitswesen in Schweden”, Kölner Sozialrechtstage, 8 October 2004: “Rechtliche Regelung des Cologne. Pflegedienstvertrags in Deutschland”, University of Meiji, Japan 27 – 28 May 2004: Seminar (with participants form Svenska Metall): “Auf 9 October 2004: “Weiterentwicklung der dem Weg zu einem zweistufigen System der Pflegeversicherung”. Research group on Arbeitsbeziehungen in Deutschland?”, long-term care embracing several Hans Böckler Foundation, Düsseldorf. universities, Tokyo, Japan.

Claudia MATTHÄUS: 13 October 2004: “Sicherung der Qualität der Pflege”, City Council of Kobe, Japan. 6 October 2005: “Perspektiven der 14 October 2004: “Pflege und Qualitäts- Rehabilitation im erweiterten Europa”. 50th sicherung”, Prefecture of Osaka, Japan. professional training course of the expert group on rehabilitation, Verband der 16 October 2004: “Die internationale Krankenhausdirektoren in Deutschland Dimension des Arbeits- und Sozialrechts”, (Association of hospital managers in Kyushu University, Fukuoka, Japan. Germany), Bad Steben. 21 October 2004: “Sozialrechtsstudium in Bernd BARON VON MAYDELL: Deutschland”, University of Nagasaki, Japan. 21 January 2004: “Wandlungen im Konzept der Daseinsvorsorge und das 23 October 2004: “Der Einfluss des euro- Sozialrecht”. Lecture series: “Sozialrecht in päischen und internationalen Rechts auf Rechtsprechung und Wissenschaft”, das deutsche Sozialrecht”, Association for University of Kassel. Japanese Social Law, Tokyo, Japan.

85 REPORT 2004-2005

30 October 2004: “Pflichtversicherung 15 March 2005: “Das System sozialer – Segnung oder Sündenfall?” and “Muß Sicherheit in Deutschland und die Not- Sozialversicherung eine Pflichtversicherung wendigkeit seiner Reform”, Günter Stöhr- sein?”, Hamburger Gesellschaft zur Gymnasium, Icking-Irschenhausen. Förderung des Versicherungswesens mbH (HGFV), Hamburg. 9 June 2005: “Die Neuordnung der Sozial- hilfe und der Arbeitslosenhilfe im System 11 November 2004: “Reformen des des Sozialrechts der Bundesrepublik Sozialstaats im internationalen Vergleich”, Deutschland”, University of Danzig. Frankfurter Juristische Gesellschaft, Frankfurt/Main. 27 June 2005: “Zur Reform des Kranken- versicherungssystems in Deutschland”, 12/13 November 2004: “Herausforderun- Rotary Club, Munich. gen der Altersvorsorge im 21. Jahrhundert”. 10th Social Law Conference of Münster, 1 September 2005: “Zur Verwirklichung Münster. des Gleichbehandlungsgrundsatzes in der Alterssicherung”, Inner Wheel Club, Bonn. 16 November 2004: “Verbindung von Steuer- und Sozialrecht”, University of 15 September 2005: “Ziele der Alten- Hohenheim, Stuttgart. politik” and “Zur Frage der Rationalität von Altersgrenzen”, Bertelsmann Foundation 19 November 2004: “German Old-Age Expert Committee, Berlin. Pension Insurance – Legal Aspects”. German-Japanese social law symposium: 21 October 2005: “Kassenwettbewerb “The Role of Private Actors in Social (Wettbewerb zwischen privater und gesetz- Security”, The Japan Cultural Institute in licher Krankenversicherung)”, University of Cologne, Cologne. Rijeka, Croatia.

26 November 2004: “Arzthaftung oder 28 October 2005: Introduction, workshop: Behandlungsschadensversicherung. Die “Implementierung internationaler Sozial- Situation in anderen europäischen standards und -rechte (IISR) – Bestands- Ländern”, Arbeitsgemeinschaft der wissen- aufnahme und Weiterentwicklung”, Max schaftlichen medizinischen Fachgesell- Planck Institute for Foreign and Inter- schaften (AWMF) Düsseldorf, Arbeitskreis national Social Law, Munich. Ärzte und Juristen, Göttingen. 9 November 2005: “Entwicklungen des 3/4 December 2004: “Auswirkungen der Sozialrechts in Europa”, University of Porto entstehenden europäischen Marktordnung”. Alegre, Brazil. Colloquium: “Steuer- und Sozialstaat im europäischen Systemwettbewerb”, Max 11 November 2005: “Entwicklungen des Planck Institute for Intellectual Property, Sozialrechts in Europa”, University of Competition and Tax Law, and Max Planck Florianopolis, Administrative Sciences, Institute for Foreign and International Brazil. Social Law, Munich. 13 December 2005: “Die deutsch- 12 January 2005: “Lösungsansätze für japanische Zusammenarbeit auf dem soziale Zukunftsfragen in Deutschland”, Gebiet des Sozialrechts”. Presentation of Gustav Stresemann-Institut (GSI), Bonn. the Japanese edition of Professor Dr. Hans F. Zacher’s volume: “Sozialrecht in 28 January 2005: “Die alternde Gesell- Deutschland”, Max Planck Institute for schaft in Japan”, Rotary Club, Munich. Foreign and International Social Law, Munich. 2 February 2005: “Die Überwachung sozialer Standards durch den Sachver- ständigenausschuss der ILO”, Faculty of Law of the University of Zagreb, Croatia.

86 VI. PAPERS AND LECTURES

George MPEDI: 30 November 2005: “Informal Social Security and Formal Social Security: 23 June 2004: “The Extension of Social Development an Integrative Approach”. 4th Protection to Non-formal Sector Workers International Industrial Relations Associ- – Experiences from SADC and the ation African Regional Congress, Mauritius Caribbean”. IIRA 5th Regional Congress, (with M. Olivier and E. Kaseke). Seoul, Korea (with M. Olivier). 13 December 2005: “Extending unemploy- 17 September 2004: “Formulating an ment protection to the excluded and integrated social security response vulnerable: Perspectives on developments – Perspectives on developing links between in South Africa”. Second Global Labour informal and formal social security in Forum, New Delhi, India (with M. Olivier SADC region”. EGDI-WIDER Conference and A. Govindjee). on Unlocking Human Potential: Linking the Informal and Formal Sectors, Helsinki, Hans-Joachim REINHARD: Finland (with M. Olivier and E. Kaseke). 30 January 2004: “Consumer Protection 26 January 2005: “Systematising Social through EU-Directives – The acquis com- Security Law as a Means to Extending munautaire in the field of consumer law, Access to Social Security in South Africa”. Seminar European Unfair Competition CROP/CICLASS Law and Poverty VI Law”, Garmisch-Partenkirchen. Workshop, Johannesburg/South Africa. 18 May 2004: “Soziale Sicherung und 30 June 2005: “Unemployment Protection Erwerbstätigkeit – eine reformbedürftige in SADC Countries: Trends and Challen- Verbindung”, University of Applied ges”. DAAD Conference on the Integration Sciences (FH), Fulda. of Labour and Social Security Law in the SADC-Region, Frankfurt/Main. 24 June 2004: “A previdenência social pública e privada, as suas inter-relações e o 11 November 2005: “The role of religious seu custeio: A tributação dos fundos de networks in extending social protection: pensão abertos e fechados”. VIII Congreso Observations from a South African de Tributário da Abrats, Belo Horizonte, perspective”. Conference: “Social Security Brazil. in Religious Networks: Changes in Meanings, Contents and Functions”, Max 13 July 2004: “El papel del federalismo en Planck Institute for Evolutionary la reforma de la organización del Sistema Anthropology, Halle/Saale. de la Seguridad Social en Alemanna”, Universidad Melendez Pelayo, Santander, 12 November 2005: “Extending social Spain. security and labour law protection to the South African informal sector: An enquiry 15 March 2005: “La Ley de Sostenibilidad into recent developments in the taxi de las Pensiones, Seminario sobre sector”. Annual African Law Association prolongación de la vida activa”, Ministerio Conference, Heidelberg. de Trabajo y Seguridad Social, Madrid, Spain. 29 November 2005: “The extension of labour law and social security protection to 20 September 2005: “Europäisches Sozial- non-formal sector workers – Experiences recht”, University of Moskau-Sergiev Posad, from SADC and the Caribbean”. 4th Inter- Moscow, Russia. national Industrial Relations Association African Regional Congress, Mauritius (with 18 November 2005: “La fiscalité des M. Olivier). dispositifs allemands d’épargne d’entreprise”, University of Rennes, France.

87 REPORT 2004-2005

20 December 2005: “Beschäftigungspolitik 20 December 2005: “Labour Market in Spanien”, Institute for Employment Activation in Switzerland: Background, Research (IAB), Lauf/Nuremberg. Strategies and Legal Aspects”. Workshop: “Activating Labour Market Policies”, Friso ROSS: Institute for Employment Research (IAB), Nuremberg, Institute for the Study of 15 June 2004: “German Social Security Labor (IZA), Bonn, and Max Planck Law and Schemes: An Introduction”, Institute for Foreign and International Workshop: „South African and German Social Law, Management Academy of the Perspective on Social Security Law and Federal Employment Agency (BA), Schemes“, Max Planck Institute for Foreign Lauf/Nuremberg. International Social Law and CICLASS of RAU Johannesburg, Munich. Bernd SCHULTE:

7 July 2004: “Sozialgerichtsbarkeit in 1 March 2004: “Europäische Sozialpolitik Europa: Eine Projektskizze”. Discussion – eine Bestandsaufnahme nach dem Ver- meeting: “Sozialrecht”, Max Planck fassungskonvent und vor der Erweiterung”, Institute for Foreign and International “Julius-Leber-Forum: Bremer Dialog”, Social Law and Landessozialgericht (Higher Friedrich Ebert Foundation, Bremen. Social Court of Munich), Munich. 14 March 2004: “Perspektiven Europä- 12 November 2004: “Underlying Principles ischer Sozialpolitik – Die rechtliche Konsti- of Social Security Law in Europe: A project tutionalisierung des Sozialen und die politi- proposal”. 1st workshop: “Principles of sche Strategie der offenen Methode der Social Security Law in Europe”, Research Koordinierung“. Meeting: “Das Europäische Unit European Social Security of the Sozialmodell im 21. Jahrhundert”, Friedrich Catholic University of Leuven and Max Ebert Foundation, Berlin. Planck Institute for Foreign and Inter- national Social Law, Leuven, Belgium. 1 – 2 April 2004: “Social Inclusion Works- hop 1: The Access to Social Protection and 18 November 2004: “Kulturrelativismus, Information for Migrants”. Irish Presidency Kulturevolutionismus und die Rechts- of the EU/European Commission Con- wissenschaft: Franz Boas in seiner Zeit”. ference: “Reconciling Mobility and Social Seminar on legal anthropology chaired by Inclusion – The role of employment and so- Wolfgang Fikentscher, Ludwig- cial policy”, Bundoran, Ireland. Maximilians-Universität, Munich. 7 April 2004: “Europa als Herausforderung 18 November 2005: “The Swiss und Chance für den deutschen Sozialstaat”. Occupational Pension Scheme and its Forum 6: Europa des Sozialstaatskongres- impact on the Swiss Old Age Pension ses: “Mut zur Gerechtigkeit!”, IG Metall, System”. Colloquium: “Les retraites Berlin. professionnelles d’entreprise en Europe”, Institut de l’Ouest: Droit et Europe 7 and 8 May 2004: “1st Session – Imple- (Université de Rennes I) and Max Planck mentation of Regulation 1408/71: Prepar- Institute for Foreign and International ations by new Member States”. Confer- Social Law, Faculté de Droit et de Science ence: “Co-ordination of Social Security in Politique, Rennes, France. an Enlarged Europe: now and tomorrow”, Irish EU Presidency/Commission of the European Union/Ministry of Labour and Social Affairs, Budapest, Hungary.

13 May 2004: “Statement: Binnenmarkt und Daseinsvorsorge aus rechtlicher Sicht”. Hearing: “Soziale Dienste und Wettbewerb in Europa”, Arbeiterwohlfahrt – Bundes- verband e. V., Frankfurt/Main.

88 VI. PAPERS AND LECTURES

5 June 2004: “Brauchen wir eine neue 8 October – 18 October 2004: Lecture Seniorenpolitik?” Hearing: “Soziale Dienste trip: “Alterssicherung in Deutschland und und Wettbewerb in Europa”. Gerontologica Europa”, “Reform der sozialen Sicherheit in 2004 “Zukunft Alter”, Wiesbaden. der Bundesrepublik Deutschland”, “Das soziale Europa – die soziale Dimension der 18 June 2004: “Die Europäische Verfas- Europäischen Union”, Konrad Adenauer sung aus Sicht der Kinder- und Jugend- Foundation, Rio de Janeiro, Florianapolis, hilfe”. 12th Deutscher Jugendhilfetag, São Paulo, Brazil. Osnabrück. 11 November 2004: “Betreuung: Rechts- 30 June 2004: Statement: “Integration fürsorge im Sozialstaat aus sozialrechtlicher strategies – learning from experience”. Perspektive”. 9th VormundschaftsGerichts- Dialogue: “What EU Strategy for Inte- Tag: “Was ist ‚Betreuung’? Rechtsfürsorge grating Migrants”, European Policy Centre im Sozialstaat”, Erkner near Berlin. – King Baudouin Foundation – Bertels- mann Foundation, Brussels, Belgium. 16 November 2004: “Auf dem Weg zu einem europäischen Sozialstaat? – Die 6 July 2004: “Die Sozialgesetzgebung der Entwicklung der Europäischen Union zum neuen EU-Mitgliedstaaten – Stand und sozialpolitischen Akteur”. Colloquium on Perspektiven”. 4th expert meeting with social policy: “Sozialpolitik der Europä- countries acceding the EU and German ischen Union”, Universität/Gesamthoch- speaking neighbouring countries: “Der sozi- schule Kassel. ale Dialog in Mitteleuropa – Ein Erfahrens- austausch zu sozialen Diensten und damit 24 November 2004: “Europäisches Recht zusammenhängenden Fragen”, Deutscher und Gesundheitsmarkt”. Forum II: Verein für öffentliche und private Fürsorge European law in the healthcare sector, e.V. (German Association for Public and European Health Care Congress: “Contact, Private Welfare), Frankfurt/Main. Communication, Cognition, Contract”, Ministry of Health, Social Affairs, Women 26 August 2004: “Das Europäische Sozial- and Familiy Affairs of North Rhine- modell im 21. Jahrhundert”. Steuerungs- Westphalia, Düsseldorf. kreis, Sozialmodell der Friedrich-Ebert- Stiftung, Berlin. 26 November 2004: “Perspektiven der wohlfahrtsstaatlichen Entwicklung in Euro- 16 September 2004: “La prise en charge pa”. “Forum für soziale Gerechtigkeit in Eu- de la dépendance en Allemagne”. 11ème ropa: Sozialreform oder Sozialabbau in Eu- Journée de droit de la santé “Santé et ropa?”, Forum II: Welfare state reform in Dépendance”, Institut de droit de la Europe/social policy as a competitive factor santé/Université de Neuchâtel, Neuchâtel, in Europe?, Osnabrück. Switzerland. 3 December 2004: “Alterssicherung und 23 September 2004: “Grundzüge europä- Sozialhilfe (Grundsicherung)”. Annual ischer Sozialstaatsmodelle im Vergleich”. meeting 2004: “Interdependenzen in der Politische Sommerakademie für Studieren- sozialen Sicherung – Wirkungen und de: “Der Sozialstaat unter Globalisierungs- Reformoptionen”, Verband Deutscher druck”, Katholische Akademie, Berlin. Rentenversicherungsträger/Forschungsnetz- werk Alterssicherung, Leipzig. 4 October 2004: “Überblick über rechtliche Rahmenbedingungen in der 2 February 2005: Conference 2005: Migrationsarbeit – Europa”. Conference: “Recht und Politik der Europäischen Union “Polen in der EU und Europäisches Recht – Risiken und Chancen für die Freie Wohl- – Fit für Migration ...?”, Caritasverband fahrtspflege”, Landesarbeitsgemeinschaft Wuppertal e. V., Wuppertal. der Freien Wohlfahrtspflege in Bayern, Kloster Ettal.

89 REPORT 2004-2005

2 March 2005: “Die Sozialwirtschaft als 4 July 2005: “Der Sozialstaatsgedanke Europäischer Marktplatz”. Socio-economic – Modell oder Auslaufmodell?”. Annual management: “BENCHMARKING. meeting 2005: “Soziale Verantwortung neu Politische und betriebliche Implikationen denken”, Katholischer Akademikerverband, aus benchmarking Prozessen”, University of Bonn. Applied Sciences (FH), Mainz. 2 September 2005: “Einführung in die 11 March 2005: “The legal guarantee of a Thematik des Europäischen koordinieren- social minimum in German law and in an den Sozialrechts und seine Anwendung in international perspective”. Workshop: Deutschland”. Seminar: “Die gemein- “Constitutional Litigation of Welfare schaftsrechtliche Koordinierung der sozia- Reform – Concepts and Outcomes in Israel len Sicherheit in der Europäischen Union”, and Germany”, Max Planck Institute for European Commission/Training and Foreign and International Social Law, Reporting on European Social Security Munich. (trESS) Network, Berlin.

17 March 2005: “Die Europäische Union 15 September 2005: “Die Europäische als sozialpolitischer Akteur”. Annual Rechtsentwicklung im freien Dienst- meeting 2005: “SOZIALRAUM EUROPA” leistungsverkehr und ihre Auswirkungen auf on the social protection in the EU member die Leistungserbringung in der sozialen states of Eastern Europe, Gesellschaft für Sicherheit”. Conference: “Das europäische Programmforschung und Deutsche Gesell- Koordinationsrecht der sozialen Sicherheit schaft für Technische Zusammenarbeit, und die Schweiz”, Europainstitut an der Berlin. Universität Zürich/Kompetenzzentrum für Fragen des Europarechts/Stiftung für 7/8 April 2005: “The implementation Juristische Weiterbildung Zürich, Zurich, capacity of the Open Method of Coordin- Switzerland. ation in related policy areas: selected cases”. Seminar: “The Open Method of Coordin- 17 September 2005: “The EU and Pension ation (OMC) as a new mode of governance”, Policy”. International Conference: Bertelsmann Foundation, Gütersloh. “Transformation of the Modern State. From State Provision to State-Regulated Markets 4 May 2005: “Soziale Dienstleistungen von in European Old-Age Security?”, Verband allgemeinem Interesse – soziale Daseins- Deutscher Rentenversicherungsträger vorsorge – und Europäisches Wettbewerbs- (VDR), Bielefeld University/Faculty of recht – ein Problemaufriss”. Annual con- Sociology, and Deutsche Forschungs- ference for the heads of social assistance gemeinschaft (DFG), Erkner near Berlin. offices, Arbeiterwohlfahrt Bundesverbandes e. V., Remagen-Rolandseck. 21 September 2005: “Reform der Alters- sicherung in Deutschland” and “Die soziale 20 June 2005: Expert meeting: “Die Integration von Migranten in Deutschland Erbringung von Gesundheits- und Sozial- und in der Europäischen Union”, Konrad dienstleistungen nach Europäischem Adenauer Foundation, Mexico City, Mexico. Gemeinschaftsrecht”, Ministry of Health, Social Affairs, Women and Familiy Affairs 23 September 2005: “Seguro de Pensión of North Rhine-Westphalia, Düsseldorf. de Jubilación en Alemania”. International seminar: “Reform der Rentensysteme 1 July 2005: “Einführung in die Thematik – Erfahrungen und Herausforderungen für des Europäischen koordinierenden Sozial- die Politik in Europa und Lateinamerika”, rechts und seine Anwendung in Deutsch- Konrad Adenauer Foundation, Mexico City, land”. Seminar: “Die Gemeinschaftsrecht- Mexico. liche Koordinierung der Systeme der sozialen Sicherheit in der Europäischen 26 September 2005: Conference for Union”, European Commission/Training scholarship holders: “Wie kann soziale and Reporting on Social Security (trESS) Gerechtigkeit in Europa erreicht werden?”, Network, Berlin. Cusanus-Werk, Oldenburg.

90 VI. PAPERS AND LECTURES

29 September 2005: “Politische Aspekte 2 – 4 December 2005: “Der Einfluss der des Generationenzusammenhalts in Rechtsprechung des Europäischen Ge- Europa”. Expert conference: “Generationen richtshofs auf die Koordination der Systeme in Familie und Gesellschaft in einem der sozialen Sicherheit der EU-Mitglied- zusammenwachsenden Europa”, Deutsche staaten”. Seminar, Rumanian Ministry for Gesellschaft für Gerontologie und Labour, Social Affairs and Family Affairs Geriatrie, Mannheim. and Hanns Seidel Foundation, Sinaia, Rumania. 10 October 2005: “Aktuelle Rahmenbe- dingungen des Sozialstaats”. Consultation: 8 December 2005: “Poverty Alleviation “‚Arme habt Ihr alle Zeit bei Euch’ – Per- Policies”. Conference: “Social Conditions in spektivenwechsel der Diakonie?”, Diakoni- the Enlarged Europe”, Wissenschaftszen- sches Werk der Evangelisch-Lutherischen trum Berlin für Sozialforschung/European Kirche in Bayern e. V., Tutzing. Foundation for the Improvement of Living and Working Conditions, Berlin. 31 October 2005: “Impulse geben. Wachstum und Innovation für Deutschland 14 December 2005: “Internationaler Ver- und Europa”. Steering committee: “Europä- gleich der Absicherung gesundheitlicher isches Sozialmodell”, Friedrich Ebert Risiken”. Grundkurs Sozialmedizin/Rehabi- Foundation, Berlin. litation Teil 2, Bayerisches Landesamt für Gesundheit und Lebensmittelsicherheit/ 3 November 2005: “Rechtsakte und recht- Akademie für Gesundheit, Ernährung und liche Rahmenbedingungen auf EU-Ebene”. Verbraucherschutz/Bayerische Akademie für Conference: “Die Zukunft des Europä- Arbeits-, Sozial- und Umweltmedizin, ischen Sozialmodells – Eine deutsche Per- Munich. spektive”, Observatory for the Development of Social Services in Europe and the 19 December 2005: “Country Report Uni- Federal Ministry for Family Affairs, Senior ted Kingdom”. Expert workshop: “Activating Citizens, Women and Youth, Berlin. Labour Market Policies”, Institute for Employment Research (IAB) and Max 10 November 2005: “Europäischer Dienst- Planck Institute for Foreign and Inter- leistungswettbewerb – Chancen für die national Social Law, Lauf/Nuremberg. soziale Arbeit?”. 7th annual fair and congress for the social market in Germany: Markus SICHERT: “ConSozial 2005”, Bavarian State Ministry for Labour, Social Welfare and Family 15 April 2005: “Constitutional Litigation Affairs, Nuremberg. of Welfare Reform in Germany and its Impact on Social Policy and Law-making”. 15 November 2005: Panel discussion Workshop: “Constitutional Litigation of statement: “Zukunft der Altersvorsorge in Welfare Reform – Concepts and Outcomes Deutschland”. 6th SOKA-BAU practitioners’ in Israel and Germany”, Max Planck meeting: “Perspektiven der Altersversorgung Institute for Foreign and International in Deutschland”, SOKA-BAU Service-Vor- Social Law, Munich. sorge über Wirtschaft, Wiesbaden. 21/22 October 2005: “Kooperative Versor- 28 November 2005: Working group gungsformen in einer solidarischen Wettbe- meeting: “Die offene Methode der werbsordnung – Integrierte Versorgung und Koordinierung - eine kritische Bewertung”, Medizinische Versorgungszentren”, Univer- Desk Officers for European Affairs from sity of Rijeka, Rijeka, Croatia. the Laender Ministries of Labour and Social Affairs, Mainz. 19/20 December 2005: “Activating Labour Market Policies – Country Report Nether- lands (Law)”. Workshop: “Activating Labour Market Policies”, Institute for Employment Research (IAB), Lauf/Nuremberg.

91 REPORT 2004-2005

Christina WALSER: 6 November 2004: “Für einen Sozialrat in Deutschland!?”. Annual meeting 2004 of 15 January 2004: “Reformen der the Ökumenische Arbeitsgemeinschaft niederländischen Krankenversicherung”, sozialethischer Institute (ÖAsI), Münster. Max Planck Institute for Foreign and International Social Law, Munich. 4 December 2004: Concluding statement at the colloquium: “Steuer- und Sozialstaat 11 March 2004: “Le système de santé aux im europäischen Systemwettbewerb”, Max Pays-Bas avec les réformes actuelles”, Planck Institute for Intellectual Property, Robert Schuman University, Strasbourg, Competition and Tax Law, and Max Planck France. Institute for Foreign and International Social Law, Munich. 3 June 2004: “Qualitative Voraussetzungen der grenzüberschreitenden Inanspruch- 10 January 2005: Congratulations to Pro- nahme von Krankenhausleistungen”, Max fessor Hans-Heinrich Jeschick (on behalf of Planck Institute for Foreign and the MPG president) at the colloquium on International Social Law, Munich. the occasion of his 90th birthday, Max Planck Institute for Foreign and Inter- Hans F. ZACHER: national Criminal Law, Freiburg/Breisgau.

1 May 2004: “Children and the Future. A 25 January 2005: “Über einige Schwierig- Few Remarks on Intergenerational Solidar- keiten, das Soziale zu lehren – Zur ity”. Xth Plenary Session of the Pontifical Entwicklung der katholischen Soziallehre”, Academy for Social Sciences, Vatican City. University of Applied Sciences (FH), Fulda.

3 May 2004: Report on Democracy. 14 February 2005: On behalf of the MPG Colloquium on the occasion of the Tenth president: “Peter Hans Hofschneider: Anniversary of the Pontifical Academy of Verantwortung für die Wissenschaft”. Social Sciences, Vatican City. Commemoration in honour of Peter Hans Hofschneider, Max Planck Institute of 24 May 2004: After-dinner speech held at Biochemistry, Martinsried. the gala dinner organised by The Chinese Academy of Social Sciences (CASS) on the 19 April 2005: Address held at the dinner occasion of thirty years of cooperation on the occasion of the symposium for the between the Max Planck Society and 70th birthday of Professor Herbert Walther, CASS, Beijing, China. Max Planck Institute of Quantum Optics, Garching. 23 June 2004: “Verantwortung für den Sozialstaat: gesamthafte Rationalität und 29 June 2005: Address held (on behalf of institutionelle Reform”. Conference: the MPG president) on the occasion of the “Sozialstaats-TÜV Grundlagen einer 25th anniversary of the German-Spanish langfristigen Reformpolitik”, Katholisches Astronomical Center (DSAZ) at Calar Alto Forum Niedersachsen, Hanover. Observatory and the rearrangement of the German-Spanish cooperation on the joint 30 June 2004: Address (also on behalf of use of astronomical facilities, Spain. the MPG president) held at the colloquium celebrating the emeritus status of Dr. 22 September 2005: Federal Conference Rosenbauer, Max Planck Institute for 2005: “Sozialstaat und Rechtsschutz”, Aeronomy, Lindau. Deutscher Sozialrechtsverband e.V., Leipzig. 11 October 2004: “Kinder und Zukunft – einige Anmerkungen zur intergeneratio- 1 December 2005: FNA annual meeting nellen Solidarität”, Faculty of Law, 2005: “Das ‚Soziale’ als Begriff des University of Wroclaw, Poland. deutschen und des europäischen Rechts”, Erkner near Berlin.

92 VI. PAPERS AND LECTURES

2. Lectures Guest lectures:

Ulrich BECKER: 2003/2004; 2004/2005: Course on “European and International Social Secur- Ludwig-Maximilians-Universität, Munich: ity” under the “European Master in Social Security” programme, Catholic University WS 2003/2004: Lecture on public law: Leuven, Belgium. “Verwaltungsrecht II” (local government law) (2 h). 15/16 April 2004: Lecturers’ meeting (European Master in Social Security), WS 2003/2004: Lecture on social law: Leuven, Belgium. “Sozialversicherungsrecht” (2 h). 17 August 2004: “Introduction to WS 2003/2004: Public law seminar: European Social Policy” (Diploma Class), “Dimensionen rechtlicher Gleichheit University of Johannesburg/South Africa. – dogmatische, vergleichende und theoreti- sche Aspekte” (with Alexander Graser) (2 h). 17 August 2004: “European Social Policy and Social Security Coordination” (Master SS 2004: Public law seminar: “Sportrecht” Class), University of Johannesburg/South (2 h). Africa.

WS 2004/2005: Lecture on social law: 18 August 2004: “Introduction to the “Sozialrecht I” (2 h). Coordination of Social Security Systems in the EU” (Diploma Class), University of WS 2004/2005: Lecture on public law: Johannesburg/South Africa. ”Verwaltungsrecht II” (local government law) (2 h). 20 August 2004: “European Social Policy and Social Security Coordination” (Master WS 2004/2005: Public law seminar: “Per- Class), Mafikeng Campus, Northwest spektiven des Sozialstaats – Verfassungs-, University/South Africa. europa- und zivilrechtliche Bezüge” (with Alexander Graser) (2 h). 11 December 2004: “Entwicklungen des Sozialrechts in internationaler Perspektive”, SS 2005: Public law seminar: “Rechtsfra- Renmin University of China (People’s gen des Sports” (2 h). University), Beijing, China.

WS 2005/2006: Lecture on social law: 2004/2005: Lectures held at the Athinisin “Sozialrecht I” (2 h). Ethnikon Kai Kapodistriakon Panepistimion, Athens, under the SOCRATES/ERASMUS WS 2005/2006: Lecture (focal subject 5): staff exchange programme “Grundlagen des Sozialversicherungsrechts” (2 h). 2004/2005 between Ludwig-Maximilians- Universität of Munich and the Law Faculty WS 2005/2006: Public law seminar: of the University of Athens, Greece. “Antidiskriminierungsrecht in Deutschland/ Antidiscrimination law in Germany” (with 16 May 2005: “European social law and the O. Dupper) (2 h). EC coordination of social security systems”.

WS 2005/2006: Seminar (focal subject 5): 16 May 2005: “Introduction to European company law: labour and social law; former social policy”. Doctoral seminar “Sozialver- focal subject 4: company law and labour sicherungsrecht”. law: “Arbeits- und Sozialrecht in Europa” (with M. Coester and P. Tröster) (in co- 17 May 2005: “The German statutory operation with the University of Prague). health care insurance and cross-border medical treatment”. Doctoral seminar: “Gesundheitsrecht”.

93 REPORT 2004-2005

10 August 2005: “The impact of constitu- 22 June 2004: “Affirmative action in South tional law on social security” (Master Africa and the United States: Justifying the Class), University of Johannesburg/South unjustifiable?”, Faculty of Law, Ludwig- Africa. Maximilians-Universität, Munich.

11 August 2005: “Fundamental rights and 13 March 2005: “Ensuring Equality social security”, Mafikeng Campus, through Law: Issues in Affirmative Action Northwest University/South Africa. from a Comparative Perspective”, Venice International University, San Servolo, 12 August 2005: “Fundamental rights and Venice, Italy. social security”, Campus Wilderness near George, South Arfrica. Alexander GRASER:

15 August 2005: “The impact of constitu- Ludwig-Maximilians-Universität, Munich: tional law on social security” (Post-Gradu- ate Diploma in Social Security), University WS 2003/2004: Seminar: “Dimensionen of Johannesburg/South Africa. rechtlicher Gleichheit” (with mit U. Becker) (2 h). 28 November 2005: “Entstehung, Ent- wicklung und Perspektiven der Sozialver- WS 2003/2004: Study group: sicherung in Deutschland”, Renmin “Kommunalrecht” (1 h). University of China (People’s University), Beijing, China. WS 2004/2005: Seminar: “Perspektiven des Sozialstaats” (with U. Becker) (2 h). Carlos L. COTA: WS 2004/2005: Study group: 2004/2005: “Basics in Legal English”, “Kommunalrecht” (1 h). Faculty of Law, Ludwig-Maximilians- Universität, Munich (2 h). Eva-Maria HOHNERLEIN:

Ockert C. DUPPER: 20 September 2005: “La Réforme des Retraites en Italie de 2004”, seminar on the WS 2004/2005: LLM in Labour Law, pension reforms in Italy, Institut de Travail, Nelson Mandela Metropolitan University, University of Strasbourg, France. Port Elizabeth, South Africa (with A. van der Walt) (2 h). Otto KAUFMANN:

WS 2004/2005: Employment Discrimin- Robert Schuman University of Strasbourg, ation Law, University of Stellenbosch, France: South Africa (with Chr. Garbers) (2 h). 2004: Institut du travail: Seminars on WS 2005/2006: Antidiscrimination law in German, French and European law. Germany – international and comparative perspectives, Ludwig-Maximilians- 2004: Faculté de droit: European social Universität, Munich (with U. Becker) (2 h). law, German and French labour and social law. Guest lectures: 1 June 2004: Lecture at the IAE (institut 18 May 2004: “Remedying the Past or d'administration de l´entreprise): basic Reshaping the Future? Justifying Race- principles of German labour law. Based Affirmative Action in South Africa and the United States”, Faculty of Law, 11 December 2004: Report on a doctoral Johann Wolfgang Goethe-Universität, thesis (rapporteur de thèse). Frankfurt/Main. 2005: Institut du travail: Seminars on German, French and European law.

94 VI. PAPERS AND LECTURES

2005: Master (former DEA; Master 2): Bernd BARON VON MAYDELL: European social law; basic prinicples of codetermination (participation); basic 30 January – 1 February 2005: principles of business transfers (on the Introduction to European labour and social basis of both European and national law). law, University of Rijeka, Croatia (in English) (8 h). 2005: Magistère franco-allemand: German labour law. April 2005: Introduction to the German law of obligations with special regard to the 2005: Institut d'Administration de law reform, University of Tartu, Estland l'Entreprise, IAE: International and (20 h). European labour and social law, German labour law. Hans-Joachim REINHARD:

Other universities: Various courses under his professorship at the University of Applied Sciences (FH) 15/16 October 2004: Lecture on German Fulda, Social & Cultural Sciences social law and retirement provision in an Department, study course: “Sozialrecht”. international comparison within the scope of the "Master protection sociale", Friso ROSS: (formerly DESS protection sociale), Université de Rennes I and Ecole nationale WS 2004/2005: 1st state examination de la santé publique, ENSP (9 h). prparatory course on public law: Constitutional and European Community 2/3 December 2004: 1st seminar, inter- law, Ludwig-Maximilians-Universität, national project: Old-age, a social risk?, Munich (with C. Ohler, C. Herrmann, Université de Bordeaux IV, Comptrasec/ K. Engelbrecht) (6 h). CNRS (German report).

December 2005: Université de Rennes I and Ecole nationale de la santé publique, ENSP: Master droit, santé, éthique and Master protection sociale: droit de la protection sociale "On the origins and current situation of social law, health insurance and pension insurance in Germany" (in French) (9 h).

95 REPORT 2004-2005

96 VII. Grantees and Guests REPORT 2004-2005

1. Grantees

1 January 2004 – 31 December 2005: 1 October 2004 – 24 March 2005: Dr. Prof. Dr. Ockert C. DUPPER, Stellenbosch Alpay HEKIMLER, Faculty of Economics, University, South Africa: “Entwicklungen Dept. of Labor Economics and Industrial und Reformen des Sozialrechts in den USA Relations, University of Istanbul, Turkey: in vergleichender Perspektive” (Development “Flexible Arbeitszeitmodelle in Deutschland and reforms of social law in the United im Lichte des europäischen Arbeits- und States from a comparative perspective). Sozialrechts” (Flexible working time models in Germany in the light of European labour 1 January 2004 – 31 December 2004: and social law). Dr. Katsuaki MATSUMOTO, National Institute of Population and Social Security 23 May 2005 – 17 June 2005: Dr. Grant Research, Ministry of Health, Labour and DUNCAN, School of Social and Cultural Welfare, Tokyo, Japan: “Anpassung von Studies, Massey University Albany, Sozialversicherungssystemen an die gesell- Auckland, New Zealand: “New Zealand’s schaftliche und wirtschaftliche Entwicklung family assistance/tax credit policy, as – Japan und Deutschland im Rechtsver- announced in the 2004 Budget and to be gleich” (Adjustment of social insurance implemented over the next two years”. systems to societal and economic developments – Japan and Germany in a legal 1 July 2005 – 30 September 2005: comparison) (funded by the Volkswagen Dr. David MONTOYA, Dept. of Labour Foundation). Law and Social Security, University of Alicante, Spain: “Pension plans in the 1 June 2004 – 28 July 2004: Prof. Dr. European Union from a comparative Robert F. RICH, College of Law, University perspective”. of Illinois, Champaign, USA: “Social Contract and Health Policy”. 1 August 2005 – 31 December 2005: Dr. Fangfang YANG, Renmin University of 14 June 2004 – 2 July 2004: Dr. Grant China, Beijing, China: “Systematic DUNCAN, School of Social and Cultural comparison of governments´ responsibility Studies, Massey University Albany, for social insurance between Germany and Auckland, New Zealand: “Concepts and China”. indicators of well-being as basic objectives for social security”.

1 July 2004 – 30 July 2004: Prof. Dr. Sidnei BENETI, Faculty of Law, São Bernardo do Campo, São Paulo, Brazil: “Sozialrecht und Sozialgerichtsbarkeit” (Social law and social jurisdiction).

98 VII. GRANTEES AND GUESTS

2. Guests

1 January 2004 – 23 April 2004: Yaraslau 2 September 2004 – 14 September 2004: KRYVOI, Director International Human Prof. Dr. Kazuaki TEZUKA, Dept. of Law, Resources Centre ‚Professional’, Minsk Faculty of Law & Economics, Chiba Institute of Contemporary Technologies and University, Chiba, Japan. Preparations for Marketing, Minsk, Belarus. Research pro- the German-Japanese conference held on ject: “Auswirkungen der Globalisierung auf 18/19 November 2004 at Cologne: die Systeme sozialer Sicherheit” (Effects of “Reforming Social Security in Japan and globalisation on social security systems). Germany: Comparative Studies”, library research. 1 March 2004 – 30 June 2004: Dr. Matteo BORZAGA, University of Trento, 27 September 2004 – 22 October 2004: Italy: “Bibliotheksrecherchen im Rahmen Hui-Hua SHIH, Section Chief of the eines Equal-Projekts der EU” (Library Bureau of National Health Insurance, research under the EU project EQUAL) Underwriting Division, Taipei, Taiwan: “Health security for the poor and other 2 July 2004 – 21 July 2004: Prof. Dr. disadvantaged groups in Germany and other Terry CARNEY, Faculty of Law, University European countries”. of Sydney, Australia: “European experience with neoliberal (semi-privatisation) con- 18 October 2004 – 31 October 2004: tracting arrangements in welfare (e.g. some Prof. Dr. Ute KÖTTER, University of of the UK so-called third-way ideas), Applied Sciences (FH) Cologne, Dept. of mental health issues, adult guardianship”. Social Work. Research on a comparative study: “Reform des Sozialhilferechts in 5 July 2004 – 20 July 2004: Dr. Peter Deutschland, den Niederlanden und Groß- HERRMANN, Dept. of Applied Social britannien” (Reform of social assistance law Studies, University College Cork, Ireland: in Germany, the Netherlands and Great “Personenbezogene Dienstleistungen und Britain). soziale Einrichtungen in vergleichender und europäischer Perspektive” (Personal services 1 December 2004 – 28 June 2005: and social institutions from a comparative Wenyong DONG, The Institute of Law, and European perspective). CASS, Beijing, China: “Juridical comparison of German and Chinese health insurance”. 16 July 2004 – 23 August 2004: Prof. Dr. Miyoko MOTOZAWA, Institute of Social 13 December 2004 – 30 November 2005: Sciences, Tsukuba University, Tokyo, Japan: Prof. Dr. Satoshi KURATA, School of Law, library research. Hokkaido University, Sapporo, Japan: “Rechtsvergleichende Untersuchung der 2 August 2004 – 20 August 2004: Prof. Organisationssysteme japanischen und Dr. Makoto ARAI, The Institute for deutschen Sozialversicherungsrechts” Advanced Postgraduate Studies of Business (Comparative law study of organisational Law, Tsukuba University, Tokyo, Japan: systems of Japanese and German social “Das Betreuungsgesetz im Zusammenhang insurance law). mit dem deutschen und japanischen Sozial- recht” (The law governing care and control 13 December 2004 – 30 November 2005: (guardianship) with regard to German and Dr. Kayo KURATA, School of Law, Japanese social law). Hokkaido University, Sapporo, Japan. Research on: “Rentenversicherungssysteme in Deutschland und Japan und der demo- grafische Faktor, Schutz der Familie, Pflegeversicherung, Krankenversicherung” (Pension insurance systems in Germany and Japan with regard to the demographic factor, family protection, long-term care insurance and health insurance).

99 REPORT 2004-2005

1 January 2005 – 30 June 2005: Dr. 4 August 2005 – 31 Ocotber 2005: Jakub Katsuaki MATSUMOTO, National PAWELEC, Jagiellonian University in Institute of Population and Social Security Krakow, Poland: “Betriebliche Altersversor- Research, Ministry of Health, Labour and gung in Polen, Deutschland und Öster- Welfare, Tokyo, Japan: “Anpassung von reich” (Occupational pensions in Poland, Sozialversicherungssystemen an die gesell- Germany and Austria). schaftliche und wirtschaftliche Entwicklung – Japan und Deutschland im Rechtsver- 1 September 2005 – 31 October 2005: gleich” (Adjustment of social insurance Prof. Dr. Yu-Jun LEE, Dept. of Public systems to the societal and economic Policy and Administration, National Chi- developments – Japan and Germany in a Nan University, Puli, Taiwan: “Die Errich- legal comparison). tung der Sozialkammern in der Verwal- tungsgerichtsbarkeit und die Einbindung 7 February 2005 – 18 March 2005: Prof. ehrenamtlicher Richter in Taiwan” (The Dr. Thomas GÄCHTER, Rechtswissen- establishment of social divisions in admin- schaftliches Institut, University of Zurich, istrative jurisdiction and the integration of Switzerland: “Grundlagen des schweizeri- lay judges in Taiwan). schen Sozialversicherungsrechts. Das schweizerische Sozialversicherungsrecht in 1 October 2005 – 31 December 2005: seiner völker-, verfassungs- und verwal- Surab KWIRKWAIA, Institute of State and tungsrechtlichen Einbettung” (The basic Law, Georgian Academy of Sciences, Tiflis, principles of Swiss social insurance law. Georgia: “Möglichkeiten und Grenzen für Swiss social insurance law in its inter- den Aufbau des Sozialstaates in postkom- national, constitutional and administrative munistischen Gesellschaften” (Possibilities law context). for and limits to welfare state construction in post-communist societies). 11 July 2005 – 19 July 2005: Prof. Dr. Terry CARNEY, Faculty of Law, University 4 October 2005 – 28 October 2005: Prof. of Sydney, Australia: “Australian Social Dr. Kazuaki TEZUKA, Faculty of Law and Security Law & Policy. Welfare State or Economics, Chiba University, Japan: “Ge- Welfare Market?”. sundheitsreform in Deutschland und Japan” (Health care reform in Germany and Japan) 20 July 2005 – 22 August 2005: Prof. Dr. and “Demographische Entwicklung in Miyoko MOTOZAWA, Institute of Social Deutschland und Japan und der Einfluss Sciences, Tsukuba University, Tokyo, Japan. auf die Rentenpolitik” (Demographic Joint project: “Familienpolitik” (Family development in Germany and Japan and its policy). impact on pension policy).

2 August 2005 – 25 August 2005: Prof. 21 November 2005 – 31 December 2005: Dr. Makoto ARAI, The Institute for Prof. Dr. Leonie STANDER, Faculty of Advanced Postgraduate Studies of Business Law, North-West University, Potchefstroom, Law, Tsukuba University, Tokyo, Japan: South Africa: libarary research. “Zweites Betreuungsänderungsgesetz im Zusammenhang mit dem deutschen Sozial- recht” (Second amendment to the law on care and control (guardianship) in connection with German social law).

100 VIII. The Institute REPORT 2004-2005

1. Personalia

Scientific Members

Prof. Dr. Ulrich Becker, LL.M. (EHI) Managing Director Prof. Dr. Bernd Baron von Maydell Emeritus Prof. Dr. Dr. h.c. mult. Hans F. Zacher Emeritus

Research Staff Academic Assistants

Carlos L. Cota (Internet and CMS) Katharina Beckmann (from 10/2005) Dr. Barbara Darimont Stefan Berger (09/2004 to 05/2005) Dr. Alexander Graser Martin Breuer Dr. Eva-Maria Hohnerlein Nuria Homfeld (from 10/2005) Dr. Otto Kaufmann Susanne Jagla (from 10/2004) Dr. Peter A. Köhler Sabine Keseberg (until 07/2004) George Mpedi, LL.M. Simone Knab (until 08/2004) Prof. Dr. Hans-Joachim Reinhard Dr. Matthias Knecht Dr. Friso Ross Claudia Laes Dr. Bernd Schulte Claudia Matthäus (from 10/2005) Dr. Markus Sichert (from 12/2004) Douglas von Rittberg (from 09/2005) Dr. Christina Walser Alexander Sopp (08/2004 to 12/2005) Franziska Thanner (until 06/2004) Quirin Vergho (until 06/2005)

Doctoral Candidates Student Assistants

Monika Goller (until 06/2005) Lena Dobnig (from 08/2004) Maria Grienberger-Zingerle (from 02/2004) Carolin Drägert (until 01/2005; 03/2005 to Thomas Köster (04/2004 to 06/2004) 07/2005) Martin Landauer Pia Jaeger Claudia Matthäus (until 09/2005) Eirini-Nektar Kitsara (until 03/2004) Janire Mimentza (from 12/2004) Doreen Knöfel (10/2004 to 09/2005) Benno Quade (from 03/2004) Claudia Mayer Quirin Vergho (from 07/2005) Hana Meyer (until 03/2005) Ariane Wiedmann (until 03/2005) Christine Regnauer (until 04/2004) Markus Schön (from 03/2004) Robert Spisiak (from 12/2004) Ralf Suhre (from 03/2004) Dan Tidten (until 07/2005) Christine Wachter (until 01/2004) Felix Walther (03/2004 to 08/2004; from 11/2005)

102 VIII. THE INSTITUTE

Library Secretariats and Other Services

Christiane Hensel (head) Roswitha Ellwanger Melanie Jackenkroll (from 11/2004) Marlin Freise Silke Klöckner (from 06/2005) Hertha Fricke Irina Neumann Werner Pfaffenzeller Eliane Rammler (until 05/2005) Vera Rosburg Andrea Scalisi Dr. Martha Roßmayer Michaela Tokosova (until 03/2005) Ingrid Werner-Böll (partial retirem. Melanie Winkler (partial retirem. 2003-2005) 2003-2004) Heike Wunderlich

Administration Translation Services (jointly with the MPI of Cognitive Neuroscience – Munich branch) Esther Ihle Eva Lutz Josef Kastner (head) Annemarie Batzek Jutta Czöppan Daniela Gratzl Elfriede Hurmer IT Karl-Heinz Katzbach (jointly with the MPI of Cognitive Sylvia Klemm Neuroscience – Munich branch) Christine Moser Hans Puchberger Dr. Andreas Wohlschläger (head) Michael Reinert Fiorello Banci (until 02/2005) Hermann Spiegl (until 03/2005) Karl-Heinz Honsberg (until 06/2004) Henryk Milewski (until 09/2005) Axel Römmelmayer Andreas Schmidt Max Schreder (until 06/2005)

103 REPORT 2004-2005

2. Scientific Advisory Board and Board of Trustees

Scientific Advisory Board Board of Trustees

Prof. Dr. Franz Ruland, Frankfurt/M. Prof. Dr. Dr. h.c. Hans-Jürgen Papier, (chair) Karlsruhe (chair) Prof. Dr. Jos Berghman, Leuven Prof. Dr. Friedrich Buttler, Geneva Prof. Dr. Dagmar Coester-Waltjen, Munich Dr. Rob Cornelissen, Brussels Prof. Dr. Danny Pieters, Leuven Dr. Günther Sokoll, St. Augustin Prof. Dr. Bruno Simma, Munich Staatsministerin Christa Stewens, Munich Prof. Dr. Dr. h.c. mult. Michael Stolleis, Dr. Werner Tegtmeier, St. Augustin Frankfurt/M. Johan Verstraeten, Brussels Prof. Dr. Petr Tröster, Prague Prof. Dr. Georg Wannagat, Kassel Dr. Manfred Wienand, Berlin Matthias von Wulffen, Kassel

104 VIII. THE INSTITUTE

3. Library

The library with its collection of specialised are published four to five times a year in literature on foreign and international social printed form and on the library’s homepage. law offers a unique stock of statutory material and literature from over a hundred Under a library support programme on countries, predominantly in original ver- behalf of the Max Planck libraries of the sions. In addition, it embraces very specific humanities section, our library was granted collective fields on relevant research pro- reinforcement funds through which it subjects, and literature on subjects which in the stantially extended and exploited its holdings light of current political developments in in two areas. Thus, these funds were used to Europe are gaining ever more significance, fill gaps in the library’s stock and to tap the for instance the European Union’s enlarge- resources of specific collective fields. The ment to the east. Complementary legal latter concerned such countries as China, fields (e.g. European Community law, labour South Africa, Austria and Switzerland, as law, commercial law) are also represented as well as transformation processes in develop- base literature. ing countries and interdisciplinary projects with economic and social scientists. These The library currently comprises some additional procurements have augmented 84,000 volumes, consisting of 170 loose- stock growth by about a third over the past leaf collections, approx. 7,570 bound jour- two years. nals and continuing sets, as well as 255 current periodicals – of which 124 are pub- A second large-scale project under the spe- lished in the German language and 131 in cial funding programme is due to be imple- others – and 7 newspapers. The library’s mented: Institute publications from 1976 holdings have grown by about 6,500 publi- until today are to be made accessible on our cations over the past two years. homepage database. The database will re- cord publication data in such a way as to Publications by the academic staff are permit their flexible retrieval, their research archived and made accessible on a central according to different formal and contextual electronic server (eDoc) of the Max Planck criteria, and their citation in a variety of de- Society. Furthermore, new acquisition lists sired formats. For instance, the bibliography

105 REPORT 2004-2005

for the Institute Report can thus be gener- Via the new Aleph version, our library – to- ated automatically. The database will offer gether with the library of the Munich-based comprehensive access to the Institute’s pub- Max Planck Institute for Intellectual Prop- lished research results. A potential step erty, Competition and Tax Law – will be af- would be to provide access to full texts on filiated with the Bibliotheksverbund Bayern the Intranet in the form of scanned PDF (BVB), which has been applying Aleph as a files. network software for over a year. In this way, existing titles can be conveyed to the local The entire collection of monographs and database, the external data of other large periodicals as well as all orders are recorded libraries can be used (e.g. Library of Con- on the online catalogue. Library users and gress), and a high standard of uniform cata- staff are thus able to access holdings quick- logue entries is guaranteed. Furthermore, ly and effectively. In February 2006, a new this cooperation offers external users sub- version of the Aleph software will lead to stantial information on the holdings of our substantial system enhancement. The previ- specialised library. ous user interfaces of several modules are to be completely redesigned, offering addition- In addition to the online catalogue, users al functionalities (e.g. in web OPAC) and, in can also access other online and CD ROM particular, two new components which are databases. Over and above this, the library to become applicable over the next few provides information and research options years: on particular subject areas from legal and general bibliographic sources on the Inter- With the help of a self-check module, the net. These include electronic journals offer- lending procedure is to be converted into an ing Max Planck Institutes free access within electronic circulation system. the EZB system (electronic journal library), as well as the online databases furnished by The ADAM module will enable so-called a number of publishing syndicates through catalogue enrichment, meaning the indices, joint institute contracts. The Internet also particularly of periodicals and Festschriften, permits the use of other libraries, databases, can be scanned and incorporated into the electronic journals and services. online catalogue and thus made research- able. The project will involve the collabor- Unavailable books can be obtained from the ation of several, mostly law-oriented libraries, Bavarian State Library or other facilities in which will scan their own holdings, load the vicinity. Urgent requests for literature them onto a central server and place them at not at hand in Munich are met by a docu- the disposal of all libraries. Shortly, 34 Max ment delivery service, which supplies jour- Planck Institutes will be using Aleph. The nal essays (usually by e-mail) as well as system is administered on a central server in monographs. Göttingen and accessed by the libraries via their own adaptation tailored to their specif- In addition to the foreign guests who worked ic requirements. In addition, the Max in the Institute over a prolonged period, Planck Society’s information portal VLib approx. 520 guests used the library. (Virtual Library) permits access to the hold- Christiane Hensel ings of almost all MPI libraries and to many other local resources of importance to the respective libraries.

106 VIII. THE INSTITUTE

4. Homepage and Internet

This Institute has had a long IT cooperation evaluation of efficient Internet solutions. with the Department of Psychology of the The task led to the formation of a project Max Planck Institute for Cognitive and group consisting of members from the IT de- Brain Sciences (MPI CBS; until 2003 the partments together with researchers from Max Planck Institute for Psychological Re- the respective institutes. search). What in the beginning started as pooling based on the common office build- The Technical Side ing and network system used by the two In- stitutes has given way to interesting resource The first technical questions consisted in management and sharing solutions which, in finding solutions for the implementation, turn, resulted in IT developments and ad- adaptation and/or complete restructuring of vancements for all who have been involved. various data sources and data storage sys- Besides the daily tasks of network adminis- tems to suit the output necessities. Data tration, some of the key advancements in output of any system would have to fulfil the 2005 for the consolidated IT department criteria of the web interface without com- were using and developing open-source solu- promising flexibility, accessibility and secur- tions to increase network security and speed ity. Furthermore, data exports have to meet as well as developing and/or improving data- the technical standards of the various import base solutions for contact, communication and storage and/or publication systems used and publication information management. by the Max Planck Society.

The centralisation of MPI CBS in Leipzig The Legal Side will cause the IT department to be separated accordingly. This, nevertheless, was not In addition to the contents, from a research- apparent with regard to the advancements er’s point of view, accessibility, structure and, made in the past year. Not only has the in- of course, how to best find the information ternal information exchange been improved, are all factors on deciding what and how the but also the basis for researcher information information output should be. The group’s pooling has been laid down. Databases were work paved the way to results which will thus conceived and implemented to also ac- shape the respective institutes’ internal and commodate expansions concerning internal external information availability and struc- and external contact information usage, ture, as well as for the future inter-institute alumni contact platforms and forums, co-operation. searchable publication listings (including contents and participants’ information, com- CMS ments and notes) as well as other extensions as foreseen also in association with the exist- The group’s conclusions led to a centralised ing collaborations of this Institute in general contents management system (cms) with, and with other institutes on specific pro- however, divided instances and separated jects. web servers for the individual institutes. Once the framework was established, sub- Internet: IT for Law or Law by Way of IT? groups further determined the actual design, sitemap and data and/or database struc- The Internet co-operation between the legal ture(s) to be implemented into the final sys- research Max Planck Institutes not only re- tem. The collaboration allowed for a rather sulted in the harmonisation of the respective complete analysis of the various electronic online information structures but has also presentation issues which exist in any provided a basis for such novelties as a col- academic research institute. This was then lateral, consolidated system. The latter will narrowed down to the necessities of publica- thus allow the user to quickly access an over- tions concerning law issues and the require- view of legal information from all of the par- ments of the researchers within an institute ticipating institutes and respective legal to obtain and display their information. fields. The collaboration began with the assessment of the common necessities and the

107 REPORT 2004-2005

As for the users or visitors of the new cms, - Board of trustees of the Institute for La- the co-operation has allowed for harmonisa- bour Law and Industrial Relations in the tion of the respective sites’ structure. Being European Community (IAAEG), Trier familiar with one of the platforms will basic- - Board of trustees of the Institut für euro- ally signify familiarity with the others. Fur- päische Verfassungswissenschaften at the thermore, the road has been paved for a Fern-Universität (supported distance unified platform on which all of the partici- learning) in Hagen pants may present information on law in gen- - Advisory board of the Graduate School of eral and specifically concerning the respect- Social Sciences (GSSS) of the University ive institute. This means that one platform of Bremen on the subject of “The can allow for general comparisons regardless Modern Welfare State” of the field of law and access to general or - Disciplinary committee of the German cross-institute resources, whilst providing Athletics Association (DLV) the necessary indications for which the par- - Research advisory board of the journal ticular institute may provide the details. Social Security Studies (Shehui baozhang Carlos L. Cota yanjin), Beijing, China - Working group of the Leopoldina/Acatech on opportunities and problems of an aging society: the world of work and lifelong learning 5. Honours - Executive board of the Gesellschaft für Rechtsvergleichung Ulrich BECKER: - Executive board of the German division of IGRAS 28/11/2005: Appointment as Guest - Steering Committee of the GVG Professor at Renmin University of China, - Executive board of the social insurance Beijing, China. division of the Deutsche Verein für Versicherungswissenschaft Hans F. ZACHER: Ockert C. DUPPER: 2004: Officer of the National Order of Merit of the Republic of France. - Research advisory board of the Deutsch- Südafrikanische Juristenvereinigung

6. Work of Institute Eva-Maria HOHNERLEIN: Members in External - Referee for the journal Sozialer Fortschritt

Bodies Otto KAUFMANN:

Ulrich BECKER: - Advisory board of the journal Bulletin de droit comparé du travail et de la sécurité - Arbitrator’s award office of the leading sociale, COMPTRASEC UMR CNRS, associations of statutory health insurance Université Montesquieu-Bordeaux IV, at the Bundesverband der landwirtschaft- France lichen Krankenkassen - Research promotion council of the Bernd BARON VON MAYDELL: Deutsche Rentenversicherung – research network on old-age pensions (FNA) - Independent member and chairman of - Editorial board of the journal Internatio- the board of arbitration pursuant to nale Revue für Soziale Sicherheit (issued § 129(8) SGB V (registered pharmacies) by IVSS) - Independent member of the Bundes- - ISSA Research Advisory Board schiedsamt für Kassenzahnärztliche Versor-

108 VIII. THE INSTITUTE

7. Legal Opinions

gung (Federal arbitration office for Hans-Joachim REINHARD: medical treatment by CHI physicians) - Deputy chairman of the old-age pension 31 March 2004: Opinion on behalf of the division of the Deutsche Juristentag, Bonn Oberlandesgericht Schleswig-Holstein on the 2004 assessment of Austrian pension - Chairman of the project group on Euro- entitlements in effecting pension rights pean social policy of the Europäische adjustment (on divorce). Akademie in Bad Neuenahr - Expert commission on “objectives of old- 7 May 2004: Opinion on behalf of the age policy” of the Bertelsmann Amtsgericht Osnabrück on the assessment Foundation of British pension entitlements in effecting - Expert group on European issues on be- pension rights adjustment. half of the German Bishops’ Conference - Group of consultants for the application 2 August 2004: Opinion on behalf of the of Article 76 of the European Code of Oberlandesgericht München on the assess- Social Security, Strasbourg, France ment of Austrian pension entitlements in - Commission on the evaluation of the effecting pension rights adjustment. civil-law institutes of the Faculty of Law of the University of Graz, Austria (2005) 25 October 2004: Opinion on behalf of the Amtsgericht Trier on the assessment of Hans-Joachim REINHARD: British pension entitlements in effecting pension rights adjustment. - Advisory board of the Revista Internacio- nal de Direito Tributario, Belo Horizonte, 28 November 2004: Opinion on behalf of Brazil the Amtsgericht Oldenburg on the assessment of British pension entitlements in Bernd SCHULTE: effecting pension rights adjustment.

- Chairman of the research group on 21 February 2005: Opinion on behalf of “European social law/European social the Landessozialgericht Niedersachsen- policy” at the Deutsche Verein für öffentli- Bremen on the crediting of Swiss pension che und private Fürsorge rights (accruing from divorce) against - Chairman of the “Europa” research group German survivors’ pensions. of the international sub-committee of the Gesellschaft für Sozialen Fortschritt 14 May 2005: Opinion on behalf of the Amtsgericht Fürth on the assessment of Hans F. ZACHER: U.S. pension entitlements in effecting pension rights adjustment. - Honorary Member of the Senate of the Max-Planck-Gesellschaft 3 June 2005: Opinion on behalf of the - Member of the executive board of the Amtsgericht Schorndorf on German-Israeli Deutsche Sozialrechtsverband social insurance agreements. - Member of the research advisory board at the German Federal Ministry for 11 August 2005: Opinion on behalf of the Economics Amtsgericht Königstein/Taunus on Spanish - Member of the research advisory board invalidity insurance. for the publication project “Geschichte der Sozialpolitik in Deutschland seit 1945” (Bundesministerium für Arbeit und Sozialordnung/Bundesarchiv) - Member and Council Member of the Pontifical Academy of Social Sciences - Member of the Board of Governors of the Weizmann Institute in Rehovot/Israel

109 REPORT 2004-2005

8. Alumni

Friso ROSS: The Institute has been researching, analysing and publishing, thereby providing 27 October 2005: Opinion on behalf of legal information to governments, NGOs, the Landgericht Rottweil on Swiss liability courts, academics, students and the general and accident insurance law; subrogation of public for over twenty-five years. This has integrity compensation; principle of only been possible thanks to the people who congruence; conflict between international have participated in the Institute’s research, private law and international social publications and the building of the know- (security) law. ledge base which has been essential for past, current and future studies. The social law Christina WALSER: community also deserves our recognition. The logical solution is therefore to establish 7 May 2004: Opinion on behalf of the a system which allows the Institute to pro- Amtsgericht Bad Neuenahr-Ahrweiler on the vide a reunion of former and current mem- legal personality of Belgian health bers, as well as to inform alumni of current insurances and on the assignment of claims events, lectures and publications and pro- to the refund of medical treatment costs vide a means of communication between under Belgian law. them. Technical advancements and developments are also to permit alumni to register 9 October 2004: Opinion on behalf of the and thus reassume their ties to the Institute. Amtsgericht Husum on Dutch pension Further to providing a “social-law directory”, rights adjustment. perhaps one of the most interesting aspects of the alumni network will also include a platform on which information exchanges can directly take place. Participants will thus be able to ask their questions and brainstorm with their colleagues at will. Carlos L. Cota

110 IMPRESSUM

Impressum:

V.i.S.d.P.: Der Geschäftsführende Direktor Prof. Dr. Ulrich Becker, LL.M. (EHI) Max-Planck-Institut für ausländisches und internationales Sozialrecht Amalienstraße 33 80799 München Tel.: +49-89-38602-511 Fax: +49-89-38602-590

Design & Litho: HM Scherer GmbH Druck & Kommunikation Munich

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