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 place- ment 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 lec- tures (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 pat- terns 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.